Law Library Letter: July 2006

Monday, July 31, 2006

Summary 2006 WY 95

[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: Closs v. Schell

Citation: 2006 WY 95

Docket Number: 05-243

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

Representing Appellants (Petitioners): Charles S. Chapin, of Crowell, Chapin, & Dixon Casper, Wyoming.

Representing Appellees (Respondents): James A. Hardee, Douglas, Wyoming

Date of Decision: July 31, 2006

Issues: Whether the viewers/appraisers properly determined the "before and after value" as required by Wyo. Stat. Ann. § 24-9-101(j) and whether the Appellee Board of Commissioners inappropriately disregarded and/or dismissed the comparables relied upon by the Appellants' appraiser when determining the extent of damages to award for the taking of their property for a private road. Whether the Appellants were deprived of due process because one of the three viewers/appraisers did not attend the final hearing. Whether the viewing/appraisal process was nullified because the viewers/appraisers were directed that the private road had to exit from the Appellants' property at a point which intersected with an easement acquired by the Appellants from a third-party. Whether the final report of the viewers/appraisers is invalid because a plat of the chosen road was not filed contemporaneously with the report.

Holdings: Although the before and after values were not separately stated in the final report, two of the viewers testified at the final hearing explaining their determination of damages. Wyoming precedent allowed viewers to testify at the final hearing explaining their valuation rather than requiring the submission of a report. In the case at hand, one of the viewers testified as to his understanding of the methodology for calculating damages. He explained that "you find a dollar value of the property before the easement, and a dollar value after." This testimony demonstrates that the viewers understood that damages were required to be calculated by a "before and after" valuation of the Appellants' property. They then concluded no damages were caused to the property except damages sustained by the actual land taken for the placement of the private road. So long as it is clear from the record the landowner was fully compensated for the difference in values of his land before and after the taking, the action must be sustained. In this case, the viewers understood the assessment of damages required the determination of before and after values of the Appellants' property. A majority of the viewers attended the final hearing and were examined by counsel concerning their valuation process. Clearly it would serve no valid purpose to remand this matter and require the viewers to provide 'before and after' values which would simply reflect the value difference in the amount of the damages already determined.

The Board did not inappropriately disregard the testimony of the Appellants' expert appraiser. After careful consideration of all of the evidence, the Board chose to give the viewers' testimony more weight and credence than the testimony of the Appellants' expert. The Board adequately explained its reasoning for accepting the viewers' testimony. Thus upon review of the record, there was no error in the Board's acceptance of the viewers' assessment of damages. The viewers concluded that the only damages caused to the property were damages sustained by the actual land taken for the placement of the private road. The viewers applied their knowledge of the local conditions and common sense in making their determination. The record makes it apparent that the viewers made the appropriate review utilizing the required "before-after" analysis to determine damages. The viewers also complied with applicable law in making their assessment and substantial evidence exists to support that assessment.

Landowners have a right to a due process hearing before the board in a proceeding to establish a private road because of the property rights that are involved. In the present action, Appellants were afforded a due process hearing before the Board enabling them to lodge their objections concerning the final report submitted by the viewers. Although one viewer was not present to testify, neither the statutes nor case law require the presence of all the viewers at the hearing. Two of the viewers were present to testify and were extensively cross-examined by the Appellants. Nothing prevented the Appellants from subpoenaing the missing viewer or requiring the other viewers to produce copies of the comparables used. Thus, there was no violation of the Appellants' right to due process.

Convenience and reason should prevail in the establishment of roads. In the action at hand, the viewers' report reveals that each proposed route was given appropriate consideration. The report explains that the viewers walked and marked out each route. Upon doing so, they discovered the Appellees' proposal used an existing two-track road that had been utilized to access the property since 1985. The two-track road connected directly to an easement granted by a third party and led to a public road. In contrast, the alternate route proposed by the Appellants was not an existing roadway and required significant cost to build. The proposed alternate route did not connect to the existing easement nor to a public roadway. Additionally, that portion of the Appellants' property contained a sharp incline and soft areas, or "bogs." Establishing a road along this route would also require the road to cross a creek and the removal of many trees. After considering each route, the viewers concluded that the Appellees' proposal was more convenient and reasonable. The Board agreed with the viewers that the Appellees' proposal was more reasonable and convenient. The Board found that the expense and physical obstacles in the alternate proposed route made it impractical except under the most desperate of circumstances. The Board also expressly stated that its decision was not premised on the fact that the alternate proposed route did not connect with the existing easement. The Appellees' sole purpose for filing a petition to establish a private road was to ensure access to their property. A proposed route that requires the building of an entirely new road that does not connect to any other existing roadway or easement is neither convenient nor reasonable. Accordingly, there is no error.

The Board accepted the viewers' report and ordered the Appellees to file a certificate of survey within twelve months. The Board further required that the assessment of damages be paid upon completion of the survey. In addition, the measurements of the road upon the filing of the final plat were the same as the survey filed with the petition for a private road. Even if the measurements had been different, the method used to assess damages in this case could easily have been applied to correct any discrepancies. As a result, any alleged irregularity was de minimis.

The Board's decision was supported by substantial evidence. The viewers did not err in their assessment of damages and the Board did not inappropriately disregard Appellants' appraiser's testimony. The Appellants' due process rights were not violated. The Board and viewers gave appropriate consideration to each of the proposed routes for placement of the road. There was no prejudicial error to the Appellants as a result of the late filing of the plat.

Affirmed.

J. Burke delivered the opinion for the court.

Friday, July 28, 2006

Summary 2006 WY 93

Summary 2006 WY 92

Summary 2006 WY 91

Thursday, July 27, 2006

Summary 2006 WY 90

Summary of Decision issued July 27, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is 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 for assistance.]

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

Case Name: Buehner Block Company, Inc. v. Wyoming Department of Revenue, Excise Tax Division

Citation: 2006 WY 90

Docket Number: 05-175

W.R.A.P. 12.09(b) Certification from the District Court of Laramie County, the Honorable Nicholas G. Kalokathis, Judge.

Representing Appellant (Petitioner): John A. Coppede and Scott Homar of Hickey & Evans LLP, Cheyenne, Wyoming.

Representing Appellee (Respondent): Patrick J. Crank, Attorney General; Michael L. Hubbard, Deputy Attorney General; Martin L. Hardsocg, Senior Assistant Attorney General; and Ryan T. Schelhaas, Senior Assistant Attorney General. Argument by Mr. Schelhaas.

Date of Decision: July 27, 2006

Issue: Whether the Board erred in deciding that these sales were not exempt from Wyoming’s sales tax authority under Wyo. Stat. Ann. § 39-15-105(a)(i)(A). Whether the Board erred in concluding that these sales were subject to Wyoming’s sales tax authority despite the fact that title to the goods passed in Utah where the goods were transferred to a common carrier. Whether the Board erred in any event in failing to give Buehner Block a claimed credit.

Holding: Buehner Block is a Utah corporation, manufacturing concrete blocks in Utah and selling its products both inside and outside that state. The company applied for and received a Wyoming sales and use tax vendor’s license in 1983 but did not collect and remit taxes from the sales at issue. Buehner Block later responded to the preliminary audit findings by taking the position that: (1) it was not a vendor as defined by Wyoming law; (2) the sales were made to customers that were not Wyoming based, and it was unable precisely to calculate the tax; and (3) it used a common carrier to deliver the goods after the product was sold at the point of pickup in Utah.
Wyo. Stat. Ann. § 39-15-103(a)(i)(A) imposes an excise tax, Wyo. Stat. Ann. § 39-15-101(a)(vii) defines “sales”, and the rules of the Wyoming Dep’t of Revenue provide the point at which title or possession of tangible personal property passes to the purchaser. At issue in the instant case is the exemption found in Wyo. Stat. Ann. § 39-15-105(a)(i)(A): Sales which the state of Wyoming is prohibited from taxing under the laws or constitutions of the United States or Wyoming.
Standard of Review: Appellate review under W.R.A.P. 12.09 is limited to a determination of matters specified in Wyo. Stat. Ann. § 16-3-114(c). The Court gives deference to the agency’s findings of fact and does not disturb them unless they are contrary to the great weight of the evidence. The substantial evidence test is the appropriate standard of review in appeals when factual findings are involved and both parties submitted evidence. If the agency’s conclusions of law are in accordance with the law, the Court will affirm them.
Whether the Board erred in deciding that these sales were not exempt from Wyoming’s sales tax authority under Wyo. Stat. Ann. § 39-15-105(a)(i)(A): The question posed is whether the imposition of Wyoming sales tax upon the sales at issue violates the Commerce Clause. The Court discussed National Bellas Hess, Inc. v. Dep’t of Revenue of the State of Illinois and Quill Corp. v. North Dakota as applicable to the instant case. The Supreme Court’s ultimate conclusion in Quill was that the bright-line rule of National Bellas Hess – the Commerce Clause prohibits a state from imposing sales or use taxes upon an entity whose only contacts with that state are by mail or common carrier – remains viable. The State Board concluded that Buehner Block was not so protected because it had not met its burden of proving that its sales personnel no longer traveled in Wyoming, such travel having been asserted in the application for sales tax vendor license and because Buehner Block voluntarily held a Wyoming sales tax vendor license and collected and remitted Wyoming sales taxes. The Court was satisfied that Buehner Block’s historical connection with the Wyoming taxing system provided the substantial nexus needed.
Whether the Board erred in concluding that these sales were subject to Wyoming’s sales tax authority despite the fact that title to the goods passed in Utah where the goods were transferred to a common carrier. A destination sale is one where the seller intends that title or possession of the goods not transfer to the buyer until delivery is made at the designated destination site and the effect upon passage of title of a straight bill of lading is not necessarily changed by the parties’ additional arrangements concerning the payment of freight charges and assignment of the risk of loss. The Court reviewed the State Board’s record and found substantial evidence to sustain the conclusion that the parties intended these to be destination sales.
Whether the Board erred in any event in failing to give Buehner Block a claimed credit: The substance of the State Board’s conclusion is simply that Buehner Block did not prove that the credit actually was given during the period audited. The record evidence was sufficiently cloudy in that regard that the Court could not disagree. Neither the initial spreadsheet nor the credit invoice was made available to the State’s auditors and the spreadsheet was not entered into evidence. The Court stated that one inference from those facts was that the credit invoice did not exist at the time of the audit. Inasmuch as the State Board’s order did not determine the merits of the credit itself so neither did the Court and Buehner Block is free to pursue a refund or credit.

The Court affirmed the decision of the Wyoming Board of Equalization.

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

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

Wednesday, July 26, 2006

Summary 2006 WY 89

Summary 2006 WY 88

Summary 2006 WY 87

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also 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 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: KO V. HDH

Citation: 2006 WY 87

Docket Number: C-05-11

Appeal from the District Court of Albany County, Honorable Jeffrey A. Donnell, Judge

Representing Appellant (Respondent): John Burman, Faculty Director, and Robert J. Percifield, Student Intern, U.W. Legal Services Program, Laramie, Wyoming.

Representing Appellee (Petitioners): Megan E. Overmann Goetz, of Pence & MacMillan, Laramie, Wyoming.

Guardians Ad Litem: Warren A. Lauer and April Jamison, of Lauer Law Office, Laramie, Wyoming.

Representing the Intervenor The State of Wyoming: Patrick J. Crank, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Dan S. Wilde, Senior Assistant Attorney General; Ellen Rutledge, Assistant Attorney General.

Date of Decision: July 20, 2006

Issues: Whether the guardianship statute as interpreted by the district court violates substantive and procedural due process. Whether the district court entered its Order Appointing Temporary Guardians and Conservators in violation of Wyoming law. Whether the challenge to the appointment of Appellee Grandparents as temporary guardians is moot. Whether parental unfitness must be proved at a court hearing before a permanent guardianship is granted to a non-parent.

Holdings: The right to familial association is a fundamental right protected by both the Wyoming and the United States Constitutions. Parents enjoy a constitutionally protected fundamental right to make decisions concerning the care, custody, and control of their children. This fundamental right has been recognized as a liberty interest protected under the Fifth and Fourteenth Amendments to the United States Constitution, and is also found in Wyo. Const. art. 1, § 6, which provides, “no person shall be deprived of life, liberty or property without due process of law.”

When read properly, the guardianship statutes afford adequate procedural protections to a parent and are not constitutionally suspect. Wyo. Stat. Ann. § 3-2-102(b) requires that notice of the filing of an involuntary guardianship be given to the parents of the proposed ward and that Wyo. Stat. § 3-2-102(d) requires that notice shall be given pursuant to the Wyoming Rules of Civil Procedure. Reading these statutes and the Rules of Civil Procedure together leads to the conclusion that a petition for an involuntary guardianship, temporary or permanent, must be served upon the proposed ward’s parents. A parent will receive an opportunity to be heard because the plain language of Wyo. Stat. 3-2-106(a) requires a hearing before the appointment of a temporary guardian, satisfying due process requirements in that regard. The statutes are constitutional and afford adequate due process, if applied correctly. However, the district court did not properly apply the statutes. There is no dispute that Appellee Mother was not served with notice that complied with the Wyoming Rules of Civil Procedure. Because there was no summons, Mother was not informed of the time period she had to respond, how to respond, or what the consequences might be if she failed to respond. W.R.C.P. 4. Had she been properly served and the Wyoming Rules of Civil Procedure followed, Mother would have had time to respond before the requested relief was granted. As for the “subject to any notice” language in Wyo. Stat. 3-2-106, “any notice” does not mean no notice. Read in conjunction with the notice requirements set forth in § 3-2-102 applicable to involuntary guardianships, the notice language of § 3-2-106(a) authorizes the district court to prescribe additional or supplemental notice. As for the exception stated in § 3-2-102(b)(ii), the record is beyond dispute that prior to issuing the temporary guardianship order, the district court failed to make any finding of good cause to excuse the notice requirement. Nothing in the record suggests that good cause existed to excuse notice to Appellant Mother prior to appointing Appellee Grandparents as guardians. Appellee Mother’s procedural challenge to the temporary guardianship implicates constitutional principles as well. When a parent’s fundamental liberty interest is at stake, the State must provide parents “with fundamentally fair procedures.” Custody litigation imperils parents’ fundamental right to enjoy their children’s companionship and to direct their children’s upbringing. This peril is magnified by the difficulty of regaining physical custody once lost. The great weight of the parental liberty interest, together with the significant deprivation of that interest inherent in a loss of physical custody, entitles parents to custody procedures that meet the requisites of due process. Notice and the opportunity to be heard are unquestionably incidental to affording due process of law. Thus, a court must afford a parent notice and a meaningful opportunity to be heard before it can deny the parent custody of his or her children. The district court erred in appointing Appellee Grandparents temporary guardians without adherence to the statutory requirements regarding notice and a hearing. Without affording Mother proper notice and an opportunity to be heard, the district court’s establishment of the temporary guardianship lacked “fundamental fairness.”

A court should not hear a case where there has been a change in circumstances occurring either before or after a case has been filed that eliminates the controversy. The doctrine of mootness encompasses those circumstances which destroy a previously justiciable controversy. This doctrine represents the time element of standing by requiring that the interests of the parties which were originally sufficient to confer standing persist throughout the duration of the suit. Thus, the central question in a mootness case is whether decision of a once living dispute continues to be justified by a sufficient prospect that the decision will have an impact on the parties. A case will not be considered moot when it presents a controversy capable of repetition yet evading review. Under such a rationale two requirements must be met: (1) the duration of the challenged action must be too short for completion of litigation prior to its cessation or expiration; and (2). there must be a reasonable expectation that the same complaining party will be subjected to the same action again. In the present action, absent a finding of good cause, the temporary guardianship was statutorily limited to a maximum of one year, making it unlikely that litigation regarding the temporary guardianship could reach fruition before its expiration. Additionally, the child in question is still a minor, and it is not outside the realm of reasonable possibility that Appellee grandparents would continue to pursue guardianship. Appellant Mother’s claim does not concern a temporary circumstance that has since dissipated. She continues to be deprived of the custody of her daughter, and by this appeal she challenges how those circumstances arose. The record demonstrates that the temporary guardianship formed the basis for the district court’s decision in the permanent guardianship action that is the subject of this appeal. The district court used Appellee Grandparents’ temporary guardianship as the measuring stick of the child’s best interests, and by that measure, Appellee Mother was permanently denied the care, custody, and control of her daughter. Appellee Mother’s challenge to the temporary guardianship will not be viewed as moot where it is clear that the circumstances created by it directly impacted the permanent guardianship determination.

In the context of an involuntary guardianship proceeding where the proposed ward is a minor, a best interests of the child inquiry is not triggered until the district court determines that the minor actually needs a guardian. A child with a parent has a natural guardian and is not in need of a court-appointed guardian, unless the court determines that the child’s natural guardian is not fit. Thus, once the natural parent is deemed fit, the issue of custody is decided. In this case, the district court did not find that Appellant Mother was an unfit parent. At that point, Appellee Grandparents’ petition should have been denied. In the absence of a finding of parental unfitness, the district court’s finding that a guardianship was necessary was clearly erroneous. The district court erred by establishing the permanent plenary guardianship.

Appellee Mother did not receive the statutorily and constitutionally required notice and opportunity to be heard before the temporary guardianship of her daughter was established. Because it did not find Mother unfit as a parent, the district court’s determination that a guardianship was necessary, based solely upon a best interests analysis, was clearly erroneous. The district court’s order appointing Appellee Grandparents as guardians is reversed. The matter is remanded matter to the district court for further proceedings consistent with this opinion and for the entry of any orders necessary and appropriate to effect the termination of the guardianship.

J. Burke delivered the opinion for the court.

Summary 2006 WY 86N

2006 WY 86N is a Per curiam decision dismissing an action for extreme failure to follow the Wyoming Rules of Appellate Procedure by a Pro se litigant. As a Per curiam decision, it is deemed an unpublished disposition.

Wednesday, July 19, 2006

Wyo. State Law Library - new web site

Due to changes within the law library network, the Wyoming State Law Library web site has now been included within the new Wyoming Judicial Branch web site (http://www.courts.state.wy.us/). As such, the addresses for the main law library web site and the Wyoming Supreme Court Cases database have changed. Please update your directories, shortcuts, bookmarks and favorites with these new addresses.

Law Library: http://library.courts.state.wy.us/
Supreme Court Cases database: http://wyomcases.courts.state.wy.us/

If you have any questions, cannot find something, or have any suggestions at all, please do not hesitate to contact me. I would love to have any and all feedback.

Katie Jones
Electronic Services Librarian
Wyoming State Law Library
2301 Capitol Avenue
Cheyenne, WY 82002
307-777-6487 / Fax: 307-777-7240
kjones@courts.state.wy.us
http://library.courts.state.wy.us/

Tuesday, July 18, 2006

Summary 2006 WY 85

[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: Nish v. Schaefer

Citation: 2006 WY 85

Docket Number: 05-221

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

Representing Appellant (Plaintiff): Robert E. Schroth of Schroth & Schroth, Jackson, WY

Representing Appellee (Defendant): George Santini of Ross & Santini, Cheyenne, WY

Date of Decision: July 18, 2006

Issues: Whether the correctly instructed with regard to the use of crosswalks by bicyclists. Whether the trial court abused its discretion by awarding costs to Appellee.

Holdings: The district court's jury instruction concerning the relative rights and responsibilities of the parties was erroneous. However, Appellant failed to present a proper instruction on the law to the district court and failed to designate an adequate record showing, under the plain error standard, he was prejudiced by the instruction. Moreover, the court refused to consider Appellant's allegation the district court erred by awarding certain costs to Appellee because Appellant's separate appeal of the district court's order awarding costs was dismissed for want of prosecution.

In order to determine whether the instructions in the present action properly advised the jury of the law, the relevant statutes dealing with the rights and obligations of bicyclists and drivers of motor vehicles must be interpreted. The rules of statutory interpretation are well known. It must first be decided as a matter of law whether the statute is clear or ambiguous. A statute is unambiguous if its wording is such that reasonable persons are able to agree as to its meaning with consistency and predictability. A statute is ambiguous only if it is found to be vague or uncertain and subject to varying interpretations. When interpreting statutes plain language is applied to give effect to every word, clause and sentence, and construe them in pari material.

In the present case, there are numerous statutes defining the relative duties of drivers and bicyclists. Applying the plain language of the relevant statutes and construing the all the sections together leads to the conclusion that bicycles hold a special place in the law because they can be operated both on roadways and on sidewalks. When a bicyclist is riding in the roadway, he must generally obey the laws governing vehicles. However, unlike motorized vehicles, by law bicycles may also be ridden upon sidewalks because they are human-powered. Logically, the right of a bicyclist to ride upon sidewalks with pedestrians extends to the use of a crosswalk when crossing an intersection. Pursuant to Wyo. Stat. 31-5-403 and 31-5-504, if a bicyclist is lawfully within the crosswalk, a vehicle facing a red light must stop behind the crosswalk, yield the right-of-way to the bicycle, and may not make a right turn until the way is clear.

In the present action, the district court instructed the jury that any person riding a bicycle has the rights and duties applicable to the driver of a vehicle. This statement is consistent with Wyo. Stat. 31-5-702. The instruction continued by stating pedestrians have the right of way in crosswalks and drivers must yield to pedestrians. Again, this is a correct statement of the law under Wyo. Stat. 31-5-403. The instruction also correctly recited the laws pertaining to Appellee's duties to operate his vehicle in a safe manner, refrain from stopping or parking his vehicle on a crosswalk, and stop at the crosswalk for a red light. The district court, however, went awry when it stated that bicyclists are not treated as pedestrians under the law, suggesting bicyclists are always treated as other operators of vehicles. This statement implied to the jury that, because bicyclists are subject to the rules which apply to vehicles and not treated as pedestrians, they may not use a crosswalk. The district court's instruction suggested an overbroad interpretation of § 31-5-702's directive that bicycles are subject to the duties applicable to vehicles. The district court's interpretation did not give effect to § 31-5-120, which specifically states bicycles are allowed to use sidewalks. Construing §§ 31-5-702 and 31-5-120 to give effect to each, a bicyclist must follow the rules applicable to vehicles when riding on the roadway; however, since a bicyclist may also use sidewalks, he has the same rights as pedestrians to use crosswalks at intersections. Thus, the instruction the district court gave incorrectly implied Appellant was not entitled to use the crosswalk. Furthermore, the instruction improperly excluded the law set out in Wyo. Stat. 31-5-403(a)(iii)(C), directing that "vehicular traffic shall yield the right-of-way to pedestrians lawfully within an adjacent crosswalk and to other traffic lawfully using the intersection." This statement of the law was necessary to inform the jury which party had the right of way at the intersection. The jury should have been instructed that Appellant had the right of way while in the crosswalk and Appellee was obligated to yield to him before making a right-hand turn on a red light. As such, the district court did not properly instruct the jury on the law in this case.

However, although Appellant objected to the instruction because it implied he was not entitled to use the crosswalk and did not include the law set forth in § 31-5-403(a)(iii)(C), the record on appeal does not include any specific instructions offered by Appellant to correct the errors. In addition, the record does not include any indication Appellant referred the district court to § 31-5-120 or the cases from other jurisdictions which support the principle that bicyclists may use sidewalks and crosswalks. An objection to an instruction is not complete without a correct typewritten form being handed to the court for its use. Parties have not only the right but the duty to offer instructions. In the absence of submission of a proper written instruction, any claimed error is deemed to have been waived. It is insufficient merely to state that the instruction is not complete or an accurate statement of the law. Having failed to demonstrate he filed an appropriate instruction for the district court's consideration, Appellant must show plain error in order to receive a reversal of the resulting judgment. The well-known elements of plain error are: (1) the record reflects clearly and unequivocally the fact complained of; (2) the facts prove a transgression of a clear rule of law; (3) the error affects a substantial right of appellant; and (4) appellant has been materially prejudiced by that violation.

Here, although the first two elements can be satisfied by the record extant, Appellant must also show material prejudice resulting from the incorrect jury instruction. For an instructional error to warrant reversal, there must be a reasonable probability that, in absence of the error, the verdict would have been more favorable to the appellant. To measure the degree of prejudice, jury instructions are viewed in light of the entire trial, including the allegations of the complaint, conflict in the evidence on critical issues and the arguments of counsel. A five-factor test is used to measure the prejudice resulting from an error. Those factors are: (1) the extent to which there is conflict in the evidence on critical issues; (2) whether or not the argument to the jury may have contributed to the instruction's misleading effect; (3) whether or not the jury requested a re-reading of the erroneous instruction or of related evidence; (4) the closeness of the jury's verdict; and (5) the effect of other instructions in curing the error.

The only portions of the trial transcript designated by Appellant as the record on appeal were the jury instruction conference and the closing arguments. The lack of a full trial transcript makes it impossible to analyze the first and third elements of the test because it cannot be determined the extent of conflict in the evidence on the key issues or whether the jury requested a re-reading of the erroneous instruction or related evidence. Thus, it is impossible for Appellant to show there is a reasonable probability that, in absence of the instructional error, the verdict would have been more favorable to him. Appellant had the responsibility to provide an adequate record to this Court to enable us to conduct our review. The failure to do so is fatal to his claim on appeal.

The district court entered a judgment on the jury's verdict, and ordered costs be awarded to Appellee. Appellant filed a notice of appeal from the judgment on the jury's verdict, which is the case at bar. Appellee then submitted a certified statement of costs, pursuant to Uniform Rule of District Court 501, and a Motion for Award of Costs, pursuant to W.R.C.P. 68, outlining the specific costs requested. Appellant objected to Appellee's requests, but the district court apparently was not convinced by those objections and entered an order awarding all of the specific costs requested by Appellee. Thereafter, Appellant filed a second notice of appeal, challenging the district court's award of costs. That appeal was docketed as a separate action. Appellant did not file a brief in that action and it was dismissed for want of prosecution. Undaunted by the dismissal of the costs appeal, Appellant included an issue in his brief in this case contesting the award of costs. Even though the judgment on the merits referenced costs by directing the parties to file motions for "attorneys' fees and costs," it does not include by implication the appeal from the district court's order on costs and issues pertaining to that order cannot be raised. The costs issue is not properly before the Court because Appellant's costs appeal was dismissed for want of prosecution

Affirmed.

J. Kite delivered the opinion for the court.

Summary 2006 WY 84

Monday, July 17, 2006

Summary 2006 WY 83

Summary of Decision issued July 17, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is 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 for assistance.]

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

Case Name: Shelhamer v. Shelhamer, n/k/a Altermatt

Citation: 2006 WY 83

Docket Number: 05-155

Appeal from the District Court of Park County, the Honorable H. Hunter Patrick, Judge.

Representing Appellant (Plaintiff): Georgia L. Antley and Luke Esch, Student Intern, Williams, Porter, Day & Neville, Casper, Wyoming.

Representing Appellee (Defendant): Sharon G. Altermatt, Pro se.

Date of Decision: July 17, 2006

Issue: Whether the district court abused its discretion in terminating child support in contravention of Wyo. Stat. Ann. § 20-2-313(a)(iv) and/or Wyo. Stat. Ann. § 14-2-204(a)(iii). Whether the district court erred by omitting the presumptive child support amount in its order. Whether the district court abused its discretion by using improper reasons as deviation factors from presumptive child support.

Holding: The history of the instant case shows numerous modifications of the original decree. Mother filed her appeal late and did not comply with W.R.A.P. 7.06(b) so the Court did not hear or consider her contentions. Father sought review of the district court’s order awarding him primary custody of their 17 year-old son and child support from Mother at $50.00 per month. The change in custody was stipulated to by the parties. Additionally the order provided that Mother’s responsibility for support would cease as of August 31, 2005.
Standard of review: The standard of review in petitions to modify child support is based on the proposition that such review is committed to the sound discretion of the district court. The Court considers only the evidence in favor of the successful party, ignores the evidence of the unsuccessful party and grants to the successful party every reasonable inference that can be drawn from the record.
Support beyond age 18: Wyo. Stat. Ann. § 20-2-313 and Wyo. Stat. Ann. § 14-2-204(a)(iii) apply. The Court reviewed the record, noting that the parties were previously able to resolve their differences by stipulation and that at the time of the original decree the parents were unaware of their son’s learning disability. The Court concluded that the parties’ original agreement that child support should terminate when child reached the age of 18 should govern. The district court chose to terminate the support obligation as of August 31, 2005. The termination date was erroneous but because the Court determined the error was de minimus, the Court affirmed.
Failure to state amount of presumptive support in decree: The Court reiterated the importance of the district court in making detailed findings in matters where the parties are appearing before it in child custody and/or support matters to ensure that the order contains all required findings. The Court decided that because the record contained a statement of the presumptive support level, the error was de minimus and therefore harmless.
Deviation from presumptive support level: The Court reviewed the specific findings of the district court including the age of the child, the value of services contributed by either parent, and Mother’s forgiveness of child support arrearages. The Court stated that although the proceedings in the case were no model for litigants or for district courts, the district court did not abuse its discretion in taking into account the facts and circumstances that it did or in making its decision to deviate from the presumptive support level. All errors were de minimus and harmless.
In conclusion, the Court stated that the trial court must forgo informality in favor of careful attention to the governing statutes and the standards that the legislature expects both parties and the courts to adhere to in such cases to prevent needless complications and delays.

Affirmed.

J. Hill delivered the opinion for the court.

Link to the case: http://tinyurl.com/psh9m .

Friday, July 14, 2006

Summary 2006 WY 82

Summary of Decision issued July 13, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is 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 for assistance.]

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

Case Name: In the Matter of Worker’s Compensation Claim of Lena Chavez v. Memorial Hospital of Sweetwater County, State, ex rel, Wyoming Workers’ Safety and Compensation Division

Citation: 2006 WY 82

Docket Number: 05-190

Appeal from the District Court of Sweetwater County, the Honorable Nena R. James, Judge.

Representing Appellant (Petitioner): Istvan Harton of Steve Harton, P.C., Rock Springs, Wyoming.

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

Date of Decision: July 13, 2006

Issue: Whether the Office of Administrative Hearings’ decision granting summary judgment to the Wyoming Workers’ Compensation Division is in accordance with law.

Holding: Claimant suffered a work-related injury to her cervical spine on October 27, 1999, while working for Memorial Hospital of Sweetwater County as a certified nursing assistant (CAN) and unit secretary. The hearing examiner decided as a matter of law, Appellant had not suffered a loss of earning capacity because (1) a vocational evaluation indicated she could return to work at a wage of at least 95% of her pre-injury wage; and (2) she had accepted a job in Scottsbluff, Nebraska at a wage greater than her pre-injury wage.
The Court reviews an appeal as if the case came directly from the agency. The summary judgment procedures set forth in W.R.C.P. 56 apply to worker’s compensation cases. An injured worker has the burden of proving each of the elements of his or her claim by a preponderance of the evidence. The interpretation and correct application of the provisions of the Wyoming Workers’ Compensation Act are questions of law which the Court reviews de novo.

Appellant applied for permanent partial disability (PPD) benefits as a result of her injury. Medical and non-medical evidence is considered in determining whether an employee has suffered a loss of earning capacity. Factors to be considered include the employee’s physical impairment, including the nature and extent of the injury, age, education, actual earnings, including pre- and post-injury earnings, ability to continue pre-injury employment and post-injury employment prospects. A vocational evaluation was prepared taking into account those factors listed above. The focal point for loss of earnings analysis is the employer’s actual ability or inability to return to employment at a comparable or higher wage because of the work-related injury. The hearing examiner considered Appellant’s CNA job in Nebraska because it was her first employment after she returned to work following her surgery, irrespective of when she filed her PPD application. The focus of the statute is on the injured employee’s ability to earn. The hearing examiner looked beyond the vocational evaluation and relied upon Appellant’s employment in Nebraska in granting summary judgment. As recognized by the hearing examiner, the bottom line was Appellant did not qualify for PPD benefits, as a matter of law, because she did not suffer a loss of earning capacity.

Affirmed.

J. Kite delivered the opinion for the court.

Link to the case: http://tinyurl.com/g4pxc .

Summary 2006 WY 81

Summary of Decision issued July 11, 2006

[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 for assistance.]

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

Case Name: Lewis v. State

Citation: 2006 WY 81

Docket Number: 05-42

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

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender, and Donna D. Domonkos, Appellate Counsel. Argument by Ms. Domonkos.

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

Date of Decision: July 11, 2006.

Issue: Whether there was sufficient evidence to sustain a conviction for first degree sexual assault. Whether the prosecutor committed prosecutorial misconduct during closing argument.

Holding: The standard of review for insufficiency of the evidence to support first degree sexual assault has been clearly established in Wyoming case law. The Court must determine whether a rational trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt. The Court will not consider conflicting evidence presented by the unsuccessful party; it is the jury’s responsibility to resolve conflicts in the evidence; and the Court will not substitute their own judgment for that of the jury. Allegations of prosecutorial misconduct are reviewed by referring to the entire record to determine whether a defendant’s case has been so prejudiced that he has been denied a fair trial. In December, 2004, Appellant was found guilty of first-degree sexual assault and incest.
Insufficiency of the evidence to support a first degree sexual assault: Wyo. Stat. Ann. § 6-2-302(a)(i) applies. The evidence at trial established that the victim was four years old at the time of the assault and that Appellant and victim were in the bedroom at the time of the assault with the door closed. After considering the evidence presented at trial, the Court concluded that a jury could find that Appellant used force and forcible confinement to cause the victim to submit to the sexual intrusion. Regardless of the custom of the household, the door was closed on the night in question confining the victim to the bedroom. The Court held that a reasonable jury could find that the victim submitted to Appellant’s intrusions due to the fact that he was physically forcing her to do so and that he was forcibly confining her to the bedroom during the intrusion. The Court’s conclusions were bolstered by the inherent use of physical force or forcible confinement within every parent-child or caregiver-child relationship.
Appellant made an additional argument urging the Court to follow case law in other jurisdictions, holding that the fact that an assailant is positioned “over” the victim during a sexual intrusion is not sufficient to show the element of forcible confinement. Because the Court found that the closed door, discrepancy in age, size and strength, and the dynamics of the parent-child relationship are sufficient to uphold the jury’s verdict in the case, the Court declined to address that issue.
Prosecutorial misconduct: To find that the prosecutor did commit prosecutorial misconduct, the Court had to review the entire record and conclude that but for this statement by the prosecutor, Appellant would have received a more favorable verdict. The Court found that the evidence presented made it clear that Appellant was charged with sexual assault for the incident of oral sex with the victim. Given the clear message to the jury regarding the nature of the case, the prosecutor’s remarks were not so prejudicial that without them Appellant might have enjoyed a more favorable verdict.

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

Affirmed.

Link to the case: http://tinyurl.com/nona9 .

Thursday, July 13, 2006

Decision 2006 WY 82

Our apologies--both Meg and Kathy are out of the library until Friday (July 14) so there will be no summary of this case until they return. However, here is the case information. Unfortunately, we also do not yet have an electronic copy of the case. If you have any questions, please feel free to contact me.

--------------------------------------------------------------------------

Decision issued July 13, 2006

[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 for assistance.]

Case Name: Lena Chavez v. Memorial Hospital of Sweetwater County

Citation: 2006 WY 82

Docket Number: 05-190

Appeal from the District Court of Sweetwater County, the Honorable Nena R. James, Judge.

Representing Appellant: Istvan Harton of Steve Harton, P.C., Rock Springs, Wyoming.

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

J. Kite delivered the opinion for the Court.

Affirmed.

Tuesday, July 11, 2006

Decision 2006 WY 81

Our apologies--both Meg and Kathy are out of the library until Friday so there will be no summary of this case until they return. However, here is the case information and a link to the case in our Wyoming Supreme Court Cases database.

Link to the case: http://tinyurl.com/nona9.

Decision issued July 11, 2006

[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 for assistance.]

Case Name: John Lewis v. State of Wyoming

Citation: 2006 WY 81

Docket Number: 05-42

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

Representing Appellants (Defendants): Kenneth M. Koski, State Public Defender, and Donna D. Domonkos, Appellate Counsel. Argument by Ms. Domonkos.

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

J. Hill delivered the opinion for the Court.

Affirmed.

Law Library Letter