Summary 2006 WY 111

Summary of decision issued August 31, 2006

[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. 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.]

Case Name: Seherr-Thoss v. Seherr-Thoss

Citation: 2006 WY 111

Docket Number: 05-237 & 06-10

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

Representing Appellant (Plaintiff): Kenneth S. Cohen, Cohen Law Office, Jackson, Wyoming.

Representing Appellee (Defendant): Bret F. King, King and King, Jackson, Wyoming.

Date of Decision: August 31, 2006

Issues: Case No. 05-237:
Whether the district court erroneously held that a Premarital Prenuptial Agreement was enforceable, in spite of its finding that Appellee breached the Prenuptial Agreement by failing to make any of the annual $10,000 payments to Appellant required under the Prenuptial Agreement. Whether the district court erred when it ruled as to the provision which controlled the distribution of the proceeds from the sale of a house and that Appellant was not entitled to any portion of the sale proceeds. Whether the district court erred when it ruled that pursuant the Prenuptial Agreement, Appellant was entitled to four annual payments of $10,000 rather than five annual payments. Whether the district court erred when it held that the parties were married at least three years but less than four years, and that pursuant to the Prenuptial Agreement, Appellant was entitled to a lump sum payment of $40,000. Whether the district court erred when it held that Appellant was required to repay Appellee the sum of $20,000 based on her withdrawal of funds from joint accounts immediately prior to filing for divorce.
Case No. 06-10:
Whether the district court abused its discretion in awarding to Appellant less than half of the attorneys' fees incurred by her in the divorce proceeding under Wyo. Stat. 20-2-111.

Holdings:
Case No 05-237: In order to warrant termination or repudiation of a contract, a breach must be substantial and material. To determine whether a breach was substantial and material, the Wyoming Supreme Court has cited with approval Restatement (Second) Contracts § 241 (1981):
In determining whether a failure to render or to offer performance is material, the following circumstances are significant: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.
In the present action, Appellant's argument presumes, without discussion or analysis, that Appellee's breach of the Prenuptial Agreement is substantial and material. As the commentary to § 237 of the Restatement (Second) of Contracts, which was relied upon by Appellant, makes clear: In determining whether a failure of performance is material, the circumstances listed in § 241 should be considered.
Failure to cite pertinent authority has long been a basis for summary affirmance of cases or issues by the Court. Thus, the Court declines to consider Appellant's arguments given her failure to fully evaluate the issue within the context of the applicable law.
When title to real estate is taken in the names of both spouses but only one spouse paid for it, a rebuttable presumption that a fifty percent interest intended as a gift to the non-paying spouse arises. The inquiry into whether or not the presumption of a gift has been rebutted is, by necessity, a factual one dependent upon the particular circumstances surrounding the conveyance. Appellant's contention that the provision of the Prenuptial Agreement which permitted transfers of property between the parties rather than the provision governing ownership of acquired property governed disposition of the proceeds from the sale of the house purchased wholly by funds supplied by the Appellant is predicated on her presumption that she was gifted a half-interest in it. The implication of the district court's ruling, however, is that it did not believe that Appellee intended the warranty deed to convey a gift and that the presumption had been overcome. The lack of specific findings by the court on the issue is regrettable but there is no indication in the record that any request was made pursuant W.R.C.P. 52(a) to place on record the circumstances and factors that were crucial to the determination. Review is also constrained by the deficient record in this case. It must be presumed that the court's decision is supported by competent evidence. In the absence of any basis upon which to review the factual determination that the presumption of a gift was rebutted, it cannot be concluded that there was an abuse of discretion by the district court in its disposition of the proceeds from the sale of the residence.
Pursuant to the Prenuptial Agreement, Appellee was required to pay Appellant "$10,000 per year for so long as the parties" were married to each other with the first payment being "made no later than December 30, 2000." The district court found that Appellee had failed to make any of the payments and ordered him to pay Appellant $10,000 each for the years 2000, 2001, 2002, and 2003, for a total of $40,000. Appellant contends that the district court misapplied the Prenuptial Agreement. She notes that the Prenuptial Agreement provides that the payment obligation continued "for so long as the parties are married." Since the divorce did not become effective until August 12, 2005, Appellant contends that she was entitled to payments for the years 2000, 2001, 2002, 2003, and 2004, along with a pro rata share for the partial year of 2005. However, the ordinary meaning to the term "year" is a twelve-month calendar period. If the parties had intended for pro rata payments, they could have so specified in the Prenuptial Agreement. They did not. Accordingly, Appellee's obligation does not encompass the partial year of marriage. Therefore, the district court's order that Appellee's obligation to Appellant under this provision of the Prenuptial Agreement is $40,000 is affirmed.
The Prenuptial Agreement obligates Appellee to make a lump sum payment of varying amounts to Appellant depending on the length of the marriage "in the event of divorce within the first five years of marriage." The district court found that "the parties were married three years but less than four years" obligating Appellee to pay $40,000 under the terms of the provision. Appellant insists that the parties were married for four years but less than five, entitling her to $50,000 payable in "two equal installments over a period of two years." The language of the provision in question, is unambiguous. It provides that if the parties were to divorce within the first five years of marriage Appellant was entitled to a lump sum payment from Appellee. The amount of Appellee's obligation increases in increments of $10,000 for each year of marriage up to a maximum of $50,000 if the parties have been married at least four but less than five years. As previously noted, the parties were married on October 1, 2000, and divorced on August 12, 2005. By the plain terms of the Prenuptial Agreement, Appellee owes Appellant $50,000. Applying the unambiguous terms of the provision then, the district court erred when it awarded Appellant $40,000; the parties were married for at least four and less than five years and, accordingly, Appellant should have been awarded $50,000.
The disposition of marital property, including funds in joint accounts, is within the district court's discretion and a just and equitable distribution is as likely as not to be unequal. In this case, the Prenuptial Agreement provided that each party was entitled to their separate property. It is obviously a fact-intensive inquiry to determine the extent to which the funds in the parties' joint accounts were joint property or the personal property of Appellee or Appellant. Merely because the funds were in a joint account is not determinative of that inquiry. To the extent that Appellant's argument is predicated on a claim of a gift, that too is a factual inquiry. This claim cannot be reviewed because the lack of a transcript of the evidentiary hearing. It must be presumed that the evidence supports the district court's decision.
Case No. 06-10: There is no transcript of the hearing on Appellant's motion for attorneys' fees in the record. Appellant supported her representation by citing to the district court's Docket Index. There is a difference, however, between the Docket Index, which identifies all documents made part of the record during the lower court proceedings and the record transmitted to this Court in an appeal. Compare W.R.A.P. 3.01(a) and (b). The latter consists only of those parts of the district court record designated by the parties. Appellant's Designation of Record does not include the hearing transcript. Appellant, as the appealing party, bore the burden of providing this Court with a complete record on which it could base a decision. That duty encompasses designation for transmission to this Court of all parts of the district court record pertinent to the issues raised. Without a transcript, we cannot review the factual basis for the district court's discretionary ruling.

Case No. 05-237, the district court's order that Appellee was to pay Appellant $40,000 pursuant to the Prenuptial Agreement is reversed and remanded for the amount owed to be increased $10,000 for a total amount of $50,000. The district court's order in that case is affirmed in all other respects. The district court's order in Case No. 06-10 is summarily affirmed.

J. Hill delivered the opinion for the court.

Link: http://tinyurl.com/pnmx5 .

Summary 2006 WY 110

Summary of decision issued August 31, 2006

[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. 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.]

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

Case Name: Union Telephone Co. v. Wyoming Public Service Commission

Citation: 2006 WY 110

Docket Number: 05-195 and 05-199

Appeal from the District Court of Laramie County, Honorable Peter G. Arnold, Judge

Representing Appellant (Petitioner): Bruce S. Asay, Associated Legal Group, Cheyenne, Wyoming

Representing Appellee Wyoming Public Service Commission (Respondent): Patrick J. Crank, Attorney General; Michael L. Hubbard, Deputy Attorney General; Stephanie Anesi, Assistant Attorney General.

Representing Appellee Qwest Corporation (Respondent): Paul Hickey, Roger Fransen, and Brandi L. Monger, of Hickey and Evans, Cheyenne, Wyoming.

Date of Decision: August 31, 2006

Issues: Whether the Federal Telecommunications Act of 1996, 47 U.S.C. § 251 et seq., vests exclusive jurisdiction in the federal courts for judicial review of a state commission decision concerning interconnection agreements.

Holdings: 47 U.S.C. 252(e)(6) states that in "any case in which a State commission makes a determination under this section, any party aggrieved by such determination may bring an action in an appropriate Federal district court to determine whether the agreement or statement meets the requirements of section 251 of this title and this section." 47 U.S.C. 252(e)(4) provides, "[n]o State court shall have jurisdiction to review the action of a State commission in approving or rejecting an agreement under this section." Reading these provisions together, the only logical conclusion is that Congress intended to confine review of State commission decisions concerning interconnection agreements to the federal courts. In the present action, the decisions of the Appellee PSC being challenged by the Appellant involve the approval of an interconnection agreement. Despite Appellant's attempt to characterize its appeal as a challenge to the Appellee PSC's authority, fundamentally, it is seeking review of decisions approving an interconnection agreement. Thus, pursuant to 47 U.S.C. § 252, the challenge must be brought in federal court.

The District Court correctly determined it lacked subject matter jurisdiction. The Wyoming Supreme Court also lacks subject matter jurisdiction. Accordingly, Appellant's appeals are dismissed.

J. Burke delivered the opinion for the court.

Link: http://tinyurl.com/oensz .

Summary 2006 WY109

Summary of Decision issued August 31, 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: Gorseth v. State

Citation: 2006 WY 109

Docket Number: 05-122

Appeal from the District Court of Natrona County, the Honorable W. Thomas Sullins, Judge

Representing Appellant (Defendant): Kenneth M. Koski, State 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; Jennifer K. Stone, Senior Assistant Attorney General.

Issue: Whether Appellant was denied a fair sentencing when probation and parole issued a presentence investigation report which was not neutral and did not comply with the rules of criminal procedure.

Holding: Appellant contends that the procedures followed in the sentencing portion of the proceedings in this case were improper and deprived him of due process of law.
Standard of Review: The Court will not disturb a sentencing decision absent a clear abuse of discretion. Due process provides a right to be sentenced only on accurate information. Victim information about other crimes or convictions unrelated to the particular crime for which sentence is about to be imposed is permissible. Evidence of prior criminal activity is highly relevant to the sentencing decision and may be considered by the court. Appellant contends there were five errors.
The California Probation Report: It is within the district court’s discretion to consider any reliable and accurate information that enlightens the sentencing court about the crime and criminal at hand.
Failure to Contact Family: There is no mandate in W.R.Cr.P.32 that information from the family of a defendant be compiled for the trial court’s consideration. The Court found no error in the failure of the probation agent to have solicited information from members of Appellant’s family.
Failure to Discuss Prison Alternatives: The initial presentence report did not discuss alternatives to prison likely because of Appellant’s criminal record and the seriousness of the crimes to which he had entered pleas of guilty. The district court directed the agent to add such information to the addendum to the report.
The Allegedly Inaccurate Statement: Appellant relied upon language in Bitz to support his contention that the district court was required to make a finding on the record that the probation agent’s statement that Appellant had not taken responsibility for that crime was inaccurate. The Court stated that it was apparent in the record that the district court made an independent conclusion about the degree to which Appellant took “responsibility” for his crimes and found no error in the sentencing process in this regard.
Failure of Probation Agent to Remain Neutral: The Court carefully examined the presentence report and the addendum and concluded that the probation agent presented the information in a “nonargumentative style” as required by Rule 32(a). The Rule does not specifically charge a probation agent with giving an opinion about the defendant, but apparently the district courts deem such information to be of value in the sentencing process because the forms used call for such evaluations and recommendations.

Affirmed.

J. Hill delivered the order for the court.

Link to the case: http://tinyurl.com/l5pvp .

Summary 2006 WY 108

Summary of Decision issued August 31, 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: Gabbert v. State

Citation: 2006 WY 108

Docket Number: 05-34

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

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina M. Kerin, Senior Assistant Appellate Counsel. Argument by Ms. Kerin.

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.

Issue: Whether fundamental error occurred in instructing the jury. Whether there was insufficient evidence to convict Appellant of two counts of kidnapping. Whether prosecutorial misconduct occurred during trial, warranting reversal. Whether the trial court erred in admitting irrelevant testimony regarding the arrest of Appellant. Whether cumulative error occurred, warranting reversal.

Holding: Appellant was convicted after a jury trial of one count of aggravated robbery, two counts of aggravated assault, four counts of kidnapping (Hershberger, Thomas and Thomas’ two children), one count of conspiracy to deliver a controlled substance, one count of delivery of a controlled substance and one count of using a firearm during the commission of felonies.
Issue I – Jury Instructions: Appellant did not object to the challenged instructions at trial therefore the Court reviewed them under the doctrine of plain error. The doctrine demands the record be clear as to the incident alleged as error, that the Appellant demonstrate the existence of a clear and unequivocal rule of law which was violated in a clear and obvious way, and that the error adversely affected a substantial right resulting in material prejudice to Appellant. The kidnapping statute required the jury to determine whether Appellant confined the victims with the intent to facilitate a felony. The larceny instruction given by the district court did not differentiate between the crime of misdemeanor larceny and felony larceny. The record reflects that at trial the district court failed to properly instruct the jury on an essential element of the kidnapping crime. The Court reversed Appellant’s kidnapping convictions. Having determined that Appellant’s convictions on the kidnapping charges must be reversed, the conviction on the use-of-firearm conviction must likewise be reversed.
Issue II – Evidentiary Sufficiency: This claim involves the kidnapping convictions pertaining to the Thomas children. The convictions have been reversed but the claim must be addressed because a finding of insufficient evidence on those convictions would amount to a judgment of acquittal and would prohibit the State from retrying Appellant on those charges. Citing Bush v. State, Appellant claimed Instruction No. 27 contained alternative theories for satisfying the unlawful confinement element and sufficient evidence must exist on both alternatives to sustain the conviction on each count. Instruction No. 27 was a definitional instruction. The Court stated that the rule of Bush does not apply to definitional instructions. Additionally, the Court stated that there is no need under Bush and its progeny for sufficient evidence to exist as to both subsections of the challenged definitional instruction.
Issue III – Prosecutorial Misconduct: When reviewing a claim of prosecutorial misconduct, the entire record must be considered. The Court’s primary focus is whether an accused’s case has been so seriously prejudiced by the error that a fair trial has been denied. Appellant bears the burden of establishing prejudicial error. The Court carefully examined Appellant’s various prosecutorial misconduct claims and concluded that Appellant had not established reversible error with respect to any of his allegations. He did not demonstrate within the context of the record of the case how the prosecutor’s alleged improprieties adversely affected his trial. The Court was not convinced from their review of the entire record that any of the complained of conduct had a deleterious effect on the jury’s verdict.
Issue IV – Admission of Evidence: The Court’s standard when reviewing a trial court’s evidentiary ruling is that such decisions are within the sound discretion of the trial court and include determinations of the adequacy of foundation and relevancy, competency, materiality and remoteness of the evidence. In the absence of an abuse of discretion the Court will not disturb the trial court’s determination. The burden is on the defendant to establish such an abuse. It would require that Appellant show that the outcome of the trial could have been more favorable had the error not occurred. Within the record of the case, Appellant failed to demonstrate how the outcome of his trial would have been more favorable absent the complained of testimony.
Issue V – Cumulative Error: The Court did not consider the claim that the cumulative effect of the errors complained of warranted reversal even if they did not warrant it when standing alone.

The Court reversed the four kidnapping convictions. As a result the use-of-firearm conviction was also reversed. The case was remanded on those charges. The remaining issues were found to have no merit and those convictions affirmed.

J. Golden delivered the order for the court.

Link to the case: http://tinyurl.com/gw69c .

How-to: RSI & Ergonomics

Summer is almost over and another how-to is long overdue. Everyone is back from conferences and vacations. We have successfully recovered from Kathy's buying binge (she spent our remaining budget money from the 2004-2006 fiscal year on many MANY books that we had fun processing and cataloging & new computers for the staff). We appear to be going full steam ahead with our new network (new email addresses and new web site--check out our web site survey if you haven't already!). And I'm pretty sure I now need a vacation from summer!

RSI (repetitive stress/strain injuries) or RMD (repetitive motion disorders) occur in many different occupations, one of the most well-known being the occupation of hunching over a computer, eyes squinting, furiously typing and mousing through document creation and Internet surfing. If you have ever come up for air after focusing intently on that video game, series of YouTube videos, or (heaven forbid) 50-page brief, and found lower back pain, eye strain, and a cramped wrist, then you know the dangers of RSI.

One of Google's staff doctors, Dr. Taraneh Razavi, posted a short article about RSI on the Official Google Blog that gives some eye-opening statistics about RSI and it's impact on revenue each year. Dr. Razavi also provides some tips and further links to avoiding RSI. In addition to these resources, I highly recommend the information provided on MedlinePlus on Ergonomics.

One interesting option for modifying your keyboarding movements that I found was suggested by Heidi Yelk, Law Librarian for the Wisconsin State Law Library. She writes in their June 2006 newsletter that you can easily change your keyboard layout from the traditional QWERTY layout to DVORAK. Since I spend an inordinate amount of time typing, I thought I'd give this a try.

Ydco co mf ucpoy ayy.mly yr go. yd. Ekrpat nafrgyv (Translation: This is my first attempt to use the Dvorak layout.)

Obviously, a tutorial or two is necessary. If you are persistent and you have RSI pain goading you, this could be a good option. But be ready--it does mess with your brain a bit.

Perhaps I will start small and provide Meg with a supply of koosh balls. She can throw one at me whenever she sees me slouching (I'm going to have to find A LOT of koosh balls).

Summary 2006 WY 107

[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: Brown v. Arp and Hammond Hardware Co.

Citation: 2006 WY 107

Docket Number: 05-70

Appeal from the District Court of Laramie County, Honorable Nicholas G. Kalokathis, Judge

Representing Appellants (Defendants): Scott W. Meier, of Hickey & Evans, Cheyenne, Wyoming

Representing Appellee (Plaintiff): John B. "Jack" Speight & Robert T. McCue, of Speight, McCue & Associates, Cheyenne, Wyoming; Amanda Hunkins Newton, of Jones, Jones, Vines & Hunkins, Wheatland, Wyoming

Date of Decision: August 29, 2006

Issues: Whether the District Court erred when, under the Wyoming dissenters' rights statute, it applied a discount for hypothetical trapped-in capital gains in determining the fair value of Appellants' interest in Appellee Company. Whether the District Court erred when, under Wyoming dissenters' rights statute, it applied a lack of control discount (also known as a minority interest discount) in determining the fair value of Appellants' interest in Appellee Company. Whether the District Court committed clear error when, in its Findings of Fact, it failed to include the value of non-ranch assets in determining the fair value of Appellee Company as an entity, and thus undervalued the fair value of Appellants' interest.

Holdings: A minority discount may not be applied in determining the fair value of a dissenting shareholder's interest. The fair value in Wyo. Stat. 17-16-1301(a)(iv) must not include a minority discount in order to be consistent with the purpose served by the dissenters' rights statutes. The dissenters' rights statute serves as the primary assurance that minority shareholders will be properly compensated for the involuntary loss of their investment. The remedy protects the minority shareholders ex ante, by deterring majority shareholders from engaging in wrongful transactions, and ex post, by providing adequate compensation to minority shareholders. While it is true that dissenters' rights are equitable in nature, equity does not afford the district court discretion to offend the purpose of the statute. The remedy provided to a minority shareholder was not designed to encourage majority shareholder oppression. To include a minority discount would simply penalize the dissenting shareholder while allowing the corporation to buy his shares cheaply. That is not the protection that the legislature had in mind. Thus, in a dissenters' rights appraisal, the focus of the valuation is not the stock as a commodity, but rather the stock only as it represents a proportionate part of the enterprise as a whole. To find fair value, the trial court must determine the best price a single buyer could reasonably be expected to pay for the corporation as an entirety and prorate this value equally among all shares of its common stock. Under this method, all shares of the corporation have the same fair value. Accordingly, the fair value of Appellants' shares should not have been adversely impacted by Appellants' status as minority shareholders. The district court erroneously applied a 30% minority discount. Appellants are entitled to a modified judgment reflecting the district court's determination of their proportionate value of the corporation without the minority discount.

The 5% discount applied by the district court does not result in fair value pursuant to Wyo. Stat. 17-16-1301(a)(iv). The fair value of Appellants' shares is measured immediately before the effectuation of the corporate action to which the dissenter objects, excluding any appreciation or depreciation in anticipation of the corporate action unless exclusion would be inequitable. This language generally excludes costs that may be incurred after effectuation of the corporate action causing the shareholder to dissent, and such costs should not be assessed against the dissenting shareholders. The purpose of the remedy given to dissenting shareholders is to compensate them for the fair value of their shares. The process is designed to arrive at a value based upon what the shareholder is forced to give up as a result of the transaction triggering the right to dissent. Based upon that purpose, neither immediate tax consequences nor deferred tax consequences of the triggering transaction should be considered in determining the fair value of dissenters' shares. To consider such tax consequences would not only violate the clear language of the statute, but also charge dissenting shareholders with taxes which would not accrue but for the transaction itself or taxes which may never accrue. When a court is valuing the assets of a corporation as a part of valuing the corporation as a whole, tax effects should be considered only in the most limited circumstances. Such tax consequences should be considered only when a sale of those assets is imminent and unrelated to the transaction which triggered the shareholders' right to dissent. Additionally, Appellee did not present evidence to support its assertion that a judgment favoring Appellants would force a sale of corporate assets. There was no evidence identifying the property that might be sold, the date of sale, or the taxable basis for the property. In the absence of specific facts about a prospective sale, it would be the basest form of speculation to attempt to determine tax consequences of a voluntary liquidation of assets at an unknown future time. Thus, under the circumstances of this case, a discount for trapped-in capital gains taxes should not have been a consideration in the fair value of Appellants' shares because it was premised upon action contemplated by the corporation subsequent to (or because of) the reverse stock split. Additionally, the district court lacked an evidentiary basis to calculate the discount when the nature, timing, and details of a sale were speculative. Application of the 5% discount for trapped-in capital gains was erroneous.

In determining the corporation's value, several other corporate assets were not mentioned in the district court's findings of fact and conclusions of law. Appellants contend the district court should have included them in its fair value determination. Appellee contends that Appellants had an opportunity to bring the omission to the attention of the district court, and failing to do so, should be precluded from raising this issue on appeal.

Prior to trial, the parties stipulated that the corporation owned these assets but the value of this property was not stated. Appellants submitted proposed findings of fact to the district court that pertained to the value of these assets. Although they were not specifically listed or identified in Appellants' proposed findings, the difference between the value figures stated by the parties suggests that assets additional to those ultimately used by the district court were involved. Similarly, the same two values were introduced at trial as exhibits supporting Appellants' proposal for valuing of the corporation. The district court's failure to incorporate these values into its determination of fair value was clearly erroneous. The nature of the other assets totaling is not apparent from the record, and to the extent those assets are not in dispute, that value should also be included.

In a dissenters' rights action pursuant to Wyo. Stat. 17-16-1301, et seq., "fair value" of a minority shareholder's interest may not be discounted for minority status. The district court erred by applying a minority discount. The district court also erred by applying a discount for trapped-in capital gains because it was based upon potential corporate action after the date of valuation for determining fair value under Wyo. Stat. 17-16-1301(a)(iv) and it was not supported by evidence. Finally, the district court erred in omitting corporate assets from its calculation of fair value.

The judgment is reversed, and we remand this matter to the district court for further proceedings consistent with this opinion.

J. Burke delivered the opinion for the court.

Summary 2006 WY 106

[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: Black v. William Insulation Company, Inc.

Citation: 2006 WY 106

Docket Number: 05-249

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

Representing Appellant (Plaintiff): Sharon M. Rose of Lavery & Rose, P.C.; Evanston, Wyoming; and Elizabeth Greenwood of Pinedale, Wyoming.

Representing Appellee (Defendant): Patrick J. Murphy and Jakob Z. Norman of Williams, Porter, Day & Neville, Casper, Wyoming.

Date of Decision: August 29, 2006

Issues: Whether the trial court erred in failing to recognize a duty of care from an employer to innocent third parties who are injured, or in this case, killed by its employees who are exhausted due to the working conditions imposed by the employer and thus fall asleep at the wheel. Whether the trial court erred in granting summary judgment and summarily dismissing Appellant's negligent misrepresentation claim.

Holdings: Whether a legal duty exists is a question of a law, and absent a duty, there is no liability Duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. A duty may arise by contract, statute, common law, or when the relationship of the parties is such that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff. The legal question to be answered by the court is whether, upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other - or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant. Some of the key policy factors to be considered are: (1) the foreseeability of harm to the plaintiff, (2) the closeness of the connection between the defendant's conduct and the injury suffered, (3) the degree of certainty that the plaintiff suffered injury, (4) the moral blame attached to the defendant's conduct, (5) the policy of preventing future harm, (6) the extent of the burden upon the defendant, (7) the consequences to the community and the court system, and (8) the availability, cost and prevalence of insurance for the risk involved.

In the present action, Appellant argues that an employer has an obligation to ensure that the conditions of employment do not cause an employee to become fatigued and, to the extent that they do, the employer has a duty to take reasonable actions to protect the traveling public from the foreseeable consequences of those employees traveling from their worksite. Essentially, the question of duty that we must determine in this case is whether Appellee's actions and/or inactions prior to the accident created a foreseeable risk of harm that the employer had a duty to guard against.

The foreseeability of harm factor is essentially a consideration of proximate cause. Proximate cause is explained as the accident or injury must be the natural and probable consequence of the act of negligence. In order to qualify as a legal cause, the conduct must be a substantial factor in bringing about the plaintiff's injuries. If the original wrong furnished only the condition or occasion, then it is the remote and not the proximate cause, notwithstanding the fact that there would have been no loss or injury but for such condition or occasion. Thus, in the present action the question then is whether or not Appellee's conduct was a substantial factor in bringing about the death of the decedent. Or more precisely, a showing of causation necessitates a showing that work was a substantial contributing factor to fatigue. This means that for an employer to be liable for the actions of a fatigued employee on a theory of negligence, the fatigue must arise out of and in the course of employment because to hold otherwise would charge an employer with knowledge of circumstances beyond his control. The scope of an employer's duty is bound by activity that the employer can actually control within the employment relationship.

Appellant contends that the accident was a foreseeable consequence of Appellee's conduct. Specifically, she claims that it was foreseeable that the large influx of workers into the remote, rural area where the Appellee's plant was located would cause traffic problems and that despite being aware of this, Appellee required its employees to work long hours and make long commutes. She argues that workers who were commuting and working twelve to fourteen hours a day would not have sufficient time in the day to take care of life activities and still get sufficient sleep. Given these conditions, Appellant contends that without employer supplied alternatives such as bus transport, it was foreseeable that sleep deprived workers would likely fall asleep and cause injury to other travelers on the roads.

The most obvious factor within the employer's control that could cause fatigue in an employee is the number of hours the employee is required to work. On the day of the accident and those preceding it, the commuting driver worked his normal shift of ten hours. A ten-hour shift within a twenty-four-hour period is not, on its face, an objectively unreasonable period of work. There is no evidence that Appellee had notice that the driver was fatigued on the day of the accident. Appellant seeks to expand the hours of work to include the time of his commute claiming that Appellee "required" him to make the lengthy drive to and from the plant citing Appellee's refusal to allow its employees to ride buses provided for commuters. First, Appellant cites no authority for the proposition that Appellee was required to provide its employees with alternatives, such as busing, to commuting. Furthermore, Appellee did, in fact, provide an alternative to long distance commuting for its employees: it provided its employees, including the driver, with a daily thirty dollar subsistence payment to partially offset the cost of taking lodging closer to the worksite. The driver, however, elected to pocket that money and commute every day from his home in Evanston. That was a voluntary choice made by the driver. Additionally, Appellant fails to address a significant factor: the driver's decision to work a second job. After returning to Evanston upon completion of his work day for Appellee, he would go to a second job at a restaurant. On the night before the accident, he stated that he returned home about 8:30 p.m., went to work his second job, and got to bed around 11:00 p.m. Certainly, the second job had an affect on his ability to get rest, if not actual sleep. He admitted that he normally got only about five to six hours of sleep a night. Nevertheless, Appellant neglects to discuss the consequences of the second job in her brief. An employer has every reason to assume that the employee, upon reporting to work, had received sufficient rest. The burden is on an employee to manage his own time to ensure that he was capable of performing his job. The driver in the present action elected to expend a significant portion of his time making a lengthy commute and working a second job. These were voluntary decisions made by him for which he is responsible. Under these circumstances, it cannot be said that his employment was the substantial factor in contributing to fatigue. Thus, the decedent's injuries were not the "natural and probable consequence of" any acts of negligence by Appellee in the course of the driver's employment; rather, the decisions and conduct of the driver were the substantial factor that brought about the injuries. Since the harm to Appellant's decedent was not a foreseeable consequence of Appellee's actions (or inactions), no duty will be imposed.

Appellant suggests that the Industrial Development Information and Siting Act, Wyo. Stat. Ann. §§ 35-12-101 through 35-12-119, may provide a basis for finding a duty of care on the part of Appellee or, at a minimum, satisfy the factor of finding a "policy of preventing future harm" in favor of imposing a duty. Appellant's argument is moot insofar as it relates to foreseeability. As for the claim that the Act could be an independent basis for imposing a duty, Appellant has failed to provide a cogent argument. Her brief does not contain a statement of the issue setting forth this claim. W.R.A.P. 7.01(d). The Act is cited once in Appellant's main brief and no analysis of the Act's language within the context of this case is provided. She does present some semblance of an analysis in her reply brief. However, the reply brief is not the proper forum for that argument. A reply brief is intended "to allow the appellants the opportunity to address issues and arguments raised by the appellees. Given the lack of cogent argument, the matter will not be considered.

Finally, Appellant contends that the district court erred in dismissing a negligent misrepresentation claim. Her claim is that even if there was no duty of care, Appellee might be liable for the negligent misrepresentation made by its project manager when he informed Appellee's employees that they could not ride the buses provided by the general contractor. Appellant did not plead negligent misrepresentation, and the district court did not rule on such a claim. She contends that the claim is sufficiently implicit in her complaint to have given notice of it. That may be; however, there is nothing in the record establishing that the claim was made to the district court. We generally will not consider issues raised for the first time on appeal.

Under the circumstances of this case, the defendant employer did not owe a duty to the plaintiff's decedent. The district court order granting the defendant summary judgment is affirmed.

J. Hill delivered the opinion for the court.

Summary 2006 WY 105

[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: Sherard v. Sherard

Citation: 2006 WY 105

Docket Number: 05-242

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

Representing Appellants (Plaintiffs): James P. Castberg, Sheridan, Wyoming.

Representing Appellees (Defendants): Kristen L. Cogswell, Sheridan, Wyoming; Shelly A. Cundiff, Dayton, Wyoming.

Date of Decision: August 29, 2006

Issues: Whether the trial court erred in determining that a document entitled "Transfer Document" had not effectively transferred the decedent mother's ownership shares in a Business Trust Organization to the Appellant and that a Quitclaim Deed did constitute a valid conveyance of such shares to Appellees. Whether the trial court erred in granting the motion for judgment as a matter of law on Appellants' claim for fraud.

Holdings: The meaning of a trust instrument is determined by the same rules that govern the interpretation of contracts. The intent is determined from the trust document itself. The interpretation of the language of a trust instrument constitutes a question of law. Where the language used in the trust is unambiguous, the plain provisions of the trust determine its construction and interpretation does not require consideration of evidence. The rule regarding effectuation of transfers of certificates of interest in a business trust is that, where the declaration of trust prescribes the manner in which shares or certificates of interest shall be transferred, there must be a compliance therewith. The trust in the present action provided that a transfer was to be effective only when a new certificate was issued and recorded. It is undisputed that this procedure was not followed. As a result, Appellant did not become the certificate holder of the Trust. Appellants' challenge concerning the validity of the Quitclaim Deed is premised upon the perceived rights as certificate holder to the property of the Trust. Having determined that the Transfer Document was invalid and that Appellant was not a certificate holder of the Trust, the district court did not err in confirming the validity of the deed.

Appellants had the burden of proving fraud by clear and convincing evidence. The elements of fraud are: (1) the defendant made a false representation intended to induce action by the plaintiff; (2) the plaintiff reasonably believed the representation to be true; and (3) the plaintiff relied on the false representation and suffered damages. Fraud will not be imputed to any party when the facts and circumstances out of which it is alleged to arise are consistent with honesty and purity of intention. It will never be presumed. In the present action, a review of the record reveals a complete absence of any evidence to support the claim of fraud even when reviewed in the light most favorable to Appellants. Appellant's fraud claim was premised upon his claim to be the owner of fifty trust certificate units. Appellant failed to satisfy his burden in that regard and presented no evidence that a new trust certificate had been issued to him and recorded as mandated by the express provisions of the Trust. In addition, Appellants presented no evidence of any false representation made by any Appellee which was intended to induce action by either Appellant. There is no evidence in the record that either Appellant relied upon any representation made by any of the Appellees. The undisputed evidence establishes that none of the Appellees were aware of the Transfer Document until after Appellant presented the document at a family meeting subsequent to their mother's death. We find no error in the district court's decision granting judgment as a matter of law on Appellants' fraud claim.

Affirmed.

J. Burke delivered the opinion for the court.

Summary 2006 WY 104

Summary of Decision issued August 24, 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: Barker v. State

Citation: 2006 WY 104

Docket Number: 03-85

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

Representing Appellant (Defendant): Diane Courselle, Director, DAP.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Daniel M. Fetsco, Assistant Attorney General. Argument by Mr. Fetsco.

Issue: Whether Appellant was denied a continuance or his right to testify, and whether the district court abused its discretion by denying Appellant’s request for a new trial to permit him to testify. Whether Appellant received adequate notice of the charges against him. Whether the State presented evidence of Appellant’s uncharged misconduct. Whether Appellant received effective assistance of counsel.

Holding: Appellant was convicted after a bench trial of one count of larceny by bailee for converting items belonging to his employer to his own use. He appealed and the Court issued a limited remand for an evidentiary hearing on his ineffective assistance of counsel claim. Returning to the Court after the remand, they concluded the district court unduly limited the evidence Appellant was allowed to present. The Court reversed the district court’s determination defense counsel was effective and again remanded “for the limited purpose of allowing Barker to fully develop the record on the issues of pretrial investigation and the circumstances surrounding Barker’s waiver of his right to testify at his criminal trial”. Following the second remand hearing, the Court requested supplemental briefing from the parties.
Standard of Review: The question of the Right to testify/New trial is governed by W.R.Cr.P.33 and is reviewed for an abuse of discretion. An Appellant must initially demonstrate that he was denied his right to testify and that he would have offered relevant testimony if he had testified. If the Appellant satisfies that initial burden, the State has the responsibility to show that the denial was harmless error beyond a reasonable doubt. An accused has a constitutional right to notice of the charges against him. The issue is reviewed de novo. The district court’s decision on the admissibility of other bad acts evidence is reviewed under the abuse of discretion standard. On a claim of ineffective assistance of counsel, the Court will conduct a de novo review of the trial court’s conclusions of law.
Right to testify/New trial: The Court reviewed the record and agreed with the district court’s conclusion that Appellant’s right to testify was not denied. He voluntarily, knowingly and intelligently waived that right after consideration of a number of factors and discussion with counsel and the district court. Since the right to testify was not violated, the district court did not abuse its discretion by denying his motion for a new trial or to reopen the evidence.
Notice of charges: The right to adequate notice is included in the W.R.Cr.P. 3 which requires a criminal information to include: “a plain, concise and definite written statement of the essential facts constituting the offense charged.” The record indicates the district court was very discriminating about the evidence and the charges. In comparing the charging documents with the judge’s oral ruling, it was clear to the Court that Appellant had adequate notice of the charge for which he was convicted. Appellant also claimed that the evidence offered by the State at trial far exceeded the evidence necessary to establish his guilt on the items for which he was convicted. The amount of evidence presented did not create a problem with Appellant’s right to notice of the charges against him. There was no prejudice because the district court specifically rejected the State’s contentions as to the other items. His constitutional right to notice was not violated.
Evidence of other misconduct: Appellant argues the State violated Rule 404(b) when it presented the evidence of the burglary without following the procedures mandated by the Court in Howard v. State. The State claims and the Court agrees that no error resulted from the failure to follow Howard with regard to the burglary evidence because it was part and parcel of the evidence of a charged crime and did not fall under W.R.E.404(b). The district court’s oral ruling showed the judge critically examined all of the evidence and found Appellant guilty of larceny by bailee for only those items for which the State had proven each of the elements.
Ineffective assistance of counsel: The argument by Appellant was not convincing to the Court that even if his waiver of the right to testify was knowing and voluntary, his counsel were still ineffective because they failed to properly explain the consequences of his behavior. The determination of whether Appellant would testify was ultimately his to make and there was no indication in the record that his attorneys failed to adequately explain the process for and consequences of, waiving the right to testify. The district court informed Appellant of his right to testify in his own defense and offered him time to discuss his decision with his attorneys. He did not accept that invitation and waived his right. The Court concluded Appellant did not show his counsels’ performance was deficient. The attorneys for Appellant did not request a continuance. The Court concluded there was no basis for finding counsels’ performance deficient for failing to request a continuance because they are not required to make a motion without basis. Defense counsel admitted Appellant told them there was e-mail correspondence supporting his defense. Counsel demanded those e-mails in discovery from the State and served CPU with a subpoena duces tecum requesting numerous categories of information, although there was no specific request for e-mails. Appellant claims their failure to follow up with the motion to compel amounted to deficient performance. Upon review of the record, the Court did not agree. The instant case posed a credibility question. Other than Appellant’s uncorroborated testimony, there was no evidence to show the missing e-mails ever existed or that Appellant provided his attorneys with sufficiently specific information about an alleged agreement pertaining to the Arapahoe school items. The district judge ruled Appellant’s testimony was not credible. The district court’s factual determinations support its conclusions that defense counsel conducted a reasonable investigation in pursuit of exculpatory e-mails and made a reasonable decision to cease their search when they believed they had sufficient evidence to conduct his defense.

Affirmed.

J. Kite delivered the order for the court.

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

Summary 2006 WY 103

Summary of Decision issued August 23, 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: Hampton v. State

Citation: 2006 WY 103

Docket Number: 05-269

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

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Senior Assistant Appellate Counsel. Argument by Mr. Roden.

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

Issue: Whether the district court erred in ordering Appellant to pay restitution to victim.

Holding: Appellant pled no contest to one count of forgery and one count of using false written statements to obtain property or credit. At sentencing, the victim (William Stevens) sought restitution as a victim of the forgery. The district court ultimately ordered Appellant to pay restitution in the amount of $15,113.

Appellate review of ordered restitution is confined to a search for procedural error or a clear abuse of discretion. The amount of restitution should be supported by sufficient evidence. The Court endeavors to interpret statutes in accordance with the legislature’s intent. The trial court does not have the inherent power to award compensation to victims of crimes; it may only order restitution that is authorized by statute. Reading the statutes Wyo. Stat. Ann. § 7-9-102, § 7-9-103 and § 7-9-101, pecuniary damages are a primary consideration in awarding restitution. Victims are only entitled to receive pecuniary damages that are the result of a defendant’s criminal activities. The State bears the burden of presenting credible evidence and proving the claim by a preponderance of the evidence. The State’s evidence regarding restitution consisted of the victim’s testimony at the sentencing hearing, a statement contained in the presentence investigation report, and a victim impact statement filed with the district court. Based on the evidence presented in the instant case, the Court found it unreasonable for the district court to have ordered restitution in favor of the victim. The State failed to establish a causal link between Appellant’s fraudulent acquisition and use of the credit card and the denials of credit to the victim in 2001. It was the State’s burden to supply such proof and without it, restitution is inappropriate.

The restitution order of the district court was reversed.

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

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

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Summary 2006 WY 102

Summary of Decision issued August 15, 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: Houx v. Houx

Citation: 2006 WY 102

Docket Number: 05-260

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

Representing Appellant (Defendant): James A. Eddington, Jones & Eddington Law Offices, Torrington, Wyoming.

Representing Appellee (Plaintiff): Tracy L. Zubrod, Zubrod Law Office, PC, Cheyenne, Wyoming.

Issue: Whether the district court properly distributed the marital property.

Holding: Husband and Wife were divorced in 2005. In dividing the marital property, the trial court awarded the marital home to Husband and ordered him to pay Wife for her share of the home. The trial court valued the marital home at $356,000 the midpoint between the amount of an unaccepted purchase offer made on the property and the appraised value.
The disposition of marital property is committed to the sound discretion of the district court. In considering whether a district court abused its discretion, the Court asks whether the trial court could reasonably conclude as it did and whether or not any facet of its ruling was arbitrary or capricious. 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.
Husband cited State Highway Comm’n v. Triangle Dev. Co. which was an eminent domain case in which the State Highway Commission condemned land belonging to Triangle Development Co. The Court held that unaccepted offers to purchase land were inadmissible to prove value in condemnation proceedings. They declined to apply the rule to the instant case. The Court stated that the instant case did not have the same hearsay or speculation concerns. The party claiming error is the same party who listed the property for sale, determined the list price and listed the property at a price higher than the purchase offer which he claims the trial court erred in considering. He also testified that he believed the purchase offer was within the minimum and maximum range of the property’s fair market value. The Court held that the trial court did not abuse its discretion in considering evidence concerning the unaccepted purchase offer.
Husband also claimed that the admission of evidence concerning the purchase offer violated the statute of frauds. The statute, Section § 1-23-105(a)(v), comes into play to prevent enforcement of an unwritten agreement and has no bearing on the instant case. The Husband argued the trial court abused its discretion in considering oral testimony about the purchase offer without documentary evidence. Under the circumstances, the district court did not err in considering the oral testimony since there was no requirement that Husband’s testimony be supported by documentary evidence.

J. Kite delivered the opinion for the Court.

Affirmed.

Link: http://tinyurl.com/m6rmm .

The Law Library is still in the Supreme Court building

There has been a lot of confusion for everyone concerning the upcoming move for the Law Library and Supreme Court. Here is the latest information that we have.

We are still in the Supreme Court Building. The Wyoming State Library has relocated to 516 S. Greeley Hwy., Cheyenne, WY 82002, but the LAW LIBRARY is still in the Supreme Court Building. The move for the Supreme Court and Law Library is tentatively scheduled for late September to early October. We will then be moving across Capitol Avenue to the Hathaway Building.

We will be providing information via the WyomingAttorneys-L and Wyoming Libraries email lists, ourhomepage (http://library.courts.state.wy.us/) and this blog regarding the move dates and times when the Law Library will need to be closed for packing. For more information on the resources that will remain available during relocation to the Hathaway Building, see our accessible materials and resources list: http://www.courts.state.wy.us/LawLibrary/plan.aspx.

And, as always, please feel free to contact us with questions.

Summary 2006 WY 101

Summary of Decision issued August 14, 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: In the Interest of CT, Minor: CT v. State

Citation: 2006 WY 101

Docket Number: C-05-14, C-05-15

Appeal from the District Court of Laramie County, the Honorable Peter G. Arnold, Judge.

Representing Appellant (Defendant): Ken M. Koski, State Public Defender; Donna Domonkos, Appellate Counsel. Argument by Mr. Koski.

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

Issue: Whether the juvenile court violated Appellant’s right to due process by failing to advise him of the terms and conditions of probation. Whether the juvenile court erred by failing to consider a predispositional report prior to disposition. Whether the juvenile court erred by failing to select a statutory sanction level and by failing to impose the appropriate terms of probation for that sanction level.

Holding: The appeal challenges certain procedures and orders in a juvenile court matter. Appellant’s claim that his constitutional due process rights have been violated is reviewed de novo. He has the burden of demonstrating both that he has a protected interest and that such interest has been affected in an impermissible way. Sentencing decisions are reviewed for an abuse of discretion. A court may not enter an illegal sentence. If there was no objection below, the Court reviews alleged errors under the plain error standard.
Whether the juvenile court violated Appellant’s right to due process by failing to advise him of the terms and conditions of probation: Although the United States Supreme Court and the Wyoming Supreme Court have held that due process applies in juvenile proceedings and in probation revocation hearings, neither court has specifically delineated the extent to which such protections are applicable during the dispositional stage of the juvenile proceedings. In the instant case, the Court concluded that the juvenile court did not violate the appellant’s right to due process of the law in fashioning the probation conditions as it did. The record reflects the recommendations of the multi-disciplinary tem (MDT) and the preliminary findings of the juvenile probation officer were included in the court’s order which meets the statutory purpose of designing individualized dispositions. Appellant “signed off” on the probation conditions imposed by DFS, so he had actual knowledge of them.
Whether the juvenile court erred by failing to consider a predispositional report prior to disposition and by failing to select a statutory sanction level: The Court combined these issues because similar reasoning applied to both issues lead the Court to reversal. Wyoming’s Juvenile Justice Act contains clear mandates as to both predisposition reports and sanction levels. A predisposition study was ordered but there was no indication in the record that it was ever accomplished or that the court reviewed such a report prior to disposition. The statutory sanction level for felony property destruction is level three which provides for a maximum probationary term of twelve months. The court twice entered dispositional orders placing Appellant on probation for an indefinite period, a sanction unavailable to the court unless expressly justified in writing on the record. The Court has held that the Juvenile Justice Act does not require absolutely strict compliance but it cannot be “ignored with impunity.” The district court erred in failing to consider a predisposition report and in failing to assign a sanction level and to justify deviation from the appropriate statutory sanction level.

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

Reversed and remanded.

Link: http://tinyurl.com/of47h .

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Summary 2006 WY 100

[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: Muller v. Jackson Hole Mountain Resort

Citation: 2006 WY 100

Docket Number: 05-207

W.R.A.P. 11, Certified Questions from the United States Court of Appeals, Tenth Circuit, The Honorable Mary Beck Briscoe, Judge

Representing Appellants (Plaintiffs): William R. Fix and Jenna V. Mandraccia of William R. Fix, Jackson, Wyoming

Representing Appellee (Defendant): Carter H. Wilkinson and James K. Lubing of Lubing Law Office, Jackson, Wyoming.

[The State of Wyoming was an Appellee (Intervenor but made no appearance)

Date of Decision: August 11, 2006

Facts: Appellant was outfitted with ski equipment; she was wearing ski boots and was attempting to board the Bridger Gondola at Jackson Hole Mountain Resort in order to ride to the top of the hill to begin her day of skiing. When boarding the Bridger Gondola, skiers are not wearing their skis; rather, they are stowed on exterior racks affixed to the gondola. While attempting to board the gondola, Appellant's ski boot became caught under the exterior rack on the Bridger Gondola and she was allegedly dragged several feet, the result of which were painful injuries to her leg and knee. Noting its finding on a special verdict form, following a trial with the magistrate judge presiding, a jury concluded that Appellant's injuries resulted from an inherent risk of the recreational activity in which she was taking part. It may also be discerned from the briefs and from argument that no motion to dismiss or motion for summary judgment was filed in this case. It was also contemplated from the outset that the "inherent risk" in question was one for the jury to resolve. The trial was held in Jackson.

Certified Questions:

1. Pursuant to Wyo. Stat. 1-1-122(a)(ii), Wyoming's Recreational Safety Act (RSA) "does not apply to a cause of action based upon the design or manufacture of sport or recreational equipment or products or safety equipment used incidental to or required by the sport or recreational opportunity." The magistrate judge interpreted this provision as a product liability provision applying to design and manufacture claims. Does the design and manufacture component of the statute apply to products and safety equipment or only sport and recreational equipment? Does this exemption exclude the operation of a ski lift by a recreational provider from the protections of the RSA?

2. The RSA provides that "[a]ny person who takes part in any sport or recreational opportunity assumes the inherent risks in that sport or recreational opportunity, whether those risks are known or unknown, and is legally responsible for any and all damage, injury or death to himself or other persons or property that results from the inherent risks in that sport or recreational opportunity." Wyo. Stat. § 1-1-123(a). The RSA defines inherent risks as "those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity." Wyo. Stat. § 1-1-122(a)(i). Are inherent risks of alpine skiing limited to skiing, can an injury that occurs while boarding the ski lift be an inherent risk of alpine skiing, and can the injury in this case be such an inherent risk?

3. If not mooted by the answers to Questions 1 and 2, is the operator of a ski lift a common carrier, and if so, what standard of care is owed to those riding on a ski lift gondola?

Holdings: 1. Wyo. Stat. § 1-1-122(a)(ii) is not ambiguous and the RSA does not apply to those items listed by it, i.e., the RSA does not apply to the design or manufacture of sports equipment or products, or recreational equipment or products, or safety equipment, the use of which is incidental to the sport or recreational activity; and, "No," this statute does not exclude a ski lift operated by a recreational provider from the protections of the RSA.

2. The "inherent risks" of alpine skiing are not limited only to the act of skiing; an injury that occurs while boarding a ski lift may be an "inherent risk" of skiing; and the injury in this case may be an "inherent risk" of skiing.

3. The answers to questions one (1) and two (2) render question three (3) moot.

J. Hill delivered the opinion for the court.

Summary 2006 WY 99

Summary of Decision issued August 9, 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: Sheaffer v. State

Citation: 2006 WY 99

Docket Number: 05-211

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

Representing Appellant: Bill G. Hibbler, Cheyenne, Wyoming.

Representing Appellees: Susan C. Weidel, Senior Assistant General Counsel & Special Assistant Attorney General, University of Wyoming, Laramie, Wyoming.

Issue: Whether the district court erred in denying inspection of the tape recording, by finding it was not a “public record” as defined by Wyoming Statute § 16-4-201. If the tape recording is a “public record” as defined by Wyoming Statute § 16-4-201, should inspection be denied for any exemption asserted pursuant to Wyoming Statute § 16-4-203. If the Court orders inspection of the tape recording, should it be redacted?

Holding: Sheaffer appeals a determination by the district court that a surreptitious recording of a University of Wyoming committee meeting was not a public record under the Wyoming Public Records Act (WPRA), Wyo. Stat. Ann. §§ 16-4-201 et seq.
Standard of Review: The determination of whether or not the tape is a public record required the Court to construe various provisions of the WPRA. The Court’s primary consideration was to determine the legislative intent and because statutory construction is a question of law that review is de novo.
Public record: The question the Court answered in determining whether or not the tape was public record was if it was made by the University or received by it in connection with the transaction of public business. The tape was received into the possession of the director of the University’s Auxiliary Service in connection with the investigation into Appellant’s conduct. Turning to the ordinary and obvious meaning of the word, it was apparent it was “received” by the university. Next the Court determined whether the tape was received in connection with the transaction of public business. A review of the language of WPRA supported the conclusion that the tape was a public record. The implication of Wyo. Stat. Ann. § 16-4-203(d)(xi) was that records not within any of the enumerated exemptions are public records. The University contended that the content of the tape was irrelevant in that the misconduct was the act of taping itself, and therefore the contents should not be open to public inspection. The WPRA contains no language that could be construed to support that distinction.
Exemption: The Court addressed a second inquiry whether any exemption applied that would allow the record custodian to deny the public the right of inspection. Exemptions are construed narrowly. The University suggests that two exemptions apply to the tape. The first is § 16-4-203(d)(xi) which allows the record custodian to deny public inspection if the record was compiled solely for purposes of investigation. Inspection of the facts of the case indicate the tape was not compiled solely for purposes of the investigation. The second exemption urged by the University was Wyo. Stat. Ann. § 16-4-203(g). The Court found nothing in the record indicating that the University filed an application pursuant to the subsection.
Redaction: The parties also raised the issue of redaction. The Court has recognized it as an appropriate remedy when portions of an otherwise disclosable public record may be subject to an exemption. The Court determined that the tape recording is a public record under the provisions of the WPRA. To this point in the proceedings, the question of redaction is premature. If the question of redaction becomes relevant during the proceedings on remand, the district court may consider the remedy to the extent raised by any party.

J. Hill delivered the opinion for the Court.

Reversed and remanded.

Link: http://tinyurl.com/rhbkz .

Summary 2006 WY 98

Summary of Decision issued August 7, 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: Ray v. St. Vincent Healthcare, Inc.; Johnson County, WY; Board of County Commissioners of Johnson County, WY; and the Johnson County Sheriff’s Dep’t.

Citation: 2006 WY 98

Docket Number: 05-235

Petition for Writ of Review

Representing Petitioner: R. Douglas Dumbrill and Nathan S. McLeland of Lubnau, Bailey & Dumbrill, P.C., Gillette, Wyoming. Argument by Mr. McLeland.

For Respondents Johnson County, Wyoming, The Board of County Commissioners of Johnson County, Wyoming and the Johnson County Sheriff’s Dept.: Greg L. Goddard of Goddard, Wages & Vogel, Buffalo, Wyoming.

For Respondent St. Vincent Healthcare, Inc.: No appearance.

Issue: Whether the appropriate statute of limitations for 42 U.S.C. § 1983 claims is two (2) years pursuant to W.S. § 1-3-115 or four (4) years pursuant to Sullivan v. Bailiff, and whether Appellant’s Motion to Amend Cross-Claim and Third Party Complaint Pursuant to W.R.C.P. 15 was timely filed.

Holding: St. Vincent Healthcare, Inc. sued Johnson County, Wyoming and its board of commissioners in order to recover medical expenses incurred in treating Jeremy Ray. In order to avoid a dismissal of the complaint, St. Vincent caused Ray to be joined as a defendant. Ray initially filed an answer, cross-claim, and third party complaint, but later sought to amend that filing to include a federal civil rights complaint against the Johnson County Sheriffs. The district court denied Ray’s motion and Ray sought a writ of review from the Court.
Standard of Review: A motion to amend a pleading under W.R.C.P. 15(a) “shall be freely given when justice so requires.” A district court’s decision to grant or deny a motion to amend will not be reversed absent an abuse of discretion. Application of a statute of limitations is a question of law which the Court reviews de novo.
Based on Lafferty, the district court in the instant case determined that Ray filed his claim outside of the two-year statute of limitations and it was therefore, time barred. The issue on this writ of review is whether Lafferty remains good law. After the Court’s decision in Lafferty, the United States Supreme Court decided Wilson v. Garcia. Based on the holding in Wilson, it is clear that Lafferty is no longer valid. In Lafferty, the Court held that Wyo. Stat. Ann. § 1-3-115 applied to §1983 claims. The clear rule in Wilson is that such statutes of limitations do not apply and that a state’s personal injury statute must be uniformly applied in § 1983 cases. Therefore the proper statute of limitations to apply in Wyoming state courts for § 1983 claims is the four-year limitations period contained in Wyo. Stat. Ann. § 1-3-105(a)(iv)(C) and not the two-year period in § 1-3-115. Because less than three years passed between the date of Ray’s injuries and his attempt to file the § 1983 claim, that claim fell within the four-year statute of limitations and was timely.
In the respondents’ brief, Johnson County and the Sheriff’s Dept. argued that the Court could affirm the district court’s denial of Ray’s motion to dismiss because Ray did not properly allege compliance with the Wyoming Governmental Claims Act and Article 16, § 7 of the Wyoming Constitution in Ray’s proposed amended complaint, cross-claim and counter-claim. However, the question was not whether the order should be affirmed or denied but whether the district court erred in applying the two-year statute of limitations in Wyo. Stat. Ann. §1-3-115. The district court did not rule on the matter so the Court did not address the issue because they did not grant the writ of review to determine that question.

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

Reversed and remanded.

Link: http://tinyurl.com/he6m2 .

Summary 2006 WY 97

Summary of Decision issued August 4, 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: Lopez v. State

Citation: 2006 WY 97

Docket Number: 05-106

Appeals from the District Court of Natrona County, the Honorable W. Thomas Sullins, Judge.

Representing Appellant (Defendant): Kenneth Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Marion Yoder, Senior Assistant Public Defender. Argument by Ms. Yoder.

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

Date of Decision: August 4, 2006.

Issue: Whether sufficient evidence existed to convict Appellant of voluntary manslaughter. Whether the district court properly instructed the jury on the elements of voluntary manslaughter. Whether Appellant was subjected to vindictive prosecution and whether the habitual criminal allegation was properly proven.

Holding: Appellant was convicted of voluntary manslaughter and of being a habitual criminal. He was sentenced to a term of 10 to 15 years with credit for all time served. This was a retrial after reversal of Appellant’s original conviction.
Sufficiency of the Evidence: When the Court considers a claim of the sufficiency of the evidence, they review the evidence with the assumption that the evidence of the prevailing party is true, they disregard the evidence favoring the unsuccessful party and give the prevailing party the benefit of every favorable inference that may be reasonably drawn from the evidence. Appellant was tried for the crime of voluntary manslaughter, under Wyo. Stat. Ann. § 6-2-105(a)(i). The Court stated that the issue turned upon which of the witnesses the jury decided were the most believable. The Court reviewed the record of the case including the testimony from William Chapin as well as the testimony of the three expert witnesses. They concluded that there was evidence from which the jury could find each of the elements of voluntary manslaughter and that they did so in light of the lesser included offense instruction.
Adequacy of the Instructions: Appellant contended that the instructions did not fully comprehend the nuances of the crime. The standard of review generally applicable to jury instructions is that they should inform jurors concerning the applicable law so that they can apply that law to their findings with respect to the material facts; they should be written with the particular facts and legal theories of the case in mind; and the test of whether a jury has been properly instructed on the necessary elements of the crime is whether the instructions leave no doubt as to the circumstances under which the crime can be found to have been committed. Appellant made no objection to the instructions given. The Court reviewed Appellant’s argument and the cases cited and determined the cases were not pertinent to the case. The Court therefore concluded that Appellant failed to demonstrate plain error with respect to the instructions given to the jury.
Habitual Criminal – Vindictive Prosecution: A defendant has the burden of proof and must establish either (1) actual vindictiveness or (2) a realistic likelihood of vindictiveness which will give rise to a presumption of vindictiveness. Thereafter, the burden shifts to the prosecution to justify its decision with legitimate, articulable, objective reasons. If the defendant does not meet his burden of proof, however, the district court need not reach the government justification issue. Following a detailed consideration of the circumstances presented by this case, the district court determined that the State had met its burden. The Court concluded that the district court did not abuse its discretion or otherwise err as a matter of law in not disallowing the amendment to the information.
Habitual Criminal – Sufficiency of the Evidence: The admission or exclusion of evidence is in the discretion of the district court and the defendant bears the burden of establishing that the district court abused its discretion. Appellant’s arguments as to the level of authenticity of the documents applied only to the weight to be given those documents, a matter to be argued to the jury. The Court concluded that the district court did not err in admitting the evidence of Appellant’s prior convictions and that the evidence was sufficient to sustain the jury’s finding of guilt.

J. Hill delivered the opinion for the court.

Affirmed.

Link: http://tinyurl.com/p6hnm .

Summary 2006 WY 96

Summary of Decision issued August 4, 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: Foote, Jr. v. Simek, as owner of Mountain Meadow Ranch

Citation: 2006 WY 96

Docket Number: 05-203

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

Representing Appellant: Laurence W. Stinson of Bonner Stinson, P.C., Powell, Wyoming; and Matthew D. Winslow of Winslow Law Firm, P.C., Cody, Wyoming. Argument by Mr. Stinson.

Representing Appellee: Andrea L. Richard of The Richard Law Firm, P.C., Jackson, Wyoming.

Issue: Whether genuine issues of material fact exist on the “breach of duty” and “causation” elements of the employee’s cause of action.

Holding: The district court granted summary judgment to the owner of a ranch where an employee was injured while replacing a gasket on a pivot irrigation system. It concluded that the ranch’s owner did not breach his duty to provide the employee a reasonably safe workplace or to warn the employee of unsafe work conditions, and that the employee’s decision to replace the gasket by himself was an intervening cause of the employee’s injuries.
Standard of review: The standard of review in summary judgment in negligence actions is subject to a more exacting scrutiny because the actions are factually dependent. The Court employs the same standards and examines the same materials as the district court. They examine the record de novo, in the light most favorable to the party opposing the motion and affording that party the benefit of all favorable inferences that may be drawn from the record.
A good portion of the parties’ appellate argument focuses on the district courts reliance on Mellor where the employee was injured while helping his employer and another individual move a heavy cabinet. Appellant claims that the Court’s analysis in Mellor was based on the doctrines of assumption of risk and contributory negligence. The Court agrees that to the extent Mellor relied upon those doctrines, its reasoning did not survive the adoption of comparative fault. Furthermore, the issues in the instant case should have been presented to the jury under the latter construct. Unlike Mellor, the Court could not conclude, as a matter of law, that the owner did not breach his duty to the employee.
“Breach of duty”: The Court found that genuine issues of material fact existed that precluded granting the owner summary judgment on the basis of breach of duty. Whether the owner breached his duty to provide the employee a reasonably safe workplace or to warn the employee of unsafe work conditions in the instant case is inextricably intertwined with the circumstances surrounding the employee’s decision to replace the gasket by himself. The Court stated that it was apparent from both hearing transcripts that in granting the owner summary judgment, the district court adopted the owner’s characterization of the facts. However, that was not the only reasonable inference that could be drawn from the evidence presented, therefore summary judgment was inappropriate. Any doubt in that regard must, according to the Court’s standard of review, be resolved in favor of the employee.
“Causation”: These same issues of fact preclude granting the owner summary judgment on the causation element as well. Reasonable minds could disagree as to the effect of the evidence and each party emphasized the same facts in arguing the causation issue as they did in the breach of duty issue. The Court therefore reversed and remanded the district court grant of summary judgment.

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

Reversed and remanded.

Link: http://tinyurl.com/lavvx .