Summary 2006 WY 122

[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: Bouch v. State

Citation: 2006 WY 122

Docket Number: 04-176

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

Representing Appellant (Defendant): Jason M. Tangeman, of Anthony, Nicholas, Tangeman & Yates, LLC, Laramie, Wyoming.

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

Date of Decision: September 27, 2006

Issues: Whether the search warrant affidavit provided a sufficient nexus to lead a reasonably prudent and cautious person to believe that there was a probability that evidence of the crime was located at the address to be searched. Whether Appellant's guilty plea entered involuntarily because he received ineffective assistance of counsel.

Holdings: The Wyoming Constitution, unlike the Fourth Amendment of the Federal Constitution, requires an affidavit, rather than just an oath or affirmation. Sufficient factual support for issuance of the warrant must be found within the affidavit. The affidavit must supply the issuing officer with sufficient information to make an independent judgment that probable cause exists for the warrant. The affidavit in support of the warrant, therefore, must include more than bare conclusions of the affiant. Because of this affidavit requirement, Article 1, § 4 of the Wyoming Constitution has been characterized as somewhat stronger than its federal counterpart.

Probable cause justifying issuance of a search warrant involves a twofold finding. First, the factual situation must be sufficient to warrant a reasonably cautious or prudent person to believe that a crime was being committed or that one had been committed. Second, there must be an adequate showing that the fruits of the crime or the evidence thereof are in the area or structure sought to be searched. This second prong is often described as requiring a "nexus" between the contraband to be seized or the suspected criminal activity and the place to be searched. It is necessary that there be established a sufficient nexus between (1) criminal activity, and (2) the things to be seized, and (3) the place to be searched.

Under a probable cause analysis, the nexus inquiry is distinct from the first prong relating to criminal activity. Probable cause to believe one has committed a crime does not necessarily provide probable cause for a search of his residence. There must be additional evidence linking the person's home to the suspected criminal activity.. An absence of a nexus precludes a finding of probable cause. The affidavit in the present case failed to establish the required nexus between the crime, or the evidence thereof, and the location to be searched. This affidavit did not indicate why the officer believed that the items to be seized would be located at a specific address or even that Appellant had a connection with the given address Although the court affords favorable inferences to support the issuance of the warrant, it cannot make inferences from facts that are not present.

Unlike reviewing courts, the issuing officer is not necessarily limited to consideration of the facts the affiant has chosen to include in the affidavit. In Wyoming, under W.R.Cr.P. 41(c) a judicial officer may seek supplementation of a search warrant affidavit by examining the applicant under oath and having that testimony recorded. This rule highlights the important role of judicial officers in the search warrant application process. It also reinforces the principle that the probable cause determination for a search warrant be based upon a permanent record. In this case, the magistrate may have been able to remedy the lack of nexus problem had he invoked his authority under W.R.Cr.P. 41(c) or simply refused to sign the warrant until an adequate nexus had been set forth in the affidavit.

Since the affidavit did not supply the requisite nexus between the suspected criminal activity and place to be searched, the magistrate did not have a sufficient basis to find probable cause and should not have issued the warrant. The district court erred in failing to suppress the items obtained from the search.

Having determined that the motion to suppress should have been granted, the ineffectiveness of counsel issue raised by Appellant need not be addressed.

The district court's decision denying the motion to suppress is reversed. The judgment and sentence is hereby vacated and the matter is remanded to the district court for further proceedings consistent with this opinion. Upon remand, Appellant shall be allowed to withdraw his guilty pleas.

J. Burke delivered the opinion for the court.

J. Voigt specially concurred for the reasons set forth in his concurring opinion in Rohda v. State, 2006 WY 120.

Summary 2006 WY 122

Meg did not have time to write a summary for 2006 WY 122 before leaving for a conference today. Kathy will be back tomorrow and likely be able to provide a summary. In the meantime, the full opinion is available on our database: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=448150.

Summary 2006 WY 123

[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: Board of Professional Responsibility, Wyoming State Bar v. Murray

Citation: 2006 WY 123

Docket Number: D-06-5

Order of Public Censure

The matter came before the Court upon a “Report and Recommendation for Public Censure” filed September 13, 2006, by the Board of Professional Responsibility for the Wyoming State Bar. The Court, after a careful review of the Board’s report, Bar Counsel’s “Motion for Public Censure and to File a Report and Recommendation for Discipline,” the Respondent’s “Section 16 Affidavit and Stipulation to Discipline,” and the file, finds that the Report and Recommendation should be approved, confirmed and adopted by the Court; and that Respondent should be publicly censured in the manner set forth in the Report and Recommendation.

Respondent shall receive a public censure for his conduct in a manner consistent with the recommended censure contained in the Report and Recommendation for Public Censure; Respondent shall reimburse the Wyoming State Bar the amount of $100.00 for some of the costs incurred in handling the matter as well as pay an administrative fee of $500.00 to the Clerk of the Board of Professional Responsibility on or before November 1, 2006. The order shall be docketed as a public record and published in the Wyoming Reporter and the Pacific Reporter, served upon the Respondent and transmitted to the members of the Board of Professional Responsibility and the appropriate clerks of court.

The Report and Recommendation for Public Censure can be found at the link below.

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

Summary 2006 WY 121

[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: Schirber v. State

Citation: 2006 WY 121

Docket Number: 05-104

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

Representing Appellant (Defendant): Harry G. Bondi, Casper, Wyoming.

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

Issue: Whether the affidavit in support of the application for search warrant established that it was probable that quantities of controlled substances, records of drug transactions, or proceeds from drug transactions, would be found at Appellant’s residence on February 5, 2004. Whether the information supplied by the informants supplied a sound basis of knowledge of criminal activity or was the sparse reference to criminal activity outdated and stale. Whether the execution of the search warrant at Appellant’s residence was overly broad and whether execution exceeded the scope and authority requested or granted when officers searched serial numbers of over two hundred property items including two portable radios.

Holding: Appellant appeals from his conviction and sentence on one count of possession of a controlled substance and two counts of concealing stolen property.
Following an investigation into Appellant’s involvement in the distribution of controlled substances in Thermopolis, a warrant was obtained on February 5, 2004 to search Appellant’s residence. During the execution of the warrant, Oxycontin tablets were discovered. The search also revealed several expensive hand-held radios which were later ascertained to belong to a former employer of Appellant’s. The officer removed the battery packs looking for hidden drugs and recorded the serial numbers. On March 2, 2004 a new warrant was issued authorizing the search of Appellant’s residence and the seizure of the stolen radios and any other stolen property found therein. Before trial, Appellant filed two motions to suppress the evidence discovered during the searches of his residence. The district court denied both motions.

Issuance of the February 5 Search Warrant: The standard of review in the area of warrants is to simply ensure that the warrant-issuing judicial officer had a substantial basis for concluding probable cause existed. The probable cause standard depends upon the totality of the circumstances. An affidavit must contain sufficient information within its four corners to allow the issuing judicial officer to make an independent determination that probable cause exists.

The affidavit is included in its entirety in the opinion. Appellant argues that the information is stale. Appellant focused his argument on limited portions of the statements provided by two of the informants. He never analyzed the portions of the affidavit in the context of the affidavit as a whole which is contrary to the Court’s established totality of the circumstances analysis which requires the issuing judicial officer as well as reviewing courts to consider information contained in an affidavit in its entirety. The Court found that the totality of the circumstances presented by the information in the affidavit was sufficient to support a finding that probable cause existed to believe Appellant was engaged in a continuing course of illegal drug activity. The next question then becomes whether the information in whole or in part was credible. Appellant did not effectively challenge the veracity or basis of knowledge of the cooperating witnesses (CWs) regarding the information supplied by them. Independently, the Court found no internal inconsistencies in the affidavit nor other circumstances that compelled them to question the veracity of the CWs. All CWs gave statements against their penal interests. Various statements by the CWs corroborated each other. The Court found no reason to question the basis of the knowledge of the CWs for their respective statements. The Court therefore for appellate purposes accepted that the information provided by the CWs was reasonably trustworthy. The remaining issue was whether the information supplied in the affidavit was adequate to support a finding of probable cause. The supplied information established a continuing course of illegal drug activity. The information can fairly be said to have come from two separate sources. The respective knowledge of the CWs appeared to be independent. Their credibility was strengthened by the fact the drug users they identified included three people that overlapped.

In light of their analysis, the Court found the affidavit contained sufficient reliable information to allow the issuing judicial officer to make a practical, common-sense determination that a fair probability existed that Appellant was engaged in a continuing course of criminal conduct involving possession and delivery of controlled substances and contraband or that other evidence of the criminal conduct could be found in Appellant’s residence.

Propriety of recording of serial numbers: The Court will not disturb findings on factual issues made by a district court unless they are clearly erroneous. The constitutionality of a particular search or seizure is a question of law that they review de novo. Appellant’s argument began from the presumptive premise that the State claimed that search and seizure of serial numbers from extensive personal property was proper under the plain view doctrine. The plain-view doctrine is an exception to the warrant requirement applicable only as a legal justification for a warrantless seizure. But in the instant case, no seizure took place. The United States Supreme Court has made clear that the recording of serial numbers does not constitute a seizure under the Fourth Amendment.

The Court found that when read in its entirety, the affidavit contained enough information to justify a finding of probable cause and thus the issuance of the search warrant. The district court determined that the officer was within the authority granted him by the February 5 warrant when he removed the battery packs of the radios. The ensuing inspection of the serial numbers was therefore also within the scope of the February 5 warrant. The district court did not err in denying the motion to suppress.

Affirmed.

C.J. Voigt, specially concurring: See concurring opinion in Rohda v. State.

J. Golden delivered the order for the court with C.J. Voigt specially concurring.

Summary 2006 WY 120

[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: Rohda v. State

Citation: 2006 WY 120

Docket Number: 03-201

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

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

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

Issue: The single issue for review is the district court commissioner’s probable cause determination.

Holding: Appellant was charged with violations of state drug laws after state law enforcement officers executing a search warrant discovered marijuana in a shed on Appellant’s residential property. The search warrant was issued by a district court commissioner who had determined the existence of probable cause on the strength of an affidavit signed under oath by a special agent of the state division of criminal investigation. It included hearsay statements of other law enforcement personnel and confidential informants. Before trial, Appellant moved to suppress evidence seized during the search, asserting the affidavit was insufficient to establish probable cause as required under both Article 1, Section 4 of the Wyoming Constitution and the Fourth Amendment of the United States Constitution. After a hearing, the district court reviewed the district court commissioner’s probable cause determination and denied the motion. Appellant entered a conditional guilty plea to one count of felony possession of marijuana, reserving his right to appeal the district court’s order denying his motion to suppress.

Appellate Standard of Review: The duty of reviewing courts is simply to ensure that the warrant-issuing judicial officer had a substantial basis for concluding that probable cause existed. As both the Wyoming Supreme Court and the United States Supreme Court have recognized, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.

The Warrant-Issuing Judicial Officer’s Standard for Determining Probable Cause: The judicial officer who is presented with an application for a search warrant supported by an affidavit applies a “totality of circumstances” analysis in making an independent judgment whether probable cause exists for the issuance of the warrant. The officer is limited to the four corners of the supporting affidavit. The circumstances set forth in the affidavit must amount to more than a mere suspicion yet need not rise to the level of prima facie evidence of guilt. Frequently, the affiant includes information acquired from secondary sources in the persons of other law enforcement officers or confidential informants. The secondary source person’s information is considered “self-verifying” if it describes the warrant-target’s criminal activity in such sufficient detail that the judicial officer reasonably may know that he is relying on information more substantial than a casual rumor or an accusation based merely on general reputation.

The affidavit was set out in full in the Court’s opinion. The Court placed the sixteen substantive paragraphs of the affidavit into four categories for the purpose of distilling the gross product into net evidence which was truly material to the probable cause determination. First category: paragraphs one through four and sixteen which included affiant’s first-hand knowledge of his current and past employment and peace officer status; training and experience; acquired knowledge; and his opinion that he has probable cause to believe that at Appellant’s residential and other property, drugs and drug records will be found. Second category: paragraphs five, nine and twelve included the hearsay evidence acquired from three confidential informants. Third category: paragraphs six, seven, and thirteen through fifteen, included hearsay evidence from several law enforcement officers. Fourth category: paragraphs eight, ten, eleven and parts of thirteen and fourteen, included affiant’s firsthand knowledge of personal information about Appellant and Nathan Mitchell.

The challenge focuses primarily on the second category which contained the hearsay evidence acquired from three confidential informants. Paragraph five included a barebones conclusion unsupported by underlying facts establishing the informant’s veracity or reliability and basis of knowledge. A barebones conclusion does not assist a warrant-issuing officer making a probable cause determination. Paragraph nine included statements that demonstrated a firsthand knowledge of Nathan Mitchell’s controlled substance criminal activity and constituted admissions against the informant’s penal interest. The challenge fails in light of the admissions against penal interest. Paragraph twelve, included statements that were verified by a recitation by the affiant that informant’s information has led to arrests on previous occasions. In the instant case, the specific detail of the informant’s information is “self-verifying”. Considering next, the third category regarding hearsay evidence of other law enforcement officers which included in paragraph six, information from a DCI Intelligence Analyst which was unsubstantiated. The “fellow-officer/collective knowledge” rule applies to information exchanged between law enforcement officers because the law presumes they are truthful or reliable. In paragraphs thirteen through fifteen, “innocuous, general information” was included. It remains for the warrant-issuing judicial officer to consider in what ways and to what extent such innocuous general information ties in with the other material evidence in the affidavit. In the fourth category, all the paragraphs included mundane personal information. The evidence becomes significant when combined with other evidence in the affidavit. The first category, which includes the affiant’s qualifications, training, observations and probable cause opinion, was properly based on the evidence he collected, the inferences he drew and the deductions he made.

The district court commissioner who issued the search warrant for Appellant’s residential property appropriately considered the totality of the circumstances and had a substantial basis for the determination that there was a fair probability that Appellant was engaged in criminal drug business activity and that the evidence of that activity would be found on Appellant’s residential property. The Court affirmed the conviction and sentence and remanded to the district court for further proceedings.

Affirmed.

C.J. Voigt, specially concurring: The Chief Justice wrote separately because the Court’s case law concerning the standard for reviewing probable cause determinations in the search warrant context is inconsistent. He stated that it was time to say directly that “deference” as defined by federal cases is the appropriate standard of review under either constitution and that the Court is not applying de novo review of search warrant affidavits for probable cause, contrary to what the Court said in In re TJS. The Court’s intent as they apply the constitutional provisions is to give guidance to law enforcement officers and issuing magistrates. That goal is best served by establishing and sticking to the standard of review the majority espouses sub silentio today: The duty of reviewing courts is simply to ensure that the warrant-issuing judicial officer had a substantial basis for concluding that probable cause existed. That substantial basis must have been contained within the four corners of the affidavit presented with the requested warrant.

J. Golden delivered the order for the court with C.J. Voigt specially concurring.

Summary 2006 WY 119

Summary of Decision issued September 26, 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: Magallanes v. State

Citation: 2006 WY 119

Docket Number: 05-64

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

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

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

Issue: Whether there was sufficient evidence for the jury to find Appellant guilty of murder in the first degree where the evidence failed to show a conclusive cause of death, where no witness testified that they saw Appellant actually shoot the victim and where there is no physical evidence linking the victim to the crime. Whether ineffective assistance of counsel, specifically in failing to follow up on DNA and scientific testing, denied Appellant his constitutional right to a fair trial. Whether the prosecutor committed misconduct by misstating the law, vouching for the credibility of a witness, and misstating the facts in closing argument.

Holding: Appellant was convicted following a jury trial of first-degree premeditated murder in the death of Joseph Lopez and conspiracy to commit murder. During the evening of January 17, 2004, Joseph Lopez and his younger brother Anthony met Bobby Rojas, Appellant and his brother Jesse Magallanes at the home of Emilio Teniente in Greeley, Colorado. Later, that evening, they all drove to Cheyenne to visit the house of Teniente’s sister, Sophia. During the drive, Appellant became angry and began punching Lopez. Later, after approximately 2 hours visiting in Cheyenne, on the return trip to Greeley, the fighting began again. The car was stopped on Campstool Road; Lopez was removed from the car, beaten, shot and left on the road. Shortly before 2 AM, a security officer for Frontier Refinery left work and drove east on Campstool Road where his car hit the body of Lopez.
Evidentiary Sufficiency: In reviewing a sufficiency of the evidence claim the Court must determine whether a rational jury could have found the essential elements of the claim beyond a reasonable doubt. Appellant’s complaint concerning the cause of death rested largely on selected portions of the testimony of the forensic pathologist who autopsied Lopez. It ignored the evidence that when Appellant pulled Lopez from the car, those activities could have reasonably been inferred to have occurred on the road, based on the reported seating arrangement in the car. Appellant also ignored that the shell casings were found on the road in close proximity to Lopez’s body. The forensic pathologist testified that the gunshot wounds to the brain might not have immediately resulted in death; that the injuries caused to Lopez by the vehicle occurred shortly before or shortly after Lopez expired, and that the wounds would have incapacitated him. From that evidence, a rational jury could have reasonably inferred that Lopez was shot in the roadway and left to die. The Court found ample evidence in the record to support a reasonable conclusion that Lopez’s death was a direct result of Appellant’s discharge of bullets into his head. The record revealed that witnesses testified Appellant was last to handle the gun prior to the shooting, that Lopez was on the ground when Appellant pointed the gun towards the ground and fired twice, and that Appellant stated to the occupants of the car that he had shot Lopez in the forehead and the back of the head. A rational jury could easily conclude from that evidence that it was Appellant who killed Lopez. Appellant did not develop the claim that there was no physical evidence linking Lopez to the crime so the Court did not address it.
Ineffective Assistance: The Court evaluates a claim of ineffective assistance considering whether in light of all the circumstances, trial counsel’s acts or omissions were outside the wide range of professionally competent assistance. Appellant alleged that ineffectiveness occurred as a result of DNA testing not being performed on fingernail scrapings from Lopez, that the car driven that night was not checked for fingerprints and tested for blood and that the shirt left at the sister’s house was not tested. However, the record reveals that trial counsel’s strategy was to use the unknown nature of the untested evidence to Appellant’s advantage by suggesting it would have shown he had no contact with Lopez the night of the murder. Trial counsel further argued the State purposely did not test the evidence because it feared the results would weaken its case against Appellant. Counsel would have had to sacrifice that aspect of Appellant’s defense if he had had the evidence tested. Viewed in this context, the Court stated that trial counsel’s strategic decision to forego testing was well within sound trial strategy of a reasonably competent attorney.
Prosecutorial Misconduct: The Court judges the propriety of any comment within the closing argument in the context of the prosecutor’s entire argument considering the context of the statements and comparing them with the evidence produced at trial. Appellant did not object at trial so the Court applied the doctrine of plain error. Appellant must demonstrate a reasonable possibility that in the absence of the alleged errors, the outcome of his trial would have been more favorable to him. Appellant failed to provide legal analysis or explanation of how the challenged comments materially prejudiced him. Due to the severity of the charges, the Court independently examined the challenged comments in light of the entire record and applicable legal principles and concluded that Appellant’s complaints were without merit.
The Court noted that they continue to see complaints of misconduct arising from remarks made by prosecutors during closing arguments and referred litigants to the Court’s comments in Butcher v. State.

Affirmed.

J. Golden delivered the order for the court.

Link to the case: http://tinyurl.com/fc794 .

Summary 2006 WY 118

Summary of Decision issued September 25, 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: Board of Professional Responsibility, Wyoming State Bar v. Strand

Citation: 2006 WY 118

Docket Number: D-06-4

Order of Disbarment

The matter came before the Court upon a “Report and Recommendation for Disbarment” filed September 11, 2006, by the Board of Professional Responsibility for the Wyoming State Bar. The Court, after a careful review of the Board’s report, Respondent’s “Section 16 Affidavit” and the file, adjudged and ordered that the Report and Recommendation for Disbarment be approved, confirmed and adopted by the Court, that Respondent Strand be disbarred, that a press release be issued consistent with the proposed press release contained in the Report and Recommendation for Disbarment, that Respondent reimburse the Wyoming State Bar the amount of $43.71, plus the administrative fee of $500.00 to the Clerk of the Board of Professional Responsibility before November 10, 2006, that Respondent comply with the requirements of Section 22 of the Disciplinary code, that pursuant to Section 4(c) of the Disciplinary Code, the Order of Disbarment and the incorporated report be published in the Pacific Reporter, that the Clerk of the Court docket the Order along with the Report and Recommendation for Disbarment, that the Clerk of the Court serve a copy upon the Respondent and that the Clerk of the Court transmit a copy of the Order to members of the Board of Professional Responsibility and the clerks of the appropriate courts of the State of Wyoming.
The Report and Recommendation for Disbarment can be found at the link below.

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

Link to the case: http://tinyurl.com/meb62 .

Summary 2006 WY 117

Summary of Decision issued September 22, 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: Modrell v. State

Citation: 2006 WY 117

Docket Number: 06-29

Order Affirming the District Court’s “Order Denying Defendant’s Motion to Correct Illegal Sentence”

The matter came before the Court upon its own motion following notification that Appellant failed to file a pro se brief within the time allotted by the Court. On June 29, 2006, Appellant’s court-appointed appellate counsel filed a “Motion to Withdraw” as counsel, pursuant to Anders v. California. Following a careful review of the record and the “Anders brief” submitted by counsel, the Court entered its “Order Granting Permission for Court Appointed Counsel to Withdraw and Conditionally Affirming Order Denying Motion to Correct Illegal Sentence” on July 18, 2006. That Order provided that the District Court’s December 28, 2005, “Order Denying Defendant’s Motion to Correct Illegal Sentence” would be summarily affirmed unless Appellant, on or before September 1, 2006, filed a brief that persuaded the Court that the captioned appeal was not wholly frivolous. Taking notice that Appellant has failed to file a brief or other pleading within the time allotted, the Court finds that the “Order Denying Defendant’s Motion to Correct Illegal Sentence” should be affirmed.

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

Link to the case: http://tinyurl.com/zrs68 .

Update - Law Library move

Rich Cathcart announced today in the Tribune-Eagle that the Law Library move to their temporary space in the Hathaway Building will be delayed at least two weeks and possibly for two months. The delay is a result of a leak from a newly-installed sprinkler system located on the first-floor.

The packing is progressing well and we expect to close the Law Library doors in the Supreme Court Building on October first. Of course, leaks and other delightful(?) things happen and plans change, so we'll continue to keep you updated!

Summary 2006 WY 116

Summary of Decision issued September 20, 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: Sanchez v. State

Citation: 2006 WY 116

Docket Number: 04-145

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

Representing Appellant (Defendant): Dion J. Custis, Cheyenne, Wyoming.

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

Issue: Whether the district court erred in denying Appellant’s motions for change of venue. Whether the district court abused its discretion in admitting evidence under W.R.E. 404(b). Whether the district court abused its discretion in admitting evidence under W.R.E. 609. Whether the district court abused its discretion in placing a time restriction on closing arguments. Whether the district court abused its discretion in admitting the expert testimony of Dr. Sirotnak. Whether there was sufficient evidence of first degree felony murder and second degree murder.

Holding: A jury found Appellant guilty of first degree felony murder and second degree murder for causing the death of a seventeen-month-old child.
Change of Venue: The Court reviews decisions on motions for a change of venue under the abuse of discretion standard. Appellant argued presumed prejudice because of the inflammatory pretrial publicity which was coupled with the connection of his case to other homicides involving the use of methamphetamines. Presumed prejudice is rarely invoked and only in extreme circumstances. The Court cited Estes, stating that because pretrial publicity in topical criminal cases is inevitable, a defendant’s rights are impacted only when the publicity dictates the community’s opinion as to guilt or innocence. In this case, the evidence of the pretrial publicity consisted of one newspaper clipping and one segment form a local news broadcast. Appellant contended actual prejudice as well. The Court utilized a two part test: the nature and extent of the publicity must be considered and the difficulty or ease in selecting a jury must be considered along with the amount of prejudice which actually appears during voir dire examination. The nature and extent of the pretrial publicity in this case was not unusual and jury selection did not prove to be difficult. Defense counsel failed to renew the motion of change of venue after voir dire, despite an invitation by the district court to do so in the event difficulties arose in seating the venire.
W.R.E. 404(b): Rulings on the admission of evidence are placed within the sound discretion of the court and an appellant must show the trial court committed a clear abuse of discretion. Appellant claims error from the district court’s decision to admit evidence that he called the victim a “niglet” and used other derogatory terms while talking about African Americans. Evidence of other crimes, wrongs or acts includes any sort of conduct that is likely to reflect adversely on the person in the eyes of the jury even though it has not been forbidden by law. In considering whether to admit evidence, a trial court must subject the proposed evidence to a certain level of analysis and must provide some details as to why it allowed the evidence to be admitted. The Court found that the State and the trial court followed the requirements of Gleason.
W.R.E. 609: Evidentiary rulings 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 instant case, the trial court ruled that Appellant’s prior convictions for child abuse would be admissible if he chose to testify. The evidence of his conviction was used to impeach his credibility. An appropriate limiting instruction was given to the jury.
Time Limit on Closing Arguments: A trial court’s decision to place time restrictions on closing arguments is reviewed under an abuse of discretion standard. Appellant claims that he was denied his right to a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Sections 6 and 10 of the Wyoming Constitution because the trial court imposed a time restriction on closing arguments. The trial courts are afforded discretion in controlling their courtrooms and the proceedings therein. The Court made note of the many courts that have failed to find an abuse of discretion or a Sixth Amendment violation despite a time restriction on closing arguments. The Court reviewed the record and determined that under the circumstances, forty-five minutes for summation was not unreasonable. Defense counsel did not use all of the allotted time and did not object as to what, if anything, he was unable to cover in his summation.
Admission of Dr. Sirotnak’s Testimony: Dr. Sirotnak testified about his qualifications and experience as an associate professor of pediatrics for the University of Colorado School of Medicine and as director of the child protection team at the Denver Children’s Hospital. Defense counsel objected that the testimony was cumulative. However, Appellant did not identify any prejudicial abuse by the district court in exercising its discretion to allow the testimony so the Court found no error. Appellant challenged Dr. Sirotnak’s use of the phrase “child abuse” throughout his testimony. Because Appellant did not object at trial the evidence was reviewed by the Court using the three-prong test of the plain error standard. The Court reviewed the record and noted that the phrase was not used in its strict legal sense and so may be allowed. Appellant asserted that Dr. Sirotnak impermissibly testified regarding Appellant’s credibility. Dr. Sirotnak commented upon Appellant’s version of events as being inconsistent with the doctor’s opinion regarding cause of death. Although Dr. Sirotnak discussed the implausibility of the explanations for the injury, he did not comment directly on Appellant’s veracity or credibility. He explained his opinion that the injuries were not consistent with an accident.
Sufficiency of the Evidence: Appellant argued that it was impossible to find that he acted recklessly and at the same time, acted purposely and maliciously. He argued that the two states of mind are mutually exclusive. The Court has held that intentional conduct encompasses reckless conduct. The verdict form indicated the jury found Appellant guilty of second degree murder which requires that he acted purposely and maliciously. It follows necessarily that Appellant also acted recklessly. The two crimes were properly merged for sentencing.

Affirmed.

J. Burke delivered the order for the court.

Link to the case: http://tinyurl.com/ld867 .

Summary 2006 WY 115

Summary of Decision issued September 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: SLU v. State

Citation: 2006 WY 115

Docket Number: C-06-1

Appeal from the District Court of Laramie County, the Honorable Thomas T.C. Campbell, Judge

Representing Appellant (Respondent): Walter Urbigkit, Cheyenne, Wyoming.

Representing Appellee (Petitioner): Patrick J. Crank, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Dan Wilde, Senior Assistant Attorney General; Ellen Rutledge, Assistant Attorney General.

The Wyoming DFS filed a petition to establish paternity and child support, pursuant to which a child support order was entered against SLU. Accompanying the order were several documents including, “Child Support Computation Form” and “Affidavit of Income Determination” which were submitted by DFS without prior approval or knowledge of SLU. SLU moved to strike the documents and her motion was denied. SLU appealed.
The Court relied on SLU’s own argument in determining that the order denying her motion to strike did not meet the definition of an appealable order. The Court only has jurisdiction to entertain appeals from final appealable orders, therefore the appeal was dismissed.

J. Golden delivered the order for the court.

Link to the case: http://tinyurl.com/ner7x .

Summary 2006 WY 114

Summary of Decision issued September 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: Bonsell v. State

Citation: 2006 WY 114

Docket Number: 05-273

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

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

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

Issue: Whether the OAH decision awarding permanent partial disability benefits to Appellant lacks the support of substantial evidence and is arbitrary and capricious. Whether the OAH decision awarding permanent partial disability benefits to Appellant is contrary to law.

Holding: Appellant injured his back while working as a manager of a paint store. He earned $9.00 per hour but routinely worked overtime, bringing his gross monthly wage to $2,145.00. His injury was deemed compensable and he received medical and temporary total disability benefits. Later, he underwent a functional capacity evaluation. He was assigned a permanent partial impairment rating of 12% of his whole body. He accepted a PPI award of that percentage and thereafter applied for PPD benefits to compensate him for loss of earning capacity. The Division arranged for Appellant to be assessed by a vocational evaluator in Texas and later in Wyoming. The Division denied PPD benefits because the evaluation indicated he could return to an occupation at a comparable wage. The OAH held a contested case hearing and issued an order awarding PPD benefits. The district court reversed concluding the record did not contain substantial evidence which connected his wage reduction to his injury.
Standard of Review: In reviewing an appeal from a district court’s decision on a petition for review of an administrative action, the Court affords no deference to the district court’s decision and reviews the case as if it came directly from the agency. The substantial evidence test is the standard of review in appeals from contested case proceedings when factual findings are involved and both parties submitted evidence. The Court does not defer to the agency’s determination on issues of law.
Discussion: In order to be eligible for PPD benefits, a claimant must demonstrate he has suffered a loss of earning capacity due to a work-related injury. The burden of proof is on the injured worker and each element must be proved by a preponderance of the evidence. According to Chavez, both medical and non-medical evidence may be relevant to the determination of loss of earning capacity. The fact finder has the discretion to assign weight to the individual factors. As stated by the statute, the employee’s inability to return to employment at a wage of at least 95% of his pre-injury monthly gross earnings must be because of the injury in order to justify a PPD award. The record established that the paint store where Appellant worked closed shortly after he was injured. In addition, the undisputed facts establish that regardless of whether or not the paint store closed, Appellant could not return to his position as manager because he was restricted in his ability to lift items as he had previously been expected to do. The fact the paint store closed was not the cause of Appellant’s loss of earnings. Before Appellant’s injury, he had held two jobs, neither of which he was able to perform post-injury. The Court found substantial evidence in the record to support the conclusion the back injury resulted in a loss of earning capacity. In considering the vocational evaluation and Appellant’s actual employment, the hearing examiner decided to give greater weight to his actual employment. Determining the weight to be assigned to the evidence is the responsibility of the finder of fact. Applying the Chavez rationale in the instant case, it is clear that after a diligent search, Appellant was unable to find a job that paid a wage comparable to his pre-injury wage. Considering his actual post-injury wage, together with his physical limitations, the hearing examiner’s determination that Appellant’s earning capacity was reduced because of his work-related injury was supported by substantial evidence.

Reversed and remanded to the OAH for reinstatement of the order awarding benefits.

J. Kite delivered the order for the court.

Link to the case: http://tinyurl.com/r6n3c .

E-discovery is here to stay

“The awful truth about E-Discovery is that it's here to stay, yet most practitioners aren't ready for it.” Carolyn Southerland, Baker Botts LLP

Amendments to the Federal Rules of Procedure regarding electronic documents are due to take effect on Dec. 1st. Below are the links I found as I searched for enlightenment:

• Are you wondering why lawyers aren’t doing more electronic discovery? Perhaps this discussion by Dennis Kennedy, Evan Schaeffer and Tom Mighell will answer some of your questions.
• Want to know what to suggest to your clients who may need to change their business practices to comply with the newly enacted rules? See this list of five ways to help, written by C. Thomas Kruse and Matthew W. Caligur.
• A good source for legal issues, news and best practices is Electronic Discovery Law from the Document Analysis Technology Group at Preston Gates & Ellis .
• Applied Discovery from Lexis offers two complimentary subscription services on the topic of e-discovery. One provides case summaries and the other is a quarterly newsletter.

Wyoming may not be ready to adopt the e-discovery rules but these links will help keep you informed about the progress across the nation.

Microsoft Office & Corel WordPerfect Suite Tips & Tricks

Even if you've been using Microsoft Office or Corel WordPerfect forever, you can still learn some great tips from the Microsoft and Corel web sites.

Microsoft offers free live and archived (on-demand) webcasts (usually about an hour long) on programs within Office: Word, Outlook, Excel, & PowerPoint. While these are interesting and helpful--and most importantly--free, you do have to go through an annoying registration process to view them.

Microsoft Office Tips & Tricks
Microsoft Office Newsletters

Corel's take on support is a bit different--less techie, also free, and without having to give away your blood type to retrieve. They provide tutorials along with a "tips and tricks" section. Corel also has newsletters on specific programs.

Corel Community

Take a few moments to randomly link around in both MS and Corel's web sites. You might be surprised with the helpful information you can find.

Summary 2006 WY 113

Summary of Decision issued September 11, 2006

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

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

Case Name: Trevino v. State

Citation: 2006 WY 113

Docket Number: 05-93

Appeal from the District Court of Sheridan County, the Honorable John C. Brackley, 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; Leda M. Pojman, Assistant Attorney General.

Issue: Whether there is sufficient evidence to sustain a conviction for felony obtaining property by false pretenses. Whether the district court erred when it admitted Rule 404(b) evidence which was not relevant to the crime charged.

Holding: Appellant was convicted by a jury of one count of obtaining property by false pretenses in violation of Wyo. Stat. Ann. § 6-3-407(a)(i). Appellant went to purchase a truck for his house moving business with the assistance of his girlfriend, Sharon Keeves who represented herself as Michelle Trevino, his daughter during and after the sale. The purchase price of the truck was $9,000 which was paid with two trade-ins and a check for $6,000 drawn on the moving business account. By the next business day, a stop payment order had been placed on the check. No problems were reported with the truck and a check was never received by the seller of the truck.
Standard of Review: The Court assesses whether all the evidence presented is adequate to form the basis for an inference of guilt beyond reasonable doubt to be drawn by a finder of fact when that evidence is viewed in the light most favorable to the State. Claims of error in the admission of evidence are within the sound discretion of the trial court. Absent an abuse of discretion, the Court will not disturb the trial court’s determination. The burden is on the defendant to establish such abuse.
Issue I: Appellant’s insufficiency of the evidence argument is focused on whether there was intent to defraud. Intent to defraud is an essential element of the crime of obtaining property by false pretenses. The Court has said that there is sufficient evidence that the crime of obtaining property by false pretenses has been committed rather than a violation of the insufficient funds statute where (1) the accused actually obtains property by writing a bad check, and (2) the false representation is more than a simple express or implied statement that the check is good, and (3) all of the other elements of the crime of obtaining property by false pretenses are met. The Court reviewed the undisputed facts established by the record. The false representations made by Keeves at Appellant’s behest during the sale and the subsequent phone call later that day, along with those made by Appellant himself regarding the payment for the truck, are sufficient to satisfy the requirement of Barker that there be more than simply an express or implied representation that the check was good. The evidence was also sufficient to establish intent to defraud. The Court again noted the false representations made by Appellant and Keeves. They also noted that Appellant’s behavior was not what would be expected from a person who had been sold a “lemon.”
Issue II: The district court admitted uncharged misconduct evidence from the vice president and bookkeeper of Appellant’s business. Appellant alleges that the district court incorrectly concluded that the probative value of the evidence was not substantially outweighed by the prejudicial nature of it. The crime of obtaining property by false pretenses is a specific intent crime in Wyoming. The district court admitted the evidence for the purpose of establishing that Appellant had knowledge of his financial condition, i.e., that his conduct was not simply the result of a mistake regarding the state of his banking account. The Court saw no basis for finding that the district court’s balancing of the probative value versus the prejudicial potential of the evidence was an abuse of discretion in light of the purpose for which it was admitted.

Appellant’s conviction and sentence were affirmed.

J. Hill delivered the order for the court.

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

Law Library Move

The Law Library is going to be starting the major packing for its move starting next week. As a result, we are going to have to stop lending the types of materials which will need to be packed for storage. This includes reporters, law reviews, non-Wyoming state statutes, historic CFR's and Federal Registers. We are also asking that if you currently have any of these materials checked out, that you please return them as soon as possible. These materials will rejoin the collection when the renovation is complete.

For the moment, we will still lend treatises, ALR's and any of the materials which we will be taking with us to our temporary home at the Hathaway Building (2300 Capitol Avenue). We will be able to pack around them if they are checked out. However, once we actually start to pack these items, we will need to stop all check-out until we reopen in our temporary home. The library will only have access to electronic materials at that point. We will not be able to open boxes to find and get what you want.

We also anticipate that the library will need to close entirely starting October 1, 2006 to allow the staff to get ready for the actual move (pack offices, etc.). However, if you need reference assistance, you can still contact us. We will do what we can to provide you with directions to where you might be able to locate the information you are seeking.

If the move goes as planned, we should open again at the Hathaway location in early November. If it does not go as scheduled, we may reopen in our current location to at least provide access to our electronic materials. The computers will be the last thing disconnected and moved. We will keep you informed as the move progresses.

When we reopen at the Hathaway Building, we will have access to almost everything we currently have in the collection. The difference will be that in many instances, the access will be by electronic means. If we do not have what you want on hand, we have contacts and will to try to borrow it for you. All you need to do is ask.

We will have actual access to:

• Federal and state case law (accessible via free public in-library access Westlaw)


• Law reviews (accessible via free public in-library access Westlaw or HeinOnline)


• Law review indexes (1980 - present)


• Practice-oriented treatises (legal history & philosophy of law treatises will be in storage)


• Annotated state codes for Wyoming and surrounding states (other states will be accessible via free public in-library access Westlaw)


• Wyoming legislative history materials (one set each of session laws, bills & digests)


• Statutes at Large


• CFR's (Current set in paper, historic sets via Westlaw or HeinOnline)


• Federal Register (accessible via HeinOnline)


• ALR's


• CJS & AmJur 2d


• Current Decennial, General, Pacific, Federal, and Wyoming Digests


• Words & Phrases


• USCS & USCA


• Restatements


• AmJur Legal Forms & AmJur Pleading and Practice Forms

Thank you for your patience and understanding.

Kathy Carlson
Wyoming State Law Library
Supreme Court Building
2301 Capitol Avenue
Cheyenne, Wyoming 82002
Phone: (307) 777-7187
Fax: (307) 777-7240
E-Mail: kcarlson@courts.state.wy.us

Summary 2006 WY 112

Summary of Decision issued September 6, 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: Y-O Investments, Inc. v. Emken; Emken v. Y-O Investments, Inc.

Citation: 2006 WY 112

Docket Number: 05-168; 05-169

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

Representing Y-O Investments, Inc.: Frank J. Jones, Wheatland, Wyoming.

Representing Rose Emken: Cole N. Sherard and D.N. Sherard, Wheatland, Wyoming. Argument by Mr. Cole N. Sherard.

Issue: Emken: Whether the district court erred in finding that Y-O was not in default on the note and mortgage. Y-O: Whether the district court judge can award attorney fees when he found no default existed in the parties’ contract. Whether the district court can rewrite an unambiguous contract.

Holding: In an amended judgment and order following a bench trial in which neither party requested special findings as provided by W.R.C.P. 52(a), the district court ruled that Y-O Investments, Inc. (Y-O) did not breach the terms of a promissory note secured by a mortgage held by Rose Emken (Emken), but that Y-O must take several actions during the life of the note and mortgage to protect Emken’s position and must pay her attorney fees in the sum of $2,000.
Standard of Review: Because the case was bench tried and neither party requested findings of fact and conclusions of law, the Court must consider that the amended judgment and order carried with it every finding of fact which was supported by the evidence. The Court will not interfere with the trial court’s findings unless they are clearly erroneous or manifestly wrong and totally against the evidence. Both parties agreed that the terms of the promissory note and mortgage were unambiguous and therefore the interpretation of these terms is reviewed de novo. With respect to an appeal of an award of attorney fees, the parties agreed that the Court subscribe to the American rule, under which a prevailing party may be reimbursed for its attorney fees when express statutory or contractual authorization exists for such an award.
Y-O is a Wyoming corporation operating a real estate development company east of Wheatland. Emken bought a one-half interest in the company for $145,600 but after a few months, wanted out. Her payment was turned into a loan to the company as evidenced by the promissory note and mortgage. Emken signed partial releases which did not contain legal descriptions of the mortgaged property partially released. Y-O used the partial releases when a lot was sold, filling in the necessary legal description and paying Emken one-half the proceeds
as required by the terms of the promissory note. Emken was told that Y-O would use some of the partial releases to obtain financing from banks. During the first year after execution of the promissory note, some monthly interest payments were not timely made. But Y-O was current as of the date when Emken declared default in the payments.
The Court affirmed the trial court’s decision that Y-O did not default on the note and mortgage. No terms of the note and mortgage prohibited Y-O from obtaining and using Emken’s partial releases as it did. Y-O was current in its monthly interest payments and net sales proceeds payments.
The cross-appeal: Because the trial court found that Y-O was not in default, they question the trial court’s ordering it to identify for Emken which lots have been sold and which have not; to provide Emken a full and complete accounting of all business activities involving the mortgaged property; to make written requests through Emken’s attorney for future releases of lots being sold and to provide pertinent details about each lot sale; to maintain a sufficient amount of mortgaged property of a value of 150% of the then balance of principal and accrued interest on the note and mortgage; and to pay Emken the sum of $2,000 for her attorney fees. The trial court abused its discretion on several counts. By ruling that Y-O had not defaulted on the note and mortgage, Emken’s ancillary accounting claim was without legal basis because an accurate calculation of damages was unnecessary. By ruling that Y-O must perform the various requirements, including an accounting of business activities and sales, the trial court impermissibly rewrote the parties’ note and mortgage. By ruling that Y-O must pay attorney fees, the trial court impermissibly rewrote the parties’ note and mortgage which allowed attorney fees only in the event of default.

The Court affirmed the district court’s amended judgment and order which found that Y-O was not in default on the promissory note and mortgage. The Court reversed the amended judgment and order which imposed on Y-O requirements not contained in the promissory note and mortgage and which imposed on Y-O an attorney fee of $2,000 to Emken.

J. Golden delivered the order for the court.

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