Summary 2006 WY 136

Summary of Decision issued October 27, 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.]

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

Case Name: Seven Lakes Development Company, LLC and Kuhn v. Maxsons

Citation: 2006 WY 136

Docket Number: 06-6

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

Representing Appellants (Defendants): William L. Hiser, Kelly Neville Heck, and Lindsay Hoyt of Brown & Hiser LLC, Laramie, Wyoming. Argument by Mr. Hiser.

Representing Appellees (Plaintiffs): M. Gregory Weisz and Devon O’Connell Coleman of Pence and MacMillan LLC, Laramie, Wyoming. Argument by Mr. Weisz.

Issue: Whether the district court properly determined on summary judgment that Maxsons held a profit in Appellants’ land. Whether the district court erred when it found that the profit had not been abandoned by Maxsons or their predecessors in interest. Whether the district court erred when it found the profit had not been extinguished through adverse possession. Whether the district court erred when it found that the profit allows use of motorized vehicles by the Maxsons while exercising their rights under the profit. Whether the district court erred in its findings regarding the Maxsons’ right to enter adjacent lands from Appellants’ property while exercising their rights under the profit.

Holding: Appellants appeal the district court’s determination that Maxsons hold a profit a prendre to hunt and fish on Appellants’ land and that such profit had not been abandoned; had not been extinguished through adverse possession; allowed the use of motorized vehicles and allowed access to adjacent federal lands.
Standard of Review: Summary judgment is appropriate when no genuine issue as to any material fact exists and the prevailing party is entitled to have a judgment as a matter of law. The findings of fact made by the district court will not be set aside unless clearly erroneous. The district court’s conclusions of law are not binding on the reviewing court and are reviewed de novo.
Legal Classification of the Maxsons’ interest in the Appellants’ lands: All parties agreed that whatever interest the Maxsons had was created by warranty deeds to the original purchasers of the Maxsons’ land. Licenses are distinguishable from servitudes, which are interests in land. A servitude is a general category that includes a variety of non-possessory interests in land, including easements and profits. The Restatement explains that profits are easements with rights to enter and use the land in the possession of another plus the right to remove something from the land. An easement or profit is normally irrevocable. The Maxsons currently own two parcels that were conveyed to their predecessors in interest in 1957 and 1958. The relevant language in the warranty deeds is nearly identical including this statement: “Hunting and fishing privileges are extended to all lands now owned by grantor, or hereafter acquired by grantor in said Sections 22 and 27,…” The parties disagree as to the meaning of the language in the deed. The Court noted that the (1) hunting and fishing “privileges” were created in a warranty deed for property in the Woodedge area; (2) the grant created a legally enforceable right to enter and take wildlife and fish from the land of the grantor; (3) no time was specified for the “privileges” to continue or at which they would automatically cease; (4) consideration was paid for the warranty deed, including all items listed as “Restrictive and Protective Covenants”; and (5) the only implied basis for revoking the privileges was if they were “commercialized.” The Court also noted that the “privileges” were designated as “Restrictive and Protective Covenants”, they run with the land and are binding on the person within the grantor’s and grantee’s line of title and that language in the deed contemplates that the heirs and assigns of the parties to the warranty deed could exercise and enforce the covenants. The Court stated that when read as a whole, the “covenants” in the warranty deeds evidence an intent to create a right in the grantees that was to run with the land, pass to the heirs and assigns of the grantees and was irrevocable unless commercialized. The Court stated that a large majority of courts and secondary sources treat hunting and fishing rights in the land of another as profits.
Abandonment: The Court reviewed the district court’s determination that the profit was not abandoned under the “clearly erroneous” standard of review. The Court reviewed the record and found a lack of evidence of intent to abandon the profit in the 1960’s, abundant evidence of exercise of the profit rights in the 1990’s and Appellant’s admission that hunting was being conducted but that no evidence had been presented that those individuals were members of the community. The Court was unable to conclude that the district court clearly erred when it determined that the profit was not abandoned.
Adverse Possession: In order to establish adverse possession, the claiming party must show actual, open, notorious, exclusive and continuous possession of another’s property which is hostile and under claim of right or color of title. After review of the record, the Court found that sufficient evidence supported the district court’s decision on the issue. Although the district court may have reached a different conclusion from the evidence, the Court’s standard of review requires them to affirm the decision unless clearly erroneous.
Use of Motorized Vehicles while Exercising Rights under Profit: Because the profit was not extinguished by adverse possession or abandonment, the Court had to ascertain whether the district court erred when it determined that the Maxsons could use motorized vehicles on the servient estates while exercising their rights under the profit. Intent is the touchstone of deed interpretation. When creating the profit, the grantor is free to restrict the right to usual methods at the time of the grant or to allow exercise of the profit to adapt to changing technologies and practices. The district court determined that the grantor, McKinley, intended to make a broad grant of a profit that allowed motorized vehicles to be used by the dominant estate holders while enjoying the profit. The Court agreed with the district court decision, stating that it had correctly weighed evidence outside of the warranty deeds.
Right to Enter Adjoining Public Lands: Both parties agree that the Maxsons may only enter the Appellants’ land in section 27 to exercise their rights to hunt and fish; they may not merely use the road over section 27 to reach and hunt on public lands. The Court agreed with the district court because according to the terms of the grant, there was no requirement that the dominant estate owner enter or exit the servient estate in a certain location or manner. The Court noted that all parties agreed that the Maxsons may not hunt on pubic lands and travel over Appellants’ property as the most direct route back to their parcels.

Affirmed.

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

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

How-to: E-mail--Wait, I thought I already knew all that...

Sure, e-mail is easy--been using it for years. New gidgets and gadgets come and go, but the basic steps stay the same. And yes, I do know e-mail etiquette, thank you very much. Nothing new for me.

Okay, I'm going through the foot tall stack of articles and such on my desk and found a couple of articles that reminded me of stuff I knew, but had taken for granted. I thought I would throw it out for you and see if there's a heretofore undiscovered rabbit to be found in this old-hat technology.

YOU DID KNOW THAT TYPING IN ALL CAPS MEANS YOU ARE FRANTICALLY YELLING FOR ATTENTION, right? And you're watching what you write, correct? Or did you learn the hard way that sending an e-mail to your colleague detailing just exactly what you thought of your [insert appropriate word here] boss from work e-mail might not be the best idea? Maybe you have experienced receiving an e-mail with a subject line about the Smith case and upon opening it you find that your partner replied to a former e-mail about the Smith case, but it now discussing his preference for Chinese for lunch. I myself am guilty of forgetting to put anything at all in the subject line (those of you who receive library notices from me know exactly how that feels--sorry!). Laura Stack wrote 12 tips for better e-mail etiquette for Microsoft Office Online. These tips from Laura are excellent reminders of how to make e-mail better for everyone.

Another article that mentioned e-mail is from a blog called I Heart Tech by Adriana Linares. She writes in a post about law office technology that "as a professional service provider your e-mail address should reflect who you are and the name of your law firm. ... An AOL, Yahoo or Hotmail address is not very professional and should be reserved for use by friends and family, not your clients." She goes on to suggest a method for securing a domain name that will reflect you and your firm as opposed to your favorite freebie e-mail service.

Adriana's post is short, but offers other great ideas on using technology in your office better: new equipment, detail & file management, and scanning & faxing.

Summary 2006 WY 135

Summary of Decision issued October 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.]

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

Case Name: Floyd v. State

Citation: 2006 WY 135

Docket Number: 04-168 & 04-169

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

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

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

Issue: Appellant: Whether Appellant was denied his constitutional right to a fair trial due to ineffective assistance of counsel. Whether Appellant’s guilty pleas were involuntary due to ineffective assistance of counsel. State: Whether Appellant’s conditional [nolo contendre] plea properly before the Court pursuant to W.R.Cr.P. 11(a)(2), and if the Court considers the claim, was he denied his constitutional right to a fair trial due to ineffective assistance of his original trial counsel. Whether Appellant’s pleas were given voluntarily.

Holding: Appellant entered a plea of nolo contendre as provided for in W.R.Cr.P. 11(a)(1)(A) to a charge of escape from official detention in violation of Wyo. Stat. Ann. § 6-5-206(a)(i). Appellant’s plea agreement provided that he could appeal this conviction “solely on the grounds of ineffective assistance of counsel.” While a resident of Frontier Correctional Services, Appellant returned late from work release. He failed a breath test for alcohol and left the facility when asked to give a urine sample. He was apprehended two days later in Washington State driving a car that had been reported stolen. He was charged with felony larceny and escape from official detention. He was sentenced to serve not less than 42 months, nor more than 60 months on the larceny charge. He was sentenced to serve not less than 36 months nor more than 60 months on the escape charge, consecutive to the larceny sentence. That sentence was suspended with Appellant serving 4 years on probation consecutive to the larceny sentence instead. The Court initially dismissed the appeals but after considering a petition for reinstatement, converted the appeals to writs of review.
The State asserted the Court should not consider Appellant’s contention that his counsel was ineffective because that issue was not preserved as required by W.R.Cr. P. 11(a)(2). The Court concluded that Rule 11(a)(2) had no application in the instant case.
Standard of Review: In reviewing claims of ineffective assistance of counsel, the Court’s paramount consideration is whether in light of all the circumstances, trial counsels’ acts or omissions were outside the wide range of professionally competent assistance.
Where a defendant has entered a guilty plea, he may challenge his subsequent conviction on appeal only with respect to matters which affect the voluntariness of his plea or the subject-matter jurisdiction of the trial court. The Hill Court determined that a prejudice analysis was required in the context of withdrawing a guilty plea in which the defendant must show that there is a reasonable probability that but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. As the Court suggested in Rutti, if the Court determines that the outcome of trial would not have been more advantageous than the benefits of the plea bargain, then the Court need not evaluate trial counsels’ performance in detail. The Court stated that the circumstances in Rutti were the exact same circumstances in the instant case. The Court reviewed the record and concluded that Appellant failed to demonstrate that he suffered prejudice from any shortcomings in counsels’ performance.

Affirmed judgment and sentence.

J. Hill delivered the order for the court.

Link to the case: http://tinyurl.com/ylb3ry .

More...E-Discovery is here to stay

I promised to keep you up to date on E-discovery, so here's a little something for your toolbox:

The National Center for State Courts (NCSC) Conference of Chief Justices prepared and made available online their Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information . Quoting from the overview: "These Guidelines are intended to help reduce this uncertainty in state court litigation by assisting trial court judges faced by a dispute over e-discovery in identifying the issues and determining the decision-making factors to be applied."

Although these were prepared with trial court judges in mind, they could be used as a guide by opposing counsel in cases where e-discovery was expected to be a significant factor.

Law Library Move Update

The law library move to the Supreme Court's temporary location in the Hathaway Building has been tentatively scheduled for Thanksgiving week.

Although we will continue to be closed until completion of the move and our (grand) re-opening in the basement of the Hathaway, we are able to lend treatises if you know what you need. Our books have been packed in boxes but we have not sealed them yet.

Another option is to contact the George W. Hopper Law Library at the University of Wyoming.

Summary 2006 WY 134

Summary of Decision issued October 19, 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.]

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

Case Name: Stokes v. State

Citation: 2006 WY 134

Docket Number: 05-195

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.

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

Issue: Whether Wyo. Stat. Ann. § 14-3-105 is unconstitutionally vague, both “facially” and “as applied” to his conduct.

Holding: The victim, sixteen years old, began dating Appellant, twenty-one years old, when she was a junior in high school. The victim’s mother learned of the relationship and demanded termination of it. When Mother found out that Appellant and victim had a sexual relationship, she reported it to police. Appellant admitted to a sexual relationship with the victim and that he knew it was against “the rule”. A jury found Appellant guilty of taking “immoral” liberties with a 16 year old girl in violation of Wyo. Stat. Ann. § 14-3-105. The district court sentenced Appellant to three to five years imprisonment but suspended execution of that sentence in favor of probation.
Standard of Review: The Court reviews constitutional questions de novo. Because Appellant did not raise the issue of constitutionality in district court, the Court’s review is confined to a search for plain error.
“Facially”: A statute is facially vague if it reaches a substantial amount of constitutionally protected conduct or if it specifies no standard of conduct at all. The Court then listed the cases where it soundly rejected vagueness challenges to § 14-3-105, including: Moe, Giles, Pierson, Moore, Lovato, Ochoa, Griego, and Sorenson.
“As applied”: When a statute is challenged on an “as applied” basis, the Court must determine whether the statute provides sufficient notice to a person of ordinary intelligence that his conduct is illegal and whether the facts of the case demonstrate arbitrary enforcement. Appellant complained that the statute was vague in that it did not describe with particularity what acts were forbidden. This is the same argument presented to the Court in Giles which the majority of the Court found unpersuasive. The Court has held that the meaning of the terms “immoral”, "immodest”, and “indecent” is sufficiently clear. Further, in Moe, consensual sex with a sixteen-year-old was previously determined to violate the statute. Although Appellant briefly mentions the lack of an extreme age difference as a mitigating factor, he admits he understood that his conduct was wrong and that he should have waited until the victim was eighteen years of age.
Concurrence: C.J. Voigt concurred in the result of the majority opinion out of deference to the doctrine of stare decisis.

Affirmed.

J. Golden delivered the order for the court with a special concurrence from C.J. Voigt.

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

Summary 2006 WY 133

Summary of Decision issued October 19, 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.]

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

Case Name: Ruby v. State

Citation: 2006 WY 133

Docket Number: 05-165

Appeal from the District Court of Campbell County, the Honorable John R. Perry, 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 and Eric A. Johnson, Director, Prosecution Assistance Program.

Issue: Whether Appellant’s conduct violated Wyo. Stat. Ann. § 14-3-105(a). Whether Wyo. Stat. Ann. § 14-3-105 is unconstitutionally vague as applied to Appellant’s conduct because there is not notice that his conduct was violative of the indecent liberties statute.

Holding: The victim, sixteen years old, began dating Appellant, twenty-one years old, when she was a junior in high school. The victim’s mother learned of the relationship and demanded termination of it. When Mother found out that Appellant and victim had a sexual relationship, she reported it to police. Appellant admitted to a sexual relationship with the victim and that he knew it was against “the rule”. A jury found Appellant guilty of taking “immoral” liberties with a 16 year old girl in violation of Wyo. Stat. Ann. § 14-3-105. The district court sentenced Appellant to three to five years imprisonment but suspended execution of that sentence in favor of probation.
Standard of Review: The Court reviews claims of insufficiency of evidence accepting as true the State’s evidence, affording to the State those inferences that can be reasonably and fairly drawn from that evidence. The Court does not consider the evidence in conflict with the State’s evidence. Their duty is to determine whether a quorum of reasonable and rational individuals would or could have come to the same result as the jury did. When a statute is challenged on an “as applied” basis, the Court examines the statute solely in light of the complainant’s specific conduct. The Court decides whether the statute provides sufficient notice to a person of ordinary intelligence that appellant’s behavior was illegal and whether the facts of the case demonstrate arbitrary and discriminatory enforcement.
Appellant’s probation officer discovered a videotape that depicted him engaging in sexual activities with a seven-year-old child. Appellant was sixteen at the time and was charged with two counts of second-degree sexual assault and one count of taking indecent liberties with a minor which was predicated on the videotaping of the incident. Appellant challenges the validity of the indecent liberties conviction.
After Appellant’s brief was filed in the instant case, the Court issued their decision in Rabuck. Rabuck challenged the constitutionality of the statute as applied to his conduct making the same arguments as put forth by Appellant. The Court stated that the indecent liberties statute has been a part of Wyoming law for nearly five decades and they have uniformly given it broad application. When the Court has considered novel conduct in light of the application of the statute, they have examined the defendant’s consciousness of guilt in assessing whether they had notice of the criminal prohibition. Other decisions of the Court have demonstrated that physical touching is not a required element of the crime of indecent liberties. In Rabuck, the Court found the reasoning of State v. McClees persuasive which determined that constructive presence can place a defendant “with a minor” in establishing the crime of indecent liberties. The Court rejected Appellant’s argument that the statute does not proscribe the discreet video recording of minors engaged in indecent acts. They concluded that the “common sense of society” would regard such acts as a violation of the statute and that a person of ordinary intelligence had sufficient notice that such conduct would be against the law.
Concurrence: C.J. Voigt concurred in the result of the majority opinion out of deference to the doctrine of stare decisis.

Affirmed.

J. Hill delivered the order for the court with a special concurrence from C.J. Voigt.

Link to the case: http://tinyurl.com/y4gv93 .

Summary 2006 WY 132

Summary of Decision issued October 17, 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.]

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

Case Name: Countrywide Home Loans, Inc. and America’s Wholesale Lender (Appellants/Defendants) v. First National Bank of Steamboat Springs (Appellee/Plaintiff)
Bank of New York Trustee Under the Pooling and Servicing Agreement Series 1997 and Mortgage Electronic Systems, Inc. (Appellants/Defendants) v. First National Bank of Steamboat Springs (Appellee/Plaintiff)

Citation: 2006 WY 132

Docket Number: 06-3 and 06-4

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

Representing Appellants: James R. Salisbury and Sean C. Chambers of Riske, Salisbury & Kelly, PC, Cheyenne. Wyoming. Argument by Mr. Salisbury.

Representing Appellees: Thomas A. Thompson and Brandon W. Snyder of MacPherson, Kelly & Thompson, LLC, Rawlins, Wyoming. Argument by Mr. Thompson.

Issues: Whether the District Court correctly applied the doctrine of equitable subrogation to determine the relative priorities of the mortgages encumbering the subject property.
Holding: The Ketchams owned real property located in Carbon County. On November 12, 1997, they obtained a loan from AWL secured by a mortgage on the property which was recorded in the clerk’s office November 13, 1997. AWL assigned the mortgage to the Bank of New York which was recorded in the clerk’s office on May 26, 1998. June 4, 2002, the property was pledged as collateral for a loan made by First National Bank to Blue Gate West, a Colorado corporation in which the Ketchams were principles and which was recorded in the clerk’s office on July 22, 2002. On April 2, 2003 a third mortgage was executed in favor of Countrywide and MES for a loan of $97,500. The purpose of this loan was to pay off the 1997 AWL mortgage. It was recorded in the clerk’s office on April 15, 2003. The Ketchams made the final payment to AWL in August of 2004. In June 2003, the Ketchams missed a payment to First National Bank on the 2002 mortgage. This constituted default entitling First National Bank to foreclose. First National Bank filed a complaint naming the Ketchams, Countrywide, the Bank of New York, MES and AWL as defendants and claiming theirs was the first and senior lien. MES and Bank of New York failed to answer in time so First National Bank moved for default and the clerk of the district court entered default judgments against them. MES and Bank of New York filed motions to set aside the default judgments and the district court denied those. First National Bank filed a motion for summary judgment that its lien was superior to the interests of all others; the Ketchams were in default and First National was entitled to foreclose. Countrywide and AWL also moved for summary judgment asking the district court to apply the doctrine of equitable subrogation to hold that the 2003 Countrywide mortgage was subrogated to the 1997 AWL mortgage. The district court declined to apply the doctrine of equitable subrogation. It applied Wyo. Stat. Ann. § 34-1-121 to hold that First National Bank’s 2002 mortgage had priority and they granted summary judgment in favor of them.
Standard of Review: Summary judgment is appropriate when no genuine issue as to any material fact exists and the prevailing party is entitled to judgment as a matter of law. The question of whether equitable subrogation should be applied is a question of law and as such is reviewed de novo. The decision to set aside a default judgment under W.R.C.P. 60(b) will be reversed only upon a showing the district court abused its discretion.
Equitable Subrogation: By statute and case decision, Wyoming is a filing date priority jurisdiction. A mortgage properly recorded in the county clerk’s office provides notice to subsequent purchasers and takes precedence over later conveyances. Countrywide asked the Court for an equitable exception to Wyoming’s statutory provision. The Court has recognized equitable subrogation in Wyoming as a creation of courts of equity to prevent manifest injustice. It has been specifically applied to compel payment of a debt, to one who pays a superior lien in order to protect his own lien, and where one pays a debt of another under a reasonable belief that such payment is necessary for his own protection. However, the Court has not applied it as set forth in the Restatements to allow a refinancing mortgagee to step into the shoes of a prior mortgagee for purposes of obtaining lien property. The Court considered the statute and cases from other states and declined to adopt the Restatement. Where the language of the statute is plain and unambiguous and conveys a clear and definite meaning, the court has no right to look for and impose another meaning, but has the duty to give full force and effect to the legislative product. The primary purpose of the recording statute is to secure certainty of title. The Court stated that equitable subrogation has no application where a financial institution extends a loan for the purpose of enabling a mortgagor to pay off an existing mortgage, knowing that a subordinate lien exists on the real estate.
Default Judgment: The Court found unreasonable MES’ expectation and belief that Countrywide was representing its interest and filing an answer on its behalf without further support than that the two entities shared identity of interests.
The Bank of New York asserted its connection as assignee of the 1997 AWL mortgage which was fully released and satisfied two and one-half months after First National Bank filed its complaint for foreclosure arguing they were entitled to have the default judgment set aside as they were not an interested party once the 1997 mortgage was released as set forth in Rule 60(b)(6). The Court stated their difficulties with the Bank of New York’s argument as twofold: whether or not the bank had direct interest, they were named as a defendant, served with the complaint and required to answer within the time contemplated by the rules. They did not answer and provided no explanation for why they did not. The determination whether to grant relief from judgment under Rule 60(b) is discretionary and the Court reverses only on an abuse of discretion. Even accepting the Bank of New York’s claim that it had no interest, the proper course for them was to answer the complaint and/or move for dismissal. In light of that failure, the Court was hard pressed to conclude the district court exceeded the bounds of reason in denying the motion to set aside default judgment filed months later.

Affirmed.

J. Kite delivered the order for the court.

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

Summary 2006 WY 131

Summary of Decision issued October 16, 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.]

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

Case Name: Williams v. State

Citation: 2006 WY 131

Docket Number: 05-185

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

Representing Appellant (Defendant): Megan L. Hayes, Laramie, Wyoming; Donna D. Domonkos*, Appellate Counsel, and Kenneth M. Koski, State Public Defender, Cheyenne, Wyoming. Argument by Ms. Hayes.

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

*Order granting Leave for Counsel to Withdraw entered September 15, 2006.

Issue: Whether the prosecutor engaged in misconduct. Whether there was sufficient evidence to prove, beyond a reasonable doubt, that Linda Greene killed Allen Ross.

Holding: The Court provided a dramatis personae in the full opinion. The State’s theory of the case was that Linda Greene murdered Allen Ross and Julia Williams assisted her in concealing the crime. It was Julia Williams’ theory of the case that Denis Greene murdered Allen Ross and that she assisted Denis in concealing that crime under threats of death made by him.
Prosecutorial Misconduct: The prosecution made references to Linda Greene’s statement that she shot Ross even though the district court made a pretrial ruling that it was not admissible. However, Williams did not specifically object at the time the prosecutor made reference, so the errors must be reviewed under the plain error doctrine. For the Court to hold that an error in the nature of prosecutorial misconduct has affected an accused’s substantial right, the Court must conclude based on the entire record a reasonable possibility exists that in the absence of the error the verdict might have been more favorable to the accused. In his opening statement, the prosecutor called attention to Denis Greene’s “confession” which included a reference to his statement that she killed Allen Ross. The Court stated that it was an obscure enough reference given the jury’s limited access to all the facts that they could not conclude that, absent this statement, the verdict might have been more favorable to the accused. Also, Appellant contended that during his cross-examination of Denis Greene, the prosecutor violated the trial court’s liminal order. Denis Greene was describing his contacts with Appellant and Linda Greene in early 1996. He described an occasion where Appellant was standing back from Denis Greene and Linda Greene and had her hands in the pockets of a heavy coat worn on a very warm day in Kansas City. Denis Greene implied that Appellant might have had something in her coat pockets that could be used to harm him. Defense counsel objected and the district court overruled the objection. The prosecutor continued, defense counsel objected and the objection was sustained. The prosecutor continued along the same line and again defense objected and asked the district court to grant her motion for mistrial. The district court sustained the objection but denied the motion for mistrial. It was clear the prosecutor was treading on questionable ground. However it was an oblique reference to the prohibited statement by Greene and the jury had limited access to all the facts so the Court could not conclude that absent this statement the verdict might have been more favorable to the accused. The entire exchange amounted to legitimate evidence that suggested Greene and Appellant could be persons who killed Ross, without there being any mention that she actually stated that she did do it. The Court considered the affect of two other deliberate comments by the prosecutor and determined that the misconduct, to the extent it was misconduct, was not prejudicial and there was not a reasonable possibility that the verdict might have been more favorable had the misconduct not occurred.
Sufficiency of the Evidence: In addressing a claim of insufficiency of the evidence, the Court must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The Court reviews the evidence with the assumption the evidence of the prevailing party is true, disregard the evidence favoring the unsuccessful party, and give the prevailing party the benefit of every favorable inference that they could reasonably draw from the evidence. Appellant asserted that there is insufficient evidence that Greene was the person who unlawfully killed Ross. After the Court applied the above standard of review, they concluded the evidence is sufficient. They set out a line of reasoning that the jury might have followed that Appellant was not a credible witness.

Affirmed judgment and sentence.

J. Hill delivered the order for the court.

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

Summary 2006 WY 130

Summary of Decision issued October 13, 2006

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

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

Case Name: In the Matter of the Termination of Parental Rights to CS, Minor Child: LS a/k/a LA, v. Johnson County DFS
In the Matter of the Termination of Parental Rights to TS, Minor Child: LS a/k/a LA, v. Johnson County DFS

Citation: 2006 WY 130

Docket Number: C-05-16 & C-05-17

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

Representing Petitioner (Appellee): Patrick J. Crank, Attorney General; Robin Session Cooley, Deputy Attorney General; and Jill E. Kucera, Senior Assistant Attorney General.

Representing Respondent (Appellant): Jan Flaharty of Sheridan, Wyoming.

Guardian Ad Litem: Tonia Hanson of Buffalo, Wyoming.

Issues: Whether it was established by clear and convincing evidence that LS abused or neglected her children within the meaning of “abuse” and “neglect” as those terms are defined by Wyo. Stat. Ann. §§ 14-3-202(a)(ii) and (vii). Whether LS was deprived of her due process right to a meaningful opportunity to be heard guaranteed under Article 1, § 6 of the Wyoming Constitution and the Fifth and Fourteenth Amendments of the United States Constitution, when the Department of Family Services refused at the last moment to transport LS to the termination hearing.

Holding: LS is the natural mother of CS and TS. DFS and law enforcement personnel investigated allegations of abuse reported by LS’s father. LS agreed to leave the children in foster care and a case plan with the goal of reuniting the family was established. LS failed to follow the case plans, did not maintain stable residences or employment and failed to pay child support. She only made about 40% of the scheduled visitations with the children. DFS filed a petition to terminate LS’s parental rights. Trial before a jury was scheduled. LS contacted a DFS employee to request a ride from Sheridan to Buffalo for the trial. Initially, DFS agreed to provide a ride but later that day informed LS that DFS would not provide transportation. LS was unable to arrange transportation and so missed the first day of trial but was able to attend the second and third days. After hearing the witnesses and evidence of both parties, the jury returned a verdict finding that LS’s parental rights to both children should be terminated.
Standard of Review: The strict scrutiny standard established by clear and convincing evidence must be applied in parental rights termination proceedings. The Court applied traditional principles of evidentiary review examining the evidence in the light most favorable to the party prevailing below, assuming all favorable evidence to be true while discounting conflicting evidence presented by the unsuccessful party. The party claiming an infringement of his right to due process has the burden of demonstrating both that he has a protected interest and that such interest has been affected in an impermissible way.
Clear and Convincing Evidence: After reviewing the entire record and taking due consideration of the appropriate statutes, the Court concluded the jury’s determination was supported by clear and convincing evidence. Pursuant to § 14-2-3090(a)(iii), three elements have to be shown by clear and convincing evidence before a parent’s rights can be terminated: (1) the child has been abused or neglected by the parent; (2) reasonable efforts by an authorized agency or mental health professional have been unsuccessful in rehabilitating the family or the family has refused rehabilitative treatment; and (3) the child’s safety and health would be seriously jeopardized by remaining with or returning to the parent. LS only challenged whether or not there was abuse or neglect. There was testimony of both abuse and neglect presented at trial. In addition, LS failed to comply with the case plan which can be considered evidence of neglect. Considering the evidence in its entirety, there is clear and convincing proof sufficient to support the jury’s findings of abuse and neglect.
Due Process Rights: LS contended she was deprived of due process when DFS refused to transport her to the trial as they had initially promised. She argued that DFS had provided transportation in the past and relied upon their representation that they would do so for the trial and she claimed prejudice because it led the jury to question her commitment to her children. LS did not cite any authority that required DFS to provide her with transportation once the proceedings had progressed to the termination phase. LS did not request a continuation of the trial. The court and LS explained the reason for her absence. The jury verdict was supported by sufficient evidence. An error warrants reversal of a judgment only when it is prejudicial and affects a substantial right.

Affirmed.

J. Hill delivered the order for the court.

Link to the case: http://tinyurl.com/yh9hg4 .

Summary 2006 WY 129

Summary of Decision issued October 13, 2006

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

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

Case Name: Aspen Ridge Law Offices, P.C. v. Wyoming Dep’t of Employment, Unemployment Insurance Commission; and Geneva A. Brewer

Citation: 2006 WY 129

Docket Number: 06-13

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

Representing Appellant: Galen Woelk, of Aron & Hennig, Laramie, Wyoming.

Representing Appellees: William L. Weaver, Senior Assistant Attorney General.

Issues: Whether the Commission’s refusal to allow Employer to present evidence of Brewer’s workplace misconduct was arbitrary and capricious. Whether the Commission’s conclusions were supported by substantial evidence. Whether the Commission failed to provide Employer with a fair and impartial hearing.

Holding: Appellant stated she discharged Brewer’s employment for misconduct because Brewer had been instructed to prepare an affidavit in a fee dispute case and failed to do so. Appellant alleged Brewer had been spearheading a conspiracy to have all employees resign at the same time. A deputy for the Unemployment Insurance Division awarded benefits finding that Brewer’s acts were isolated incidents of poor judgment and not an intentional disregard for the employer’s interests. A contested case hearing was held and the Commission affirmed the hearing officer’s decision but modified certain of the factual findings. The district court reviewed the hearing officer’s decision and affirmed.
Standard of Review: The Court reviewed the case pursuant to Rule 12 of the Wyoming Rules of Appellate Procedure. Unemployment benefit cases where misconduct is alleged present mixed questions of law and fact. The Court is not bound by the conclusions of the district court but use the same evidentiary materials and the same review standards as the district court. Appellant bears the burden of proving that the Commission’s decision was not supported by substantial evidence.
The hearing officer refused to admit evidence relating to the alleged conspiracy on the basis that it was irrelevant. The issue was whether Brewer’s discharge was for misconduct related to her work. There was no suggestion that Appellant had indication of an alleged conspiracy prior to her decision to terminate Brewer’s employment. The excluded evidence lacked relevance so the Court perceived no error in the hearing officer’s ruling. The Court reviewed the alleged misconduct evidence. Conflicting evidence was presented but the record supports the Commission’s conclusion that the failure was an isolated instance of ordinary negligence which did not constitute misconduct.
Appellant claimed the hearing was not fair and impartial because the officer precluded evidence concerning the alleged conspiracy and that the officer interposed her own objections to Appellant’s questions and ruled on those objections. Also, Appellant contended the officer impermissibly conducted her own cross-examination of witnesses. Upon review of the record, the Court stated the hearing examiner asked occasional questions, Appellant was allowed to call all of its witnesses, present relevant evidence, and to cross-examine all witnesses. The hearing examiner properly excluded irrelevant evidence offered by Appellant and Brewer. The Court found nothing to suggest Appellant was not provided a fair and impartial hearing.

Affirmed.

J. Burke delivered the order for the court.

Link to the case: http://tinyurl.com/yj5hk2 .

Summary 2006 WY 128

Summary of Decision issued October 13, 2006

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

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

Case Name: Wells Fargo Bank Wyoming, N.A. v. Hodder; Puls; Ellis; Krueger; Krueger; Krueger; and McKinney, Beneficiaries of the Lierd-Miracle Trust

Citation: 2006 WY 128

Docket Number: 05-256 & 05-257

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

Representing Appellant (Defendant): Gary R. Scott of Hirst & Applegate, PC, Cheyenne, Wyoming.

Representing Appellees (Plaintiffs): Frank R. Chapman of Chapman Valdez, Casper, Wyoming.

Issue: Case No. 05-256: Whether the trial court erred in failing to enforce the good faith provision of the original trust agreement. Whether the trial court erred in its finding that the sale of the five lots to Quality Stores was not a market value sale. Whether the trial court erred when it failed to find that Wells Fargo was an Innocent owner and when it made Wells Fargo guarantor for remediation of the Mini-Mart property, and did the trial court have subject matter jurisdiction over that contamination issue. Whether the trial court erred in its finding that Wells Fargo improperly paid $10,000 to beneficiary Tim Miracle for his participation in Wells Fargo’s sale of trust real estate. Whether the trial court erred in its finding that Wells Fargo Bank improperly withheld $120,000 from its final distribution to cover closing expenses and contingent liabilities of the trust. Whether the trial court erred in ordering Wells Fargo to mitigate the drainage problem at its expense.
Case No. 05-257: Whether the trial court erred by not awarding attorney’s fees to the plaintiffs. Whether the trial court erred by not awarding prejudgment interest to the plaintiff.
Beneficiaries Cross-appeal: Whether the district court erred by not awarding attorneys’ fees to the beneficiaries after they prevailed on claims for multiple breaches of fiduciary duties by the trustee. Whether the district court erred by not granting an award of prejudgment interest on the amount which the court found trust property had been undersold by the trustee.

Holding: The beneficiaries of a trust filed a complaint against their trustee, Wells Fargo claiming it breached its fiduciary duties. After a bench trial, the district court held generally for the beneficiaries. Wells Fargo appealed and the beneficiaries filed a cross-appeal.
The original trust, written in 1968 was amended twice in the succeeding years. The 1976 amendment changed the trust to an irrevocable trust and gave the trustee the authority to act on behalf of and make decisions for the trust on a variety of matters without direction from the grantors or beneficiaries; named two beneficiaries as special trustees to assist with income distribution and real estate management decisions. Neither amendment specifically referenced the original trust provision exempting the trustee from liability for actions taken or omitted in good faith. In 2005, a bench trial was held on the beneficiaries’ claims. The district court issued a decision letter finding that the second amendment superseded the original trust agreement and did not contain a good faith exemption from liability clause, so Wells Fargo was not exempt form liability for actions taken in good faith. The trial court held that Wells Fargo owed the beneficiaries a fundamental fiduciary duty of loyalty and applying that duty, the court concluded Wells Fargo breached by failing to obtain the best price for the five lots sold to Quality Stores, to ensure the fuel spill on the property leased to Mini-Mart was remedied and to correct the drainage problem affecting trust property. The trial court also found that Wells Fargo breached by paying beneficiary Tim Miracle more for services than they were worth and retaining $120,000 in trust funds for legal fees and expenses.
Standard of Review: The intent of the settler is determined, if possible, from the trust document itself. The determination of whether the agreement is ambiguous on its face the Court reviews de novo. Interpretation of an ambiguous instrument is a mixed question of law and fact, and reversed only if it is clearly erroneous or contrary to the weight of evidence. The appellate court can examine all of the properly admissible evidence in the record and findings of fact will not be set aside unless clearly erroneous. The Court assumes that the evidence of the prevailing party is true and gives that party every reasonable inference that can fairly and reasonably be drawn from it.
Well’s Fargo’s Appeal
The Good Faith Provision: The language of the original trust reflected the grantors’ intent that the trustee be free from liability fro actions taken in accordance with their instructions and otherwise so long as it acted in good faith. The clear intent of the 1974 amendment was to amend the original trust but did not expressly or impliedly change the exemption from liability provisions contained in the original trust. The 1976 amendment referenced the original trust as well as the 1974 amendment. Like the first amendment, the second one did not specifically refer to the exemption from liability provisions in the original trust. The 1976 provision exempted the trustee from liability for acts of the special trustees. The earlier provisions exempted the trustee from liability for acts taken at the direction of the grantors and for acts otherwise taken or omitted in good faith. The Court did not find language to suggest the grantors expressly or impliedly intended the later provision of the amendment in general to supersede the earlier provisions and the later provision is not in conflict with the earlier provisions such that they cannot stand together. The Court held that the original trust provision exempting the trustee from liability for acts taken or omitted in good faith remained intact. The Court made note that the trial court did not address in its decision letter whether the trust documents were ambiguous and yet the trial court referred to expert testimony and a letter written by a trust officer of Wells Fargo in interpreting an unambiguous contract. Only when the document is ambiguous does the Court look to parol evidence to understand the parties’ intent.
Breach of Duty of Good Faith: Based on the conclusion that the good faith provision remained in effect after the amendments required the application of that standard, rather than the reasonably prudent person standard the trial court applied. The Court stated it was possible for them to review without reweighing disputed evidence because the trial court’s decision letter set forth detailed findings of fact, including its assessment of witness credibility. In the context of the duty of good faith and fair dealing recognized in contracts, the Court has defined “good faith” in accord with Restatement (Second) of Contracts, § 205, comment 1, (1981). They concluded the Restatement definition is applicable in the context of trust agreements. In light of the broad language of the provision, the Court concluded the grantors intended to modify liability in administering the trust generally and did not intend the good faith standard to apply only to investment decisions.
Failure to Obtain the Best Price for Trust Real Estate: The Court held the findings of fact were sufficient to demonstrate Wells Fargo did not act in good faith in carrying out the sale. Wells Fargo did not act faithfully to the agreed purpose of the trust when they failed to obtain a current appraisal, market or promote the property, obtain approval of the sale from the trust oversight committee or employ real estate experts to assist with the sale. Wells Fargo discussed Allard and Rock Springs Land and Timber but the Court stated that in light of their holding in the instant case that the good faith provision governed Wells Fargo’s conduct, neither case was directly on point. The Court reviewed the evidence concerning the value of the property and concluded there was nothing clearly erroneous about the trial court’s findings.
Failure to Ensure a Fuel Spill on Trust Property was Remedied: Wells Fargo claimed the trial court did not have subject matter jurisdiction over the contamination issue. They cited Wyo. Stat. Ann. § 35-11-1428(b) but it did not apply because this was a suit initiated by the beneficiaries of a trust against the trustee for breach of its duties under the trust, including the duty to act in good faith with respect to trust property as opposed to a suit against an owner or operator of an underground storage tank for third party property damage or personal injury. Wells Fargo also cited Wyo. Stat. Ann. § 35-11-1802 protected it from liability for failing to remedy the fuel spill. The Court stated that the statutory immunity provision had no bearing on the agreement entered into between the grantors of the trust and the trustee.
Failure to Correct the Drainage Problem: The Court reviewed the trial court’s factual findings and stated they were not clearly erroneous and were sufficient to support the conclusion that Wells Fargo breached the duty of good faith by failing to take any action at all to fix the drainage problem on trust property. The Court stated that neither of the parties nor the Court’s own research identified any basis upon which the trustee could be held liable for the cost of correcting the drainage problem. The Court found no error in requiring Wells Fargo to correct the problem, assuming the costs would be borne by the trust.
Overpayments to Beneficiary Tim Miracle: The Court reviewed the factual findings and did not find they were clearly erroneous. The Court stated it was reasonable to assume that the beneficiaries would be justified in expecting the trust would not expend funds without obtaining a corresponding benefit.
Retention of $120,000 in Trust Funds:
The trial court’s decision letter shows their understanding that Wells Fargo retained funds to cover legal fees and costs incurred in defending the claims alleged in the instant lawsuit. The bank failed to cite to the record to support their claim that the funds were held for the purpose of remediation of the fuel spill and the drainage problem. Absent that, the Court affirmed the trial court’s ruling to the extent it held Wells Fargo was not entitled to withhold trust funds to cover costs associated with this litigation. The trial court’s order made Wells Fargo the “guarantor” for remediation of the fuel spill and the drainage problem that occurred during the life of the trust. The Court reversed, stating that Wells Fargo was entitled to retain trust funds to cover expenses incurred in remedying the fuel spill and drainage problem.
The Beneficiaries’ Cross-Appeal
Attorney Fees: The beneficiaries acknowledged Wyoming generally follows the American rule for recovery of attorney fees. They cited Rock Springs Land and Lumber, Alexander and Olds but the Court stated that although it was a compelling argument, they did not choose to move beyond precedent and order payment of attorney fees when punitive damages were not awarded and no contract or statute provided for such fees.
Prejudgment Interest: Prejudgment interest is an appropriate element of damages in some cases. In the instant case, the amount sought to be recovered was not a sum certain of which Wells Fargo had notice prior to the trial court’s decision. This was not an appropriate case for prejudgment interest because the amount to be recovered was determined only after a lengthy, complex trial involving extensive and conflicting evidence.

The trial court’s finding that Wells Fargo’s breach of its duty of good faith caused damages to the beneficiaries was supported by the record and was affirmed. The trial court’s order holding the trustee responsible for remedying the fuel contamination and drainage problems was affirmed. The costs for the remedy should be borne by the trust and paid for by the funds retained by the bank unless the delay in correcting the problems caused additional costs to be incurred. To the extent the delay caused additional costs, the bank must bear those costs. The trial court’s order denying interest and attorney fees was affirmed.

J. Kite delivered the order for the court.

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

Summary 2006 WY 127

Summary of Decision issued October 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: Hembree v. State

Citation: 2006 WY 127

Docket Number: 05-158

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

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

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

Issue: Whether the trial court erred in denying Appellant’s motion to suppress evidence.

Holding: Appellant was stopped for a speeding violation. In the course of the stop, the vehicle was determined to be a rental, with expired plates, which the occupants were not authorized to drive and, the driver had an expired license. When the Trooper explained Enterprise asked the car be impounded, the Trooper offered the occupants a ride to town, or they could walk, but if they rode with him, he would have to inspect their luggage before he allowed it into his car. Appellant voluntarily agreed to inspection and the Trooper found one ounce of cocaine and four and one-eighth ounces of methamphetamine. Appellant entered conditional guilty pleas to two counts of felony possession of a controlled substance with intent to deliver in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i) reserving the right to appeal the district court suppression ruling.
Standard of Review: The Court defers to the court’s findings on factual issues unless they are clearly erroneous. They view the evidence in the light most favorable to the district court’s decision because it is in the best position to assess the witnesses’ credibility, weigh the evidence and make the necessary inferences, deductions and conclusions. The constitutionality of a particular search or seizure is a question of law that the Court reviews de novo.
The Court commented on Appellant’s statement of the issue. They stated that to best assist the Court, each issue should consist of a concise statement of the point of law sought to be argued and reviewed. The Court found that Appellant faulted the district court’s suppression ruling on two grounds, the legality of the initial detention and the voluntariness of his consent to the search of his luggage.
The Detention: Appellant contends that the trooper should have simply issued the appropriate traffic tickets and released him instead of injecting himself into a civil contract dispute with the rental car company. The reasonableness of a traffic stop detention under the Fourth Amendment is determined by applying the two-part inquiry set forth in Terry v. Ohio. A detention must last no longer than necessary to effectuate the purpose of the stop and the scope must be carefully tailored to its underlying justification. In Lindsay and Johnson, the Court determined that the investigation of a potential unauthorized use of a rental vehicle was a reasonably sufficient reason to detain a driver after a traffic stop. The trooper detained Appellant only for the period of time necessary to issue the traffic citations and to complete the investigation into Appellant’s authority to possess and operate the rental car.
Consent to Search: The State argued that Appellant lacked standing to challenge the search of his luggage because as an unauthorized operator of a rental vehicle, he generally would have no legitimate expectation of privacy in the car. The Tenth Circuit Court of Appeals has recognized that although an unauthorized driver has no privacy rights in the motor vehicle, he may possess a legitimate expectation of privacy in his personal luggage stored within the vehicle. The State did not raise the issue of standing in the district court so the State’s argument raises the question whether it should be allowed to raise the standing issue on appeal after it failed to do so in the district court. The Court deferred this question because they affirmed the district court’s denial of Appellant’s motion to suppress. Appellant’s position about the consent to search his luggage is premised on three arguments: the consent was involuntary because it was preceded by an unlawful detention, his consent was not validly obtained because the Trooper exceeded the permissible scope by questioning about travel plans and the presence of drugs, and that his consent was coerced. The first argument failed because the Court held that the extended detention was lawful. The second argument was based on O’Boyle and Campbell. The Court noted the difference in scope of the questions and stated that in the instant case they were limited to Appellant’s travel activities and matters concerning the rental car which were proper under the circumstances. The district court found that the challenged questions occurred after the detention on the traffic stop had terminated. As a courtesy, the trooper offered to drive Appellant and sister to a hotel or bus station. Any interaction occurring in this context was consensual. Third, the voluntariness of Appellant’s consent to the search must be considered within the totality of the circumstances. The Court considered the way the officer phrased the request for permission to search, whether the officer told the individual he could refuse and the presence of other coercive factors. The Court’s review of the record disclosed ample evidence to support the district court’s finding that Appellant freely and voluntarily consented to the search.

The judgment and sentence were affirmed.

J. Golden delivered the order for the court.

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

Summary 2006 WY 126

Summary of Decision issued October 10, 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: Thompson-Green v. Estate of Robert Jerry Drobish; Daniel J. Drobish; Geoffrey O. Drobish, Robert Jay Drobish; and Fidelity Financial Services, Inc.

Citation: 2006 WY 126

Docket Number: 05-227

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

Representing Appellant: Don W. Riske of Riske & Salisbury, PC, Cheyenne, Wyoming.

Representing Appellees: Scott W. Meier and Ian D. Shaw of Hickey & Evans, LLP, Cheyenne, Wyoming. Argument by Mr. Meier.

Issues: Whether Appellant complied with the notice requirements set forth in Wyo. Stat. Ann. § 39-13-108(e) prior to obtaining the tax deed. Whether the tax deed remained valid as to one cotenant’s interest in the property because Appellant did serve that cotenant personally with the requisite notice.

Holding: The appeal concerns the ownership of residential property in Cheyenne. In 2004, the Laramie County Treasurer executed a tax deed granting the property to Appellant. The district court granted summary judgment to Appellees because Appellant did not comply with the aforementioned notice provisions and such a failure as to one owner was sufficient to invalidate the tax deed as to all of the owners of record.
The standard for the review of summary judgments applies in declaratory judgment actions. Summary judgment is proper if the pleading, answers and admissions together with affidavits show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden of proof shall be upon any party seeking to invalidate title conveyed by a tax deed in any action in any court in Wyoming.
The primary issue is the extent to which Appellant complied with the notice requirements contained in Wyo. Stat. Ann. § 39-13-108(e) prior to applying for the tax deed. Appellant contended that she took all reasonable steps available to her to comply with the requirements of the statute. The Court concluded that undisputed facts established that two of the parties could have been found in Laramie County, Robert Jerry Drobish and Daniel Drobish. The Court stated that a diligent inquiry would have included an attempt to contact Robert Jerry Drobish and determine what information he had regarding the location of the other three Drobishes. The statute clearly contemplates Appellant serve requisite notice on Robert Jerry Drobish as well as Daniel Drobish personally prior to obtaining a valid tax deed; and that her failure to do so rendered the tax deed invalid or void. Appellant argued that she served Daniel when Robert Jerry Drobish accepted service. The argument is premised on Appellant’s argument that such service complied with W.R.C.P.4(d)(1). The Court noted that the statute at issue does not specifically refer to Rule 4 in establishing the framework for serving the requisite notice. One of the primary purposes of this kind of notice is to bring to the person entitled to redeem knowledge that the land has been sold for taxes and within what time frame the same may be redeemed from the sale. Daniel Drobish had the right to redeem the entire property from Appellant before a valid tax deed application had been filed and accepted by the county treasurer. Appellant’s failure to serve Daniel Drobish with the notice to which he was entitled therefore inhibited his ability to redeem the property.
The Court’s holding did not leave Appellant without a remedy. The legislature specifically provided for a similar circumstance in Wyo. Stat. Ann § 39-13-108(e)(viii).

Affirmed.

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

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

Google Reader v. Bloglines

Gina Trapani from lifehacker.com has posted a wonderful comparison between Google Reader and Bloglines. Bloglines has been great for me, but I'm definitely going to start experimenting with Google Reader with some of their new features. It should be easy since I can export my feeds from Bloglines and import them into Google Reader. As a matter of fact, three minutes later, I have imported my feeds and am now ready to see what Google Reader has to offer.

United States Code

Need to search the U.S. Code? Don't have several hundred dollars laying around for the benefit of Westlaw or LexisNexis to search USCA or USCS? While the USCA and USCS are more current and annotated, online access to them can be prohibitively expensive. If you simply need a U.S. statute, try one of these options:

• U.S. Code (PDF version) -- Office of the Law Revision Counsel, U.S. House of Representatives
  
  You can browse, search by citation, and search by keyword. Additionally there are options to limit your keyword search to specific sections of the Code, use advanced searching options (concept, relate, fuzzy, dictionary), and perform cross reference searches. If you prefer, you can download the U.S. Code in PDF format (though be aware, the files are large).



• U.S. Code -- Legal Information Institute
  
  The Cornell Law School Legal Information Institute has also made available the U. S. Code. The search options are typical: browse and search by citation or keyword. LII is unique, though, in that they provide a browsable Table of Popular Names and format the text. The advantage of LII is their presentation. It is the easiest-to-read online version of the Code.



• U.S. Code -- GPO Access
  
  The Government Printing Office provides the print version of the U.S. Code, which remains the official version (for you legal types.) GPO Access is yet another option for retrieving a U.S. statute. You can learn more about the contents of the printed version of the Code at http://www.gpoaccess.gov/uscode/about.html.

Summary 2006 WY 125

Summary of Decision issued September 29, 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: State v. Naple

Citation: 2006 WY 125

Docket Number: 05-113

Original Proceeding: Writ of Review from the District Court of Carbon County, the Honorable Wade E. Waldrip, Judge

Representing Petitioner: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant attorney General. Argument by Mr. Pauling.

Representing Respondent: Kenneth M. Koski, State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Senior Assistant Appellate Counsel. Argument by Ms. Domonkos.

Issue: Whether the district court abused its discretion in dismissing with prejudice the charge against respondent.

Holding: The district court dismissed with prejudice a controlled substances charge against Respondent as a sanction for the State’s failure to comply with its discovery obligations. Respondent was a passenger in a van that was stopped by a Wyoming Trooper. One passenger in the van admitted to having a small amount of marijuana. During a search of the vehicle, a one pound container of marijuana was found. Respondent stated it was her medicine and that she had a prescription for it. Respondent was charged with one count of possession of a controlled substance with intent to deliver, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii). She pleaded not guilty and demanded discovery from the State. The State filed notice with the district court representing it had complied with its discovery obligations. None of the police reports provided to the defense by the State referenced Respondent’s statements. The defense attorney told the jury in his opening statement at trial that her statement was not referenced in any police report. The first witness at trial referred to a report written by Trooper Green which included the inculpatory statement. Respondent moved for a mistrial. The district court granted her request and dismissed, stating the State had the option of re-filing the charges. The State filed a motion for reconsideration of the dismissal requesting a new trial date rather than requiring the State initiate a new prosecution. Respondent filed a response specifically requesting the charge be dismissed with prejudice. In support of the motion, Respondent referred to several other cases in the local district and circuit courts where the State had failed to comply with its discovery obligations and had been warned that future violations would be punished by dismissal with prejudice.
Standard of Review: A trial court has discretion in determining the proper sanction for a party’s violation of its discovery responsibilities and its decision will be set aside only for an abuse of discretion. The State also argued that the trial court did not have the legal authority to dismiss the charge against Respondent with prejudice. This argument involves questions of law and implicates constitutional issues, so the Court reviewed it de novo.
Court’s Authority to Dismiss Criminal Charges with Prejudice: The State agreed a mistrial was warranted, but the correctness of the district court’s decision to grant a mistrial is moot because the jury has been discharged. The State failed to comply with its discovery obligations under W.R.Cr.P.16 which requires the State to provide discovery to the defense and addresses sanctions for violations. The Court focused on language which allows the court to “enter such other order as it deems just under the circumstances.” Rule 16 is modeled after the comparable federal rule so the Court gives great weight to federal precedent pertaining to the rule. The Court agreed with the federal precedent interpreting Rule 16 as giving trial courts discretion to dismiss charges against a defendant with prejudice, but only in extraordinary circumstances when less severe sanctions would not suffice. Wyoming precedent concerning “inherent” or “supervisory” powers does not provide a clear answer as to whether the district court properly concluded it had “inherent” authority to dismiss the case for the State’s discovery violation. Both parties referred the Court to Newman but the Court stated that it was not instructive in the instant case. The State argued that allowing the district court to dismiss criminal actions with prejudice because of the prosecutor’s discovery violations resulted in an unconstitutional intrusion by the judiciary into the executive branch’s exclusive power to prosecute cases. In Hilderbrand, on appeal, the Court held the statute which gave the district court authority to direct the prosecutor to charge someone with a crime infringed upon the executive branch’s power and discretion to make prosecutorial decisions. In the instant case, the district court did not infringe upon the prosecutor’s decision to prosecute or decline to prosecute Respondent. The court was attempting to enforce its own rules. Once a prosecutorial decision has been made, the judicial branch becomes involved. Enforcement of court rules is a responsibility of the judicial branch. The district court did not violate the separation of powers concept when it enforced its rules by dismissing the charges with prejudice.
Exercise of Discretion in Imposition of Discovery Sanctions: The Court stated they agreed with federal precedent interpreting Rule 16(d)(2), which provides three factors for the Court to consider in determining the appropriateness of a sanction: (1) the reasons the State delayed producing the requested materials, (2) the extent of prejudice to the defendant as a result of the delay and (3) the feasibility of curing the prejudice with a continuance. The prosecutor’s conduct in other cases could be relevant to a determination of whether the prosecutor’s actions were taken in bad faith. However, in order to establish the connection between the other cases and this case, there needs to be evidence about whether the same prosecuting attorneys and or the same type of violation was involved in the previous cases, whether there was an official policy to withhold, or whether the delay was simply the result of egregious and repeated sloppiness which could rise to the level of intentional withholding of evidence. Secondly, the analysis of the prejudice suffered by the defendant was not addressed with regard to whether the sanction for the violation should be a dismissal with prejudice. There was no discussion about the prejudice which would be suffered by this particular defendant if the matter was not dismissed with prejudice. Finally, the district court did not discuss whether the prejudice could be cured with a less severe sanction. The failure to consider the proper factors in determining whether a particular sanction is warranted amounts to an abuse of discretion.
The record and the district court’s order did not justify the decision to dismiss the charges with prejudice. The Court repeated that the district court has broad discretion but it must be exercised in a reasoned fashion after consideration of the appropriate factors and the court should choose the least severe sanction which it concludes will ensure the State’s compliance with its discovery responsibilities.

C.J. Voigt, dissenting opinion, joined by J. Hill: C.J. Voigt agreed with most of the majority opinion except he would have come to a different conclusion. If W.R.Cr.P. 16(d)(2) truly does give the district court broad discretion in improvising a remedy for discovery violations by the State as it deems just under the circumstances, then the circumstances of the case coupled with the matters described in paragraph 6 of the district court’s order should have sufficed. Even though the district court’s order did not directly identify and discuss the Dennison factors, the Chief Justice would have found that it sufficiently recited a reasoned decision and met the spirit of Dennison. Repeated violations by a prosecutor’s office constitute the type of extreme behavior for which nothing short of dismissal may have any effect.

Reversed and remanded.

J. Kite delivered the order for the court with C. J. Voigt dissenting, joined by J. Hill.

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

Summary 2006 WY 124

Summary of Decision issued September 29, 2006

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

Case Name: Boyle v. Boyle

Citation: 2006 WY 124

Docket Number: 05-258

Appeal from the District Court of Crook County, the Honorable John R. Perry, Judge

Representing Appellant (Defendant): Mary A. Throne and Brandi L. Monger of Hickey & Evans, LLP, Cheyenne, Wyoming. Argument by Ms. Monger.

Representing Appellee (Plaintiff): Kathryn J. Edelman of Edelman Law Office, Gillette, Wyoming.

Issue: Whether it was proper for the district court to consider banked hours, vacation hours and sick hours as marital property. Whether the district court abused its discretion in the property division set forth in the judgment and decree of divorce.

Holding: Husband and Wife were married September 4, 1994. Each party owned a home prior to the marriage but sold their individual properties and placed the proceeds in their joint accounts. They used their joint funds to purchase property and build a new home. District court held a trial on May 25, 2005. Both parties testified and the district court ordered them to prepare written submissions for the court’s consideration in issuing its final decree. The district court issued a decision letter outlining its basic property distribution and indicating it generally adopted Wife’s proposed distribution of the property. Husband appeals from the property disposition in the decree granting Wife’s complaint for divorce.
Wyo. Stat. Ann. § 20-2-114 sets out the statutory requirements for disposition of a couple’s property in a divorce. The trial court has the discretion to determine what weight should be given each of the individual statutory factors. The Court has expansively discussed the “just and equitable” requirement in Sweat v. Sweat. The district court’s conclusions of law are reviewed de novo.
Employment Benefits: The three assets in question were Husband’s banked hours, vacation hours and accumulated sick leave. At trial, there was no testimony concerning these three assets except Wife’s answers on cross-examination. At the conclusion of the trial, the district court asked the parties to submit proposed decrees. Husband’s proposed decree did not address the employment benefits at all. Wife submitted a closing argument together with a revised version of the Joint Exhibit presented at trial which assigned those three benefits to Husband for “value”. Husband did not respond to Wife’s submission but in response to the decision letter, filed a list of questions regarding the disposition of the employment benefits. Wife responded that her position was for the assets to be set over to the Husband at the values shown on the Joint Exhibit because she understood that Husband’s employer would not transfer those assets to her regardless of any contrary order. The district court adopted Wife’s position and Husband did not object. Husband argued that employment benefits are not marital property and nothing more than a future expectancy. However, Husband did not provide evidence at trial concerning the nature of the benefits and/or whether they had present value, or that they were nothing more than a future expectancy or that they were not marital property. The Court stated that to decide the issue on the merits, the case would have to be remanded to the district court for an evidentiary hearing which would give Husband a “second bite at the apple” which he was not entitled to. Husband also submits a factual argument the employment benefits have no “cash value” to him, however the record does not contain evidence as to if or when Husband was entitled to cash out his employment benefits. The record does contain evidence about the value of the employment benefits. Based on the record, the Court stated that the district court properly valued benefits when it set them over to Husband.
Property Division: Husband argued the district court abused its discretion when it divided the parties’ marital property. The Court considered whether or not the evidence adduced at trial supported the property division as a whole, not necessarily each individual part of it. The record did not support Husband’s assertions. The district court expressly considered the parties’ contributions of premarital assets and the relative financial contributions of each party to the marital estate, together with the other statutory factors. The decision letter demonstrated consideration of the proper factors. A party contesting the district court’s division of the property must demonstrate the evidence adduced at trial does not support the property distribution as a whole. Husband did not explain why the equalization payment was not just and equitable or how the district court abused its discretion. Husband claimed the district court was punishing him for evidence of an extra-marital affair. There was no indication of any retribution in the record.

J. Burke’s dissent: The district court ordered Husband to pay Wife $729,400 to “equalize the division of the marital estate”. The district court included $284,204 in employment benefits as assets of the marriage to arrive at the payment amount. There was insufficient evidence to support the district court’s valuation of its finding that the employment benefits were marital assets. The majority noted that there was no evidence in the record indicating the employment benefits had or would have any cash value. The majority states that the absence of such evidence is fatal to Husband’s appeal. J. Burke disagreed. Wife had the burden of providing sufficient evidence at trial to support her claim. In light of Wife’s stated position that she was making no claim to the benefits and the lack of any evidentiary support for valuation of the benefits, Husband’s failure to provide any testimony or other evidence regarding the benefits is understandable and appropriate. J. Burke stated that although on appeal, the Court must review the evidence in the light most favorable to the prevailing party, in this case there was no evidence which supported the district court’s valuation of the employment benefits as marital assets. Review of the entire record leads to the conclusion that the district court’s valuation of the employment benefits was erroneous. J. Burke would have reversed and remanded to allow the district court to fashion an equitable property distribution without inclusion of the employment benefits as marital property.

J. Kite delivered the opinion for the court, with J. Burke dissenting.

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

Reminder

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