Move update--Nov. 28, 2006

It's happening now, people! The boxes and boxes of books are being emptied and shelved in the basement of the Hathaway building as I type. I've been given a 5 minute break to let you know what's going on--then I am back to the LC classification system.

Our offices have not been moved yet, but it's scheduled for this week. They are currently moving and setting up the Justices' and Staff Attorneys' offices. In the meantime, we are doing all we can to round up slave labor for shelving. We have been lucky only once on that front. However, she left on a flimsy excuse and escaped.

So, Kathy's goal for opening us back up again is now December 15, 2006. The shelving is moving along fairly rapidly. We think this is a pretty realistic date. For the next few days, we have no telephones and limited computer access. The best way to get hold of us is by email.

E-discovery continued

Legal researchers have an excellent resource available from Sabrina Pacifici with her online journal, LLRX.com and her daily web log, beSpacific. A recent post to LLRX.com was about ways for attorneys to keep abreast of developments in e-discovery called Keeping Current with E-discovery Law. The author recommends attorneys research the law of their jurisdiction (the Wyoming Judicial Branch has a link on their homepage to access Court rules), he suggests they subscribe to a newsletter (check out the Lexis newsletters available) and consider attending a CLE program on the subject.

Summary 2006 WY 148

Summary of Decision issued November 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: Fertig v. State

Citation: 2006 WY 148

Docket Number: 04-56

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

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

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

Issue: Whether a traffic stop initiated by law enforcement after observing a traffic offense violates Article 1, Section 4 of the Wyoming Constitution when the primary purpose of the stop is to conduct a search for evidence of illegal drug activity.

Holding: Wheatland police had received information indicating that illegal drug activities were taking place at a specific residence in Wheatland. Surveillance was established and officers positioned their vehicles along the two most likely routes of travel. The vehicle in question was spotted and the speed was recorded in excess of the 30mph zone. During the course of the stop, an officer observed drug paraphernalia in the glove box. He concluded he had probable cause to search the vehicle for illegal controlled substances. Fertig was arrested for possession of drug paraphernalia and a bag containing methamphetamine was found in his pocket. Fertig appealed from a judgment and conviction following his entry of a conditional guilty plea to one count of felony possession of a controlled substance. The district court denied his motion to suppress evidence obtained after he had been stopped for speeding by Wheatland police.
Standard of Review: The Court will not disturb the factual findings of the district court in determining a motion to suppress unless the findings are clearly erroneous. Whether an unreasonable search or seizure occurred in violation of constitutional rights presents a question of law which the Court reviews de novo.
The Court stated that the sole issue presented was whether a pretextual traffic stop violated Article 1, Section 4 of the Wyoming State Constitution. A pretextual stop occurs when the police use a legal justification to make the stop in order to search a person or place, or to interrogate a person, for an unrelated crime for which they did not have the reasonable suspicion to support a stop. According to Fertig, the underlying motive rendered the stop unconstitutional at its inception. Fertig contended that the Wyoming Constitution affords greater individual protection than the Fourth Amendment of the U.S. Constitution.
The Court’s review requires that searches and seizures be reasonable under all the circumstances. Reasonableness depends upon a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers. In O’Boyle, the Court determined that the principles for assessing the reasonableness of a traffic stop under the Fourth Amendment were not significantly different than those applicable separately under the Wyoming Constitution. In O’Boyle, the focus of the Court’s constitutional analysis involved an evaluation of police conduct after the stop. The Court did not question an officer’s authority to initiate a traffic stop after an observed traffic violation. In Damato, the Court recognized that an officer has probable cause to initiate a traffic stop when the officer personally observes a traffic violation. The Court declined to move away from the reasoning of the Whren decision.
The Court concluded that a traffic stop initiated by a law enforcement officer after personally observing a traffic violation is supported by probable cause and does not violate Article 1, Section 4 of the Wyoming Constitution, regardless of the officer’s primary motivation. The Court’s holding addressed only the initial police action upon which the vehicular stop was predicated. The scope, duration and intensity of the seizure as well as any search made by the police subsequent to the stop remain subject to the strictures of Article 1, Section 4 and judicial review. The nature of the traffic offense remains relevant in determining whether the search and seizure was “reasonable under all the circumstances” as required by Article 1, Section 4.
It was undisputed that the officer personally observed the traffic violation and had probable cause to initiate the traffic stop. The scope, duration and intensity of the seizure after the initial stop were not contested. Therefore, the district court properly denied the motion to suppress.

Affirmed.

J. Burke delivered the opinion of the court.

Link to the case: http://tinyurl.com/thbd2 .

Summary 2006 WY 147

Summary of Decision issued November 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.]

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

Case Name: Hoy v. K.C. Miller, et al

Citation: 2006 WY 147

Docket Number: 05-294

Appeal from the District Court of Campbell County, the Honorable Dan R. Price II, Judge

Representing Appellants (Plaintiffs): Virgil G. Kinnaird of Kinnaird Law Office, PC, Sheridan, Wyoming.

Representing Appellees (Defendants): Patrick G. Davidson, Matthew R. Sorenson and Tad T. Daly of Daly Law Associates, LLC, Gillette, Wyoming. Argument by Mr. Daly.

Issue: Whether the district court erred in its application of a negligence standard in finding that there was no breach of duty, or stated in the alternative, failing to find that Miller had produced no evidence of the exceptions to absolute liability. Whether the district court erred in finding no proximate cause.

Holding: The properties in question are located north of Gillette. Hoy alleges that water seeps through the bottom of the stock reservoir on Miller’s property and runs down to Hoy’s property creating a groundwater problem for him.
Standard of Review: The Court reviews a trial court’s conclusions of law de novo. The Court reviews a trial judge’s findings of fact to determine if they are clearly erroneous. The Court does not re-weigh the disputed evidence nor do they substitute their judgment for that of the trial court.

Absolute Liability and Proximate Cause: Absolute liability is imposed on certain conduct regardless of whether or not such conduct is negligent. Absolute liability extends to damages proximately caused by the alleged harmful conduct. The Court stated they did not need to decide the issue of whether Miller was subject to absolute liability if Hoy’s alleged damages were not proximately caused by any conduct of Miller. The existence of proximate cause is a question of fact. The district court’s finding on proximate cause would not be set aside unless it was clearly erroneous. The Court reviewed the evidence from Hoy’s one expert and Miller’s three experts. All three experts discredited Hoy’s expert’s investigation as not thorough enough to allow him to validly conclude that there was any correlation between water in the reservoir and Hoy’s high groundwater.
Hoy needed to present sufficient proof that his damages were caused by seepage from Miller’s reservoir. The district court found that Hoy had failed to fulfill the burden. Upon review of the record, the Court found ample evidence supporting the decision of the district court.

Affirmed.

J. Golden delivered the decision.

Link to the case: http://tinyurl.com/y5hzm9 .

Summary 2006 WY 146

Summary of Decision issued November 13, 2006

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

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

Case Name: Rodriguez v. State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division

Citation: 2006 WY 146

Docket Number: 06-46

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

Representing Appellant (Petitioner): Guy P. Cleveland, of Cleveland Law Office, Cheyenne, Wyoming

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

Date of Decision: November 13, 2006

Issues: Whether in denying Appellant's claim for worker's compensation benefits the Office of Administrative Hearings (OAH) acted arbitrarily, capriciously, abused its discretion, or otherwise acted not in accordance with law within the meaning of W.S. § 16-3-114(c). Whether the OAH's erred in its determination that Appellant failed to meet her burden of proof.

Holdings: A party seeking judicial review of an administrative action must comply with the Wyoming Rules of Appellate Procedure. When a party fails to do so, the Court may refuse to consider the offending party's contentions; assess costs; dismiss the appeal; or affirm the lower court's or agency's decision. In the present action, the Appellant failed to provide any citation to the Wyoming Workers' Compensation Act or a specific provision contained therein pertinent to the issues of her case. She also failed to set forth the elements of her claim and did not cite to the record or provide relevant legal authority to support her contentions. The cumulative deficiencies result in a failure to present cogent argument. Additionally, it should be noted that Appellant's brief failed to comply, in multiple respects, with the requirements of W.R.A.P. 7.01. Therefore, the decision of the OAH is summarily affirmed.

J. Burke delivered the opinion for the court.

Link: http://tinyurl.com/yjsy6p .

Summary 2005 WY 145

Summary of Decision issued November 9, 2006

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

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

Case Name: City of Torrington v. Cottier

Citation: 2006 WY 145

Docket Number: 05-267

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

Representing Appellant (Defendant): Loyd E. Smith of Murane & Bostwick, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Michael E. Warren of Sawyer & Warren, PC, Torrington, Wyoming.

Issue: Whether the waiver of governmental immunity for the “operation” of public utilities found in W.S. § 1-39-108(a) extends to “maintenance” of public utilities.

Holding: Cottier obtained a judgment against the City of Torrington after his rental property was damaged by the backup of raw sewage. The City appealed claiming immunity under the Wyoming Governmental Claims Act.
Standard of Review: Resolution of the issue in the instant case requires interpretation and application of the Wyoming Governmental Claims Act, Wyo. Stat. Ann. §§ 1-39-101. Statutory interpretation is a question of law which the Court reviews de novo.
Discussion: The City contends that Cottier’s claim for damages was precluded by governmental immunity. The City claimed it was immune from liability under the facts of the case. The WGCA is a close-ended tort claims act. Unless a claim falls within one of the statutory exceptions to governmental immunity, it will be barred. The City characterized the issue as one of maintenance versus operation to determine immunity. The Court determined the proper question was what the legislature meant by the phrase “operation of a public utility.” "Operation” was not defined by the legislature so the Court furnished the ordinary meaning of “the state of being operative or functional.” Testimony supported the meaning to include maintenance of the system. The Court has recognized that operation of a public utility entails keeping the sewer system free from blockage. The Court referred to South Cheyenne Water and Sewer District v. Stundon and Lore v. Town of Douglas as examples of the Court’s decisions in this area. The City attributed significance to the legislature’s use of the term “operation.” The Court was not persuaded stating that applying the plain and ordinary meaning of the term did not result in inserting words into the statute. “Operation of a public utility” is a broad concept which includes acts required to keep the utility functional. The Court distinguished their decision in Harbel from the instant case. The Court found in Harbel the operation of a vehicle distinct from maintenance of a motor vehicle. They stated the distinction would have been difficult to make in the context of public utilities.
Wyo. Stat. Ann. § 1-39-108 waives immunity for negligence in keeping the public utility operable or functional. If an obstruction in the line occurs and is not removed, the sewer lines are no longer functional or operable. The WGCA was intended to afford a remedy to persons injured by negligent public employees while avoiding the repeated litigation of the question of governmental immunity. The legislature intended for a public utility to be liable in circumstances relating to the operation of a public utility. Adoption of the reasoning urged by the City would render the intended waiver of immunity illusory. The Court found no error in the district court’s determination that the City’s negligent acts fell within the waiver of immunity provided by the statute.

Affirmed.

J. Burke delivered the decision.

Link to the case: http://tinyurl.com/y6tkny .

summary 2006 WY 144

Summary of Decision issued November 9, 2006

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

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

Case Name: Dorr v. Wyoming Board of Certified Public Accountants

Citation: 2006 WY 144

Docket Number: 06-12

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

Representing Appellant (Petitioner): Greg L. Goddard of Goddard, Wages & Vogel, Buffalo, Wyoming.

Representing Appellee (Respondent): Patrick J. Crank, Attorney General; Michael L. Hubbard, Deputy Attorney General; Kennard F. Nelson, Senior Assistant Attorney General; Douglas W. Weaver, Special Assistant Attorney General. Argument by Mr. Weaver.

Issue: Whether the district court erred when it adopted the reasoning set forth in the brief of respondent the Wyoming Board of Certified Public Accountants and affirmed the Wyoming Board of Certified Public Accountants’ December 16, 2004, Board Decision Suspending Certificate and Permits to Practice.

Holding: After an extensive contested case hearing, the Wyoming Board of Certified Public Accountants (the Board) concluded Dorr had violated the terms of a settlement agreement which resolved a former disciplinary action. The Board also found him in violation of certain provisions of the Wyoming Certified Public Accountant’s Act. (Wyo. Stat. Ann. § 33-3101) Consequently, the Board suspended Dorr’s certificate to practice public accounting in Wyoming.
Some of the underlying facts of the case are set forth in Dorr I. There, the Board suspended Dorr’s license to practice public accounting after finding he had violated the terms of the settlement agreement and various statutes. The Court vacated that decision because it was not supported by the record. In 2002, a Board committee filed another complaint against Dorr, alleging new violations of the settlement agreement and the laws and regulations pertaining to CPAs. Dorr filed a declaratory judgment action and a motion for a stay asking the district court to halt the administrative proceeding. The district court dismissed the declaratory judgment action because Dorr had not exhausted his administrative remedies. A hearing examiner held a six-day contested case hearing. During the hearing Dorr’s attorney learned there were many documents in the committee’s possession which had not been provided to him in discovery. The hearing officer ordered the committee to produce all non-privileged documents and ruled the evidence would remain open until the discovery matters were resolved. Dorr was allowed to add one additional exhibit into evidence. The hearing officer closed the evidence and ordered the parties to submit written findings of fact and conclusions of law. The Board submitted its proposed findings of fact, conclusions of law and decision but Dorr apparently elected not to submit. He filed motions to compel, renewed his earlier declaratory relief action and stay the agency proceedings. Before the motions were heard by the district court, the Board issued a decision suspending Dorr. Dorr filed a petition for review with the district court in which they affirmed the Board’s decision.
Standard of Review: The Wyoming Certified Public Accountant’s Act directs that proceedings before the Board are to be conducted in accordance with the Wyoming Administrative Procedures Act. A disciplinary proceeding before a licensing board is an adversary proceeding where the burden is on the complaining party and the charges must be established by clear and convincing evidence.
Did Dorr Violate the Settlement Agreement by Participating in the 2000 and 2001 CSA Audits? The settlement agreement listed the parties to the agreement as the Board and “Mark A. Dorr, certified public accountant, d/b/a Dorr, Bentley & Pecha, LLC, the CPA Network.” At all times relevant to the controversy, CPA Network was wholly owned by Dorr. The Court reviewed the record noting the ample evidence demonstrating Dorr personally participated in the 2000 CSA audit even though the Board had denied his petition to reenter audit practice. Dorr spent time planning the 2001 CSA audit prior to receiving approval from the Board for re-entry into audit practice. Dorr had to successfully complete a pre-issuance review before he could fully reenter audit practice. He proposed someone to be the pre-issuance reviewer which the Board rejected. Dorr then withdrew his request to be reinstated to audit practice. The Court found substantial evidence in the record to support the Board’s conclusion the committee proved by clear and convincing evidence that Dorr participated in the 2001 CSA audit during times when he did not have Board approval to do so. Dorr’s argument that he was not engaged in “audit practice” because he did not sign the audit reports was rejected by the Court. The Court stated that Dorr was restricted from performing any aspect of an audit unless and until he first complied with the requirements from the settlement agreement.
Did Dorr Violate the Wyoming Certified Public Accountant’s Act? The Court first considered whether the statute was clear or ambiguous. A statute is ambiguous only if it is found to be vague or uncertain and subject to varying interpretations. Concerning Wyo. Stat. Ann § 33-3-121(a)(ii): the Board was charged with resolving issues of witness credibility and weighing the evidence. Although there is conflicting evidence in the record, the Court concluded that substantial evidence supported the Board’s finding that Dorr withheld information about his license status from CSA when he engaged and participated in the 2000 audit. The record supports the Board’s conclusion that, unlike the previous situation in Dorr I, Dorr did not follow the appropriate procedure to gain Board approval before he performed work on the 2000 CSA audit and expressly ignored the Board’s denial of his request to reenter audit practice. Concerning Wyo. Stat. Ann. § 33-3-121(a)(iv): Dorr’s sole basis for contesting the Board’s conclusion he committed acts which reflected adversely on his fitness to practice public accounting is that he complied with “the letter of the” 1999 settlement agreement. The Court concluded that he violated the terms of the agreement and therefore rejected the argument.
Were Dorr’s Due Process Rights Violated? Dorr claimed his rights were violated because the Board and the committee’s investigator were biased and the committee withheld documents until the hearing officer ordered them to be produced and the hearing officer refused Dorr’s request to admit additional documents into evidence in the proceedings. Dorr relied on the Devous and Ririe decisions to support his claim of bias. The Court stated that neither decision supported Dorr’s position in the instant case. In Devous, the disputed board member had actually appeared before the board in a prior proceeding and expressed a decidedly negative opinion about Devous. The fact a decision maker participated in an earlier action involving the same circumstances does not automatically disqualify him from sitting on the adjudicatory body. Dorr did not identify any specific evidence to overcome the presumption the Board members did not act with honesty and integrity in making their decision. In Ririe, the Court recognized the voir dire process as being a valuable means of discovering individual prejudices. Dorr passed the Board for cause after conducting voir dire which waived any claim his hearing was not fair because the Board members were biased. There was no evidence in the record to overcome the presumption the Board members were impartial. Dorr claimed his due process rights were violated by the committee’s failure to produce all of the documents prior to the hearing. A defendant generally is not denied a fair trial as a result of the prosecution’s discovery violations when the district court takes remedial actions to cure the violation. Dorr did not explain how the hearing examiner’s efforts failed to cure any prejudice he suffered as a result of the committee’s failure to produce documents in the first place. The hearing examiner denied admission of many of the exhibits because they were irrelevant, immaterial or unduly repetitious. Dorr did not explain on appeal how the rulings were incorrect. Some exhibits were denied because Dorr had access prior to the hearing which made his request for admission untimely.
Was the Pre-issuance Review Process Contained in the Settlement Appropriate and Was it Followed? Dorr’s concerns about the pre-issuance process did not require determination because the settlement agreement required Dorr to petition for approval from the Board before he reentered audit practice which he failed to obtain.

Affirmed.

J. Kite delivered the opinion for the court.

Link to the case: http://tinyurl.com/yayd2l .

Summary 2006 WY 143

Summary of Decision issued November 9, 2006

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

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

Case Name: Becker v. Mason; and Board of County Commissioners of County of Sweetwater

Citation: 2006 WY 143

Docket Number: 05-219

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

Representing Appellant (Plaintiff): Timothy W. Miller of Casper, Wyoming.

Representing Appellees (Defendants): Patrick J. Crank, Attorney General; John W. Renneisen, Deputy Attorney General; and John D. Rossetti, Senior Assistant Attorney General, for Appellee Don Mason, and Richard Rideout of Law Offices of Richard Rideout, PC, Cheyenne, Wyoming, for Appellee Board of County Commissioners. Argument by Messrs. Rossetti and Rideout.

Issue: Whether under the circumstances of this case, the appellee deputy sheriff (Don Mason) had a duty to exercise reasonable care to protect the appellant’s decedent.

Holding: This was an appeal from a district court’s dismissal of a wrongful death action on the ground that the appellee deputy sheriff (Mason) did not owe the appellant’s decedent (Zachary Tyler Becker) a duty of care under the circumstances of the case. In October 2003, Towner and Brandes were at horse corrals north of Rock Springs. Towner was extremely intoxicated. A horse knocked Brandes to the ground causing injury. An ambulance and the deputy sheriff responded. Towner told Mason he had been drinking but that he wanted to follow Brandes to the hospital. Mason did not arrest Towner, or make an effort to stop him from driving. Two miles down the road, Towner veered off the right side of the road, then overcorrected, crossed the centerline and collided with a vehicle in which Becker was a passenger. Becker was killed.
Standard of Review: Both appellees filed motions to dismiss under W.R.C.P. 12(b)(6) alleging failure to state a claim upon which relief can be granted. The Court’s standard for review is: (1) they accept the facts stated in the complaint as true and view them in the light most favorable to the appellant; (2) they sustain the dismissal only if it is certain from the face of the complaint that the appellant cannot assert any facts that would entitle him to relief; (3) they employ the same standards and examine the same materials as did the district court; and (4) such review is de novo.
Discussion: The Court focused on the specific rationale the district court followed in dismissing the amended complaint. The district court resolved the case by declaring that the deputy sheriff had no legally enforceable duty or obligation to detain or arrest Towner in reliance on McCoy v. Crook County Sheriff’s Dep’t. The Court stated they were more inclined to believe that Keehn rather than McCoy dictated the result in the instant case. While McCoy held that in the DWUI situation, the statutory authority to arrest did not create a statutory duty to arrest, it did reverse Keehn’s holding that a “peace officer’s duty to investigate a potential DWUI violation during an unrelated traffic stop is dictated by what a reasonable peace officer of ordinary prudence would do under the circumstances.” The law in Wyoming is that existing circumstances may create a duty on the part of the officer to investigate a potential DWUI. The Court stated that it was not clear from the pleadings that the appellant would have been unable to state any facts to support a negligent investigation allegation. The Court stated that Mason had a duty to do what an ordinarily prudent law enforcement officer would have done under like circumstances. Saying that the decision of whether or not to exercise one’s statutory authority by arresting a drunk driver is discretionary, and therefore cannot form the basis for a tort claim based on negligent failure to arrest, did not answer all the questions in the case, particularly by dismissal based upon failure to state a claim upon which relief could be granted.
Dissent: J. Hill concurred with the majority’s interpretation of the Court’s prior decisions in McCoy and Keehn. However, he declined to agree that the duty identified in Keehn could be imposed under the facts alleged in the instant case. The existence of a reasonable suspicion is the critical difference between Keehn and the instant case. In Keehn, the duty arose out of a police-citizen contact during a traffic stop. In the course of the stop certain facts were observed that gave rise to a reasonable suspicion that the citizen was operating a motor vehicle wile driving under the influence. As alleged in this case, Towner was not operating a motor vehicle during the contact with Mason. There were no facts alleged in the Complaint that would have supported a reasonable suspicion that a DWUI had been or was going to be committed which would have justified an investigatory detention of Towner. J. Hill stated that an application of the duty to investigate a DWUI under the facts alleged would greatly expand the duty identified in Keehn. He would have affirmed the district court’s dismissal.

Reversed and remanded for further proceedings.

C.J. Voigt delivered the opinion for the court. J. Hill filed a dissenting opinion in which J. Golden joined.

Link to the case: http://tinyurl.com/yl9t5f .

Pictures--we're almost all packed up!

We finally had an opportunity to catch all the law library staff for more than a minute in one place and decided to preserve the moment. Now you can place a face with the name! Don't be surprised when you see more of Wayne and Julie now. Since we are now only open Monday through Friday from 8am-5pm, we are happy to have them working during the day instead of in the evenings and on weekends.

And we've taken some photos of our packing and moving progress. We haven't been pulling your leg--we really are moving. Take a look!

The move is currently scheduled for the last two weeks in November. We are doing our best to keep treatises available for check-out until the very last minute.

Summary 2006 WY 142

Summary of Decision issued November 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.]

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

Case Name: Osborn v. Kilts

Citation: 2006 WY 142

Docket Number: 06-9

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

Representing Appellant (Plaintiff): Richard B. Osborn, Pro Se.

Representing Appellee (Defendant): Rick L. Koehmstedt of Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming.

Issue: Whether Osborn’s claims of road ownership are barred by the doctrine of res judicata. Whether the district court’s findings were clearly erroneous. Whether sanctions should be imposed against Osborn.

Holding: Osborn appealed a decision of the district court ordering him to remove “all junk and debris” placed by him along an access easement he holds over land of Kilts. Osborn claimed that he owned the access road and can properly exclude Kilts, and also that he has the right to maintain the road as he sees fit. The Court noted that Osborn failed clearly to identify any issues in his brief. Generally, failure to comply with the Court’s appellate rules is ground for refusal to consider the offending party’s contentions; assessment of costs; dismissal; and affirmance. The Court attempted to address the issues raised in Osborn’s brief to avoid a similar appeal on these issues in the future.
In 2002, Osborn filed a complaint which he alleged that Kilts had impermissibly interfered with Osborn’s exclusive use of the access road and had damaged the road. The district court granted summary judgment in favor of Kilts to the extent that Osborn’s claims were based on the assertion that he owned the road and therefore had the right to exclude Kilts. The district court relied on the doctrine of res judicata in granting summary judgment because Osborn’s claim of ownership had been litigated, decided adversely to Osborn and affirmed on appeal. A bench trial was later held on Osborn’s claims that Kilts had interfered with the roadway. The district court granted Kilts’ motion for a directed verdict. After Osborn presented his case, the court determined that (1) there was no evidence that Osborn’s use had been impeded; (2) any claimed interference was temporary and de minimus; (3) there was no evidence that Kilts personally obstructed the easement; and (4) there was no proof offered regarding damages. After Kilts presented his case, the Court ruled that Osborn had impermissibly interfered with Kilts’ use of the roadway and had wrongfully destroyed a cattle guard.
Standard of Review: The application of the doctrine of res judicata is a question of law that is reviewed de novo. The Court reviews a district court’s findings of fact to determine whether they are clearly erroneous.
Discussion: The majority of Osborn’s brief is devoted to arguments regarding the legal status of his access road. In 1989, a Natrona County court determined that the roadway was an easement, that Osborn was the owner of the dominant estate, that Manning (Kilts’ predecessor in interest) was the owner of the servient estate, that the roadway served as Osborn’s access to his property and served as Kilts’ access to his property. The Court stated that the elements required to determine applicability of res judicata were met because the issue, subject matter and capacity of the parties to argue the subject matter and issue were identical to the previous lawsuit and Osborn presented no cogent argument claiming otherwise. Therefore, summary judgment was properly granted on Osborn’s ownership claim. Osborn raised a second issue which had previously been decided adversely to him. Osborn had destroyed a section of fence erected to prevent Kilts’ cattle from traveling past a cattle guard. The district court determined that the fence was not an obstruction to Osborn’s use to the easement and that it could be replaced as long as it did not impede the flow of water. In Osborn v. Manning, the Court affirmed an order in which this issue had been previously decided adversely to Osborn. Therefore the Court affirmed the determination of the district court on this issue in the instant case. Osborn next argued that it was his right to maintain the road as he sees fit. His argument on appeal ignored the basis for the district court’s decision and therefore must fail. Osborn insisted he may maintain the easement but failed to address the district court’s finding that his “maintenance” was unhealthy, unsightly, and ineffectual. The Court affirmed the district court’s decision. The final two issues the Court could discern were that the attorney for Kilts committed a fraud on the court and that the district court judge should have been disqualified from presiding over the case. The Court summarily affirmed those issues because they were not supported by cogent argument or citation to pertinent authority. Finally, the Court considered whether sanctions were appropriate. According to W.R.A.P. 10.05, the Court may award attorney’s fees and damages if “there was no reasonable cause for appeal.” Pro se litigants are not excused from following the Court’s rules of procedure. Sanctions were justified because the substantive arguments were difficult to identify and when identifiable, were frivolous; the arguments lacked cogence and often, coherence; citations to the record for factual assertions largely referenced his previous filings which were not factual evidence in the record; Osborn ignored the reasons for the district court’s decisions and often seemingly argued that the Court should reverse simply because he did not agree with the outcome; citations to legal authority were general and were not pertinent to facts and circumstances of the case. The Court decided that after Kilts’ counsel submits a statement of costs and attorney’s fees incurred in the instant appeal, the Court will enter an award ordering appropriate costs and fees.

Affirmed.

C.J. Voigt delivered the decision.

Link to the case: http://tinyurl.com/y6f5ot .

Summary 2006 WY 141

Summary of Decision issued November 3, 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: Messer v. State

Citation: 2006 WY 141

Docket Number: 05-236

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

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

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

Issue: Whether the State or the defendant has the burden of proof at a probation revocation hearing. Whether the State proved that Appellant willfully violated the terms of his probation.

Holding: Appellant was sentenced by the district court to a term of 18 to 24 months imprisonment, which sentence was suspended and a “split” sentence was imposed of 6 months in county jail followed by 24 months of supervised probation. On September 7, 2004, the State filed a petition to revoke Appellant’s probation. In December 2004, the district court denied this petition because the State failed to prove that Appellant had willfully violated the terms of his probation. The State next filed a petition heard in July 2005. At the conclusion of the hearing, the district court reviewed the evidence and concluded that the State had proven each of the allegations by a preponderance of the evidence. Appellant’s probation was revoked and the sentence of 18 to 24 months was re-imposed with credit for days served.
Standard of Review: Revocation of probation is largely governed by court rule W.R.Cr.P. 39. The State is required to establish violation of the conditions of probation alleged in the petition by a preponderance of the evidence. A district court’s decision to revoke probation is discretionary and will not be disturbed unless the record demonstrates a clear abuse of discretion.
Burden of Proof: The district court’s full statement showed that it recognized and applied the correct burden of proof.
Willfully: The district court summation clearly shows that the judge inferred from the evidence that the violations were willful. The Court has held previously that such inference is appropriate where the evidence warrants. The Court carefully examined the evidence and concluded the district court did not abuse its discretion in finding the probation violations were willful. Furthermore, given the district court’s denial of the first petition on the ground that willfulness had not been proven, it was clear that the district court treated willfulness as an element that required proof.

Affirmed.

J. Voigt delivered the decision.

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

Summary 2006 WY 140

Summary of Decision issued November 1, 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: Bixler v. Oro Management, LLC and Hyde, Erd and Pasma

Citation: 2006 WY 140

Docket Number: 05-272

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

Representing Appellant: Kenneth S. Cohen of Cohen Law Office, PC, Jackson, Wyoming.

Representing Appellees: Richard Mathey of Green River, Wyoming.

Issues: Whether the district court erred in enforcing the partition of the Atlantic City property according to the parties’ previous agreement instead of requiring the property be partitioned according to the statutory procedure. Whether Oro’s motion for entry of an order of partition was “deemed denied” ninety days after it was filed.

Holding: Bixler and Oro owned 1700 acres of land near Atlantic City, Wyoming as tenants in common. After seeking a partition of the land and agreeing with Oro to a partition procedure that differed from the statutory procedure, Bixler failed to perform. The district court therefore, enforced the agreement and ordered the partition of the land. For a detailed background of the claim underlying this appeal, see Bixler v. Oro Mgmt., LLC.
In August 2004, a hearing was held on Bixler’s Motion for Partition. At the hearing the parties agreed that Bixler would divide the property into two parcels and that Oro would select one of the parcels, completing the partition. Bixler was ordered to prepare an order. Bixler did not prepare the order. On October 22, 2004, Oro filed a Rule 58 Notice along with an order on Bixler’s Motion For Partition. Bixler was provided with a copy of the order by mail and he filed no objection to it, so the Court entered the Order Regarding Bixler’s Motion for Partition on October 28, 2004. Bixler neither divided the property nor did he respond to Oro’s Motion for Relief Under Rule 70. The court entered its Order Granting Relief Under Rule 70 on February 2, 2005.
Standard of Review: The Court reviews the interpretation and construction of statutes de novo. The application of the rules of procedure including W.R.C.P. 6(c)(2) “deemed denied” rule, is also reviewed de novo.
Wyo. Stat. Ann. § 1-32-104 provides the process for partition in Wyoming. Bixler agreed to an alternative procedure and in his brief did not refute that such an alternate agreement was reached. He also failed to discuss the applicability of § 1-32-108. The Court therefore had no reason to disagree with Oro’s contention that § 1-32-108 should apply or that the district court was not bound to appoint commissioners under § 1-32-104. Further, because § 1-32-108 applied, the district court did not err in applying W.R.C.P. 70 and appointing Mr. Anderson to partition the property when Bixler neglected to do so.
Next Bixler argued that the district court was without authority to enter the Partition Order on September 30, 2005 based on Hodges v. Lewis & Lewis, Inc. The Court stated that Bixler ignored the actual discussion of the “deemed denied” rule in Hodges. He failed to prove the district court did not have the authority to grant Oro’s Motion for Entry of Order of Partition. Bixler bore the burden of showing that error occurred in the proceedings and he failed to provide the Court with any other analysis or citation to pertinent authority to support his “deemed denied” claim, so his argument failed.

Affirmed.

J. Voigt delivered the order for the court.

Link to the case: http://tinyurl.com/ymeh9h .

Summary 1006 WY 139

Summary of Decision issued October 31, 2006

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

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

Case Name: Board of Professional Responsibility, WY State Bar v. Richard J. Albanese

Citation: 2006 WY 139

Docket Number: D-06-6

Order of Disbarment

The matter came before the Court upon a “Report and Recommendation to the Wyoming Supreme Court,” filed on October 17, 2006, by the Board of Professional Responsibility for the Wyoming State Bar. After a careful review of the Board of Professional Responsibility’s Report and Recommendation, the Respondent’s Section 16 Affidavit, and the file, the Court found that the Report and Recommendation for Disbarment should be approved, confirmed and adopted by the Court; and that the Respondent Richard J. Albanese shall be and hereby is disbarred from the practice of law in the state of Wyoming.

J. Hill.

Link to the order: http://tinyurl.com/yhmmqo .

The full record with attachments will be available in the database at a later date.

Summary 2006 WY 138

Summary of Decision issued October 31, 2006

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

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

Case Name: Keller v. Keller

Citation: 2006 WY 138

Docket Number: 06-57

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

Representing Appellant (Defendant): William R. Shelledy, Jr., of Scott, Shelledy and Luhm, P.C., Worland, Wyoming.

Representing Appellee (Plaintiff): John Davis, of Davis & Harrington, P.C., Worland, Wyoming.

Issue: Whether the district court abused its discretion when it considered an expert’s valuation of pension annuities, along with other factors set out in § 20-2-114, Wyo. Stat. Ann. when determining an equitable disposition of marital property.

Holding: The parties were married in 1961 and had two children, now grown. Wife did not work outside the home during the marriage. The parties were able to reach an agreement as to the division of the majority of their assets and entered into a stipulation concerning the distribution of those assets. They agreed to divide equally a deferred compensation plan valued at $125,000, their marital home and possessions valued at $200,000, and IRAs valued at $138,000. The parties requested the district court to rule on one issue: the division of their Social Security benefits and Husband’s State retirement benefits. After receiving evidence on the matter, the district court concluded that the values of Husband’s State retirement account and Social Security pension plan should be reduced to their present value. And because Wife had a longer life expectancy, she would receive an additional $56,000 in retirement benefits, so her portion of the marital property should be offset by that amount.
Standard of Review: The ultimate question in determining whether an abuse of discretion occurred is whether the trial court could reasonably conclude as it did. The Court keeps in mind that the equitable division of property in a divorce case is as likely as not to be unequal. The district court’s division of marital property should not be disturbed except on clear grounds because the trial court is in a better position than the appellate court to judge parties’ respective merits and needs and to assess the witnesses’ credibility and weigh their testimony.
Wife contended that the parties intended an “equal” division of their property and that life expectancy is mere speculation that should not be considered by the court in dividing property. Husband contended that the property division was supported by the testimony of an accountant and was equitable, especially given the fact that Wife presented no evidence on the issue. In reviewing the trial court’s decision, the Court considered the evidence in favor of the Husband as the successful party and held the trial court could reasonably concluded as it did that the $56,000 offset was equitable and did not abuse its discretion.

Affirmed.

J. Burke delivered the order for the court.

Link to the case: http://tinyurl.com/y9vck7 .

Summary 2006 WY 137

Summary of Decision issued October 31, 2006

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

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

Case Name: Powder River Coal Company v. Wyoming Department of Revenue

Citation: 2006 WY 137

Docket Number: 05-296

Rule 12.09(b) Certification from the District Court of Campbell County, the Honorable John Perry, Judge

Representing Appellant (Petitioner): Lawrence J. Wolfe of Holland & Hart, LLP, Cheyenne, Wyoming.

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

Issue: Whether the State Board of Equalization properly concluded that Powder River Coal Company’s (PRCC) employee healthcare costs were direct costs pursuant to the proportionate profits statute, Wyo. Stat. § 39-14-103(b)(vii).

Holding: PRCC is a subsidiary of Peabody Investments Corporation and owns three coal mines in Campbell County, Wyoming. Peabody offers a healthcare plan to all employees funded by the company through a program of self-insurance. The plan is funded by the company and administered through a third party administrator under a service contract. No accruals or reserves exist; the claims are paid as incurred. Monthly reports to Peabody identify claims made by each individual social security number to allow Peabody to attribute healthcare costs to individual employees at each mine. From 1990 to 1997, PRCC treated healthcare costs as direct costs and attributed those costs to the three operational functions of mining, transportation and processing. The DOR agreed with and accepted PRCC’s method of attributing its healthcare costs to the various mine functions. In the course of the audit of PRCC’s tax returns for the years 1997-2000, the company took the position that healthcare costs should no longer be treated as direct costs because they did not directly track with employee wages and PRCC could not attribute healthcare costs to a particular function where the employee worked. A PRCC consultant explained his understanding of the legislative history of the statutes establishing the proportionate profit method and concluded that healthcare costs fit the statutory definition of indirect costs because they are not specifically listed as a direct cost in the statute and could not be attributed to an operation function without allocation. PRCC agrees its healthcare benefits are part of its compensation package.
Standard of Review: When the Court reviews a case certified to them, they apply the appellate standards applicable to the court of the first instance. Wyo. Stat. Ann. § 16-3-114 governs judicial review of administrative decisions. The Court examined the entire record to determine if the agency’s findings were supported by substantial evidence. The Court reviews an agency’s conclusions of law, de novo.
The Court discussed the proportionate profits method and its statutory and constitutional underpinnings in Powder River. The Court stated the fundamental question to answer in the instant case is what the legislature intended by the phrase “direct mining costs include mining labor” as used in § 39-14-103(b)(vii)(B). PRCC and the DOR agree the statutory language is unambiguous. It provides that to determine the fair market value of coal sold away from the mouth of the mine, the sales value of extracted coal, minus royalties and taxes, must be multiplied by the ratio of direct mining costs to total direct costs. The Court looked at the statutory list of direct mining costs. PRCC contended the word “labor” meant only salary and wages and DOR argued just the opposite. Looking at the plain meaning of “labor”, the Court stated that whatever it costs the employer to obtain the necessary work to accomplish the mining is the cost of labor. The Court stated that everyone would agree wages are a component of the direct cost of labor. A careful reading of the testimony of PRCC’s witnesses demonstrates that as an employer, it does not dispute the fact that healthcare benefits are part of the cost of mining labor however, PRCC concluded healthcare costs are not a “direct” cost. PRCC claimed “mining labor” to be a term of art. SBOE’s factual findings found “mining labor” was not a term of art and did not mean only “actual hourly wage or salary paid and nothing else”. The Court reviewed the record and found it contained substantial evidence to support the SBOE’s factual finding. The Court concluded when all the provisions of the statute are read together, the legislature simply meant all costs, a portion of which are directly associated with a particular function, should be attributed to that function in a reasonable way. The indirect cost catch-all phrase in subsection 39-14-103(b)(vii)(D) means costs similar to those specifically listed which are not directly related to a function and therefore must be allowed by the direct cost formula. In Powder River the court concluded that coal lease bonus payments were indirect costs because they were unlike the specifically listed “hard mining costs” and necessary and beneficial to the entire operation and not just the mining function. Workers must be compensated in order to mine coal and healthcare benefits are considered by all to be a valuable piece of the compensation package.

Affirmed.

J. Kite delivered the order for the court.

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