Summary 2007 WY 19

Summary of Decision issued January 31, 2007

[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: Farmer d/b/a Farmer Construction v. Rickard & Rickard, Trustees

Citation: 2007 WY 19

Docket Number: 06-132

Appeal from the District Court of Park County, the Honorable Hunter Patrick, Judge (Retired)

Representing Appellant (Defendant): Jay A. Gilbertz and Michael K. Davis of Yonkee & Toner, LLP, Sheridan, Wyoming. Argument by Mr. Gilbertz.

Representing Appellees (Plaintiffs): Laurence W. Stinson and Bradley D. Bonner of Bonner Stinson PC, Powell, Wyoming. Argument by Mr. Stinson.

Issues: Whether the trial court erred in denying Farmer summary judgment and in granting a partial summary judgment for the Rickards establishing a duty on the part of Farmer to guarantee the adequacy of the blueprints chosen by the Rickards for unknown soil conditions on a lot selected by the Rickards. Whether the trial court erred in extending its partial summary judgment to strike Farmer’s defense that the Rickards breached the implied covenant of good faith and fair dealing which was based on the fact that the Rickards had been warned about the soil conditions on their lot and withheld those warnings from Farmer. Whether this case should be reversed with instructions to the trial court to grant summary judgment to Farmer.
Facts/Discussion: Farmer seeks review of an appealable order of the district court awarding Rickards damages in the amount of $220,000. Farmer built a home and detached garage/bus barn near Cody for the Rickards. Before trial, the court granted the Rickards’ motion for a partial summary judgment which had the effect of assigning Farmer the duty to guarantee the adequacy of the Rickards’ house plan for the soil conditions present on a lot they purchased from a third party prior to entering into their construction contract with Farmer. The trial phase of the instant case addressed only the issue of damages.
When the Court reviews a summary judgment, they have before them the same materials as the district court and they follow the same standards which applied to the proceedings below. Questions of law are reviewed de novo.
The district court concluded the contract between the parties unambiguously contained an express provision assigning a duty to Farmer to take account of the soil in which the Rickards’ house was to be built. The Court agreed the contract was not ambiguous, but concluded the contract itself, as well as the language for the house plans about “conditions” was silent as to the matter of who would be responsible for whether soil testing was necessary. In Reiman Const. Co. v. Jerry Hiller Co., the Court considered a case wherein the building team included a soils engineer, an architect, a civil engineering firm, as well as a builder. The district court concluded the Reiman case was not applicable to the circumstances of the present case. The Court however concluded it must be a part of the discussion even though it was not dispositive of the issue presented. An important factor in Reiman was the fact the architect and engineers knew they were dealing with soil problems when they assembled the plan that Reiman constructed. A builder-vendor who builds houses on lands he owns, may be liable for soil conditions under the theory of an implied warranty of fitness and/or habitability. Because of the disposition below, inadequate fact gathering and no fact finding has been done. The Court stated there were genuine issues of material fact that precluded summary judgment at this juncture.
Holding: The Court reversed and remanded because the contract between Farmer and the Rickards is unambiguous that Farmer did not specifically agree to be responsible for subsurface soil conditions at the work site and his duty to the Rickards with respect to soil conditions, if any, could not rest upon their written contract. The Rickards’ complaint and the defenses interposed by Farmer preclude summary judgment because they have generated genuine issues of material fact that must be sorted out by the fact finder.

The appealable order and the partial summary judgment in favor of the Rickards were reversed and remanded.

J. Hill delivered the decision.

Link: http://tinyurl.com/38pl5z .

Summary 2007 WY 18

Summary of Decision issued January 31, 2007

[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: Platt v. Alice and Murray Creighton

Citation: 2007 WY 18

Docket Number: 06-62

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

Representing Appellant (Plaintiff): William D. Bagley of Bagley, Karpan, Rose & White, LLC, Cheyenne, Wyoming.

Representing Appellees (Defendants): Stephen H. Kline of Kline Law Office, PC, Cheyenne, Wyoming.

Issues: Appellant/Plaintiff: Whether the district court erred in refusing to accept the agreement of counsel allowing Platt additional time to respond to defendant’s Motion for Summary Judgment when the response was complete and the agreed extension did not interfere with the time table in the Scheduling Order. Whether, in the alternative, the district court erred in refusing to recognize that Platt’s reliance on such an agreement was, at worst, excusable neglect as defined by W.R.C.P. Rule 6(b). Whether the district court erred in making its determination based on the Statute of Limitations based on the record before the Court on January 20, 2006. The legal system; bench, bar and client.
Appellee/Defendant: Whether the district court erred in finding that Platt’s failure to file a timely Response to Defendant’s Motion for Summary Judgment was inexcusable and in finding that Platt thus had no response before the Court relating to the Motion for Summary Judgment. Whether the district court properly determined the Statute of Limitations for this action ran prior to the action being filed.

Facts/Discussion: Platt filed a complaint alleging the Creightons held over 151 cows and calves owned by him in a constructive trust as part of a joint venture in conjunction with a lease with the Platt Ranch Trust. He sought an accounting of funds, termination of the constructive trust, and a return of the cattle or their value. The Creightons filed a motion for summary judgment. Pursuant to an oral agreement with the Creightons, Platt filed his response and substantive materials after the deadline established by the district court’s scheduling order. The district court ruled Platt’s response was untimely and granted the motion concluding that Platt’s complaint was barred by the applicable statutes of limitations.
When the Court reviews the granting of summary judgment, they employ the same standards and use the same materials as were employed and used by the trial court. The Court reviews a grant of summary judgment deciding a question of law de novo and they afford deference to the trial court’s ruling.
The Court has stated that except as may be permitted by the Wyoming Rules of Civil and Criminal Procedure, time limits permitted or required by rules or court order may not be extended or modified by agreement of counsel but only by order. The Court did not agree with Platt’s characterization of the informal agreement between the parties’ counsel to enlarge the prescribed time for reply to the motion for summary judgment as “excusable neglect”.
Wyoming is a discovery jurisdiction “in which the statute of limitations is triggered when plaintiff knows or has reason to know of the existence of a cause of action.” In his deposition, Platt admitted to being aware of the agreement to transfer cattle to the Creightons. Furthermore he signed the documents transferring the remaining cattle and the Ranch brand to the Creightons on April 1, 1998. As the district court noted, the April 1, 1998 transactions were the last acts underlying Platt’s cause of action. If Platt had retained ownership interest in those cattle, then there was no question that he knew or should have known that he had a cause of action at that time.
Holding: The district court correctly held that the four-year statute of limitations had been triggered and that Platt had, at the latest, until April 1, 2002 to commence litigation. Platt’s Complaint was not filed until June 6, 2005 and accordingly his claims were barred.
The Court also noted that even if they had accepted Platt’s argument concerning commencement of the statute of limitations, the Creightons were still entitled to summary judgment because they had established a prima facie case and the record contained no evidence rebutting the Creightons and showing that Platt had retained an ownership interest in the cattle.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/3ysmm4 .

Summary 2007 WY 17

Summary of Decision issued January 30, 2007

[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: Davis f/k/a/ Gill v. Gill

Citation: 2007 WY 17

Docket Number: 06-88

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

Representing Appellant (Plaintiff): Lisa M. Barrett of Buchhammer & Kehl, P.C., Cheyenne, Wyoming.

Representing Appellee (Defendant): Matthew Gill, pro se.

Issue: Whether the district court had jurisdiction to modify a Guam court’s child custody, support, and visitation decree.
Facts/Discussion: Mother and Father obtained a divorce in Guam where the parties were awarded joint custody of their two minor children with physical custody alternating annually between Mother and Father. Mother appeals an order of the district court finding it had no jurisdiction to modify a custody decree entered by the superior court of Guam on October 28, 2004.
Whether a court has subject matter jurisdiction is a question of law the Court reviews de novo. The Court has stated the Parental Kidnapping Prevention Act (PKPA) constitutes federal preemption of custody matter. Based on the plain language of the PKPA, (1) both Wyoming and Guam are “states” within the meaning of the act; (2) before modifying another state’s custody determination under the PKPA, the modifying state must have subject matter jurisdiction; and (3) the original decree state must either decline or be divested of jurisdiction.
The Court relied on Wyo. Stat. Ann. § 20-5-104 read in conjunction with § 20-5-115 to reach the conclusion that Wyoming can modify a child custody decree of another jurisdiction if (1) the district court had home state or best interest jurisdiction, and (2) Guam was no longer able to exercise the same jurisdiction.
Holding: The Court previously recognized the PKPA changed the UCCJA to create a decree state preference in modification matters. The decree state preference is not absolute, however the Court agreed with the district court that the children had sufficient contacts with Guam to allow continuing jurisdiction in its courts, absent relinquishment of jurisdiction by those courts. The Guam court evidenced its intent to retain jurisdiction over its decree by issuing an order to show cause on September 7, 2005, nearly four months after Mother filed her motion to modify the original decree. It was clear the district court in the instant case did not err when it found it did not have jurisdiction to modify the Guam custody decree.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/yq7644 .

Summary 2007 WY 16

Summary of Decision issued January 26, 2007

[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. You will 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 the paragraph number rather than to any page number. If you need assistance in putting together a citation from this 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: RME Petroleum Company v. Wyoming Department of Revenue

Chevron U.S.A., Inc. v. Department of Revenue, State of Wyoming

The Louisiana Land and Exploration Company; and Burlington Resources Oil & Gas Co., LP v. Wyoming Department of Revenue; Board of County Commissioners of the County of Fremont

Citation: 2007 WY 16

Docket Number: 04-185; 04-190; 04-204

W.R.A.P. 12.09(b) Certification from the District Court of Sweetwater County, (No. 04-185) the Honorable Nena James, Judge

W.R.A.P. 12.09(b) Certification from the District Court of Uinta County, (No. 04-190) the Honorable Dennis L. Sanderson, Judge

W.R.A.P. 12.09(b) Certification from the District Court of Fremont County, (No. 04-204) the Honorable Nancy Guthrie, Judge

Representing Appellants (Petitioners): Lawrence J. Wolfe, Patrick R. Day and Walter F. Eggers, III of Holland & Hart, LLP, Cheyenne, Wyoming. Argument by Mr. Wolfe.

Representing Appellant Chevron USA, Inc.: William J. Thomson, III, Randall B. Reed and Brian J. Hanify of Dray, Thomson and Dyekman, P.C., Cheyenne, Wyoming. Argument by Mr. Thomson.
Representing Appellee (Respondent): Patrick J. Crank, Wyoming Attorney General; Michael L. Hubbard, Deputy Attorney General; Martin L. Hardsocg, Senior Assistant Attorney General; Karl D. Anderson, Senior Assistant Attorney General; Cathleen D. Parker, Senior Assistant Attorney General. Argument by Mr. Anderson.

Date of Decision: January 26, 2007

Issues:
Louisiana Land: Pursuant to properly promulgated rules the Department of Revenue has defined “direct costs of producing” in Wyo. Stat. Ann. § 39-14-203(b)(vi)(D) to exclude taxes and royalties. This rule is binding upon both the State Board of Equalization and the Department of Revenue. Both agencies have chosen to ignore the rule, and thereby exceeded their statutory authority.
Taxes and royalties are not “direct costs of producing” under the proportionate profits valuation method set forth in Wyo. Stat. Ann. § 39-14-203(b)(vi)(D).
The Board erred in allowing Fremont County to intervene in Burlington’s tax appeals.
RME Petroleum Company adopts the issues presented by Burlington, and states three additional issues: The Court’s decision in Hillard v. Big Horn Coal, 549 P.2d 293 (Wyo. 1976) does not support the Board’s conclusion that taxes and royalties are “direct costs of producing.” The actions of the 2002 Legislature on Senate File 69 do not support the Board’s position. As a tax statute, Wyo. Stat. Ann. § 39-14-203(b)(vi)(D) must be strictly construed.
Chevron U.S.A., Inc. presents the following issues: Whether the Board erred as a matter of law in concluding that Wyo. Stat. Ann. § 39-14-203(b)(vi)(D) unambiguously includes exempt royalties, nonexempt royalties, and production taxes as a direct cost of producing despite the fact that the statute neither includes nor excludes them as a direct cost of producing. Whether the Board erred as a matter of law when interpreting Wyo. Stat. Ann. § 39-14-203(b)(vi)(D) to include production taxes, exempt royalties, and nonexempt royalties as a “direct cost of producing,” when that interpretation is contrary to the Department’s rule and previous policy, is contrary to the legislative history of the statute, results in taxation of exempt federal royalties, and is contrary to canons of statutory construction. Whether Chevron was denied its constitutional right to uniform and equal taxation because it was treated disparately from other producer/processors of natural gas that reported taxable values for production years 1993-1995, and because oil and gas producers are treated differently from other mineral taxpayers within the same class.
Department of Revenue issues: Did the State Board of Equalization properly affirm the Department of Revenue’s application of Wyo. Stat. Ann. § 39-14-203(b)(vi)(D), in which the Department classified production taxes and royalties as direct production costs within the direct cost ratio? Was the Department of Revenue required to institute new rules to correct its previous erroneous interpretation and application of Wyo. Stat. Ann. § 39-14-203(b)(vi)(D)? Did the Supreme Court’s decision in Amoco Prod. Co. v. Wyoming Dep’t of Revenue, 2004 WY 89, 94 P.3d 430 (Wyo. 2004), foreclose the Department of Revenue’s determination that production taxes and royalties are a direct cost of producing within the direct cost ratio of the proportionate profits method? Did the State Board properly affirm the Department of Revenue’s determination that exclusion of production taxes and royalties from the direct cost ratio produces an absurd result and a taxable value which is less than fair market value?

Facts:
The Board’s decision in Amoco 96-216: The Board concluded that royalties and production taxes are direct costs of producing for purposes of applying the oil and gas proportionate profits formula. When Amoco 96-216 was appealed to the Court, the Department changed its position and accepted the ruling of the Board. Upon review, the Court concluded the county should not have been allowed to intervene. The Court vacated the portion of the Board’s decision that addressed the direct cost ratio issue raised by the county without specifying how royalties and production taxes should be treated under the proportionate profits formula in Wyo. Stat. Ann. § 39-14-203(b)(vi)(D). Although Amoco 96-216 was vacated, the Department thereafter administered the statute in accordance with the Board’s decision.
#04-185 RME: During production years 1996 and 1997, RME was the operator of the Brady Unit in Sweetwater County. Oil and gas production was valued by the Department under the proportionate profits method. After an audit and the Board’s decision in Amoco 96-216, the Department assessed additional severance taxes, based on the inclusion of production taxes and royalties as direct costs of production under the proportionate profits valuation method.
#04-190 Chevron: From 1993 to 1995, Chevron produced oil and gas from property in Uinta and Lincoln Counties. Production was valued under the proportionate profits method. Chevron was not including royalties or production taxes in the direct cost ratio during that time. Later an audit was initiated and prior to when the final determination letters were issued, Amoco 96-216 was decided. Chevron received additional assessments including the severance taxes, interest and increased ad valorem taxable value of the properties. After appeal, the Board upheld the Department’s determinations but ordered that interest accrue only from the date Amoco 96-216 was issued.
#04-204 Burlington: Burlington had three appeals, which were consolidated, regarding valuation under the proportionate profits method where the Department had included production taxes and royalties as direct costs of producing in the formula.
In each of its decisions against Taxpayers, the Board relied upon its decision in Amoco 96-216 and determined that Wyo. Stat. Ann. § 39-14-203(b)(vi)(D) required royalties and production taxes to be treated as direct costs of production. The district courts certified the cases to the Court who accepted them and consolidated them for argument and decision.
Standard of Review: When reviewing cases certified pursuant to W.R.A.P. 12.09(b), the Court applies appellate standards which were applicable to the court of the first instance. At issue in the instant case is the proper interpretation of the statutory proportionate profits formula, a question of law the Court reviews de novo. The Court affirms an agency’s conclusions of law when they are in accordance with the law. When the agency has failed to properly invoke and apply the correct rule of law, the Court corrects the agency’s error.
Discussion: The Department is charged with valuing oil and gas in accordance with Wyo. Stat. Ann. § 39-14-203(b). The Board is an independent quasi-judicial organization with constitutional and statutory duties to equalize valuation and decide disagreements regarding statutory provisions affecting the assessment, levy and collection of taxes. The proportionate profits method is one of the methods authorized by statute to value crude oil, lease condensate or natural gas production not sold in a bona-fide arms length sale at or prior to the point of valuation. See Wyo. Stat. Ann. § 39-14-203(b)(vi)(D). The issue in the case is whether royalties (both exempt and non-exempt) and production taxes are “direct costs of producing”, properly included in both the numerator and denominator of the direct cost ratio. (Follow link to case to see mathematical formula.)
The Department promulgated a rule defining “direct cost of producing” in Section 4b of Chapter 6 of the Department’s rules and regulations. For a number of years the Department did not view production taxes and royalties as fitting within the definition provided by the rule. However, when the Board’s decision in Amoco 96-216 was appealed, the Department abandoned its prior administration of the proportionate profits formula and without altering the language of Rule § 4b, thereafter treated royalties and taxes as direct costs of producing. Consolidated appeals arose in the midst of this administrative about-face. Ultimately, Taxpayers argued that the Board misinterpreted Wyo. Stat. Ann. § 39-14-203(b)(vi)(D). The Court considered whether the statute was ambiguous as a matter of law. The plain language of the statute does not specify that royalties and production taxes are to be either included or excluded as direct costs of producing. Neither of the interpretations urged by the parties was unreasonable and either reading of the statute supplied a plausible legislative intent. Accordingly, the Court found the statutory proportionate profits formula susceptible to varying meanings and therefore, ambiguous.
Although the Court agreed with the Department that the coal and bentonite statutory formulas express a clear legislative intent to exclude royalties and production taxes as direct costs, the Court did not view the comparative silence in Wyo. Stat. Ann. § 39-14-203(b)(vi)(D) as a clear statement of legislative intent. The definitional subsections are absent in the oil and gas formulas. The legislature failed to provide any exclusions, definitions, or directions to identify the direct cost of producing oil and gas.
The Board relied on Hillard to find that as a matter of law, royalties and production taxes were direct costs of producing a mineral. The Court stated the question of the proper components of the direct cost ratio in the proportionate profits method was not decided in Hillard. Rather, Hilllard requires the full value of non-exempt royalties be included in the taxable value of the mineral and suggests that production taxes should be treated similarly.
Taxpayers contend that as defined by Rule § 4b the direct costs of producing do not include royalties and production taxes. They assert the Board failed to consider and give effect to Rule § 4b in rendering its decision. The Court’s finding that the statute is ambiguous requires analysis of the Rule. The Court interprets rules in the same manner as statutes. The Court defers to an administrative agency’s construction of its rules unless that construction is clearly erroneous or inconsistent with the plain meaning of the rules. The Department has applied different interpretations of Rule § 4b over time. The Court rejected the Department’s current interpretation of the Rule because it is contrary to the rule’s plain language. Applying the doctrine of ejusdem generis to Rule, the Court said one could easily conclude the detailed list of costs were not in the same class or of the same nature as royalties or production costs. It did not make sense that a specific type of tax would be listed while the more general tax obligation would be relegated to a catch-all provision. The omission must have been deliberate. The Court found the language to be clear and unambiguous. The Court held that royalties and production taxes should not be included as direct costs of producing in the direct cost ratio of the oil and gas proportionate profits formula. In addition, statutes levying taxes should not be extended by implication beyond the clear import of the language used. The legislature specified how royalties and production taxes were to be treated in the first and final steps of the formula. If the legislature ha intended royalties and production taxes to be included in every step of the formula, the Court would expect to see that intent reflected in the language of the statute.
Other issues: Prior to the Court’s decision in Amoco Production Co., the Board permitted Fremont County to intervene in Burlington’s cases leading to the appeal. Recognizing the holding in Amoco as controlling, the county did not participate in the appeal and appears to have abandoned its status as intervenor. Therefore the Court did not address Burlington’s challenge in that regard. Given the resolution of the instant case, it was not necessary to resolve Chevron’s constitutional challenge or its objection to the assessment of interest.
Holding: The Board erroneously found that Wyo. Stat. Ann. § 39-14-203(b)(vi)(D) unambiguously required royalties and production taxes to be included in the direct cost ratio. This conclusion led the Board to disregard the Department’s Rule § 4b, which was at odds with its statutory interpretation. The language of that rule is clear and does not include royalties and production taxes as direct costs of producing. The Department’s promulgated definition is not consistent with the statue and must be given effect. We find that excluding royalties and production taxes from the direct cost ratio provides a more reasonable interpretation of the statute while giving effect to the Department’s rule. The decisions of the Board were reversed.

J. Burke delivered the decision of the Court.

Link: http://tinyurl.com/2glj4z .

Summary 2007 WY 15

Summary of Decision issued January 25, 2007

[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: Cooper v. State

Citation: 2007 WY 15

Docket Number: 06-63

Order Affirming Judgment and Sentence of the District Court

The matter came before the Court upon its own motion following notification Appellant failed to file a pro se brief within the time allotted by the Court. Appellant’s court-appointed counsel had been allowed by the Court to withdraw in September, 2006. The Court granted two extensions of time for Appellant to file a brief. Appellant failed to file anything resembling a brief within the time allotted. The Court found the district court’s “Judgment and Sentence of the Court” in the matter should be affirmed.

C.J. Voigt delivered the order.

Link: http://tinyurl.com/3bwfa9 .

Summary 2007 WY 14

Summary of Decision issued January 25, 2007

[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: Larson v. State

Citation: 2007 WY 14

Docket Number: 06-34

Order Affirming Judgment and Sentence of the District Court

The matter came before the Court upon a letter from Appellant dated December 6, 2006. Appellant’s court-appointed counsel had been allowed by the Court to withdraw in September, 2006. Appellant asked the Court to accept the letter as an “adequate” substitute to a brief. The Court noted Appellant had not filed anything else within the time allotted for briefing. The Court reviewed the letter and found nothing to persuade them the appeal was not wholly frivolous because the matters alluded to in the letter were not found in the appellate record. The Court found the district court’s “Judgment and Sentence of the Court” in the matter should be affirmed.

C.J. Voigt delivered the order.

Link: http://tinyurl.com/2lphno .

Summary 2007 WY 13

Summary of Decision issued January 25, 2007

[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: In the Matter of the Commission on Judicial Conduct and Ethics’ Findings and Recommendations with Respect to the Honorable John V. Crow, Circuit Judge, Sublette County, Ninth Judicial District, Pinedale, Wyoming.

Citation: 2007 WY 13

Docket Number: J-06-0001

Order of Public Censure

The matter came before the Court upon a “Commission’s Findings and Recommendations” filed December 4, 2006, by the Commission on Judicial Conduct and Ethics of the State of Wyoming. The Commission recommended the Honorable John V. Crow, Circuit Judge (now retired) be publicly censured for his conduct. Judge Crow did not file a petition to modify or reject the recommendation of the commission within the time allotted. The Court found he therefore consented to a determination on the merits based upon the record filed by the commission.

After a careful review of the “Commission’s Findings and Recommendations”, the materials and the file, the Court found the reports and recommendations should be approved, confirmed and adopted; and the Honorable John V. Crow should be publicly censured for the conduct described in the report, and assessed costs and fees in the amount of $11,937.17. The Clerk shall docket the Order along with the incorporated Findings and the order shall be published in the Wyoming Reporter and the Pacific Reporter.

The Commission’s Findings and Recommendations will be found at the link below.

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

Link: http://tinyurl.com/2tffpq .

How-to: Microsoft XP Settings for Better Performance

It's high time for more tech tips. Here are a few I saved while we were moving the library.

If you want to get more performance from your computer, here are some settings and tools that may make all the difference. Changing the visual settings in Windows XP, as described in this Microsoft TipTalk article, can significantly increase computer speed.

Some of the tools mentioned in this Microsoft article may already be familiar, but a reminder can't be all that bad. The article is great since it not only reminds you that these tools exist, but tells you what they do and when it's a good idea to use them (pretty much regularly).

• Free Up Disk Space (disk cleanup)
• Speed Up Access to Data (disk defragmenter)
• Detect and Repair Disk Errors (check disk)

And this is the best tip. "Increase the Clarity Of Text" by using ClearType. This technology manipulates pixels and makes text much smoother and easier to read on the computer screen. Check it out!

Summary 2007 WY 11

Summary of Decision issued January 19, 2007

[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: Sundance Mountain Resort, Inc. & Cundy v. Union Telephone Co.

Citation: 2007 WY 11

Docket Number: 05-300

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

Representing Appellants (Defendants): Cecil A. Cundy of Cundy Law Office, Sundance, Wyoming.

Representing Appellee (Plaintiff): Paul J. Drew of Drew Law Office, PC, Gillette, Wyoming.

Issue: Whether or not the district court properly exercised jurisdiction by ordering Appellants/Defendants to appear and show cause in Weston County in contempt proceedings affecting an estate in real property in Crook County where Appellants/Defendants resided in Crook County, Wyoming. Whether or not the injunction sought to be enforced exceeded the rights granted Appellee in its Communication Site Lease.
Facts/Discussion: This appeal arises from facts previously considered in Cundy v. Range Tel. Coop., Inc. and Union Telephone Co. where the Court affirmed a district court order enjoining Sundance and Mr. Cundy from interfering with Union’s use of its leasehold on Sundance Mountain and access to it across lands belonging to Sundance. Appellants were held in contempt of court for violating the district court order enjoining them from interfering with Union Telephone Company’s (Union) access to its leasehold. Appellants appeal from the contempt order. Determinations concerning venue are within the district court’s discretion and the Court reviews the denial of a motion for change of venue only for abuse of discretion. The power to summarily punish for contempt is likewise vested in the district court. The Court will not overturn a district court contempt order absent an abuse of discretion.
Venue: Despite Appellant’s continued use of the word “jurisdiction” in his re-statement of the issues, the parties appeared to be in agreement that the issue did not concern the district court’s jurisdiction to hear and decide Union’s motion; rather, the issue was one of venue. Union brought the action in the county in which its leasehold was situated and all papers concerning the action were filed there and all proceedings were held in the proper county until the show cause hearing. Upon request of counsel, the district court vacated a scheduled telephone hearing and scheduled a hearing requiring personal attendance of counsel. The district court set the hearing in Weston County because no courtroom was available in Crook County. Venue normally is founded upon convenience to the parties. Appellants did not argue the Weston County forum was inconvenient. In the district court and the Court Appellants argued the district court violated the venue statute by convening the hearing in a venue other than Crook County. The Court found the district court’s action to be a reasonable decision based upon proper considerations of convenience and the allocation of judicial resources.
The Injunction: After careful review of the record on appeal, it appeared Appellants failed to raise the argument the injunction exceeded the rights granted in the lease in the district court. Because no transcript of the contempt hearing appears in the record, it was not possible for the Court to determine whether the argument was presented orally during the hearing. The Court will not consider arguments made for the first time on appeal.
Holding: The Court found the district court’s action setting the show cause hearing in an adjoining county with an available courtroom to be a reasonable decision based upon proper considerations of convenience and the allocation of judicial resources. The Court affirmed the district court decision regarding the injunction because the record designated by the parties provided no indication Appellants presented the argument in district court that the injunction went beyond the scope of the lease. Appellants had several opportunities to present the claim, so the Court declined to address the argument.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/3cl7gl .

Summary 2007 WY 10

Summary of Decision issued January 18, 2007

[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: Wilson & Wilson v. Lucerne Canal and Power Co.

Citation: 2007 WY 10

Docket Number: 05-292

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

Representing Appellants (Defendants): Frank J. Jones of Wheatland, Wyoming.

Representing Appellee (Plaintiff): Jerry M. Smith of Jerry M. Smith Law Office, Torrington, Wyoming.

Issue: Whether the Wilsons’ claims are barred by the doctrine of res judicata or by the doctrine of collateral estoppel. Whether the Wilsons’ claims are barred by the doctrine of judicial estoppel. Whether the district court erred in refusing to quiet title to the property in the Wilsons as against Lucerne. Whether the district court erred in ordering the Wilsons to pay Lucerne’s attorney’s fees.

Facts/Discussion:
Are the Wilsons’ claims barred by the doctrine of res judicata or by the doctrine of collateral estoppel? The district court’s final order contained the following conclusion: Lucerne uses the same diversion and channel it always has, and such use was recognized by the 1990 Consent Decree. Wilsons are precluded by collateral estoppel and res judicata from now challenging that use. Two features of the doctrines are significant in light of the circumstances of the present case: claim preclusion bars not just issues that were actually litigated in the prior action but issues that could have been raised in that action; and consent decrees are the equivalent of litigated judgments for purposes of res judicata. The Consent Decree was a recognition of Lucerne’s right to use the eastern channel. The 1988 litigation does not bar the Wilsons’ current desire to have the courts quiet title in them to the unpatented riparian lands. The 1988 litigation was fundamentally an access easement controversy. It did not directly implicate ownership of the lands that had “arisen” through natural redirection of the river. The question of whether the Wilsons gained ownership over the unpatented riparian lands was not so intertwined with the road access question as to require that it be litigated at the same time. The “island” exists as a parcel of no-longer-submerged land and the question of its ownership needs to be resolved.
Are the Wilsons’ claims barred by the doctrine of judicial estoppel? The Court agreed with the district court’s application of judicial estoppel to the same extent that they agreed with its application of the doctrines of res judicata and collateral estoppel. The 1988 Consent Decree assumed Lucerne’s right to use the channel/canal to carry water from its diversion dam to its headgate. Therefore, the Wilsons are judicially estopped from taking a contrary position. On the other hand, the issues involved in the quiet title action that are now pending, in particular the question of reliction and the resultant ownership of formerly inundated lands were neither addressed nor resolved in the earlier litigation and judicial estoppel does not bar the present litigation of those issues.
Did the district court err in refusing to quiet title to the property in the Wilsons as against Lucerne? When a trial court has made express findings of fact and conclusions of law in a bench trial, the Court reviews the factual determinations under the clearly erroneous standard and the legal conclusions de novo. The Wilsons sought to quiet title to the lands underlying the old eastern channel of the river and the lands lying between that channel and the western channel. The district court found and concluded the eastern channel continues to be a river channel and the Wilsons had failed to prove that accretion had occurred. The Court defined reliction and accretion and stated the facts presented in the record clearly reveal the claims are based upon the doctrine of reliction rather than accretion. The essential finding and conclusion of the district court was that the Wilsons failed to prove the eastern channel no longer was a river channel, and failed to prove that reliction had occurred. A complete review of the record convinced the Court those findings and conclusions were erroneous. The facts lead to the conclusion that reliction had occurred and that title to the property should be quieted in the Wilsons. However, that conclusion does not answer the entire question and should not be construed as contradictory to the Court’s earlier conclusion regarding estoppel and res judicata. The stipulated resolution of the earlier proceedings included the presumption that Lucerne had the right to transport sufficient water down the eastern channel, now operated in fact as an irrigation canal, to operate its lower diversion and headgate at a fully functional level, including the right to release necessary overflow back into the North Platte River. Consequently, the Wilsons’ title to the property must be subject to that right.
Holding: The Court affirmed the conclusion of the district court that the Wilsons are barred from relitigating the issue of Lucerne’s right to transport water from its upper division dam to its lower headgate. As to the issue of quiet title the Court reversed and remanded the matter to the district court for an entry of an order quieting title to the property in the Wilsons subject to the right of Lucerne to transport water from its diversion dam to its headgate and beyond. If the precise location of such easement cannot be stipulated, the district court shall take additional evidence to identify the precise location including the survey originally ordered by the district court in its January 10, 1989 order. These conclusions lead to the additional conclusion that the district court erred in ordering the Wilsons to pay Lucerne’s attorney’s fees and that portion of the judgment was also reversed. The record does support the district court’s conclusion that Lucerne did not establish its damage claims by a preponderance of the evidence.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/2va8o5 .

Summary 2007 WY 9

Summary of Decision issued January 18, 2007

[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: Birkle v. State

Citation: 2007 WY 9

Docket Number: 05-245

Appeal from the District Court of Natrona County, the Honorable Dan Spangler, Retired, Judge

Representing Appellant (Respondent): Harry G. Bondi of Harry G. Bondi Law Offices, PC, Casper, Wyoming.

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

Issue: Whether the OAH legally obtained jurisdiction of Birkle’s contested case.

Facts/Discussion: The Wyoming Workers’ Safety and Compensation Division (the Division) denied a claim for medical benefits submitted by Birkle. The Office of Administrative Hearings (OAH) entered an order reversing the Division and awarding Birkle benefits. The Division sought review of the OAH order to the district court, which reversed the OAH on substantive grounds, agreeing with the Division that benefits should be denied. Birkle appealed.
For purposes of the appeal, procedural problems began when the Division referred the case to the Medical Commission. The Medical Commission only has subject matter jurisdiction over medically contested cases. The primary issue in the Birkle case as it reached the Court was the legal issue of coverage. The Medical Commission recognized the case involved a legal issue but rather than return the case to the Division, they directly referred the case to the OAH by its own order. The assumption of jurisdiction over Birkle’s contested case by the OAH under these circumstances was in error. Since the OAH never legally obtained jurisdiction, its proceedings were a nullity. The OAH order was void, ab initio. No order existed from which the Division could seek review, leaving the district court without jurisdiction to entertain the Division’s petition for review. The district court’s order reversing the OAH consequently is also void. The Court had no appealable final order before it, leaving them with no option but to dismiss.

Holding: The OAH never acquired jurisdiction of Birkle’s contested case. As such, there was no valid OAH order to be subjected to judicial review. The order of the district court was void and the instant appeal was dismissed.

Dismissed.

J. Golden delivered the decision.

Dissent: J. Kite, joined by J. Burke. Under Wyoming’s statutory scheme, the OAH was the only agency with the authority to decide the issue presented. The fact the Division mistakenly referred the case to the Medical Commission which then transferred the case to the OAH rather than returning it to the Division for referral to the OAH did not deprive the OAH of subject matter jurisdiction to decide the legal issue presented. When read narrowly, § 27-14-616(b)(iv), French and Jacobs seem to support the majority. In Wyo. Stat. Ann. § 27-14-101 the legislature expressed its intent that Wyoming’s workers’ compensation statutes were to be interpreted to assure the “quick and efficient” delivery of benefits and that claims cases were to be decided on their merits. Mindful of that intent, the dissenting justices would not read the relevant statutory provisions or the case law as narrowly as the majority. Upon realizing the issues were purely legal, the Medical Commission was required to transfer the case. The present case is distinguishable from French and Jacobs in that the Medical Commission did not decide issues it was without authority to decide.

Link: http://tinyurl.com/36xy5y .

Summary 2007 WY 8

Summary of Decision issued January 17, 2007

[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, Wyoming State Bar v. Chapman

Citation: 2007 WY 8

Docket Number: D-06-10

Order of Public Censure

The matter came before the Court upon a “Report and Recommendation for Public Censure” filed December 26, 2006, by the Board of Professional Responsibility for the Wyoming State Bar. The Court, after a careful review of the Board’s report, the Respondent’s “Section 16 Affidavit,” Bar Counsel’s “Motion for Public Censure and to File a Report and Recommendation for Discipline,” and the file, finds that the Report and Recommendation should be approved, confirmed and adopted by the Court; and that Respondent should be publicly censured in the manner set forth in the Report and Recommendation.

Respondent shall receive a public censure for his conduct in a manner consistent with the recommended censure contained in the Report and Recommendation for Public Censure; Respondent shall complete five additional hours of ethics CLE including the issues of discovery/privilege, reimburse the Wyoming State Bar the amount of $49.68 representing the costs incurred in handling the matter as well as pay an administrative fee of $500.00 to the Clerk of the Board of Professional Responsibility on or before March 1, 2007. The order shall be docketed as a public record and published in the Wyoming Reporter and the Pacific Reporter, served upon the Respondent and transmitted to the members of the Board of Professional Responsibility and the appropriate clerks of court.

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

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

Link to the case: http://tinyurl.com/yu6x65 .

Summary 2007 WY 7

Summary of Decision issued January 17, 2007

[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, Wyoming State Bar v. Cleveland

Citation: 2007 WY 7

Docket Number: D-06-9

Order of Public Censure

The matter came before the Court upon a “Report and Recommendation for Public Censure” filed December 26, 2006, by the Board of Professional Responsibility for the Wyoming State Bar. The Court, after a careful review of the Board’s report, the Respondent’s “Section 16 Affidavit and Stipulation to Discipline,” Bar Counsel’s “Motion for Public Censure and to File a Report and Recommendation for Discipline,” and the file, finds that the Report and Recommendation should be approved, confirmed and adopted by the Court; and that Respondent should be publicly censured in the manner set forth in the Report and Recommendation.

Respondent shall receive a public censure for his conduct in a manner consistent with the recommended censure contained in the Report and Recommendation for Public Censure; Respondent shall complete five additional hours of ethics CLE, reimburse the Wyoming State Bar the amount of $200.00 for some of the costs incurred in handling the matter as well as pay an administrative fee of $500.00 to the Clerk of the Board of Professional Responsibility on or before March 1, 2007. The order shall be docketed as a public record and published in the Wyoming Reporter and the Pacific Reporter, served upon the Respondent and transmitted to the members of the Board of Professional Responsibility and the appropriate clerks of court.

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

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

Link to the case: http://tinyurl.com/2awu6x .

Summary 2007 WY 6

Summary of Decision issued January 17, 2007

[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: Manes v. State

Citation: 2007 WY 6

Docket Number: 05-301

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

Representing Appellant (Defendant): Edward C. Manes, pro se.

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

Issue: Whether the district court erred in refusing to correct Appellant’s sentence.

Facts/Discussion: Appellant pled guilty to two counts in a drug case. He was confined pending sentencing. He received prison terms of six to ten years for a marijuana conviction and three to ten years for a methamphetamine conviction. The district court granted sixty-nine days of presentence incarceration credit. The sentences were confirmed on appeal by the Court. Subsequently, the district court reduced the sentence for the methamphetamine conviction to a ten year term of probation to run concurrently with the six to ten year sentence for the marijuana conviction. A jury trial was held in the explosives case. Appellant was found guilty and sentenced to two to four years. The sentence was ordered to be served consecutive to the sentences imposed in the drug case. As a result of Appellant’s request for sentence reduction, the district court modified the judgment and sentence in the explosives case to make it concurrent. Appellant filed a motion in the explosives case asserting that the concurrent status of his sentences entitles him to 216 days of presentence incarceration credit against both of the sentences. The Court stated that Appellant appealed in the explosives case only, limiting their review. The determination of whether a sentence is illegal is a question of law which we review de novo. A defendant is entitled to credit for time spent in presentence confinement against both the minimum and maximum sentence, if the defendant was unable to post bond for the offense of which he was convicted. A sentence that does not include proper credit for presentence incarceration is illegal.

Holding: The Court found no error in the district court’s denial of Appellant’s motion. With the exception of five days, Appellant was credited with his entire presentence confinement. He was not due the additional five days because they were solely attributable to the drug case and occurred prior to his arrest on the explosives charge.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/2r4672 .

Summary 2007 WY 5

Summary of Decision issued January 16, 2007

[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: Steiger & Steiger v. Happy Valley Homeowners Association

Citation: 2007 WY 5

Docket Number: 05-110

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

Representing Appellants (Defendants): Peter B. Steiger and Sylvia Steiger, Pro se.

Representing Appellee (Plaintiff): William D. Bagley of Bagley, Karpan, White, Rose LLC, Cheyenne, Wyoming.

Issue: Whether the Happy Valley Homeowners Association (HoA) lacked capacity to bring and maintain the instant suit.

Facts: The Steigers own a tract in the Happy Valley subdivision. The HoA claimed the Steigers were in violation of a protective covenant and brought the instant action to enforce the covenant.

Discussion: The Steigers alleged the instant legal action against them was never duly authorized by the HoA. The Steigers served a request for admissions on the HoA who did not serve a response within the thirty-day time limit established by W.R.C.P. 36, thereby admitting all the matters asserted in the request. The record did not reveal a motion by the HoA for withdrawal or amendment of the admissions, nor was there any order allowing the same. As the record stands, the HoA has admitted, and it is therefore conclusively established, that any action the Board might have taken to authorize this suit was invalid. Without proper authorization, the HoA lacked capacity to prosecute the instant suit. This lack of capacity was an insurmountable objection to summary judgment.

Holding: The Court stated it was error to grant summary judgment to the HoA in an action HoA had admitted it was not authorized to bring or maintain.

Reversed and remanded

J. Golden delivered the decision.

Link: http://tinyurl.com/v88hk .

Summary 2007 WY 4

Summary of Decision issued January 10, 2007

[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: BB v. RSR

Citation: 2007 WY 4

Docket Number: C-06-5

Appeal from the District Court of Albany County, the Honorable Robert Castor, Judge

Representing Appellant (Respondent): John M. Burman, Faculty Supervisor; Alevtyna Popova, Student Director; Katrina Runyon, Student Intern; UW Legal Services Program, Laramie, Wyoming.

Representing Appellee (Petitioner): Kelly Neville Heck of Brown & Hiser, LLC, Laramie, Wyoming.

Issue: Whether the district court erred in denying Mother’s renewed motion for judgment on the pleadings. Whether the district court erred in finding a material change in circumstances allowing modification of child custody.

Holding: BB (Mother) appeals from the district court’s order modifying custody and child support. Mother and RSR (Father) are the parents of a daughter, born in 1995. In 1998, a default paternity order was entered adjudicating RSR as the father and granting physical custody to Mother. Father was ordered to pay child support and provide medical insurance. A visitation schedule was not established at that time. Seven years later, Father filed a second petition for modification seeking custody or, in the alternative, a liberal visitation schedule. Father sought production of Mother’s mental health records. Prior to trial, Mother filed a Motion for Judgment on the Pleadings claiming that Father’s general allegation in his petition that a material change in circumstances had occurred justifying a change in custody was insufficient to provide fair notice of his claim against her. The motion was denied. At trial, Mother renewed her Motion orally and it was denied as well.

Scope of the Record to be Reviewed: As Appellant, Mother was required to provide the Court with a sufficient record to allow proper evaluation of the trial court’s decision. The record contains the audio cassettes of the modification hearing and an “unofficial” transcription of those cassettes. The Court took time to point out the transcription was insufficient because it was not certified in accordance with W.R.A.P. 3.02(d). If a certified transcript is unattainable, an appellant may provide an adequate appellate record by complying with W.R.A.P. 3.03. The Court could have declined consideration of the unofficial transcript but because Father did not object to the state of the record and referred to the unofficial transcript throughout his appellate brief, the Court determined that review of the record as reflected by the unofficial transcript was appropriate.

Motion for Judgment on the Pleadings: Mother contends that Father failed to assert any issues of material fact to support the alleged material change in circumstances and as a result of the lack of specificity; she was unable to adequately prepare a defense. A pleading should give notice of what an adverse party may expect and issues should be formulated through deposition-discovery processes and pretrial hearings. The Court agreed with the district court that Father’s general allegation was sufficient to apprise Mother of the nature of the claim against her.

Modification of Child Custody: Father, as the party seeking modification of child custody, has the burden of establishing that a change in circumstances affecting the child’s welfare has occurred after the entry of the initial decree, that the change warrants modification of the decree and that the modification will be in the best interests of the child. The modification of a paternity decree respecting custody of a child lies within the sound discretion of the trial court. The Court views the evidence in the light most favorable to the district court’s determination. The admission of evidence is a matter left to the sound discretion of the district court. Evidentiary rulings will not be disturbed on appeal unless a clear abuse of discretion is demonstrated. As the appellant, Mother has the burden of directing the Court’s attention to those parts of the record on which she relies. Vague assertions unsupported by the record do not comply with the requirements of W.R.A.P. 7.01(f)(1). The Court pointed out the district court decision letter showed it had appropriately based its decision upon the changes in circumstances occurring after entry of the 1998 order.

Mother challenged the district court’s order requiring production of her mental health records. Despite the order, Mother failed to produce the records. The district court did not rely upon them in making its custody determination. The Court did not need to address Mother’s contention on the merits because regardless of whether the district court erred in ordering production of her records, Mother could not have established any prejudicial error.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/y37z6h .

Summary 2007 WY 3

Summary of Decision issued January 10, 2007

[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: Witherspoon v. Teton Laser Center, LLC & Maura Lofaro, M.D.

Citation: 2007 WY 3

Docket Number: 06-11

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

Representing Appellant (Plaintiff): David DeFazio of DeFazio Law Office, Jackson, Wyoming.

Representing Appellees (Defendants): W. Henry Combs III and Kathleen Swanson of Murane & Bostwick, LLC, Casper, Wyoming. Argument by Ms. Swanson.

Issue: Whether the district court properly excluded the testimony of Lorenzo Kunze based upon Appellant’s violation of the parties’ stipulation for such testimony. Whether the district court properly entered Rule 50 Judgment as a Matter of Law when no evidence existed to support a reasonable jury’s determination of a breach of duty and causation of damages.

Holding: Although Witherspoon’s brief failed to contain a statement of the issues, the Court decided her contentions were meritorious and easily identifiable from the brief and so decided to address them. Witherspoon filed an action alleging that Lofaro and Teton Laser Center had negligently administered an intense pulsed light (IPL) hair removal causing her to suffer burning and scarring. The parties entered into a stipulation allowing Witherspoon’s designated expert witness to testify by telephone. After the testimony, Lofaro and Teton Laser Center alleged that Witherspoon had violated the terms of the stipulation and requested that the expert’s testimony be stricken. The district court agreed and instructed the jury to disregard the testimony. After Witherspoon rested her case, Lofaro and Teton Laser Center moved for a judgment as a matter of law on the grounds there was no evidence produced establishing they had breached a duty to Witherspoon. The court granted the motion.

Standard of Review: As a general matter, questions regarding the evidentiary rulings of the trial court are reviewed on appeal for an abuse of discretion. A motion for judgment as a matter of law pursuant to W.R.C.P. 50 is reviewed de novo.

Striking of Expert’s Testimony: The Court’s review of the record convinced them the district court abused its discretion when it struck the testimony of Witherspoon’s expert witness. The record showed the district court refused to allow trial counsel for Witherspoon to ask the witness clarifying questions and also ignored his offers of proof. The district court offered no reason for its refusal to allow Witherspoon’s counsel to ask clarifying questions of the witness regarding the testimony elicited by defense during cross-examination. Given the gravity of the claim advanced by Defendants’ counsel on the basis of the testimony he elicited from the witness, the Court had a difficult time judging the refusal to allow clarification through redirect as reasonable. The Court found the district court’s refusal to even acknowledge counsel’s requests to make an offer of proof equally troubling. The right to offer proof is almost absolute, subject only to the court’s discretion to reasonably restrict repetitious efforts to offer the same or substantially the same type of proof which has been previously offered and its reception denied. Witherspoon’s counsel made an offer of proof to refute the allegation that he had made misrepresentations to opposing counsel and the court. The offer included specific evidence – emails, letters, and airline reservations that was not on its face, repetitious in nature. Without explanation, the district court ignored all of counsel’s offers.

On the basis of testimony he had elicited during cross-examination of a plaintiff’s witness, counsel for the Defendants leveled allegations that carried serious legal and ethical ramifications for Witherspoon’s counsel and his client. Nevertheless, without any explanation on the record, the district court refused to allow redirect of the witness and ignored all offers of proof. Under the circumstances, that was an abuse of discretion.

Judgment as a Matter of Law: The Court considered whether the striking of the expert witness’s testimony was harmless error. In granting the motion for judgment as a matter of law, the district court found that without the testimony of her expert witness, Witherspoon could not establish the requisite standard of care. In a pre-trial order denying a motion by the Defendants to strike the testimony of Kunze and for summary judgment, the district court ruled the instant case was not a medical malpractice case; that Kunze was qualified to testify as an expert witness as an IPL hair removal specialist; and that the deposition of Kunze contained evidence of possible substandard care by Dr.Lofaro. If the district court had not erroneously struck the testimony of Kunze, that evidence was sufficient for the question of whether or not the Defendants’ breached the duty of care owed to Witherspoon to be submitted for determination by the jury. Therefore, the error was not harmless.

Reversed and remanded.

J. Hill delivered the decision.

Link: http://tinyurl.com/u4blz .

Summary 2007 WY 2

Summary of Decision issued January 10, 2007

[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: Martin v. State

Citation: 2007 WY 2

Docket Number: 05-188

Appeal from the District Court of Natrona County, the Honorable Scott W. Skavdahl, Judge

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel; Diane E. Courselle, Director, DAP; Christopher G. Humphrey, Student Intern; Eang M. Man, Student Director, DAP. Argument by Ms. Man.

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

Issue: Whether abuse of discretion occurred when the district court refused to grant a mistrial after statements made by two of the State’s witnesses purported to connect Appellant with methamphetamine use and severely prejudiced the jury against the defendant. Whether the district court committed plain error when it failed to direct a verdict of acquittal after the State failed to present sufficient evidence that Appellant had left his place of employment.

Holding: A jury found Appellant guilty of escape from the Community Alternatives of Casper (CAC) work release program, where he was serving the remainder of his forty day sentence for a misdemeanor charge. The Court reviews claimed error in the denial of a motion for acquittal for abuse of discretion.

Denial of the Motion for Mistrial: The Court reviewed the testimony from the two witnesses that was the basis for the mistrial motion. The Court also reviewed the instructions given by the district court in regard to the testimony to the jury. The instructions emphasized what the district court previously indicated by ordering the redaction of the judgment, i.e., Appellant’s misdemeanor conviction was relevant but the particular offense leading to the conviction was not relevant. Later, the record showed that the district court instructed the jury to disregard an improper statement by a witness. In both instances, the Court presumed the jury followed the district court’s instructions. The Court’s task was to determine whether the district court exercised sound judgment with regard to what was right under the circumstances. The Court discussed Miller v. State where they held a constitutional presumption of unfair bias meant the jury panel was adjudged incapable of fairly judging the evidence. Under the particular circumstances of the instant case, the doctrine of unfair prejudice from evidence linking the accused to another crime does not apply. The question before the Court was whether the trial court abused its discretion in denying the mistrial motion after the jury heard not only that Appellant was an offender but also the testimony concerning his specific offenses. The Court held the trial court did not abuse its discretion.

Appellant asserted a witness’ testimony was the result of prosecutorial misconduct which should have resulted in a mistrial and the district court’s conclusion to the contrary was an abuse of discretion. Ordinarily, the Court does not address issues raised by a party for the first time on appeal. In the instant case, the Court considered the issue because it had been directly addressed by the district court. There was no evidence in the record from which the Court could conclude the prosecutor reasonably should have anticipated the non-responsive answer given by the witness. The prosecutor told the district court she advised the witness to testify only to matters within his own knowledge. The district court specifically determined the testimony was not elicited by the State and was instead a spontaneous statement. There was nothing in the record to support a conclusion that the district court’s determination was unreasonable. Also, the district court immediately instructed the jury to disregard the testimony.

Denial of the Motion for Judgment of Acquittal: Appellant contended the district court committed plain error when it denied his motion for judgment of acquittal because the State did not prove all the elements necessary for conviction of escape. The Court reviewed the record to determine whether sufficient evidence was presented to sustain a conviction. Considering the evidence, the Court concluded Appellant failed to show plain error. He failed to demonstrate the district court violated a clear and unequivocal rule of law when it denied the motion. The Court found the evidence sufficient to sustain a conviction. Although there was no direct evidence of where he was during the hours he was missing form the work site, the circumstantial evidence was sufficient to allow a jury to conclude beyond a reasonable doubt that Appellant left his place of employment.

Affirmed.

J. Kite delivered the decision.

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