Law Library Letter: March 2007

Wednesday, March 28, 2007

Summary 2007 WY 53

Summary of Decision issued March 28, 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 with 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: Shepard v. Beck

Citation: 2007 WY 53

Docket Number: 06-98

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

Representing Appellant (Plaintiff): Patrick Dixon of Crowell, Chapin & Dixon, LLC, Casper, Wyoming.

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

Issues: Whether the district court erred when it concluded that Beck did not breach his employment contract. Whether the district court erred when it split the costs of an accounting audit between the parties instead of placing liability for the costs of the audit on Beck. Whether the district court erred when it declined to award attorney’s fees to Shepard. Whether the district court erred in its order regarding the division of corporate equipment between the parties.

Facts/Discussion: Shepard appeals a judgment and order of the district court finding that Beck did not breach an employment agreement with the professional corporation formed between Shepard, Beck and the corporation and ordering the corporation to dissolve.
Employment contract breach: Shepard argued that the district court’s findings of fact were inconsistent with their ultimate finding that Beck did not breach the employment contract. The Court’s standard for reviewing a district court’s findings of fact and conclusions of law is that while the findings are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Findings of fact will not be set aside unless clearly erroneous.
The Court’s review of the record showed that Beck’s claim that Shepard was not a proper party was raised for the first time on appeal. Based on W.R.C.P. 17 and their decision in Gifford-Hill-Western, Inc. v. Anderson, the Court stated that a party’s failure to object that its opponent was not the real party in interest until the close of the evidence constituted a waiver of any objection on that ground. In addition, in the instant case, Beck individually sought a judgment from Shepard based on her status as an employee of the corporation, so he was estopped from claiming that Shepard was not a proper party to recover for any breaches of his similar employment contract.
Beck did not challenge the above-mentioned factual findings of the district court on appeal and those findings clearly indicated that the Beck’s actions violated his employment contract. The district court’s findings indicated that Beck’s actions constituted a breach of the express terms of the employment contract which was inconsistent with the district court’s general finding that Beck did not breach the contract. The Court stated that long ago they recognized that specific findings control when they conflict with a general finding. Therefore, they concluded that Beck did in fact breach the employment contract and the district court’s ruling in Beck’s favor was clearly erroneous.
Wipfli audit: Having determined that Beck breached his employment contract, the Court then addressed the costs Shepard could recover. The Court reviews awards of costs and attorney’s fees to determine if the district court abused its discretion. The cases cited by Shepard demonstrated the point that an accounting may be considered part of the costs of litigation and therefore may be awarded to the prevailing party. However, the district court determined that while Beck’s actions precipitated the need for the accounting, it was more properly considered a necessity to the mutually beneficial winding up of corporate affairs and not a cost incurred in enforcement of the corporate agreement. Under the circumstances outlined in the record, the Court stated it was within the district court’s broad discretionary powers to find the accounting was necessary in order to wind up the corporation’s business and that Shepard was not entitled to be reimbursed. The Court also noted Shepard was granted her other costs as the prevailing party below.
Award of attorney fees: Shepard claimed she was entitled to attorney fees under the fee shifting provision in the contract. Beck waived his right to object that Shepard was not a proper party to enforce the employment contract by not raising the defense below. Therefore, as prevailing party on the breach of contract claim, Shepard may collect her attorney’s fees as provided for by the contract. However, the district court order in the instant case did not specify whether it ordered each party to pay their own attorney fees under the “American Rule” or under its equitable powers. On remand, the district court was instructed that Shepard was contractually entitled to attorney fees, but such may be adjusted as appropriate under the federal lodestar test.
Division of corporate equipment: Shepard’s argument did not allege any dispute with the nature of the property taken by Beck. Shepard disagreed with the value attached to that property by the district court. On factual issues, the Court affirms the findings of the district court unless they are clearly erroneous. The Court stated the value of the property was supported by the appraisal found in the record and the Court therefore affirmed the distribution of corporate assets ordered by the district court.

Holding: While Beck may have breached his employment contract with the corporation, the district court did not abuse its discretion when it ordered the parties to split the cost of the Wipfli audit evenly between them as part of the dissolution process. Further, Shepard failed to show error in the division of the corporate property. The district court should have ordered Beck to pay Shepard’s reasonable attorney’s fees due to his breach of the contract. The Court affirmed in part, reversed in part and remanded for entry of an order finding Beck in breach and awarding Shepard reasonable attorney fees.

Affirmed in part, reversed in part and remanded for entry of an order awarding reasonable attorney’s fees.

C.J. Voigt delivered the decision.

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

Friday, March 23, 2007

Summary 2007 WY 52

Summary of Decision issued March 23, 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 with 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: Doolittle v. State

Citation: 2007 WY 52

Docket Number: 05-177 and 06-86

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

Representing Appellant (Defendant) for case 05-177: Kenneth M. Koski, State Public Defender; and Donna D. Domonkos, Appellate Counsel. Argument by Ms. Domonkos.

Representing Appellee (Plaintiff) for case 05-177: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and David J. Willms, Assistant Attorney General. Argument by Mr. Willms.

Representing Appellant for case 06-86: Christopher A. Doolittle, pro se.

Representing Appellee for case 06-86: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Assistant Attorney General.

Issues: Whether the district court erred when it denied Appellant’s motion to suppress. Whether the district court erred because it did not award credit for time served.

Facts/Discussion: Appellant was suspected of dealing methamphetamine. Pursuant to a sting operation, an informant asked Appellant to meet at a nightclub near the Wyoming/Colorado border. When Appellant arrived he crossed into Wyoming but parked his vehicle on the Colorado side of the border. Wyoming law enforcement officers immediately arrested him for conspiracy to deliver methamphetamine. A search of his vehicle led to the discovery of drugs, drug dealing paraphernalia and several weapons. Appellant filed a motion to suppress evidence obtained during the search, claiming the officers were outside of their jurisdiction to arrest him or alternatively, that they lacked probable cause. The district court denied the motion. Subsequently, Appellant entered a conditional guilty plea to one count of possession of a controlled substance with intent to deliver and one count of felony possession of a controlled substance. In these two consolidated appeals, he contends the district court erred by denying his motion to suppress and by failing to award him credit for time served.
Standard of Review: The Court does not interfere with a district court’s finding of fact unless they are clearly erroneous. The determination of whether a sentence is illegal is a question of law which the Court reviews de novo.
Extraterritorial Arrest: The validity of a warrantless arrest is determined by applying the law of the state in which the arrest occurred. The applicable Colorado statute is Colo. Rev. Stat. Ann. § 16-3-106. The Court reviewed the record and found no error with the district court’s determination that probable cause existed for the warrantless arrest of Appellant. Appellant contends the arrest outside of the jurisdiction requires the suppression of all evidence obtained as a result of the arrest. Appellant relied on the general rule that officers are not permitted to make warrantless arrests absent statutorial authority. Appellant recognized fresh pursuit as an exception to the general rule but claimed the detectives were not in fresh pursuit. The Court was not analyzing the claim under the common law doctrine of fresh pursuit. Colorado has enlarged upon the common law pursuant to its codification of Colo. Rev. Stat. Ann § 16-3-104(1)(c). An arrest in Colorado is evaluated by considering three criteria: (1) the police must act without unnecessary delay; (2) the pursuit must be continuous and uninterrupted, but there need not be continuous surveillance of the suspect or uninterrupted knowledge of his whereabouts; and (3) the temporal relationship between the commission of the offense, the commencement of the pursuit and the apprehension of the suspect – the greater the length of time, the less likely the police action constituted fresh pursuit. There is no requirement the suspect recognize he is being pursued. There is also no requirement that an actual in-sight chase begin within the officer’s territorial jurisdiction. The facts of the instant case did not fit easily within the traditional sense of fresh pursuit. However, when evaluated under the criteria set forth under Colorado law, the Court did not find the arrest unlawful. Detectives immediately set up surveillance of the ongoing conspiracy. Appellant arrived as expected, drove into Wyoming and continued on a driveway that curved back across the Colorado border. The detectives followed the car and apprehended Appellant after he stepped out of the car. The act was without unnecessary delay and was continuous and uninterrupted. Appellant was apprehended as close to the time the crime was committed as was reasonable under the circumstances. The Court found the arrest lawful.
Credit for Time Served: In both appeals, Appellant contended the district court erred by denying him credit for his presentence incarceration. The Court has stated that 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. The Court reviewed the discussion of the imposition of Appellant’s sentence. The written judgment and sentence omitted discussion regarding credit for presentence incarceration even though required to do so pursuant to W.R.Cr.P. 32(c)(2)(E) and (F). Because the written sentencing order failed to comply with Wyoming rules, Appellant is entitled to a limited remand for a determination of credit unless the Court is able to fashion a correct award from the record. The Court stated the district court’s oral pronouncement was ambiguous and the written judgment and sentence lacked any findings which would have provided clarification. As a matter of law, the Court was unable to determine the sentence intended to be imposed by the district court.

Holding: The Court affirmed the district court’s decision to deny Appellant’s motion to suppress. The written judgment and sentence did not comply with the requirements of W.R.Cr.P. 32(c)(2)(E) and (F) because it lacked any specific findings concerning Appellant’s presentence incarceration. The case was remanded to the district court for issuance of a corrected sentence consistent with the opinion.

Affirmed in part and remanded in part.

J. Burke delivered the decision.

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

Summary 2007 WY 51

Summary of Decision issued March 23, 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 with 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: Fenton v. State

Citation: 2007 WY 51

Docket Number: 05-224

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

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

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Eric A. Johnson, Director, Prosecution Assistance Program; and Geoffrey L. Gunnerson, Student Director, Prosecution Assistance Program. Argument by Mr. Gunnerson.

Facts/Discussion: Appellant entered a conditional plea of guilty to possession of methamphetamine with intent to deliver. The “condition” preserved Appellant’s right to appeal the district court’s decision to deny his motion to suppress the evidence which supported the charge to which he pled guilty.
The State bears the burden of proof with respect to justifying warrantless searches and seizures of a dwelling house. The district court conducted a hearing and took evidence concerning the search and seizure. In reviewing a trial court’s ruling on a motion to suppress evidence, the Court does not interfere with the findings unless they are clearly erroneous. The Court noted the importance of the Fourth Amendment of the United States Constitution. The Court stated that Gompf and Rideout were instructive in this case because once police felt they had probable cause to search, they secured the premises and sought judicially supervised search warrants or received written consent of the home owner.
Standard of Review: The constitutionality of a particular search or seizure is a question of law the Court reviews de novo.
Appellant filed a motion to suppress where he did not contest the seizure of evidence found in plain view. Relying on Andrews v. State, the State contended that Appellant was required to assert a possessory interest in the lock box where the methamphetamine was found before he could complain of the search. The State also claimed Appellant lacked standing to complain of the constitutionality of the search. The State conceded that both Appellant and Brown (Brown lived in the home as well) objected to further search of their home but that exigent circumstances required the police to proceed with the search. The Court reviewed the record of the hearing and made special note that the length of the hearing was short and that both defense counsel and the prosecution were not well prepared for the hearing. The district court found the warrantless search was proper: because the deputies were legally on the premises having been admitted by Brown; after the deputies saw the marijuana in plain view, they had reasonable suspicion to believe Appellant was committing a drug crime or was associating with someone who was in possession of drugs; Appellant was required by terms of his probation to submit to random searches relative to the use of drugs or alcohol; both Appellant and Brown denied ownership of the locked box which was the focus of the warrantless search, so Appellant had no standing to object to the legality of the search and seizure of the box.
The Court stated their analysis was brief because there was not much to be said about the issues raised. The resolution of the case had nothing to do with the law that relates to searches and seizures conducted pursuant to the terms of a probation/parole agreement because it was not a factor in the police officer’s presence at the home, and the officers were not aware that Appellant was on probation.
The district court erred as a matter of law to the extent it relied upon the terms of the probation agreement in denying the motion to suppress. The search at issue was per se unreasonable under the governing law. The burden was on the State to prove by a preponderance of the evidence that there was some exception or circumstance that demonstrated the search was not unreasonable. The State failed to meet that burden. The Andrews case was not on point and did not support a conclusion that Appellant lacked standing to challenge the search of the contents of the lock box. The Court declined to dilute the governing law as it pertains to such searches by trying to contort the circumstances to fit. The Court stated the record was clear the officers had probable cause which would have justified the issuance of a search warrant by a judicial authority.

Holding: The Court held the district court erred in denying Appellant’s motion to suppress. The judgment and sentence of the district court was reversed, and the matter remanded to the district court for proceedings consistent with the opinion.

Reversed and remanded.

J. Hill delivered the decision.

Link: http://tinyurl.com/33pdvp .

Wednesday, March 21, 2007

Summary 2007 WY 50

Summary of Decision issued March 21, 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 with 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: Frenzel v. State, DFS

Citation: 2007 WY 50

Docket Number: 06-163

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

Representing Appellant (Petitioner): Paul Albert Frenzel, pro se.

Representing Appellee (Respondent): Patrick J. Crank, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jacob L. Brooks, Assistant Attorney General; and Dan Wilde, Senior Assistant Attorney General.

Facts/Discussion: Appellant, an inmate at the Wyoming State Penitentiary, appealed from an order of the district court denying his petition to modify a child support and to grant him a reduction in the amount of his child support obligation arrearage.
A Judgment and Order of Paternity and Support was entered in the district court on January 20, 1994. On October 17, 2005, Appellant filed a petition to modify child support, a motion to modify child support arrearages and an affidavit of indigency in which he stated he was financially unable to pay filing fees. Appellant’s unsworn brief alleged that the district court granted his motion for leave to proceed in forma pauperis in the district court, but no such order appeared in the record on appeal. The petition and motion were set for hearing on April 12, 2006. There was a note in the record that the hearing would be by telephone but Appellant failed to appear. On May 23, 2006, Appellant attempted to file a notice of appeal from the April 27, 2006 order. He sought waiver of the filing fee. The Clerk declined to file the notice of appeal on the ground that Appellant was not entitled to in forma pauperis status in the appeal of a child support modification order. Appellant later paid the docketing fee and filed the notice of appeal on July 10, 2006. Three rules of appellate procedure apply: W.R.A.P. 1.03; W.R.A.P. 2.01(a) and W.R.A.P. 2.09(a).

Holding: The record left no doubt that Appellant did not pay the docketing fee or produce an order allowing him to proceed on appeal in forma pauperis when he attempted to file notice on May 23, 2006. W.R.A.P. 2.09(a) provides that the docketing fee shall be collected, so the district court clerk acted properly in refusing to file the notice of appeal. When Appellant did pay the fee and file his notice of appeal, more than thirty days had passed since the entry of the order being appealed. Thus being untimely, the Court did not have jurisdiction to hear it.

Dismissed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/yosd2w .

Tuesday, March 20, 2007

Summary 2007 WY 49

Summary of Decision issued March 20, 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 with 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: Snelling v. Roman, d/b/a/ Alpine Excavation

Citation: 2007 WY 49

Docket Number: 06-91

Appeal from the District Court of Johnson County, the Honorable Dan Spangler (Retired), Judge

Representing Appellant (Plaintiff): Ronald L. Spelling, pro se..

Representing Appellee (Defendant): Virgil G. Kinnaird and Sheryl Smith Bunting of Kinnaird Law Office, P.C., Sheridan, Wyoming.

Issues: Was it reversible error to dismiss counts I, II and III of plaintiff’s complaint all of which were based on defendant’s representations that the road to be constructed for plaintiff was to be approximately one-half mile in length when the actual road constructed was 1150 feet long? Was it reversible error to find as fact that the plaintiff had the same information as did defendant as to the length of the road to be built for $35,000.00 where the contract between the parties specified a road to be approximately one-half mile long and where the evidence showed that plaintiff [w]as not in Wyoming when the road was staked and buil[t] by defendant? Was it reversible error for the trial court to award defendant the full amount of his invoice for certain excavation work when the invoice included work done after the plaintiff instructed the defendant to do no further work? Was it reversible error for the Trial Court to award defendant the full amount of his excavation invoice based on the Trial Court’s determination that such amount was reasonable when the Trial Court excluded plaintiff’s offered expert testimony as to reasonableness? Was it reversible error for the Trial Court to permit a non-disclosed expert witness to testify over objection that 15 to 24 rocks provided by defendant to plaintiff were worth $12,000.00 when the witness had stated he would have to look more closely at the rocks to value them? Was it reversible error for the Trial Court to find that the amount of plaintiff’s black dirt taken by defendant was “insignificant” when there was no testimony or evidence to the amount of black dirt defendant was entitled to in trade for 15 to 24 rocks?

Facts/Discussion: Snelling bought land near Story, Wyoming on which to build a house. He hired Roman to do dirt work at the home site. Snelling paid a portion of Roman’s bill but in the end decided he was dissatisfied and refused to pay the outstanding balance. Snelling initiated the current action against Roman, alleging breach of contract and fraud. Roman counterclaimed, seeking payment for his completed services and material costs. After a bench trial, the trial judge dismissed all of Snelling’s claims and granted judgment for Roman on his counterclaims.
Standard of Review: After a bench trial, the Court reviews the trial court’s factual findings under a clearly erroneous standard and its legal conclusions de novo. A finding will only be set aside if, although there is evidence to support it, the Court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. In reviewing a trial court’s construction of a contract, the initial question of whether the contract is ambiguous is a question of law for the Court.
Length of the Road: Snelling suggested the length of the road was material to his agreement to offer a flat fee of $35,000. The Court reviewed the record and stated that language in the communications between Snelling and Roman was too ambiguous to suggest that Snelling was materially focused on the length of the road. They stated the district court was correct in determining that Snelling had the same information regarding the potential difficulty in constructing the road to his home site as did Roman. It was undisputed that Snelling met with Roman at the property roughly a month before he drafted the letter agreement. Snelling was in as good a position as Roman in estimating the potential length of the road to his home site and the difficulty involved in constructing such a road. Last, Snelling indicated he knew the road was not finally staked at the time of the letter agreement. He stated in the letter that he was sending Roman a copy of the legal description of the property and that the road would potentially need to be restaked given the new information. Given those reasons, the Court found Snelling’s first two issues to be without merit.
Invoice for work completed after Snelling instructed Roman to do no more work: The Court noted that Roman arrived home from work at Snelling’s property one day to find a message from Snelling instructing Roman to do no further work. Roman complied but submitted a bill for the gravel used in that day’s work. The Court stated Snelling’s objection to pay for the gravel was disingenuous. Snelling did not dispute that Roman did not get the message from Snelling until he had completed work for the day. Therefore Roman’s bill pertained solely to the work completed prior to receiving the message. Under the circumstances, the Court found no error in the district corut’s determination that Roman was entitled to the challenged amount especially since Roman charged only for materials supplied and that were accepted by Snelling.
Evidentiary Issues: The Court reviews a trial court’s evidentiary rulings under an abuse of discretion standard. The Court reviewed the record and noted the trial court allowed Snelling to admit evidence as to the reasonableness of Roman’s invoice and refused to hear further evidence on the same topic from the same witness. Snelling complained that Roman was allowed to elicit expert witness testimony from a witness who was designated only as a fact witness in Roman’s pretrial disclosure statement. The Court declined to discuss whether the testimony constituted inadmissible expert testimony because Snelling was not prejudiced by such testimony. There was no indication the trial court relied on the questioned testimony, nor was it necessary for the trial court to do so. Roman had testified extensively as to how he determined the price for the feature rocks. That testimony was sufficient to support the trial court’s finding that the feature rocks were worth $12,000 without reference to the testimony provided by Roman’s challenged witness.
Black Dirt: The initial agreement entered into with regard to the feature rocks was that Roman would trade the feature rocks to Snelling in exchange for black dirt that was being excavated from Snelling’s property. Roman took approximately two truckloads of dirt at about the same time as he delivered the feature rocks. Before Roman could claim more dirt, the payment dispute developed. The trial court found the two truckloads was insignificant and did not factor that amount into the valuation of the feature rocks. The Court stated the finding was not clearly erroneous. Roman billed Snelling for the feature rocks after he was stopped from taking any more dirt. It was a reasonable inference that Roman accounted for whatever value the black dirt he took may have had when preparing the invoice. The value of the black dirt Roman took could therefore have been considered inconsequential to the amount charged in the final invoice.

Holding: The Court found no reversible error. The record supported that the length of the road was not a material term in the contract for the initial dirt work. Roman adequately proved that he was entitled to judgment as entered.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/yqeomd .

Monday, March 19, 2007

How-to: Microsoft Word, Annoying?

Rick Broida of lifehacker.com has written a blog post with some great tips for personalizing Microsoft Word and it's extremely annoying habit of making your decisions for you: Make Microsoft Word less annoying. If any of these MS Word tendencies have irritated you for just about ever, now is your moment of revenge. And if none of the settings Broida details does the trick for you, you can still use the same general instructions to browse around Word's options and maybe find that elusive checkmarked setting that is driving you to distraction.

Turn off unnecessary toolbars
Streamline the toolbars you keep
Add a word-count button
Turn off hyperlinks
Expand the recently used documents list
Turn off "smart quotes"
Turn off entire-word selection
Turn off automatic numbered lists
Turn off superscripting and fractions
Access full pull-down menus
Ditch Word altogether (OpenOffice, anyone? Google Docs?)

Friday, March 16, 2007

Summary 2007 WY 48

Summary 2007 WY 47

Summary of Decision issued March 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 with 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: Greene v. Finn, Personal Representative of Estate of Greene

Citation: 2007 WY 47

Docket Number: 05-274

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

Representing Appellant (Plaintiff/Respondent): John M. Kuker and Matthew H. Romsa of Romsa & Kuker, LLC, Cheyenne, Wyoming.

Representing Appellee (Defendant/Petitioner): Mark A. Bishop and Melinda D. Oldaker of Bishop & Oldaker, LLC, Cheyenne, Wyoming.

Issues: Whether the instant appeal should be dismissed because Husband failed to file a supersedeas bond as ordered by the district court. Whether the district court committed a clear and grave abuse of discretion, committed a serious procedural error, or violated a principle of law in holding Husband in contempt of court for failing to comply with certain procedures of the divorce decree.

Facts/Discussion: Husband appealed from an order finding him in contempt of court for failing to abide by the terms of a property settlement and divorce decree.
Standard of Review: Under the Court’s established standard for the review of contempt orders in domestic relations cases, the Court will not disturb the decision of the district court absent a serious procedural error, a violation of a principle of law, or a clear and grave abuse of discretion. The Court reviews questions of law de novo, according no deference to the district court’s decision.
Supersedeas bond: The Estate argued that the appeal should be dismissed because Husband had not filed the bond that was ordered by the district court. The Court stated that Estate’s argument was not well grounded in the appellate rules or in the substantive law governing supersedeas bonds. The Estate relied on W.R.A.P. 1.03 and 4.01. However, the Court stated that supersedeas bonds are governed by W.R.A.P. 4.02. The bond was likely requested by the Husband to prevent enforcement of the judgment pendente lite which comports with the general definition and effect of a supersedeas bond. The Estate’s remedy upon Husband’s failure to file the bond would have been to proceed to execute on the judgment, rather than seek dismissal of the appeal. By the terms of the district court order, the supersedeas would not have stayed the effect of the judgment in regard to the personal property.
District Court abuse of discretion, procedural error or violation of principle of law: The Court reduced the issue to three questions: (1) what was Husband found in contempt of court for failing to do; (32) was Husband clearly ordered to do that which he was found to have failed to do; and (3) did the district court abuse its discretion. The district court found Husband did not turn over one-half of the couple’s artwork, that he did not deliver possession of the Lichvar furniture, that he did not deliver possession of the Blazer, that he did not pay certain taxes, that he did not pay alimony, and that he did not pay one-half of the amounts due under the couple’s American Express credit cards. The Court reviewed the divorce decree to answer the second question. The order of the district court was clear except for where it ordered Husband to pay the “American Express Platinum and Blue” while it ordered Wife to pay “Amex – Blue/Platinum.” After a review of the record, the Court stated the district court violated the fundamental principle that an order on which a judgment of contempt is based must be clear and unambiguous because the decree simply did not make it clear that Husband was obligated to pay one-half the American Express credit card debt.

Holding: The divorce decree clearly ordered Husband to deliver to Wife one-half of the artwork, the Lichvar furniture and the Blazer. It also clearly ordered him to pay the property taxes on the “Rabbit Ears” and “Smole” properties and to pay Wife alimony in the amount of $1200 per month for six months. He did none of those things, so the district court did not err in finding him in contempt of court for those failures, or in ordering delivery of the property and in entering judgment for amounts owed. The decree did not clearly order Husband to pay one-half of the American Express credit card debt and the district court erred in finding him in contempt for that alleged failure.

The judgment of the district court is affirmed as to the artwork, the Lichvar furniture, the Blazer, the property taxes, and the alimony. It is reversed as to the American Express credit card debt and remanded to the district court for further proceedings.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/329as4 .

Summary 2007 WY 46

Summary of Decision issued March 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 with 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: Walton v. State, ex rel., Wyoming Workers’ Safety and Compensation Division

Citation: 2007 WY 46

Docket Number: 05-289

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

Representing Appellant (Petitioner/Employee-Claimant): Gregory L. Winn of Schilling & Winn, PC, Laramie, Wyoming.

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

Issues: Walton: Whether the conclusion of the Medical Commission Hearing Panel that Appellant failed to meet her burden of proof establishing that the injuries to her neck, shoulder, lower back, and her headaches were directly and causally the result of her employment related accident at Memorial Hospital of Carbon County on October 2, 2002 is supported by substantial evidence. Whether the conclusion of the Medical Commission Hearing Panel that Appellant’s injuries to her neck, shoulder, lower back, and her headaches were directly and causally the result of her employment related accident at Memorial Hospital of Carbon County on October 2, 2002 is arbitrary and capricious as that standard is applied as a “safety net” under Newman. Division: The Medical Commission Hearing Panel determined that Walton’s low back injury resolved by October 12, 2004, following her October 2, 2002 work injury. Further, the Medical Commission determined Walton failed to prove the relatedness between her work injury and complaints regarding her neck, left shoulder and headaches. Whether substantial evidence supported the Medical Commission Hearing Panel’s decision denying benefits. Whether the Medical Commission’s decision denying benefits was arbitrary or capricious.
Facts/Discussion: Walton was injured in a work-related accident in 2002. She claims she injured primarily her low back, left shoulder and neck in the accident. The Wyoming Workers’ Compensation Division (Division) denied all claims submitted by Walton for injuries to her left shoulder and neck, determining that such injuries were not causally related to her work accident. Walton also submitted a claim for medication for migraine headaches which was denied on the basis that her migraines were not causally related to the work accident. The Division paid claims relating to Walton’s low back injury until October 2004. The Division denied further claims, determining that Walton’s physical condition with regard to her low back had reached pre-injury status.
After the Medical Commission held a contested case hearing, the Panel upheld the Division’s denial of benefits in all respects. Walton sought review arguing the decision was not supported by substantial evidence and was arbitrary and capricious. The district court affirmed the Medical Commission’s final order in all respects.
Standard of Review: The Court reviews an administrative agency order as if it came directly from the administrative agency affording no deference to the district court’s decision. Where both parties to a contested case submit evidence, appellate review of the evidence is limited to application of the substantial evidence test. Even if sufficient evidence supports the administrative decision uner the substantial evidence test, Newman requires the Court apply the arbitrary and capricious standard as a “safety net” to catch other agency action that may have violated the Wyoming Administrative Procedures Act.
Payment for Migraine Medication: Walton made no specific argument supporting the compensability of the treatment for her migraine headaches. Therefore the Court declined to review the matter.
Low Back: The Court’s careful review of the record revealed there were no basic findings of fact in the content of the Medical Commissions order supporting the ultimate finding. Normally, the Court would remand to the Medical Commission Review Panel for further findings except the record is clear that no evidence supports a finding that Walton’s low back reached pre-injury status at any time before the hearing. The Medical Commission’s conclusion to the contrary was arbitrary and capricious.
Neck and Left Shoulder: The Medical Commission found Walton’s injuries to her neck and left shoulder to be unrelated to her work accident. The Court reviewed the record and noted the Medical Commission failed to make any explicit findings of credibility as to the testimony regarding the neck and left shoulder. The Medical Commission should have expressly ruled on its credibility determinations and findings on the evidence Walton presented. However, even without it, there was substantial evidence to support the Commission’s determination. The record unambiguously reflected that neither the initial injury report nor the emergency room records indicated an injury to Walton’s left shoulder or neck. The testimony of the two doctors treating Walton for her neck and left shoulder complaints stated they would expect symptoms to appear shortly after the work accident. From that evidence, the Court found that the Medical Commission’s upholding of the denial for the claims for neck and left shoulder injury were supported by substantial evidence and not otherwise arbitrary or capricious.
The Court also noted the appropriate function of the Medical Commission is to base its decisions on the evidence presented and not its personal medical opinions.

Holding: The Court stated the record was clear that the decision denying benefits for Walton’s low back were arbitrary and capricious. No evidence supported a finding that Walton’s low back had returned to pre-injury status. The denial for benefits for law back injury was reversed. The Court made it clear they had no comment as to the nature of any future treatment. The denial for benefits for injuries to Walton’s neck and left shoulder was affirmed. Substantial evidence existed to support the finding that any injury was not causally related to the work accident. The denial was not arbitrary or capricious. The denial for benefits for medication for migraine headaches was affirmed because Walton made no argument that her migraines were causally related to the work accident.

Affirmed in part, reversed in part and remanded for further proceedings.

J. Golden delivered the decision.

Link: http://tinyurl.com/23ee6h .

Thursday, March 15, 2007

Summary 2007 WY 45

Summary of Decision issued March 15, 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 with 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: Kelly v. State

Citation: 2007 WY 45

Docket Number: 06-37

Appeal from the District Court of Campbell County, the Honorable John Perry, Judge

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

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

Issue: Whether sufficient evidence was presented to show Appellant caused serious bodily injury as required for an aggravated assault conviction.

Facts/Discussion: Appellant was convicted by a jury of aggravated assault and batter in violation of Wyo. Stat. Ann. § 6-2-502(a)(i). On appeal, he claims the evidence was insufficient to show that he caused “serious bodily injury” as required by the statute. He also claims prosecutorial misconduct occurred during the State’s closing argument.
Standard of Review: When reviewing the sufficiency of the evidence, the Court accepts as true the State’s evidence and affords it those inferences which may be reasonably and fairly drawn from it. The Court’s duty is to determine whether a quorum of reasonable and rational individuals would or could have come to the same result as the jury actually did.
Appellant claims the State’s evidence was insufficient to show he caused serious bodily injury to the victim. He asserted the evidence presented did not create a substantial risk of death or cause severe disfigurement or loss or impairment of any bodily member or organ. The State argued the evidence was sufficient showing that Appellant beat the victim with his fists and hit him on the head with an iron stove grate, causing profuse bleeding and permanent scarring. The State cited State v. Woodward and Lucero v. State. Unfortunately, the current statute specifically identifies the sort of bodily injury a defendant must cause in order to be convicted of aggravated assault under § 6-2-502(a)(i). The injury must: (1) create a substantial risk of death; (2) cause miscarriage; (3) cause severe disfigurement; or (4) cause protracted loss or impairment of the function of any bodily member or organ. The Court has specifically considered whether injuries constituted serious bodily injury within the meaning of the statutes in two cases: O’Brien v. State and Cazier v. State. The Court held that under those particular facts, rare and remarkable injuries which required surgery or resulted in inpatient hospitalization and scarring constituted serious bodily injuries. Although the victim was left with a scar, there was no testimony that the injuries were life threatening or that they required inpatient hospitalization or surgery. The Court concluded the evidence did not support a verdict finding Appellant caused serious bodily injury as the term is defined in the statute. Under Wyoming’s statutory language the focus of the inquiry is the nature of the injuries inflicted. The Court discussed their holding as in accord with results reached in other jurisdictions sharing the same or substantially similar statutory language. They discussed State v. Pheng, Fleming v. State, State v. Flores, Commonwealth v. Lewis, Moore v. State and State v. Kane.
To support a conviction for aggravated assault, nearly all the cases require injuries significantly more serious than those of the victim in the instant case.

Holding: Given the express language contained in the statute, the Court held the evidence was not sufficient to support the conviction for aggravated assault. The Court stated their holding on the issue made it unnecessary to address the claim of prosecutorial misconduct. The district court instructed the jury on the offense of battery as a lesser-included offense of aggravated assault. The evidence presented at trial was sufficient to support a jury verdict finding Appellant guilty of battery. Therefore, the Court set aside the aggravated assault conviction, ordered entry of a battery conviction and remanded to district court for re-sentencing on the battery conviction.

Reversed as to the aggravated assault conviction, entry of a battery conviction ordered and remanded to district court for sentencing on the battery conviction.

J. Kite delivered the decision.

Link: http://tinyurl.com/3dc6yl .

Wednesday, March 14, 2007

Summary 2007 WY 44

Summary 2007 WY 43

Summary of Decision issued March 14, 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 with 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: Chevron v. Dep’t of Revenue, State

Citation: 2007 WY 43

Docket Number: 06-50

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

Representing Appellant (Petitioner): William J. Thomson II, Randall B. Reed, Brian J. Hanify and Gregory C. Dyekman of Dray, Thomson & Dyekman, PC, Cheyenne, Wyoming. Argument by Mr. Dyekman.

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

Issues: Whether the Wyoming Board of Equalization (SBOE) erred as a matter of law, by concluding that a private postage meter stamp was a “postmark” as that term is used in Wyo. Stat. Ann. § 39-14-209(b)(iv) and in the SBOE’s rules and regulations. Whether Chevron was denied due process by the SBOE’s refusal to accept Chevron’s appeal. Whether the SBOE failed to observe procedures required by law.

Facts/Discussion: The SBOE denied Chevron’s appeal from a notice of valuation (NOV) for its Carter Creek natural gas production, concluding it had no jurisdiction because the appeal was filed more than 30 days after the Department of Revenue (DOR) decision was postmarked in contravention of Wyo. Stat. Ann. § 39-14-209(b)(iv). Chevron claimed the state’s postage meter stamp was not a “postmark” as provided by the statute, and thus its time for appeal had not expired because the thirty day period had not been triggered. Chevron petitioned the district court for review of the SBOE decision and the district court affirmed the agency’s findings and conclusions. Chevron then filed a timely appeal of the district court’s decisions to the Court.
Standard of Review: Wyo. Stat. Ann. § 16-3-114 governs judicial review of administrative decisions.
To resolve the matter, the Court had to interpret the statutory term “postmark.” The term was not defined in the statute. The Court held the term “postmark” as used in § 39-14-209(b)(iv) and the SBOE rule was capable of different meanings and was therefore ambiguous. The Court then looked beyond the specific language of the statute and applied the rules of statutory construction to determine the legislature’s intent. It is indisputable the legislature has the prerogative to decide when to authorize administrative appeals and to establish the procedures applicable to such appeals. The Court reviewed the historical context of the enactment of the statute. They noted from reviewing numerous Wyoming statutes that when the legislature desires an agency to establish proof of actual mailing of a notice and the date thereof, it requires the agency to send the notice by certified or registered mail. The legislature chose not to impose that requirement on the DOR for service of NOV’s. Therefore the Court stated the intent was simply to provide a date certain for the beginning of the appeals period. The state’s private postage meter stamp constitutes a “postmark” for the purposes of § 39-14-209(b)(iv). The Court noted cases which supported the position that a postage meter stamp was equivalent to a USPS cancellation because the meters are subject to USPS regulations and guidelines.
The Court was not convinced the legislature intended to change the way the state and the taxpayers handled their business communication when it established a deadline for filing objections to an NOV; instead it was intended to establish a firm date for triggering the time within which objections must be filed and understood a private postage meter stamp did that just as effectively as a USPS cancellation mark.
Chevron directed the Court’s attention to cases holding that tax statutes, if ambiguous, must be interpreted in favor of the taxpayer. An examination of the cases made it clear the focus was on statutes involving the imposition of a tax and not procedural statutes governing administration of tax appeals. The Court discussed the case of Kelsey v. Taft and the cases that followed which similarly involved interpreting statutes to determine whether a particular property or transaction was subject to taxation or the amount of tax due. The Court would not apply the rule of strict construction to interpret the procedural requirements for perfecting an appeal from an NOV.
The fact that Chevron failed to provide evidence that USPS stamped mail would have likely been received by a taxpayer over the holiday period any faster than the privately metered mail also undermined its position. Without that evidence, it could not claim that requiring a USPS postmark would always benefit the taxpayer.
Fairness and due process are the only constraints upon the legislature when establishing procedural requirements. First, Chevron complained, without cite to authority, that SBOE violated its due process rights arguing W.R.A.P.2.01 applied to SBOE. They implied that SBOE’s failure to grant an extension constituted a denial of due process. The Court stated that SBOE’s dismissal of Chevron’s untimely appeal in compliance with § 39-14-209(b)(iv) did not constitute a denial of due process. Secondly, Chevron contended its right to due process was violated because it did not have an adequate opportunity to respond to the arguments the DOR presented at the hearing or the legal reasoning set forth in SBOE’s order. The Court focused on the chronology of the proceeding when it reviewed the record. The Court agreed the proceedings provided Chevron adequate opportunity to present its case and concluded there was no denial of due process. Chevron had notice of the hearing, filed no objection to the timing of the hearing, presented an opening statement outlining the legal arguments it had raised in its written objection to the dismissal, including some of the authority it cited on appeal, and called a DOR employee to testify. At no time prior to, during, or after the hearing did Chevron object to the DOR’s participation or ask for additional time to present more evidence or legal argument. Not until the SBOE order was issued did Chevron ask to present more evidence and argument. Due process requires only reasonable notice and opportunity for a fair hearing.

Holding: The SBOE mailed the NOV on May 25, 2004 in the ordinary course of its business using the state’s central mail system and a private postage meter. Chevron presented no evidence indicating the mail was not handled in the same manner as all of the DOR’s correspondence and mailed on the day it was stamped. Chevron received the NOV on June 2, 2004. The intervening time included a national holiday during which mail was not delivered. The Court concluded the NOV was postmarked as provided by § 39-14-209(b)(iv) when marked by the postage meter and the appeal was due on June 28, 2004. Chevron’s appeal filed June 30, 2004, was not timely; consequently, the SBOE had no jurisdiction to consider it and acted properly in dismissing it. The Court further concluded Chevron had a full and fair opportunity to present its arguments in opposition to the dismissal of its appeal. The Court affirmed the district court’s order affirming the SBOE’s order dismissing the appeal.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/2edps6 .

Summary 2007 WY 42

Summary of Decision issued March 14, 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 with 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 v. Board of County Commissioners of the County of Teton

Citation: 2007 WY 42

Docket Number: 05-213

Appeal from the District Court of Teton County, the Honorable Norman E. Young, Judge

Representing Appellants (Plaintiffs): Karen Budd-Falen and Brandon L. Jensen of Budd-Falen Law Offices, LLC, Cheyenne, WY. Argument by Mr. Jensen.

Representing Appellee (Defendant): James L. Radda, Deputy Teton County Attorney, Jackson, WY.

Issues: Whether the United States Supreme Court’s standards with regard to the conditional granting of a development permit as set forth in Nollan v. California Coastal Commission and Dolan v. City of Tigard apply to Teton County’s regulations conditioning subdivision approval. Whether Wilsons’ takings challenge is ripe for review even though Teton County has not been provided an opportunity to avoid an “unconstitutional application” of challenged regulations. Whether Teton County’s subdivision regulations fail to substantially relate to a legitimate government interest. Whether Section 4300.D.3 of Teton County’s subdivision regulations provides for an unlawful physical appropriation of property. Whether Teton County has express or implied authority to require the conveyance of rights to enforce open space restrictions to an organization qualified and dedicated to preserving the values intended by the open space restrictions. Whether Wilsons’ claims and allegations are barred by the statute of limitation, the doctrine of estoppel, or laches.

Facts/Discussion: On May, 2004, Wilsons filed a declaratory judgment action seeking a declaration from the district court: (1) that Division 4300 of the Teton County Comprehensive Plan and Land Development Regulations (LDR) which requires a developer to set aside open space within any proposed residential subdivision development is facially unconstitutional and hence unenforceable; (2) that Section 4330.D.3 which requires the developer to convey an easement for any open space within the residential subdivision development to a qualified organization is unconstitutional on its face; (3) that Section 4330.D.3. of the LDRs is ultra vires and beyond the powers conferred upon Teton County by law; and (4) that Section 49440 of the Teton County LDRs is facially unconstitutional and hence unenforceable. In addition, Wilsons sought a court order enjoining Teton County from further enforcing the provisions of the disputed LDRs. The district court granted the Board’s motion to dismiss Counts 1,2 and 4 pursuant to W.R.C.P. 12(b)(6). With respect to Count 3, Teton County filed a motion for summary judgment and on July 18, 2005, the district court entered its order granting that motion.
Standard of Review: The Court reviews district court orders granting dismissal of portions of the complaint and summary judgment with respect to others, wherein questions of law are decided, de novo. When reviewing 12(b)(6) motions, the Court accepts the facts as stated in the complaint as true and view them in the light most favorable to the plaintiff. A 12(b)(6)motion is converted to a W.R.C.P. 56 motion for summary judgment if materials outside the pleadings are considered. Under the standard for review of summary judgment, the Court examines the record from the vantage point most favorable to the party opposing the motion and gives that party the benefit of all the favorable inferences. Because of the disposition upon which the Court had settled, the Court did not consider the constitutional challenge propounded by the Wilsons.
The Court will not address constitutional issues if they are able to resolve the case on other grounds. Section 5190, Beneficial Use Determination of the Teton County plan, provides for a detailed and expeditious application and hearing procedure. Teton County argued that because the Wilsons failed to take advantage of the administrative remedies, the Court should decline to consider the constitutional challenges.
The Wilsons presented their plan to the County, including a specific election of options under the LDRs which allowed for greater dwelling unit density in exchange for setting aside a greater amount of open space than was otherwise required. They did not appeal the conditions imposed on the Subdivision until more than a year after the Subdivision had been approved. On May 7, 2004, the Wilsons filed the declaratory judgment action. When they filed the action, all but four of the lots had been sold, gifted or reserved for their business. The County objected because it was filed so long after approval and challenged it on the bases of estoppel, laches and/or waiver.
The Court referred to cases from other jurisdictions where landowners accepted building permits and complied with the conditions attached to those permits. The cases included Pfeiffer v. City of La Mesa, County of Imperial v. McDougal, Schott v. City of Kingman and Serra Canyon Co., Ltd. v. California Coastal Comm’n. The Court stated the reasoning by those courts was persuasive and that there must be a limit on when a landowner can bring a takings action, especially when the landowners did not object to the conditions at the time of approval and actually took advantage of the benefit of increased density offered by the regulations. Without restriction, the government would be perpetually exposed to unlimited takings challenges. The Court affirmed the dismissal of the takings claim without considering the substance of the constitutional challenges because the Wilsons did not contest the conditions in a timely manner.
The Court noted the Wilsons could still maintain a facial challenge to the constitutionality and validity of the LDRs with regard to how they may affect land not involved in the approved subdivision. However, the record does not include any showing the Wilsons currently have any other property to which the LDRs might apply. They therefore lack the necessary standing to make the challenge.

Holding: The Wilsons failed to address their concerns about the constitutionality of the LDRs, or the authority of the county commissioners to enforce them, in a timely manner. Therefore, the Court concluded that the remedies the Wilsons sought in the declaratory judgment action were waived, and they lacked standing to pursue their claims in this case. The orders of the district court were affirmed.

Affirmed.

J. Hill delivered the decision.

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

Monday, March 12, 2007

Summary 2007 Wy 40

Summary of Decision issued March 12, 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 with 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: Dunsmore v. State

Citation: 2007 WY 40

Docket Number: 05-205

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

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

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

Issue: Whether sufficient evidence existed for the jury to find the appellant guilty beyond a reasonable doubt of recklessly inflicting physical injury on his stepdaughter.

Facts/Discussion: Appellant was found guilty of child abuse in violation of Wyo. Stat. Ann. § 6-2-503(b)(i) but not guilty of aggravated assault and battery under Wyo. Stat. Ann. § 6-2-502(a)(i).
Standard of Review: The Court assesses whether all the evidence which was presented is adequate enough to form the basis for a reasonable inference of guilt beyond a reasonable doubt to be drawn by a finder of fact when that evidence is viewed in the light most favorable to the State.
Appellant was working from home watching his two-year-old stepdaughter. He called emergency services because he reported, “she just fell down the stairs.” The child was taken to the hospital because she had symptoms indicative of a possible head injury. The victim had suffered a subdural hematoma which required surgery. Cheyenne police who investigated the incident concluded Appellant’s explanation was inconsistent with the injury and subsequently he was arrested and charged with aggravated assault and battery and as an alternative, child abuse.
The jury returned a special verdict finding that Appellant recklessly inflicted physical injury on MR but acquitted him of intentionally inflicting physical injury on the child. Therefore the Court viewed the evidence that indicated Appellant inflicted a reckless injury on MR in the light most favorable to the State but rejected the State’s evidence that tended only to show Appellant intentionally harmed MR.
The State sought to convince the jury at trial that Appellant intentionally struck MR and that his claim that she fell down a staircase was untrue. The Court’s review of the record appeared to show the State made no cogent attempt at trial to argue that MR’s injury might have been inflicted recklessly rather than intentionally. The Court found fault with the district court’s reasoning. The jury found Appellant had not intentionally injured MR therefore they clearly did not unanimously believe beyond a reasonable doubt that Appellant intentionally struck the child. The review of the trial transcript revealed no evidence from which to draw the inference that Appellant was irritated because of recent surgery or to further infer that Appellant lashed out at MR due to his irritability. The State at oral argument conceded that the jury had rejected its theory at trial and argued Appellant was still guilty of recklessly inflicting injury on MR under the child abuse statute. The Court noted this argument was a marked change from the position taken by the State in its brief and that it was raised for the first time in appellate oral argument. The Court agreed with the State’s position insofar as it conceded that the record did not support any theory of the case at trial except that espoused by Appellant. The issue was whether Appellant recklessly inflicted physical injury upon MR when he left the basement door open and allowed MR to come down the stairs unsupervised. The State’s evidence tending to show that Appellant acted recklessly by leaving the door open and failing to check on MR when she was at the top of the stairs was sorely lacking. The Court referred to cases which demonstrated the level of conduct the Court has previously found to deviate grossly from the standard of care of a reasonable person. See Orona-Rangal, Hodges, and Murray. The Court acknowledged the previous cases did not illuminate the minimum standard of care that must be breached in order to find a defendant guilty of a crime involving reckless behavior. The child abuse statute, references a definition of “physical injury” contained in title 14 of the Wyoming statutes. Although the definition of “abuse” is not specifically referenced by the criminal child abuse statute, the Court has previously recognized its utility in determining whether a child has been criminally abused. According to that definition, an individual responsible for a child’s welfare does not abuse that child if the child suffers a physical injury by accidental means.
Holding: Under the specific circumstances of this case, the Court held that it was neither reasonable nor rational for the jury to return a guilty verdict on the charge of child abuse with the finding that the appellant acted recklessly in causing injury to MR. The State admits the jury determined Appellant merely left the basement door open and heard MR at the top of the stairs, preparing to descend them. Appellant’s failure to check on the child at that point does not rise to the level of criminal recklessness envisioned by the child abuse statute.

Reversed and remanded with instructions to enter a judgment of acquittal.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/39u2rh .

Friday, March 09, 2007

Summary 2007 WY 39

Summary of Decision issued March 9, 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 with 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: Jenkins v. State, ex rel. Wyoming Workers’ Safety and Compensation Division

Citation: 2007 WY 39

Docket Number: 06-145

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

Representing Appellant (Petitioner): Michael Schilling of Schilling & Winn, PC, Laramie, Wyoming.

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

Issue: Jenkins: Whether the hearing examiner properly applied the law in concluding Appellant was a covered employee under the Wyoming Workers’ Compensation Act. The Division: Whether the OAH committed an error of law when it determined a corporate officer is covered under the Wyoming Workers’ Compensation Act when there are no non-corporate officers employed by the corporation.

Facts/Discussion: Jenkins is a professional writer who writes articles for Outside magazine on an independent contractor basis. For tax purposes, he formed a subsection C corporation, Mark D. Jenkins, Inc. with himself and his wife as the sole officers and employees. The corporation obtained workers’ compensation coverage for Jenkins. After an injury suffered while rock climbing during a staff retreat in New Mexico, Jenkins was awarded worker’s compensation benefits after a contested case hearing. The district court reversed the award concluding that the Wyoming Workers’ Compensation Act (the Act) did not permit coverage for corporate officers when there were no non-corporate officer employees.
Standard of Review: Judicial review is governed by Wyo. Stat. Ann. § 16-3-144(c). The determinative issue in the instant case is a question of law concerning the construction of several statutory provisions of the Act.
Jenkins’ argument for coverage under the Act is based upon a “dual capacity” theory where coverage for corporate officers is provided for under Wyo. Stat. Ann. § 27-14-102(a)(vii)(C) and § 27-14-108(k) if the corporation had elected coverage and the corporate officer suffered a work-related injury while acting in the capacity of an employee. The Division argued and the district court held that coverage is available for corporate officers under the provisions of the Act only if the corporation employs individuals covered under subsections (a) or (j) of § 27-14-108 other than a corporate officer and the corporation elected coverage for its officers. The Court stated the Act makes it clear that a corporation or limited liability company must be “employing” individuals who are “covered” under those subsections. The plain language of the statute clearly sets forth a requirement that a corporation or limited liability company employ individuals as employees other than the corporate officers before coverage for corporate officers may be elected. The phrase “employing individuals pursuant to subsections (a) or (j)” would not have been necessary if the intent had been to allow coverage when there were no non-corporate officer employees. The Court stated this interpretation was consistent with other provisions of the Act including the definition of “employee” which specifically excludes sole proprietors, partners of a business partnership and spouses or dependents of employers living in the same household. The Court stated this was evidence of legislative intent contrary to Jenkins’ “dual capacity” theory.

Holding: Jenkins’ corporation has two corporate officers and no other employees. Without any employees covered under subsections (a) or (j) of § 27-14-108, worker’s compensation benefits are not available for the corporate officers. Accordingly, the district court’s order reversing the hearing examiner’s award of benefits is affirmed.

Affirmed.

J. Hill delivered the decision.

J. Kite, Dissent: J. Kite disagreed with the majority’s reading of the applicable statutes and would have affirmed the conclusion of the OAH that Jenkins was covered by worker’s compensation insurance because he was an officer of a corporation that had elected worker’s compensation coverage for its officers as it was entitled to do pursuant to the plain language of the statute.

Link: http://tinyurl.com/2jsy5y .

Thursday, March 08, 2007

Summary 2007 WY 38

Summary of Decision issued March 8, 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 with 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: Escarcega v. State, ex rel. Wyoming DOT

Citation: 2007 WY 38

Docket Number: 06-58

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

Representing Appellant (Petitioner): R. Michael Vang of Brown & Hiser LLC, Laramie, Wyoming.

Representing Appellee (Respondent): Patrick J. Crank, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas Moench, Senior Attorney General; and Dana J. Lent, Assistant Attorney General.

Issue: Whether the OAH and district court erred in upholding a CDL disqualification for refusal to submit to chemical testing in the course of an arrest for DWUI where the holder of the CDL was arrested while driving a non-commercial motor vehicle, and where the arresting officer recited the statutory implied-consent warning mandated for use during the stop if a non-commercial vehicle, but where the officer did not recite the statutory implied-consent warning for use during the stop of a commercial vehicle.

Facts/Discussion: Appellant’s driver’s license was suspended for six months under Wyo. Stat. Ann. § 31-6-107 and Appellant was disqualified from operating a commercial vehicle for one year pursuant to Wyo. Stat. Ann. § 31-7-305 because he refused to submit to chemical testing after being arrested for driving while under the influence of alcohol while operating a non-commercial vehicle.
Standard of Review: The Court reviews the final judgment of a district court regarding action taken by an administrative agency under Wyo. Stat. Ann. § 16-3-115. They review as though the appeal was received directly from the agency giving no special preference to the findings of the district court and they apply the same standard of review used by district courts under Wyo. Stat. Ann. § 16-3-114. The Court reviews questions of statutory interpretation de novo.
Wyoming’s Implied Consent Law: Wyoming law provides that every driver on Wyoming roads is deemed to have consented to chemical testing in the course of an arrest for DWUI. The implied consent statute requires that an arresting officer warn the arrestee that refusal to submit to chemical tests will result in loss of driving privileges for six months. The parties do not contest Appellant’s entitlement to the non-commercial implied consent warnings or that the arresting officer gave Appellant those warnings. Appellant argues the officer was also required to warn him of the consequences to his CDL. He claims the warning contained in § 31-7-307 must be given before the state can disqualify a driver’s CDL for one year. The implied consent and commercial license statutes interact with one another on several levels but are separate. Appellant was not driving or in control of a commercial motor vehicle when he was stopped and arrested for DWUI therefore he was not entitled to the warning contained in § 31-7-307 which applies only to drivers arrested for DWUI while driving a commercial motor vehicle.
The Court reviewed their interpretations of the Wyoming implied consent laws and the statutory warnings in State v. Chastain, Nesius v. State Dep’t of Revenue and Taxation and State v. Marquez. They stated the Legislature has mandated specific warnings to all drivers that there are consequences to their non-commercial driver’s license for refusing to submit to chemical testing subsequent to an arrest for DWUI. They did not choose to require the commercial vehicle warning during the stop of a non-commercial vehicle. The implied consent law was intended as a complement to the DWUI statute and was designed to facilitate tests for intoxication, not to inhibit the ability of the state to keep drunk drivers off the road. Merely by choosing to drive on the roads of Wyoming a driver agrees to submit to chemical testing in the event of his arrest for DWUI. Appellant was given the precise warning required by the applicable statutes for a driver stopped in a non-commercial vehicle.
Due Process of Law: Appellant attempted to raise the issue of due process. The Court held in Reidel v. Anderson that an administrative agency lacks authority to determine the constitutionality of a statute. The proper vehicle for such an argument is a declaratory judgment brought under W.R.A.P. 12.12. The Court therefore did not address the argument on the subject or the State’s response to that argument.

Holding: The Court stated there is no statutory requirement that an officer read the statutory implied consent warning for the stop of a commercial vehicle to the driver of a non-commercial vehicle when requesting a specimen for chemical testing pursuant to a DWUI arrest. The OAH and the district court properly upheld the suspension of Appellant’s driver license as well as the disqualification of his CDL.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/2n5o5t .

Tuesday, March 06, 2007

Summary 2007 WY 37

Summary of Decision issued March 6, 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 with 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: Talley v. State

Citation: 2007 WY 37

Docket Number: 05-268

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

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

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

Issues: Whether prosecutorial misconduct occurred when the prosecutor questioned Appellant about whether other witnesses were “lying.” Whether the prosecutor committed misconduct in closing argument by referring to an accomplice’s inability to testify.

Facts/Discussion: Appellant, her brother, Marco Lemus, and Mr. Rawle conspired sometime during their car trip from South Dakota to Arizona, to rob Mr. Leon-Leyva who was located in Kemmerer. They drove their car and that of Mr. Leon-Leyva to a remote area and set in on fire with the body inside. An investigation revealed that the victim had suffered numerous stab wounds. Appellant appealed her convictions for felony murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery.
Standard of Review: Allegations of prosecutorial misconduct are reviewed by reference to the entire record and hinge on whether a defendant’s case has been so prejudiced as to constitute denial of a fair trial. Appellant had the burden of demonstrating plain error because no objection was made at trial to either the prosecutor’s questioning or to the closing argument.
Improper Questioning: A prosecutor may not cross-examine a defendant using the “lying” or “mistaken” technique. Such questions are improper and use of them amounts to misconduct. The State conceded Appellant demonstrated a violation of a clear and unequivocal rule of law however they contended Appellant failed to prove prejudice to her right to a fair trial. To evaluate the prejudice of improper “were they lying” questions, courts weigh several factors including the severity and pervasiveness of the misconduct; the significance of the misconduct to the central issues in the case; the strength of the State’s evidence; the use of cautionary instructions; and the extent to which the defense invited the misconduct. After reviewing the entire record, the Court could not conclude that in the absence of the prosecutor’s misconduct a reasonable possibility existed that the verdict would have been more favorable to Appellant. Even taking into account the impropriety of the prosecutor’s cross-examination, the evidence was sufficient to sustain the conviction. Accordingly, the Court concluded Appellant failed to demonstrate prejudice from the prosecutor’s misconduct.
Closing Argument: Appellant challenged statements made by the prosecutor during his rebuttal argument that Marco Lemus did not testify because he would have invoked his Fifth Amendment privileges. The Court found the prosecutor’s statement concerning Marco improper because it referred to an extraneous matter that should not have been before the jury. It is well-settled law that a prosecutor must restrict his argument to the evidence presented to the jury. The Court considers the nature of the error in question within the context of the quality of the prosecution’s case against the accused. The Court also evaluates the gravity of the error, the likely impact on the average juror, whether the comment was deliberately place before the jury to divert attention to extraneous matters and whether the error was invited by defense counsel. When placed in context, the Court believed the prosecutor’s statement was not a deliberate attempt to inject extraneous matters for the jury’s consideration. The apparent motive was to respond to the argument of defense counsel which focused on Marco Lemus.
Holding: The evidence was sufficient to sustain Appellant’s convictions even taking into account the impropriety of the prosecutor’s cross-examination. The Court concluded Appellant failed to demonstrate prejudice from the prosecutor’s misconduct. The Court stated the nature of the prosecutor’s comment was an aside rather than a point of emphasis. The reference was fleeting and followed by an attempt to redirect the jury to the evidence in the case. The Court also found it significant that the prosecutor did not ask the jury to draw an inference from Marco’s absence. Even if the jury inferred that Marco did not testify because he was guilty of the robbery and murder, that inference was consistent with Appellant’s theory of the defense and was not prejudicial. Accordingly, the Court found the prosecutor’s comment did not amount to plain error requiring reversal.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/35fwej .

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