Summary 2007 WY 72

Summary of Decision issued April 30, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: Humphrey v. Humphrey

Citation: 2007 WY 72

Docket Number: 06-155

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

Representing Appellant (Plaintiff): W. Keith Goody of Alpine, Wyoming.

Representing Appellee (Defendant): Lea Kuvinka of Kuvinka & Kuvinka, PC, Jackson, Wyoming.

Issues: Whether the district court erred when it valued Husband’s expectancy interest in the Humphrey Family Limited Partnership (FLP) at $578,000 and found that the interest should be taken into consideration in the division of property. Whether the district court erred when it found that the FLP was marital property, even though the Partnership was organized by Husband’s father as an estate planning device.

Facts/Discussion: Husband challenged a division of property ordered by the district court in his divorce when it considered the value of Husband’s interest in a family business for purposes of dividing property.
Standard of Review: The division of property is within the trial court’s sound discretion and the Court will not disturb the division absent an abuse of discretion.
Husband used the Court’s decisions in Dunham v. Dunham and Storm v. Storm for the proposition that the property at issue was merely an expectancy that could not be divided. The Court responded the cases had no bearing on the instant appeal. In this case, Husband currently owned the FLP interest thus there was no question regarding whether he would gain the interest in the future. His parent’s intent that the FLP and the LLC be considered estate planning devices also had no bearing on the issue because a current transfer of the property was made not a future revocable bequest.
The Court considered next whether the district court erred when it included the value of Husband’s interest as marital property. Wyo. Stat. Ann. § 20-2-114 guides a district court’s distribution of property in conjunction with a divorce. The Court referred to Wallop v. Wallop stating the trial court must consider the respective merits of the parties, the condition in which they will be left by the decree, the party through whom the property was acquired and the burdens imposed on the property for the benefit of either party and children. The district court acknowledged Husband individually owned the interest in FLP and also examined other facts and circumstances of the marriage. The district court did not abuse its discretion when it determined the value of husband’s interest should be considered in formulating an equitable property distribution. The Court noted that in Breitenstine v. Breitenstine the district court considered gifts and an inheritance received by husband during marriage when determining the division of property.

Holding: The district court did not abuse its discretion in considering the value of Husband’s FLP interest when dividing the marital assets.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/2sgxr3 .

Summary 2007 WY 71

Summary of Decision issued April 27, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: DeLoge v. State

Citation: 2007 WY 71

Docket Number: 06-189

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

Representing Appellant (Defendant): Steven A. DeLoge, Pro se..

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


Issues: Whether the district court abused its discretion when it denied DeLoge’s Motion to Disqualify District Court Judge for cause. Whether the district court erred by denying DeLoge’s Motion for Appointment of Counsel. Whether the district court abused its discretion when it denied DeLoge’s Motion for Preservation and Return of Seized Property.

Facts/Discussion: DeLoge appealed from an order denying his post-conviction motion for return of seized property. He claimed he was entitled to immediate return of the property. He also challenged the denial of his motion to disqualify the district court judge and the denial of his motion for appointment of counsel. He claimed his trial and appellate counsel were ineffective.
Motion to Disqualify: The denial of a motion for disqualification of a judge for cause is reviewed under the abuse of discretion standard. To demonstrate judicial bias or prejudice, an appellant must show more than the fact that the trial court ruled against him correctly or incorrectly, on a particular matter. The district court properly referred the disqualification motion to another judge for resolution on the merits. That judge held a hearing, reviewed the file and ultimately found that DeLoge failed to establish judicial bias or prejudice mandating removal for cause. The Court found no error.
Assistance of Counsel: DeLoge has exhausted all of his state remedies with the exception of his motion for the return of his property. The Court addressed the claims which arose subsequent to the remand. DeLoge filed a motion for the appointment of counsel contending that his motion for the return of seized property was a critical stage in the proceedings and therefore he had a right to the effective assistance of court-appointed counsel. The Court disagreed stating that the motion was filed after the judgment and sentence was entered. Post-conviction motions for the return of seized property are considered civil proceedings. Therefore there is no constitutional right to effective assistance of counsel.
Motion for Preservation and Return of Seized Property: The general rule requires the return of seized property other than contraband to the rightful owner after the termination of criminal proceedings unless the government has a continuing interest in the property. The denial of a motion for the return of seized property is reviewed for an abuse of discretion. The Court found the district court erred by denying DeLoge’s motion without requiring the State to submit evidence regarding the government’s continuing interest in the retention of the property. As a result of this decision, the Court found it was premature to address DeLoge’s contention that his due process right to access exculpatory evidence was violated.

Holding: The Court affirmed the order denying the disqualification of the district court judge. They also affirmed the order denying DeLoge’s motion for the appointment of counsel. The Court reversed the district court’s Order Directing Final Disposition of Property Seized by Law Enforcement and remanded the case to the district court.

Affirmed in part and reversed in part.

J. Burke delivered the decision.

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

Summary 2007 WY 70

Summary of Decision issued April 27, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: Witowski v. (Witowski) Roosevelt

Citation: 2007 WY 70

Docket Number: 06-141

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

Representing Appellant (Defendant): Robert E. Schroth & Schroth, LLC, Jackson, Wyoming.

Representing Appellee (Plaintiff): David G. Lewis, Jackson, Wyoming.

Issue: The Court concluded the appeal must be dismissed therefore the matters they addressed were those relating to whether or not the Court would take cognizance of the appeal. They raised the matters on their own motion.

Facts/Discussion: Father sought review of district court orders that granted two partial summary judgments in favor of his former wife, Mother.
An order granting a partial summary judgment that leaves open other undecided issues is not a final order. In addition, the district court did not make, either by its own motion or by request of the parties, the certification required by Rule 54(b). The order from which the appeal was taken was not the sort of notice of appeal that might have invoked the Court’s discretion to convert it to a petition for writ of review under W.R.A.P. 13.

Holding: The orders from which the appeal was taken were not final orders. The Court applied the plain terms of W.R.C.P. 54(b) and W.R.A.P. 1.05 as justification for the dismissal of the appeal.

Dismissed.

J. Hill delivered the decision.

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

Summary 2007 WY 69

Summary of Decision issued April 27, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: Long v. Daly; Daly and BNSF

Citation: 2007 WY 69

Docket Number: 06-118

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

Representing Appellant (Plaintiff): Frank J. Jones, Wheatland, Wyoming.

Representing Appellees Craig and Sue Daly (Defendants): Patrick J. Murphy of Williams, Porter, Day & Nevile, PC, Casper, Wyoming.

Presenting Appellee BNSF Co: Paul Kapp and Lay Lynn Bestol of Sundahl, Powers, Kapp & Martin, LLC, Cheyenne, Wyoming. Argument by Ms. Bestol.

Issues: Whether there were genuine issues of material fact which preclude the granting of Summary Judgment in favor of Defendants in this negligence case. Whether the Defendant BNSF Co. owes a duty of reasonable care to Plaintiff and did it broach that duty by failing to inspect, repair and maintain its right of way fence.

Facts/Discussion: Long was injured when the vehicle he was driving struck a cow that was lying on the highway. He filed a complaint for negligence against Craig and Sue Daly, the owners of the cow and the property from which it escaped, and BNSF, the owner of the railroad track located between the Dalys’ pasture and the highway.
Standard of Review: When reviewing an order granting summary judgment, the Court considers the record de novo. To maintain a claim of negligence, a plaintiff must prove: the defendant owed the plaintiff a duty of reasonable care, the defendant breached the duty and the defendant’s breach was the proximate cause of injury or loss.
BNSF Duty of Care: Long claimed BNSF owed a duty of care based on Wyo. Stat. Ann. § 37-9-304(a). The purpose of the statute was to protect the livestock owner from harm to their livestock. The Court noted that Long did not fall into the class of persons whose interest the statute was intended to protect. Therefore, they declined to hold that the statute imposed a duty of care on BNSF. The district court correctly concluded BNSF owed no duty to Long and summary judgment was proper.
Summary Judgment for the Dalys: The dispute on appeal was not over the applicable law and whether the district court correctly applied it. In order to establish negligence on the part of a livestock owner, evidence must be presented showing how the livestock got onto the road and that the owner, by failing to exercise reasonable care, permitted that to happen. The Dalys presented detailed affirmative evidence showing that the section of fence from which the cattle escaped was carefully and soundly built. The Court agreed with the district court’s conclusion that the Dalys had made a prima facie showing that they exercised due care in constructing and maintaining their fence. The burden then shifted to Long. His evidence was insufficient to satisfy his burden because it was speculative and focused mostly on a section of fence that did not belong to the Dalys and over which they had no duty of care.

Holding: Long did not fall into the class of persons that Wyo. Stat. Ann. § 37-9-304(a) was intended to protect, so BNSF owed no duty to Long and summary judgment was proper. The Dalys presented evidence which the district court concluded shifted the burden to Long. The evidence provided by Long to refute the showing was insufficient to satisfy his burden. The Court held the summary judgment was proper.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/2kob3g .

Summary 2007 WY 68

Summary of Decision issued April 26, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: Belden and Fish Creek Design, LLC v. Thorkildsen and Thorkildsen

Citation: 2007 WY 68

Docket Number: 06-112

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

Representing Appellants (Plaintiffs): Richard J. Mulligan of Mulligan & Owens, LLC, Jackson, Wyoming; Heather Noble, Jackson, Wyoming. Argument by Ms. Noble.

Representing Appellees (Defendants): David G. Lewis, Jackson, Wyoming.

Issue: Whether the district court erred by refusing to consider evidence of an agreement between Ms. Belden and Mr. Thorkildsen concerning the indebtedness for the purchase of Mr. Thorkildsen’s partnership interest.

Facts/Discussion: Belden and Fish Creek Design, LLC appealed a judgment entered in favor of Thorkildsen claiming the district court erred when it concluded that Thorkildsen was not liable to Belden for debt incurred when he purchased his interest in the business.
Standard of Review: Following a bench trial, the Court reviews a district court’s findings and conclusions using a clearly erroneous standard for the factual findings and a de novo standard for the conclusions of law.
In reliance upon the parol evidence rule, the district court disregarded Belden’s testimony concerning a separate agreement for repayment of the debt and did not determine whether the partnership interest was a gift. The parol evidence rule generally states the intent of the parties to a contract or instrument is to be determined solely from the language of the instrument and extrinsic evidence may be examined only when the language is ambiguous. The Court agreed with Belden that the separate agreement was independent of the two notes, only relating to the same subject matter in that it required reimbursement to the business and Belden for repayment of the notes. The evidence of the separate agreement did not vary the terms of the notes and was consistent with the notes. The dispute between the parties concerned whether there was a separate, shared intent that Thorkildsen be ultimately responsible for the financed debt. The district court erred in refusing to consider evidence regarding the separate agreement.
The Court commented upon Thorkildsen’s request for the district court to find Belden was not an accommodated party stating the existence of an agreement between Belden and Thorkildsen may impact her status as an accommodation party.

Holding: Evidence of the parties’ agreement regarding repayment of the debt incurred for Thorkildsen’s partnership interest should have been considered by the district court. The evidence fit squarely within the exceptions to the parol evidence rule allowing examination of evidence of oral agreements that are collateral to and independent of the written contracts and which allow examination of the parties’ intentions as to accommodation party status.

Reversed and remanded.

J. Kite delivered the decision.

J. Hill, dissenting: J. Hill did not agree the resolution of the case should be decided on how, or if, the parol evidence rule should be applied to the circumstances of the case. Because the parties mutually adopted a mode of performing their contract that differed almost in its entirety from the terms of that contract, he would affirm the basic findings of the district court and its conclusions of law.

Link: http://tinyurl.com/3e5jnc .

Summary 2007 WY 67

Summary of Decision issued April 26, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: Moss v. Moss

Citation: 2007 WY 67

Docket Number: 06-23

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

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

Representing Appellee (Defendant): Lea Kuvinka of Kuvinka & Kuvinka, PC, Jackson, Wyoming.

Issues: Whether the district court abused its discretion in dividing the marital property by awarding both of the major appreciating assets, the business and the house, to the husband and awarding to the wife an equalizing payment for less than that proposed by the husband and parceled out over a period of eight years rather than in an immediate lump sum as proposed by the husband, dispossessing the wife and the parties’ two children from the marital residence effectively denying her the ability to purchase substitute housing and thereby rendering the property division unfair and inequitable. The district court ordered the husband to pay child support at a rate less than the presumptive child support amount, without providing any justification for that deviation, and the court failed to impute a higher income to the husband based on the testimony of the husband’s valuation expert, who testified that the parties’ business was paying the husband substantially less than the market value for his services which the expert calculated at $75,000 per year.

Facts/Discussion: Wife sought review of the district court’s divorce decree.
Standard of Review: The division of marital property is within the sound discretion of the district court and the Court will not find an abuse of discretion unless the property distribution shocks the conscience or appears so unfair that reasonable people could not abide it. Decisions concerning child support are reviewed under the abuse of discretion standard as well.
Property Division: Wife alleged the property division rested on a material factual mistake rendering it inequitable. She stated that by recognizing a debt of $470,000 both against the business and the residence the district court erroneously subtracted twice from the marital assets what was essentially one debt. The Court stated it seemed clear from the record that Husband was awarded marital property on the basis of a mistake of fact resulting in Husband actually receiving assets of greater value than Wife to a degree not intended by the court or the statute. Wife also complained about the lump sum equalization payment. Having reviewed the record, the Court found the district court’s approach to the method by which Husband was required to make the equalizing payment neither shocked the conscience not was it unfair and inequitable.
Child Support: The district court failed to identify the statutory presumptive child support nor did they make basic findings of fact that would allow for the calculation of child support. The order was therefore reversed.

Holding: Wife demonstrated the distribution of marital property was based upon a factual mistake which constituted an abuse of discretion. The child support order was not supported by adequate findings. Consequently, the Court reversed and remanded the divorce decree to the district court for further consideration. The Court emphasized the ultimate distribution is for the district court to resolve within its sound discretion utilizing accurate information concerning the value of the total marital estate.

Reversed and remanded.

J. Kite delivered the decision.

J. Golden, concurring in part and dissenting in part: J. Golden agreed the divorce decree should be reversed and remanded for reconsideration of child support, but not concerning the property distribution. He felt that the finding of the district court would be within its discretion if it were supported by pertinent facts and circumstances. J. Golden felt that under the circumstances, the district court did not act arbitrarily or capriciously.

Link: http://tinyurl.com/23bq8q .

Summary 2007 WY 66

Summary of Decision issued April 26, 2007

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite the opinion, with a P.3d parallel citation. You will also note that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: Strandlien v. State

Citation: 2007 WY 66

Docket Number: 05-8

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

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

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and James Michael Causey, Assistant Attorney General. Argument by Mr. Causey.

Issues: Whether the length of time between the traffic collision, the initial DWUI charge and the subsequent Aggravated Homicide by Vehicle charge and conviction deny Strandlien’s constitutionally guaranteed right to a speedy trial. Whether the destruction of the blood sample prohibited Strandlien from being able to refute testimony about how much he had to drink which may have affected whether the jury believed his drinking was the proximate cause of death. Whether Strandlien was unconstitutionally prejudiced by ineffective assistance of counsel when (A) Mr. Roybal failed to communicate a plea offer and (B) Mr. Murray failed to present available defenses that were likely to change the outcome of the trial. Whether the cumulative effect of these errors prevented Strandlien from receiving a fair and just trial. Whether trial counsel was ineffective for not hiring an expert to refute the State’s theory of the case.

Facts/Discussion: Appellant sought review of his conviction for aggravated vehicular homicide under § 6-2-106(b)(i). He contended that he was denied a speedy trial and that defense counsel rendered constitutionally deficient assistance by failing to consult with a pertinent expert witness.
Speedy Trial: Even though Strandlien did not allege a speedy trial violation below, the Court addressed the issue because it implicated a constitutional right. The Court determines whether a speedy trial violation has occurred by use of the Barker test which requires the balancing of four factors. Under existing case law, the speedy trial period begins to run upon the filing of a criminal complaint or the arrest of the defendant, whichever occurs first. When one charge is replaced by another, the constitutional speedy trial clock is not affected. The Court reviewed the timing of the instant case and stated the length of delay was presumptively prejudicial and further analyzed the remaining factors. The Court reviewed the reasons for the delay and noted that some occurred with Strandlien’s consent and some were a result of his actions. The record was such the Court could not weigh the delay in favor of or against either party. Strandlien failed to assert his right to a speedy trial at any time during the criminal proceedings which weighed heavily against the claim. Finally, the Court considered the degree of prejudice that Strandlien suffered as a result of the delay. Strandlien had the burden of proving actual prejudice. He did not identify or address with any particularity the pretrial anxiety he allegedly suffered, so the Court gave the claim no consideration. Strandlien also asserted prejudice from the destruction of his blood sample before he had an opportunity to have it independently tested. However, he provided no facts to support his speculation that further testing would have yielded a lower BAC. The Court held there was no violation of Strandlien’s right to a speedy trial.
Ineffective assistance of counsel: While waiting to hear the appeal, the Court remanded the case to district court for a hearing on whether Strandlien was denied effective assistance of counsel. The district court determined that trial counsel rendered effective assistance. The Court defers to the district court findings of fact unless they are clearly erroneous and reviews the conclusions of law de novo.
The Court reviewed the record and decided that due to the contradictory opinions of how the accident occurred, defense counsel should have consulted with an independent accident reconstruction expert. This failure constituted deficient performance. The Court then considered whether the deficient performance prejudiced Strandlien. A careful review of the transcript convinced the Court that had the expert testified at trial, it was reasonably probable that the outcome of the trial would have been different.
The Court’s conclusion that the case must be reversed because of the trial counsel’s ineffectiveness for failing to consult an accident reconstruction expert made it unnecessary to address Strandlien’s other claims.

Holding: The Court held that Strandlien’s right to a speedy trial was not violated under the facts of the case. However, they found that trial counsel’s assistance was constitutionally deficient and therefore they reversed the conviction. The case was remanded to the district court.

Reversed and remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/ysuhyv .

Summary 2007 WY 65

Summary of Decision issued April 25, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: WY ex rel. WY Workers’ Safety & Compensation Division v. Slaymaker

Citation: 2007 WY 65

Docket Number: 06-198

Appeal from the District Court of Lincoln County, the Honorable Dennis Sanderson, Judge

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

Representing Appellee (Petitioner): David M. Gosar of Gosar Law Office, Jackson, Wyoming.

Issues: Whether the OAH’s decision awarding benefits for an acute injury but denying benefits for a preexisting injury was supported by substantial evidence. Whether the hearing examiner erred as a matter of law when he concluded that Slaymaker’s treating physician failed to adequately support his case.

Facts/Discussion: Slaymaker injured his back at work but the Worker’s Compensation Division denied benefits because it concluded his injuries were pre-existing. After a contested case hearing, the OAH granted benefits for a torn muscle and ligament damage but denied benefits for his pre-existing bulging discs, annular tears and facet arthropathy. The district court reversed the OAH decision concluding Slaymaker had proven his pre-existing condition was materially aggravated by the work-related accident.
Standard of Review: The Court reviews the case as though it had come directly from the administrative agency. Where both parties have presented evidence, the Court applies the substantial evidence standard to review the agency’s findings of fact. When the agency has concluded the claimant has not met his burden of proof, the Court applies the arbitrary and capricious standard of review. The Court reviews an agency’s conclusions of law de novo.
A worker’s compensation claimant has the burden of proving all of the essential elements of his claim by a preponderance of the evidence. If an employee suffers from a pre-existing condition, that employee may still recover if his employment substantially or materially aggravated his condition. In Boyce v. State ex rel. Wyo. Workers’ Safety & Comp. Div. the Court described the proof required to show a work-related aggravation of a preexisting condition.
There was no question Slaymaker suffered from a pre-existing condition. The hearing examiner’s findings of facts described his history of low back problems. The hearing examiner ruled the opinion expressed by Dr. Gardner did not establish Slaymaker had suffered a compensable aggravation of his pre-existing lower back condition. After the Court reviewed the record, they concluded the hearing examiner’s findings did not accurately reflect Dr. Gardner’s opinions because he specifically stated he disagreed with the Division’s conclusion the accident did not materially aggravate the pre-existing condition. Dr. Gardner was the only medical expert to offer an opinion on the causation of the current back problems and there was no evidence to discredit his opinion. The Court noted the similarities between the instant case and Salas. The Court stated that Romero v. Davy McKee Corp. and Lindbloom v. Teton Int’l did not apply to the instant case.

Holding: The record clearly established that Slaymaker suffered a material aggravation of his pre-existing lower back condition and the hearing examiner’s conclusion to the contrary was not supported by substantial evidence. To the extent the hearing examiner ruled that Slaymaker failed to meet his burden of proving his pre-existing condition was materially aggravated by the May 2003 accident, that ruling was arbitrary and capricious. The district court’s decision reversing the hearing examiner’s order denying Slaymaker benefits for aggravation of his pre-existing lower back condition was affirmed.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/24bhaw .

Summary 2007 WY 64

Summary of Decision issued April 24, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: Pittard v. Great Lakes Aviation

Citation: 2007 WY 64

Docket Number: 05-230

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

Representing Appellant (Defendant): David D. Ditto of Associated Legal Group, LLC, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Bradley T. Cave of Holland & Hart, LLP, Cheyenne, Wyoming; Dannie B. Fogelman of Ford & Harrison, LLP, Washington, DC. Argument by Mr. Fogelman.

Issues: Whether Great Lakes’ state law breach of contract claim was pre-empted by the Railway Labor Act (RLA.) Whether the district court erred in enforcing an agreement that allegedly conflicted with and was superseded by the collective bargaining agreement (CBA.) Whether the district court properly granted summary judgment on Great Lakes’ breach of contract claim.

Facts/Discussion: Pittard appealed from an order granting summary judgment for Great Lakes Aviation (Great Lakes) on its breach of contract claim. He contended the district court erred by (1) assuming jurisdiction of an employment dispute subject to mandatory arbitration under the Railway Labor Act (RLA), 45 U.S.C. § 151 et seq.; (2) enforcing an individual contract that conflicted with a collective bargaining agreement; and (3) granting summary judgment despite the existence of genuine issues of material fact on his affirmative defenses and counterclaims.
Standard of Review: The Court considers the record de novo when reviewing an order granting summary judgment.
Pre-emption by RLA: The Court disagreed with the district court’s conclusion that Great Lakes was free to enforce the training agreement in state court without a determination by the arbitrator as to whether the agreement violated the collective bargaining agreement (CBA.) The question whether a certain state action is pre-empted by federal law is one of Congressional intent. Congress’ purpose in passing the RLA was to promote stability in labor-management relations by providing a comprehensive framework for resolving labor disputes. There are two classes of disputes, major and minor. Major disputes involve disputes over the meaning of an existing CBA in a particular fact situation. Minor disputes seek to enforce them. A determination that a dispute constitutes a major or minor dispute under the RLA pre-empts a state law cause of action. The Court considered the types of minor disputes involving CBAs that are governed by the RLA to determine if the instant case constituted a minor dispute as governed by the RLA. The Court stated the standard applied in RLA cases was virtually identical to the pre-emption standard the United States Supreme Court employed in cases involving § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. The Court referred to Lingle v. Norge Div. of Magic Chef, Inc. stating that where the resolution of a state-law claim depends on an interpretation of the CBA, the claim is pre-empted. However, purely factual questions about an employee’s conduct or employer’s conduct or motive do not require a court to interpret any term of a CBA.
The issue to be decided was whether Pittard breached the training agreement and was liable for damages which could not be decided without first determining whether the agreement was valid under the CBA. The state law claim was not resolvable without interpreting the CBA and the state law claim should not have proceeded without a ruling from the arbitrator. The district court’s conclusion to the contrary was in error and its ruling on the state law claim was premature. As the case evolved, the Court concluded the error was harmless. Given the arbitrator’s ruling that the training agreement did not violate the CBA, no harm resulted from the district court prematurely ruling on the motion.
District Court’s authority to determine whether the agreement violated the CBA: Pittard’s appellate brief was filed prior to the arbitrator’s ruling. When issued, the arbitrator concluded the training agreement did not violate the CBA. Pursuant to the terms of the CBA, the arbitrator’s decision is final and binding. It was neither the district court’s nor the Wyoming Supreme Court’s function to review the merits of the arbitrator’s decision. The Court discussed United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc. It was a direct appeal to federal court seeking review of an arbitrator’s decision. In the instant case, this was a separate proceeding filed in state court alleging a state cause of action for breach of an individual contract between employer and employee where neither party sought direct review of the arbitrator’s decision as was the case in Misco. The Court stated the principles espoused in Misco applied with equal force in the present case. The arbitrator ruled that the pilot training agreement did not violate the CBA and the Court stated they were not at liberty to reconsider the ruling.
Summary judgment on affirmative defenses and counterclaims: Pittard claimed the training agreement was unenforceable because Great Lakes’ nondisclosure of its terms was unconscionable and he signed it under duress. The Court stated they approach claims that a contract is unconscionable cautiously. The Court considers the claim from two perspectives: whether the contract provisions unreasonably favored one party over the other and whether the latter party lacked a meaningful choice in entering into the contract. Most courts require evidence of both and take a balancing approach in applying them. The evidence presented by Pittard tended to show several of the factors necessary for procedural unconscionability, however, no evidence was presented showing the training agreement itself was substantively unconscionable.
To prove a claim of economic duress, Pittard was required to show he involuntarily accepted the terms of the training agreement; circumstances permitted no other alternative; and such circumstances were the result of coercive acts by Great Lakes. The Court noted they applied the above principles in Blubaugh v. Turner and in Dobson v. Portrait Homes, Inc. The Court stated a party must present concrete evidence of the particular factors depriving him of his free will and giving him no reasonable alternative. The party must also present evidence showing that he was coerced by wrongful conduct. Pittard did not present evidence showing why he could not have refused to sign the agreement and if his refusal had caused Great Lakes not to hire him, looked for a job elsewhere. In fact, a little more than a month later, Pittard chose to terminate his employment with Great Lakes which suggested to the Court he was not so financially burdened that he was unable to leave Great Lakes and seek other employment.
There was no evidence that Great Lakes intentionally concealed the details of the training agreement in order to coerce him into quitting his job and relocating only to spring it on him and force him to sign it once in Cheyenne. As a mater of law, the Court stated, the evidence presented was not sufficient to sustain his affirmative defense of economic duress and the district court properly granted summary judgment for Great Lakes on its breach of contract claim.
The Court then considered the counterclaims for negligent misrepresentation/nondisclosure and breach of the implied covenant of good faith and fair dealing. Pittard did not present evidence indicating that Great Lakes presented false information about the requirement of re-paying the cost of training. The Court has stated that nondisclosure of information cannot support a claim for misrepresentation. In light of the arbitrator’s ruling that the pilot training agreement did not violate the CBA, the Court declined to address Pittard’s argument that the CBA created a special relationship of trust and reliance supporting his claim for breach of the implied covenant of good faith sand fair dealing. The Court declined to address Pittard’s claim that the RLA gave rise to a special relationship because he did not provide proper argument and citation of authority.

Holding: A decision on Great Lakes’ state law breach of faith contract claim required interpretation of the CBA entered into between Great Lakes and Local 747, a matter exclusively within the province of the arbitrator. The district court should have stayed or dismissed without prejudice the state action until the arbitrator issued a ruling on the Local 747 grievance. However, any error by the district court in proceeding with the state law claim was harmless given the arbitrator’s subsequent ruling that the training agreement did not violate the CBA. The arbitrator’s ruling is binding and not subject to re-consideration or review by the Court.
The Court held Pittard failed to present evidence showing the existence of a genuine issue of material fact and summary judgment was proper on the breach of contract claim. Pittard did not present sufficient evidence to support a negligent misrepresentation claim and failed to present cogent argument or legal authority supporting his claims of nondisclosure and breach of the implied covenant of good faith and fair dealing. Therefore the Court declined to address those issues.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/2hy8fy .

Summary 2007 WY 63

Summary of Decision issued April 13, 2007

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite the opinion, with a P.3d parallel citation. You will also note that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: Estate of Frost: Frost Construction Company v. Dodson, Co-Personal representative of Estate of James T. Frost

Citation: 2007 WY 63

Docket Number: 06-169

Appeal from the District Court of Big Horn County, the Honorable Hunter Patrick, Judge

Representing Appellants (Petitioner): T. Thomas Singer of Axilon Law Group, Billings, Montana.

Representing Appellee (Respondent): Marc C. Thompson of Webster & Thompson, LLC, Cody, Wyoming.

Issues: Whether the trial court erred in denying a claim that was timely asserted against the Estate solely because no affidavit accompanied the claim. Whether the trial court erred in holding that the claimant had failed to plead a constructive trust theory.

Facts/Discussion: The appeal concerns the interpretation of Wyo. Stat. Ann. § 2-7-704 and 2-7-712. In construing these statutes, the district court held that any claim filed against a probate estate must have an attached affidavit. As to the instant case, the court concluded that because there was no affidavit filed, the claim must be considered invalid and barred as if no claim had been filed.
Standard of Review: The determinative issue is a question of law concerning the construction of Wyo. Stat. Ann. § 2-7-704.
Failure to File an Attached Affidavit: The creditor’s claim submitted against the Estate on behalf of the Company was dismissed for failure to file an attached affidavit. The dismissal required a strict interpretation of § 2-7-704(a). Dodson relied on the first sentence of the subsection but failed to incorporate the second sentence of subsection (a) which governed the case. The Claim filed by the Company was contingent on the Company establishing its equitable claims and was not a “claim which is due.” The Court compared their interpretation of the previous statute Wyo. Stat. Ann. § 2-222 and the current version noted above. The current version is substantially similar to its predecessor. However, the Court concluded the particulars may be set forth within the claim as opposed to an affidavit which is consistent with the long-time policy behind such claim requirements. The particulars are clearly set forth in the Claim Against Estate filed on June 18, 2003. Enough information was provided in the Company’s claim to sufficiently challenge the attention of the personal representative and enable him to act advisedly in the exercise of his discretion, subject to the right to require additional proof of the claim.
Failure to State a Proper Theory for Recovery: The district court found fault in the Company’s failure to plead the constructive trust theory with specificity. Dodson relied on W.R.C.P. 8(a). The Court stated that nothing in the Wyoming Probate Code, Wyo. Stat. Ann. § 2-1-101 et seq., or Wyo. Stat. Ann. § 2-7-703 or 704 required a claimant to state the particular legal theories upon which the claim was based or to specify the evidence upon which the claim rested. The Court found no reason to deviate from the requirements set forth by the legislature.
The executor has the ability to request further information to clarify the claim. The executor in the instant case made no such request. If the executor was not satisfied with or was confused by the facts laid out in the Company’s claim, it was her burden to request additional particulars.

Holding: The district court erred in rejecting the Company’s claim due solely to its failure to file an attached affidavit, which was not required under these circumstances. The district court also erred by rejecting the Company’s constructive trust theory. The Court reversed the order of the district court and remanded for appropriate action.

Reversed and remanded.

Dist. J. Waldrip delivered the decision.

Link: http://tinyurl.com/2b8wnw .

Summary 2007 WY 62

Summary of Decision issued April 13, 2007

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite the opinion, with a P.3d parallel citation. You will also note that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: Chevron v. Dep’t of Revenue, State of Wyoming

Citation: 2007 WY 62

Docket Number: 06-67

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

Representing Appellant (Petitioner): William M. McKellar and Erin M. Freeman of Boley & McKellar, PC, Cheyenne, Wyoming. Argument by Mr. McKellar.

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

Issues: Whether the district court abused its discretion when it determined that the delay in filing was not caused by excusable neglect, where Appellant filed the Petition for Review after the statutory deadline because of a calendaring error.

Facts/Discussion: Chevron filed a Petition for Review of Administrative Action contesting an unfavorable determination by the State Board of Equalization (SBOE) regarding Appellant’s dispute with the Wyoming Department of Revenue, over valuation methods for tax year 2002. The district court dismissed that Petition as untimely and found that the court lacked jurisdiction to extend the deadline for filing a Petition for Review because the doctrine of excusable neglect did not apply to Appellant’s actions with regard to the untimely filing.
Standard of Review: The issue of subject matter jurisdiction is one the Court reviews de novo. The authority to extend the time for filing a notice of appeal upon a showing of excusable neglect is vested exclusively in the district court and involves the exercise of discretion.
It is well established in Wyoming case law that under the current Wyoming Rules of Appellate Procedure, timely filing of a petition for review of administrative action is mandatory and jurisdictional. W.R.A.P. 12.04 governs the filing of a petition for review. The rule requires a petition for review be filed within 30 days of service of the final decision of the agency. That time may be extended up to 30 days only if the district court finds the lack of timely filing is attributable to excusable neglect. The SBOE served its final decision on October 28, 2005. Chevron was required to file a petition by November 30, 2005 to preserve the district court’s jurisdiction over the proceeding. They failed to do so.
Excusable neglect is measured on a strict standard to take care of genuine emergency conditions such as death, sickness, undue delay in the mails and other situations where such behavior might be the act of a reasonably prudent person under the circumstances. Appellant’s counsel had implemented a highly redundant system that appeared well designed to ensure the proper docketing of events related to lawsuits. There was no evidence that anything outside counsel’s control caused or was even a factor leading to, the untimely filing.

Holding: The district court did not abuse its discretion when it determined that human error caused by a busy office environment which resulted in the failure of Appellant’s highly redundant docketing system, did not constitute excusable neglect. Therefore, the district court properly denied Appellant’s motion to extend the time to file a petition for review, and properly dismissed the Motion for Review as untimely.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/yubyds .

Summary 2007 WY 61

Summary of Decision issued April 13, 2007

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite the opinion, with a P.3d parallel citation. You will also note that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: Wild v. Adrian

Citation: 2007 WY 61

Docket Number: 06-183

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

Representing Appellants (Petitioners): Sean W. Scoggin of Tiedeken & Scoggin, PC, Cheyenne, Wyoming.

Representing Appellee (Defendant): Raymond D. Macchia and Julianna Hernandez of Macchia & Assoc., Cheyenne, Wyoming.

Issues: Whether the district court properly denied the Wilds’ petition to intervene in the divorce proceeding.

Facts/Discussion: Bryan and Karen Adrian were divorced in 2002. The district court awarded the parties joint legal custody and Mr. Adrian primary physical custody of their two children. The children lived with their father until 2005 when, due to his military service assignment, he placed them in the custody of Shannon and Vincent Wild. After Mr. Adrian died in 2006, the Wilds sought to intervene in the divorce proceeding to have the custody order modified to award them custody of the children. Alternatively, they sought appointment as guardians of the children.
Standard of Review: The decision whether to grant or deny a motion to intervene as of right involves mixed questions of law and fact. The Court reviews questions of law de novo and defers to the district court’s factual findings unless they are clearly erroneous.
The Right to Intervene: The Wilds alleged that they had standing to request modification of the custody order pursuant to Wyo. Stat. Ann. § 20-2-203(a) because at the time they had filed their petition they had acted as parents for the children and the children had been in their physical custody for at least the last six months. On appeal, they claimed they were entitled to intervene pursuant to W.R.C.P. 24(a)(2) or (b)(2). The interest claimed by an applicant seeking to intervene as of right must be a significant protectable interest. A contingent interest will not suffice. The Court concluded they did not have such an interest and the district court properly denied their motion to intervene.
The Court referred to their decision in MBB v. ERW where they held that only those persons specifically granted standing by statute could petition the court to modify a child custody order. Their holding in MBB applied in the instant case where non-parents sought to obtain custody of children.
The Wild’s sought permissive intervention which faced the same difficulties as their claim for intervention. Under Wyoming law, a non-parent does not have standing to request modification of a custody order.
Alternatively, the Wilds sought to be appointed as guardians of the Adrian children. The Court found no statutory authority or judicial authority in Wyoming allowing a non-parent to intervene in a divorce proceeding for the purpose of being appointed as guardian for the children from the marriage.
The Wilds also claimed that it was error for the district court to deny their petition without a hearing. The Court’s research indicated a court may deny a request for an evidentiary hearing when it is clear from the record that the petitioner is not entitled to intervene.

Holding: The Court concluded it was clear from the record that the Wilds were not entitled to intervene in the Adrian divorce proceeding. Therefore the district court did not err in denying the Wilds’ petition to intervene without a hearing.

Affirmed.

J. Kite delivered the decision.

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

Summary 2007 WY 60

Summary of Decision issued April 13, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation." It was given an "official" citation when issued. You should use the citation whenever you cite the opinion, with a P.3d parallel citation. You will also note that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: Veys v. Applequist, Jones, Reed and Pybus Alaska Resorts, LLC

Citation: 2007 WY 60

Docket Number: 06-161

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

Representing Appellants (Defendants): Larry B. Jones of Simpson Kepler & Edwards, LLC, a division of Burg Simpson Eldredge Hersh & Jardine, PC, Cody, Wyoming; Diane Vaksal Smith of Burg Simpson Eldredge Hersh & Jardine, PC, Englewood, Colorado. Argument by Ms. Smith.

Representing Appellees (Plaintiffs): Mark W. Gifford, Casper, Wyoming; Darin B. Scheer of Bjork Lindley Littler, PC, Lander, Wyoming. Argument by Mr. Gifford.

Issues: Whether the trial court improperly denied Appellants’ motion for a directed verdict at the close of Appellees’ case-in-chief, because Appellees did not proffer any admissible or relevant evidence in support of the claim for “future damages.” Whether the trial court erred in permitting the jury to determine the claims for “future damages” because of a lack of sufficient, competent evidence. Whether the jury’s verdict awarding $2,528,324.00 in future damages is not supported by sufficient, competent evidence. Whether the trial court erred in denying the Appellants’ post-trial motions, seeking to set aside the jury’s verdict for “future damages.”

Facts/Discussion: Applequist, Jones, Reed and Pybus (Buyers) filed suit against Veys, individually and d/b/a Lone Eagle Resorts, Inc., Pybus Point Lodge, LLC, and Alan J. Veys Properties LLC, (Sellers) for breach of an agreement to sell a fishing lodge business in Alaska. After a trial, the jury determined Sellers had breached the agreement and awarded Buyers a total of $3,000,000 in damages, including $471,676 in past damages and $2,528,324 in future damages. The individual buyers were residents of Wyoming and their LLC was formed in Wyoming prior to commencement of the action. The parties chose Wyoming as the forum for any dispute arising from the sales and purchase agreement (PSA) and elected to apply Alaska procedural and substantive law to any such dispute.
Standards of Review and Procedural Law: Under Alaska law, claims of error in denial of a motion for a directed verdict or a judgment notwithstanding the verdict are reviewed on appeal with the same standards utilized by the trial court in making its determination on the motions. The Court’s role is not to weigh the conflicting evidence or judge the credibility of witnesses, but to determine whether the evidence is such that reasonable jurors could not differ in their judgment. Similarly, using Alaska law, the Court reviews the sufficiency of the evidence to support the district court’s decision to give jury instructions on a party’s theory of the case by applying the same standard utilized by the trial court. The district court’s decision on a motion for a new trial is subject to a less stringent review resting in the trial court’s discretion. The standard of review regarding a motion for remittitur, states that it is proper only when a jury returns an otherwise proper verdict awarding an amount of damages that the evidence cannot reasonably support.
Sellers contend the district court erred by 1) refusing to grant their motion for a directed verdict on the issue of future damages; 2) instructing the jury on the Buyer’s claim for future damages; and, 3) denying their post-trial motions for a judgment notwithstanding the verdict, new trial and/or remittitur. All three questions required a determination of whether there was sufficient evidence of future damages to justify submission of the issue to the jury. This inquiry only considered whether there was evidence of any future damages; it was not concerned with the amount of the damages awarded by the jury. Applying the appropriate standard, the Court concluded Buyers presented ample evidence to warrant allowing the jury to decide whether they had suffered future damages resulting from Sellers’ breach.
The law specifically allows calculation of future lost profits damages by looking at the past profits of an on-going business. The Court reviewed the evidence presented and stated there was simply no question that Buyers’ future damages claim had been supported by sufficient evidence to justify giving the jury instructions on, and allowing it to consider, the issue.
The issues of remittitur and whether a new trial was warranted required a determination of whether the trial evidence supported the amount of future damages awarded to Buyers by the jury. Buyers put forth evidence of future damages, including future lost profits, and there was evidence that they may have incurred expenses to finance all or part of the purchase. They also presented evidence suggesting they could have purchased the property outright, incurring little or no financing costs. Sellers had the responsibility to convince the jury that debt service costs would reduce Buyers’ future damages. They did little in that regard, nor did they request the district court to specifically instruct the jury to consider debt service in calculating Buyers’ future damages. Sellers did not direct the Court to any legal authority suggesting the district court’s failure to specifically instruct the jury to account for the financing costs in its award was erroneous. The jury was left to sift through the evidence and fashion an appropriate future damages award and the record supports its efforts to do so.

Holding: Sellers defended this case on the theory that the parties had not entered into an enforceable contract, and did not expend much time or effort on the damages element of Buyer’s claims. Buyers on the other hand, presented credible, though perhaps not overwhelming, evidence of the benefits they would not realize because of Sellers’ breach. When Mr. Veys (Seller) admitted at trial that an agreement had been reached, Sellers’ defense was seriously eroded, and that was reflected in the jury’s verdict. The Court concluded as did the district court that the jury award fell within the mathematical parameters supported by the evidence and the reasonable inferences flowing therefrom. On appeal, Seller had a heavy burden in challenging the sufficiency of the evidence to support the jury’s award of future damages to Buyers. Considering the record presented in the record and the applicable standards of review, the Court concluded Seller had not met their burden.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/2trt3q .

Summary 2007 WY 59

Summary of Decision issued April 11, 2007

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library.]

Case Name: Rawle v. State

Citation: 2007 WY 59

Docket Number: 05-164

Appeal from the District Court of Lincoln County, Honorable Jere Ryckman, Judge

Representing Appellant (Defendant): Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Diane Courselle, Director DAP; Meghan Reed and Cherie Trine, Student Interns DAP.

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

Date of Decision: April 11, 2007

Issues: Whether there was a fatal variance between the pleadings and either the jury instructions or the facts proved at trial. Whether the jury instructions accurately set out the law of felony murder, and did the instructions prejudice Appellant. Whether there was sufficient evidence to convict Appellant.

Facts/Discussion: An information is sufficient if it: 1) contains the elements of the offense charged; 2) fairly informs a defendant of the charge against which he must defend; and 3) enables a defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense. A variance arises when the evidence presented at trial establishes facts that are different from those alleged in the indictment. Similarly, a shift in the government's theory from the one set out in the indictment to that presented at trial may also constitute a prejudicial variance. However, an action will not be reversed unless the variance affects the defendant's substantial rights. Even in cases where an appellate court determines the existence of a variance, such a variance is not fatal unless the defendant could not have anticipated from the indictment what evidence would be presented at trial or unless the conviction based on an indictment would not bar a subsequent prosecution. Appellant in the present action contends that he was convicted of felony murder as an aider and abettor, but the information charging him with felony murder and the elements provided in the jury instructions required that the state to prove that he actually killed the victim.

Wyo. Stat. 6-1-201 provides that an aider and abettor is to be informed against, tried, and convicted in the same manner as if he were a principal, no distinction is made between an aider and abettor and principal. Hence, an aider and abettor is guilty of the principal crime. Proof of participation in either capacity is sufficient to convict a defendant as a principal, and it is not necessary that the information refer to the aiding and abetting statute. While reference to Wyo. Stat. 6-1-201 in the charging document may be the better practice, the failure to specify that Appellant was an aider and abettor to felony murder did not render the information insufficient or restrict the State to proving that he had been the principal in the murder. Accomplice liability for felony murder is unique in character. Felony-murder is an unusual offense in that the death arising out of the robbery is purely an incident of the basic offense. A killing occurring in a continuous transaction involving a robbery is a classic example of felony murder.

Contrary to Appellant's assertion that he had no idea that he was being prosecuted as an aider and abettor, other information in the record revealed that defense counsel had received notice that the State viewed the crimes charged as joint endeavors. The affidavit of probable cause identified all three perpetrators, described the eyewitness testimony, and detailed the incriminating statements one of the other participants gave to the police. Defense counsel obtained ample discovery from the State, including witness statements. If any doubt remained concerning the nature of the State's case, it was resolved several weeks before trial when the State submitted its proposed jury instructions, including an aiding and abetting instruction. Appellant never requested a bill of particulars and, even after receiving the State's proposed jury instructions, did not request a continuance or any clarification from the court or the prosecution.
Based upon the record, it was difficult to believe that Appellant could not have anticipated the State's case against him.
A trial court is given wide latitude in instructing the jury and, as long as the instructions correctly state the law and the entire charge covers the relevant issue, reversible error will not be found. Instructions must be considered as a whole, and individual instructions, or parts of them, should not be singled out and considered in isolation. Prejudice will be determined to exist only where an appellant demonstrates that the instruction given confused or misled the jury with respect to the proper principles of law. When reading the instructions given to the jury in this action as a whole, the jury was properly and adequately instructed regarding felony murder. If any confusion arose, it likely stemmed from an instruction supplied by the defense which did not state a cognizable defense under Wyoming law. It is similar to one which has been rejected because it is designed to insulate the defendant from culpability by arguing that his cohort actually killed the victim. A defendant is not entitled to such an instruction because that approach has no place in the felony murder doctrine. Accordingly, the district court could have properly rejected that instruction, but having given it, the error was more prejudicial to the State than to Appellant. Pursuant to the doctrine of invited error, this instruction requested by the defense cannot provide grounds for reversal unless it was "necessarily prejudicial," which had not been demonstrated.

Holdings: The State presented testimony from two eyewitnesses. Both of these witnesses discussed the conduct of Appellant and his co-conspirators before, during, and after the robbery and murder. Although a defendant's presence at the time and place of the crime does not conclusively establish guilt as an aider, abettor, or principal, an intent to engage in the criminal venture may be shown by the relationship of the parties and by their conduct before and after the offense. From eyewitness testimony, the jury in this case heard how the conspirators, including the Appellant, freely talked about and carried out their drug related activities. The robbery was also planned and discussed in front of the witnesses. They carried out their plan, and the victim was stabbed to death. One of the witnesses saw the body, the murder weapons, and blood on Appellant, and watched him help dispose of evidence afterward. There was testimony concerning Appellant's active role in driving the victim's vehicle to a remote location and burning it with the dead body inside. Affording every favorable inference to the State, the witness' testimony was sufficient to establish the conspiracy, especially when considered with the other evidence of the behavior of the co-conspirators immediately before and following the robbery and murder. Furthermore, Appellant admitted that he was well aware of the intentions of his companions to rob the victim using steak knives. It was undisputed that armed with this knowledge, he contacted the victim and arranged the meeting anyway. Although Appellant wants to characterize his actions as innocent, the jury could easily infer that he was fulfilling his role in the criminal scheme. Although he claims to have acted under threat, the testimony from the eye-witnesses did not support reluctance or duress. The fact that Appellant provided an alternative explanation for his behavior is irrelevant. The jury was allowed to weigh all the evidence and could have easily concluded that Appellant's undisputed participation in destroying evidence was corroborative of his involvement in the crime. Viewed in a light most favorable to the State, the evidence supported the jury's finding of guilt.

Affirmed.

J. Burke delivered the opinion for the court.

Link: http://tinyurl.com/yuknu4 .

Summary 2007 WY 58

Summary of Decision issued April 11, 2007

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: Stewart v. State of Wyoming, ex rel. Wyoming Worker's Safety and Compensation Division

Citation: 2007 WY 58

Docket Number: 06-154

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

Representing Appellant (Employee/Petitioner): David M. Gosar, Jackson, Wyoming.

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

Date of Decision: April 11, 2007

Issues: Whether the Office of Administrative Hearings erred as a matter of law when it concluded that the Appellant's use of medications prescribed to his wife to help treat his pain following surgery for a work-related hernia - medication that when added to the prescription pain medication he had been given caused anoxic brain injury - disqualified him from worker's compensation for the brain injury. Whether the essential finding that Appellant's expert witness' opinion was "speculative" was not supported by substantial evidence and/or arbitrary and capricious.

Facts/Discussion: A claimant is entitled to receive additional worker's compensation benefits if an initial compensable injury ripens into a condition requiring additional medical intervention. To be eligible for benefits, the original compensable injury must be the direct cause of the subsequent injury. The claimant bears the burden of proving the causal connection between the subsequent injury and the course of his employment. In this case, there is substantial evidence in the record to support the hearing examiner's decision that his brain injury was not the direct and natural result of the initial compensable injury. The Appellant failed to meet his burden of proving that the original injury was the direct cause of his subsequent anoxic brain injury because the intentional ingestion of his wife's pain medication broke the causal chain. Appellant did not follow his physician's orders, did not call his physician to report his problems with pain, or seek less drastic alternatives for problems he was having after his minor hernia procedure. He did not take his wife's narcotic pain medication by accident or mistake. He demanded that she give him her prescribed medication. A subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is not compensable unless it is the direct and natural result of a compensable primary injury. Appellant's intentional conduct was an independent intervening cause of the subsequent brain injury.

The agency, as the trier of fact, has the duty to weigh the evidence and determine the credibility of the evidence and the witnesses. On appeal, the agency's decisions regarding witness credibility will not be second-guessed. The record will be reviewed to determine whether substantial evidence supported the hearing examiner's decision. In this case, conflicting evidence was presented to the hearing examiner at the administrative hearing. As the finder of fact, the hearing examiner is charged with resolving conflicting testimony. The hearing examiner afforded little weight to Appellant's expert's opinion, describing the testimony as speculative and irrelevant. Speculative medical testimony is insufficient to satisfy a claimant's burden of proof.

Holding: Substantial evidence existed in the record to support the hearing examiner's decision that the brain injury was not the direct and natural result of the initial compensable injury and that Appellant had failed to establish arbitrary or capricious administrative action.

Affirmed.

J. Burke delivered the opinion for the court.

Link: http://tinyurl.com/yot26e .

Court Rules Now Linked

The Judiciary IT Department recently completed linking the contents of the Appendix of Forms. They include: Wyoming Rules of Civil Procedure, The Wyoming Rules of Criminal Procedure, the Rules and Forms Governing Small Claims Cases, and the Rules Governing Teen Court. The forms are now available via the link at the bottom of each of these rules pages.

Summary 2007 WY 57

Summary of Decision issued April 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 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: McClelland v. State

Citation: 2007 WY 57

Docket Number: 05-280

Appeal from the District Court of Sheridan County, the Honorable John C. Brackley (Retired), Judge

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

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

Issues: McClelland: Whether there was invalid consent authorizing the search of McClelland’s residence. Whether inadmissible, improperly adduced evidence was admitted during the habitual phase of McClelland’s trial. Whether cumulative error occurred. State: Whether the recent United States Supreme Court decision in Georgia v. Randolph rendered the consensual search of Kimberly Brown’s apartment unlawful. Whether the district court erred by admitting into evidence the State’s documentary evidence related to McClelland’s habitual criminal status as against objections based on chain of custody and authenticity. Whether the doctrine of cumulative error warranted reversal of McClelland’s conviction.

Facts/Discussion: Appellant was convicted of one count of aggravated robbery in violation of Wyo. Stat. Ann. §§ 6-2-401(a)(ii) and (c)(ii) and of being a habitual criminal; under § 6-10-201. In a judgment and sentence entered on September 30, 2005, McClelland was sentenced to life in prison based on the habitual criminal, sentence enhancement statute (five prior felonies).
Suppression of Evidence Seized from Shared Apartment: Whether an unreasonable search or seizure occurred in violation of constitutional rights presents a question of law and is reviewed de novo. The Court noted McClelland did not file a motion to suppress evidence. The search he challenged was the search of the apartment, rented by Brown, but occupied by both of them at the time the crime was committed. The Court declined to address whether they should give the Randolph v. Georgia decision retroactive application to the issue because McClelland did not brief the issue and it was not developed as a matter of fact below. Also, the Court stated it was satisfied the Randolph decision was not applicable to the circumstances of the case to the extent those circumstances were made clear during the trial. The Court continued further to say the Randolph decision had nuances that make describing its exact reach difficult. But, so long as the Randolph decision represents the law of the land, the police must honor the denial of consent to search, by a cotenant who is present and protests the search. Another cotenant may not override that refusal with his/her consent. The Court concluded the rule articulated in Randolph did not apply to the circumstances presented by the case.
Habitual Criminal Evidence: The standard of review for this issue was abuse of discretion. The Court noted they provided a summary of much of the pertinent law in Abeyta v. State. The Wyoming Rules of Evidence explicitly deal with the concerns raised by McClelland in the trial court and that he iterates in the appeal. The evidence offered and admitted during the habitual criminal phase of the trial was all admissible under the governing statute, the applicable rules of evidence and the jurisprudence of Wyoming as it relates to the proof of the status of habitual criminal. Every exhibit offered and admitted was authenticated in one or more of the manners authorized by the applicable law. The objection at trial and pursued in appeal related only to the weight of the evidence and not its admissibility.
Cumulative Error: The cumulative error analysis’ purpose is to address whether the cumulative effect of two or more individually harmless errors had the potential to prejudice the defendant to the same extent as a single reversible error. The Court only considers matters that are determined to be errors, not matters that are asserted as error but determined not to be erroneous. The Court reviewed the incidents asserted by McClelland to constitute reversible error including: the testimony of John Brown; Officer Thompson’s comment on the credibility of the testimony of the Blockbuster employees and his elaborations on an answer to a very limited question during trial; the district court’s revocation of McClelland’s bond in front of the jury after he was found guilty of robbery but before the jury resumed its fact finding role in the habitual criminal phase; and that the State offered Exhibits 4 and 5 during the penalty phase but that they were never admitted into evidence. The Court concluded that none of the matters catalogued by McClelland constituted error and they declined to apply the cumulative error rule.

Holding: Kim Brown’s consent to search the apartment that was her joint residence with McClelland was not obtained in violation of governing constitutional principles. The evidence admitted at the habitual criminal phase of McClelland’s trial was competent, and objections made to it at trial went to its weight not its admissibility. The concept of cumulative error does not require reversal of McClelland’s conviction. The judgment and sentence of the district court were affirmed in al respects.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/2qbzk7 .

Summary 2007 WY 56

Summary of Decision issued April 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: Pinther v. State, Department of A & I

Citation: 2007 WY 56

Docket Number: 06-196

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

Representing Appellant (Petitioner): Pro se.

Representing Appellee (Respondent): Patrick J. Crank, Attorney General; Michael L. Hubbard, Deputy Attorney General; Ryan T. Schelhaas, Senior Assistant Attorney General; and Elizabeth B. Lance, Assistant Attorney General.

Issue: Whether the Wyoming Department of Administration and Information violated the State’s Personnel Rules or the Appellant’s constitutional right to the due process of law by denying his request that a grievance committee be appointed to consider his demand for a job reclassification and salary increase.

Facts/Discussion: This is a W.R.A.P. 12.11 appeal from the district court’s adverse ruling in regard to Appellant’s petition for review of agency action.
Standard of Review: When considering an appeal from a district court’s review of agency action, the Court accords no special deference to the district court’s conclusion. The scope of the Court’s review is set forth in Wyo. Stat. Ann. § 16-3-114(c).

Appellant’s argument failed because the Personnel Rules do not require the extensive process described by Appellant. Position classifications are governed by Chapter 8 not Chapter 12 of the Personnel Rules. The key provisions of Chapter 12 leave the decision of whether to establish a grievance committee under these circumstances to the discretion of the Human Resources Administrator (see Section 5(e).) Appellant had not shown any constitutional due process right to that process under the circumstances of the case. Appellant had not raised the issue of due process in the court below, so the Court would not consider it on appeal.

Holding: The rulings of the district court and of the Department of Administration and Information were affirmed.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/ysb7v6 .

How-to: Free PDF Creators

Want to create/convert a PDF (portable document format) document? Don't want to shell out several hundred dollars for Adobe? Here are some free software options for creating a PDF from many different document types.

PDF Online
PDF Online is a free web based service (no installation of software) that allows you to create a PDF document from Word, Excel, Powerpoint, HTML, text and most image formats (JPG, GIF, BMP, TIFF, etc.).

PDF Creator
PDF Creator is a free, open source program that will create PDFs from most Windows applications. It allows you to encrypt PDFs and merge multiple files into one PDF. PDF Creator works as a printer driver. If you are working in Microsoft Word, for example, you select "Print" and then choose PDF Creator as your printer.

Cute™PDF Writer
Cute™PDF Writer is the free version of commercial PDF creation software for Windows. It has been updated to support Windows Vista. Cute™PDF also works as a printer driver.

PrimoPDF
PrimoPDF is a free PDF converter. It works as a printer driver and also supports Windows Vista. Version 3.1 introduces the ability to merge and append PDF files.

doPDF
doPDF is a free PDF converter that works as a printer driver. It provides customizable resolution, searchable PDFs and multilanguage support.

Mac OS X offers PDF creation support through printing. When you are ready to convert your document, choose to print (Cmd-P) as a PDF.

Finally, OpenOffice and Google Docs both provide PDF creation as options. Choose to Save as a PDF and you're done!

Here are some of the articles that alerted me to these programs:

• Download of the Day: doPDF (Windows) by LifeHacker
• Making PDFs with free software by Jon Peck
• PDFOnline converts documents to PDF (and back) by LifeHacker

Annotated Statutes Online

Hey - call me slow, call me whatever you want but don't call me late for dinner!

I just noticed that the Wyoming Statutes on the Legislative site are now available with the annotations. Hello, those were not there last week. I swear. Anyway - they are there now and I wanted to let you-all know. Just scroll down the page a bit til you see the link.

Now there's another reason to sit at your desk all day and never visit us here in the library. Bleah - I'm going to have to start offering free food soon...mumble, mumble.

Summary 2007 WY 55

Summary of Decision issued April 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: Wilson v. State

Citation: 2007 WY 55

Docket Number: 06-16

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

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

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

Issues: Whether the district court erred in accepting the Appellant’s guilty pleas without first establishing his mental competency. Whether the district court improperly interfered with the Appellant’s right to allocution.

Facts/Discussion: Appellant entered into a plea agreement under which he pled guilty to two counts of attempted manslaughter.
Establish mental competency: The standard for mental competency of a defendant to proceed in a criminal case is set forth in Wyo. Stat. Ann. § 7-11-302. The requirement that competency be established is a matter of law that is reviewed de novo. Appellant contended that the district court violated Wyo. Stat. Ann. § 7-11-303(f) by not making an on the record specific finding of competency to proceed and that under § 7-11-303(a), the district court should have suspended proceedings on its own motion given the obvious evidence Appellant was not fit to proceed. The Court stated the record revealed Appellant had been evaluated by two mental health professionals and two attorneys who all reported Appellant did not suffer from a mental illness or deficiency that caused him to be incompetent to proceed. The district court held a hearing for the purpose of allowing counsel to stipulate that conclusion for the record. The Court stated it might have been better practice for the district court to have actually stated on the record that he found Appellant competent to proceed. However, it was the practical effect of the hearing and the court’s follow-up comment. In addition, the district court was presented with no evidence of a change in Appellant’s mental condition that would have required another evaluation.
Right to allocution: Appellant relied on a statement from Harvey v. State for the proposition that courts “do not prescribe limits on what the defendant can or cannot say during allocution.” The Court observed the statement was taken out of context and did not apply to the facts of the instant case. A trial judge always has the inherent authority to exercise reasonable control over the presentation of evidence, and that authority extends to the authority to limit allocution. The district court did not cut off allocution until Appellant had described at length the family circumstances that resulted in commission of the crimes, and not until defense counsel interjected that Appellant’s statements were being made against his advice.

Holding: Under the circumstances of the case, the district court did not err in accepting Appellant’s guilty pleas without having first made an explicit finding on the record that Appellant was competent to proceed. Neither did they err in placing reasonable limitations upon Appellant’s lengthy allocution.

Affirmed.

C.J. Voigt delivered the decision.

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