Summary 2007 WY 166

Summary of Decision issued October 23, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and 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 note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, 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: Metz, Horton and Basile v. Laramie County School District No. 1

Citation: 2007 WY 166

Docket Number: 06-159

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

Representing Appellants (Plaintiffs): Bruce S. Asay of Associated Legal Group, LLC, Cheyenne, Wyoming.

Representing Appellees (Defendants): David Evans and Brandi L. Monger of Hickey & Evans, LLP, Cheyenne, Wyoming. Argument by Ms. Monger.

Issues: Whether the district court erred in holding that a termination without notice and a hearing was compliant with the due process procedures required in 42 USC § 1983. Whether the district court erred in dismissing Appellants’ claim for breach of contract. Whether the district court erred in dismissing Appellants’ claim for Title VII sexual discrimination. Whether the summary judgment motions were deemed denied pursuant to Rule 6(c)(2) of the Wyoming Rules of Civil Procedure after 90 days. Whether the court should recognize the importance of prior precedence in a companion case with exactly the same legal and factual basis. Whether the court’s findings were contrary to the evidence. Whether the district court erred in granting summary judgment on Appellants’ claim for breach of the duty of good faith and fair dealing. Whether the district court erred in finding the plaintiffs were terminated on a day other than when they were fired.

Facts/Discussion: Appellants appeal from an order granting summary judgment to Laramie County School District No. 1 (LCSD) on their claims for breach of contract, breach of the implied covenant of good faith and fair dealing, violation of 42 USC § 1983 and sex discrimination in violation of 42 USC § 2000(e)(2).

Standard of Review: When reviewing an order granting summary judgment, the Court considers the record de novo.

Jurisdiction: Relief was sought under W.R.A.P. 2.01 within the 15 days provided. The question is whether Appellants made a showing o excusable neglect. The Court was unable to find from the facts that the district court abused its discretion in granting the extension. LCSD’s counsel could not verify that he sent a copy of the order to Appellants’ counsel as required. The hearing on the motion for reconsideration was originally scheduled within the 30 days for filing a notice of appeal. A reasonable inference can be made that if the hearing had been held as scheduled, Appellants’ counsel would have realized then that the order had been entered and filed a notice of appeal and no extension would have been necessary. Instead, LCSD’s counsel asked for a continuance and the hearing was rescheduled for June 7, past the 30 day period for filing a notice of appeal. Upon realizing the district court had entered an order, Appellants’ counsel requested an extension of time to file a notice of appeal. The request was made within the 15 days provided for in Rule 2.01. Given Appellants’ counsel’s claim that he did not receive notice of the summary judgment order and LCSD’s inability to verify that it forwarded him a copy, the district court reasonably could have concluded excusable neglect was shown as required by Rule 2.01. The district court did not abuse its discretion in granting the 15 day extension.
Due Process: To establish a 42 USC § 1983 claim, a plaintiff must demonstrate that he has been deprived of a right secured by the Constitution and the laws of the United States, and that the alleged deprivation was committed by a person acting under color of state law. Before considering the due process claim in light of Wyoming decisions, the Court addressed the district court’s findings that Appellants were fired on December 21, the date letters were sent to them instead of December 16, the date Ms. Willman fired them. The Court held that the record did not support a finding that Appellants’ termination was effective December 21.
Breach of Contract: The language in Article 20.5 of the LCSD employee contract conflicted with that of Article 16.1. The Appellants’ employment agreement did not contain clear language that required discharged employees to file a grievance, or comply with grievance procedures or be barred from judicial relief. The Court held that Appellants’ failure to file a grievance did not preclude them from filing a breach of contract claim in court.
Sex Discrimination: The Court agreed with the district court’s conclusion that the Appellants’ assertions did not establish a genuine issue of material fact on their Title VII claim.
Deemed Denied: The deemed denied rule applies to post trial motions not ruled upon within 90 days of filing. The lapse of 90 days from the filing of a summary judgment motion does not deprive the district court of jurisdiction to decide the motion. The Court held that the district court retained jurisdiction to enter its summary judgment order after 90 days had expired.
Federal Court Ruling: Appellants’ contention that the state district court was bound by the federal court decision in Titus was without merit. The Court stated that while they consider relevant federal precedent, they are not bound by it.
Specific District Court Finding: The Court’s holding that genuine issues of material fact exist for trial meant the parties would have the opportunity to present evidence on the issue.
Implied Covenant of Good Faith and Fair Dealing: The WGCA provides immunity for actions of governmental entities. The WGCA does not except this tort from the general rule of immunity. LCSD has immunity from the claim unless, as Appellants maintain, it waived its immunity in accordance with Wyo. Stat. Ann. § 1-39-118(b) (LexisNexis 2007) by purchasing insurance coverage for employment claims. Selected provisions of the insurance policy were contained in the record. Assuming there was no other provision in the policy to the contrary, the insurance policy did not cover liability for the Appellants’ claims and did not waive LCSD’s immunity from their claims.

Holding: Genuine issues of material fact existed as to whether the Appellants were denied notice and a meaningful pre-termination hearing as required by due process. Therefore, the Court reversed the district court’s summary judgment ruling on their § 1983 claim. The Court also reversed the district court’s order on the breach of contract claim because they concluded as a matter of law the employment agreement did not require Appellants to file a grievance after they were terminated.
No genuine issues of material fact existed on the Appellants’ sex discrimination / hostile work environment claim and the Court affirmed the summary judgment on their Title VII claim. The Court also affirmed the summary judgment on their claim for breach of the implied covenant of good faith and fair dealing because, from the record, it appeared LCSD was immune from liability.

Affirmed in part and reversed in part.

J. Kite delivered the opinion.

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

Summary 2007 WY 165

Summary of Decision issued October 18, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and 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 note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, 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: Teniente v. State

Citation: 2007 WY 165

Docket Number: 05-171

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 S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Assistant Attorney General. Argument by Ms. Pojman.

Issues: Whether reversible error occurred when the trial court failed to make inquiry into the effect of threats of retaliation made to the jurors. Whether prosecutorial misconduct occurred, warranting reversal. Whether the trial court erred in admitting irrelevant information of alleged gang activity. Whether Appellant was denied a fair trial due to the receipt of hearsay testimony. Whether the trial court denied Appellant’s motion for mistrial after the prosecutor commented on Appellant’s exercise of his right to silence. Whether Wyoming Statute § 6-2-101(c) unconstitutionally vague and violative of due process, and is it unconstitutional as applied to Appellant. Whether cumulative errors warrant reversal.

Facts/Discussion: The facts of the case are set out in detail in Magallanes v. State. A jury convicted Appellant of first-degree murder and conspiring to commit murder in the death of Joseph Lopez.
Juror Note: The jury sent a note to the court regarding contact of the jury by family members of Appellant. The Court noted that in Martinez v. State, they stated that the burden rests heavily upon the Government to establish that such contact with the juror was harmless to the defendant. After reviewing the record developed specifically to address the issue, the Court concluded that the district court’s actions regarding the note were appropriate.
Prosecutorial Misconduct: Appellant claimed several instances of prosecutorial misconduct. Where there was no objection below, claims are reviewed for plain error.
Appellant argued that reference to the conviction of a co-defendant during cross-exam and rebuttal closing argument was prejudicial. The Court weighed the factors as listed in Mazurek v. State to evaluate if prejudicial plain error occurred. The Court stated that in light of all the evidence the error was harmless and plain error did not occur.
Next the Court reviewed the prosecutor’s comments on Appellant’s right to remain silent during the State’s closing argument. Defense counsel objected to the remarks, prompting the Court’s review to be harmless error. A prosecutor has not “commented” where he does not attempt to use the silence to the state’s advantage, where he does not argue to the jury that the silence was evidence of guilt or an admission of guilt, and where the defendant does not show any prejudice. The Court reviewed the record and stated the prosecutor’s comments were made to point out what Appellant said and not his failure to speak. They concluded no prejudice was shown and that Appellant failed to demonstrate harmful error.
The Court reviewed the denial of a mistrial motion under an abuse of discretion standard. Given the Court’s discussion of why the statements at trial were not improper, they could not find abuse of discretion in the district court’s denial of Appellant’s motion for mistrial.
Appellant claimed that the prosecutor improperly vouched for several witnesses. Counsel is allowed wide latitude during closing argument. The Court interpreted the comments as arguing reasonable inferences as opposed to vouching for their credibility. When taken in context, there was no impropriety in the prosecutor’s comments. During cross-examination of witnesses, the prosecutor is allowed to suggest reasonable inferences that a witness has not been truthful.
A claim of a misstatement of evidence during closing argument is reviewed for harmless error. The Court stated that the prosecutor was offering a way to view the significant evidence heard by the jury suggesting reasonable inferences and staying within the bounds of acceptable argument.
Appellant argued that the prosecutor failed to give notice to the defense before introducing uncharged misconduct evidence. The Court reviewed the record and stated that in the limited situation and with the narrow scope of the prosecutor’s inquiry, no error was present.
Appellant claimed the prosecutor improperly impeached a witness violating an Order in Limine. The Court noted the testimony at issue was not covered by the Order nor by an on-the-record discussion between counsel. Since there was no objection, Appellant has the burden of proving plain error. The Court reviewed the testimony and noted the line of questioning was to show the contradictions between the witness’s statements to law enforcement, his statements on direct and during cross. No rule of law was violated materially prejudicing Appellant’s right to a fair trial.
Appellant next contends that the prosecutor improperly inquired into matters falling within the attorney-client privilege. The Court reviewed this contention for plain error as no objection appeared on the record. The Court’s review of the record revealed the exchange was for the purpose of showing a witness’s credibility.
Appellant contended the State used improper hearsay testimony to impeach a witness. The witness testified that he lied to a detective of his own accord. During cross, he stated his mother told him to lie. There was no objection on the record, so the Court reviewed for plain error. The Court stated the exchange was not hearsay. The reputation of a person’s character among his associates or in the community is an exception to the hearsay rule. The Court stated the prosecutor was not implying that a witness was unreliable, but that his reputation had preceded him.
Admission of Gang Related Evidence: The Court reviewed this issue under an abuse of discretion standard. The Court discussed what equals “relevant” evidence. The Court’s review of the record reflected that the prosecutor was trying to establish the witness’ bias toward Appellant and thus, his lack of credibility.
Hearsay: The Court reviews instances objected to under an abuse of discretion standard, determining whether the trial court abused its discretion by allowing the objected to testimony. When there is no objection, they utilize the plain error standard of review. The first testimony questioned by Appellant was objected to but not as hearsay. Appellant had to show the claimed error appeared in the record, the error violated a clear and unequivocal rule of law and he was deprived of a substantial right resulting in material prejudice. The testimony clearly appeared in the record. The alleged statements were not hearsay because they were not offered to prove the truth of the matter asserted. A clear rule of law was not violated eradicating any notion of plain error having occurred in this instance.
The Court considered the testimony of Magallenes reviewing in part for plain error and in part for abuse of discretion. The statements were not offered for the truth of the matter asserted but were exceptions to the hearsay rule as admissions by a party-opponent offered to prove what happened on the night in question. The next challenged statement qualified as a statement of Magallenes’ then-existing state of mind. It was not hearsay so the trial court did not abuse its discretion in admitting the statement.
Appellant contended the jury was able to find him guilty in part due to a chain of inferences from the so-called hearsay testimony above. The testimony regarding the series of events on that night and the ensuing days satisfied the Court that the jury could reasonably find Appellant guilty without basing that conclusion on inference upon inference.
Appellant claimed ineffective assistance of counsel to the extent that trial counsel failed to object to inadmissible hearsay. The burden rest on appellant and they must provide more than mere speculation or equivocal inferences. The Court rejected his claim because he failed to provide any legal analysis.
Right to Confront Witnesses: Appellant argued that his right to confront witnesses was compromised by the elicitation of testimonial hearsay. The statements at issue did not fall within the categories of testimonial evidence as described in Crawford. The Court did not address Appellant’s claim of ineffective assistance of counsel because the argument was not supported by legal arguments or citation to pertinent authority.
Wyo. Stat. Ann. § 6-2-101(c) is Unconstitutionally Vague: Appellant argued the statute was unconstitutionally vague on its face because of a lack of guidelines and as applied. He also argues his punishment is an enhanced punishment.
The Court reviews constitutional challenges de novo. The Appellant bears the burden of proving his contention with all reasonable doubt resolved in favor of the statute’s constitutionality. The Court referred to their opinion in Kenyon v. State. Taking all of Appellant’s arguments into consideration, they stood by their holding in Kenyon. The sentence of life without parole under the current statue is not a sentence enhancement under Apprendi and does not require further fact-finding. Life without parole is the upper limit of the range of non-capitol punishment available under § 6-2-101(c).
The next question before the Court was whether or not a person of ordinary intelligence would know that his conduct was prohibited under the statute. The Court answered yes. Appellant argued that Kenyon and Bhutto did not give him notice that his conduct would garner him two life sentences without parole. Appellant’s argument that his case differed substantially from the other two “life without parole” cases was insufficient to demonstrate that he suffered arbitrary and discriminatory enforcement.
Cumulative Error: Appellant was unable to establish error in the various issues he raised, so his claim of cumulative error failed.

Holding: Appellant’s conviction and sentence were affirmed in all respects.

Affirmed.

J. Hill delivered the opinion.

Link: http://tinyurl.com/ypjrer .

Summary 2007 WY 164

Summary of Decision issued October 17, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and 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 note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, 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: Martinez v. State

Citation: 2007 WY 164

Docket Number: 06-238

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

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

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; David L. Delicath, Senior Assistant Attorney General.

Issue: Whether Martinez’s appeal is barred by the doctrine of res judicata inasmuch as the parties, the subject matter, the issue and the parties capacities are the same in the present proceeding as they were in a previous proceeding.

Facts/Discussion: In two separate cases, Martinez was convicted of three felony drug charges, a domestic violence charge, property destruction, and criminal entry. At sentencing, he was credited for time previously served. Following sentencing, he filed motions challenging the legality of his sentences contending he should have been awarded more credit for time served. His motions were denied. Martinez appealed one of the denials and later voluntarily dismissed it. He later appealed again which was denied and he now appeals from that denial.
Standard of Review: Motions to correct an illegal sentence andother claims pursuant to W.R.Cr.P. 35(a) are subject to the principles of res judicata.
The Court examined four factors considering the identity in parties, identity in subject matter, the issues are the same and relate to the subject matter and the capacities of the persons are identical in reference to both eth subject matter and the issues between them. In the instant case, the parties, the subject matter, and the capacities of the parties have been the same in all motions previously filed in this matter.
Therefore the Court focused on whether Martinez raised or had the opportunity to raise the same issue in any previous proceeding. Martinez’s first motion to appeal filed February 2005 raised the issue whether his presentence confinement had been properly calculated and credited. The district court concluded that the proper credit had been awarded and that the sentence should not be disturbed. The Court noted that the principles articulated in Hamill and McDaniel were equally applicable to the instant case. Martinez could have and should have presented all theories of error in his first motion to correct an illegal sentence. The Court stated that subsequent challenges should have been barred by the doctrine of res judicata. The Court was not compelled to consider the merits of his claim.

Holding: The issue raised in this appeal was the same issue raised in all previous appeal proceedings: whether the credit for time served awarded was adequate. Wyoming law mandates that all efforts made after Martinez’s February 23, 2005 motion to correct was denied, including the present appeal, are barred by the doctrine of res judicata.

Affirmed.

C.J. Voigt delivered the opinion.

Link: http://tinyurl.com/ypt2ox .

Summary 2007 WY 163

Summary of Decision issued October 17, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and 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 note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, 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: Ragsdale v. Hartford Underwriters Ins. Co.

Citation: 2007 WY 163

Docket Number: 06-130

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

Representing Appellant (Cross-Claim Plaintiff): Ronald E. Triggs of the Law Office of Ronald E. Triggs, PC, Cheyenne, Wyoming

Representing Appellee (Cross-Claim Defendant): Scott P. Klosterman of Williams, Porter, Day & Neville, PC, Casper, Wyoming.

Issue: Jurisdiction.

Facts/Discussion: Ragsdale was involved in an automobile accident with an uninsured motorist. Ragsdale received a settlement of $45,000 from her insurer Hartford. She also received another $30,000 from a third party. The Hartford asserted a subrogation claim for the entire $30,000. The district court granted summary judgment to The Hartford.
Ragsdale filed a Motion to Alter or Amend Pursuant to Rule 59(e), W.R.C.P. The Court found the motion did not comply with the rule because the arguments presented were the same arguments presented to the district court in her memorandum of law in opposition to Hartford’s motion for summary judgment and during oral argument at the hearing on the same. It therefore did not toll the time for filing notice of appeal.

Holding: Ragsdale’s Motion to Alter or Amend was considered to be a Motion to Reconsider by the Court which is a void motion in Wyoming. The void motion did not toll the time for appeal so her notice of appeal was not timely filed. She therefore failed to properly invoke the jurisdiction of the Court. The appeal was dismissed.

Dismissed.

J. Golden delivered the opinion.

Link: http://tinyurl.com/2btdl5 .

Summary 2007 WY 162

Summary of Decision issued October 17, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and 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 note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, 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: Schultz v. State

Citation: 2007 WY 162

Docket Number: 06-229

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

Representing Appellant (Defendant): Ronald G. Pretty, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric Alan Johnson, Director, Prosecution Assistance Program; Geoffrey Gunnerson, Student Director, Prosecution Assistance Program; Brian J. Hunter and Hiliary Wilson, Student Interns, Prosecution Assistance Program. Argument by Mr. Hunter.

Issues: Whether the court committed evidentiary errors that justify a new trial. Whether the cumulative effect of all trial errors adversely affected Appellant’s substantial rights.

Facts/Discussion: Appellant was convicted of unlawful possession of a deadly weapon and two counts of aggravated assault and battery for his part in a road-rage incident. Shots were fired at Mr. and Mrs. Peterson’s vehicle as they were driving on I-80 in Albany County near mile marker 335.
Standard of Review The Court gives considerable deference to rulings on the admission of evidence and upholds them on appeal if they can find a legitimate basis.
Appellant objected to a statement by the victim that he categorized as hearsay. The Court reviewed the record and stated it was not hearsay and the trial court had a legitimate basis for ruling it admissible. Appellant suggested the testimony should have been excluded under Crawford v. Washington but the Court stated Crawford did not apply.
Appellant contended the trial court improperly curtailed his counsels’ cross examination of a witness by sustaining an objection. The Court noted that under W.R.E. 611(a), the trial court has wide discretion in controlling the mode and order of interrogating witnesses. Unless there is flagrant abuse, the Court upholds decisions concerning the examination of witnesses.
Wyoming case law indicates disapproval of argumentative questions. The trial court properly sustained the prosecution’s objection that the questions were argumentative.
Appellant next asserted error in the admission by the trial court of the six bullets found in his gun when it was seized. It was relevant because it made more probable that Appellant had not fired the gun in an effort to keep the other vehicle from running him off the road. The objected evidence that the bullets were hollow points was not supported by plain error analysis and no cogent argument or pertinent authority was provided. The Court declined to consider it further.
The testimony that the incident took place in Albany County did not opine directly on Appellant’s guilt or evidence. It provided “related information offered to assist the jury in resolving the factual issues placed before it.” The trial court did not abuse its discretion when it allowed the testimony.
Testimony from Ms. Peterson about their location at the time of the incident was an exception to the hearsay rule as a present sense impression. The Court stated the trial court did not err in admitting the statement.
Appellant’s final contention considered the relevance of testimony regarding his “intent” to hurt someone. The objection was overruled by the trial court and the Court found it was not an abuse of discretion because of Appellant’s claim of self defense and his assertion that he only intended to fire into the air.

Holding: The Court reviewed each of the seven different evidentiary rulings made by the trial court and determined that the trial court had a legitimate basis for admission of the evidence. The Court rejected Appellant’s claim of cumulative error because the Court had found no errors had been made.

Affirmed.

J. Burke delivered the opinion.

Link: http://tinyurl.com/yubqa3 .

Practical Guide to the Indian Child Welfare Act

The National Indian Law Library announced the release of their Practical Guide to the Indian Child Welfare Act. Their news release called it "a powerful resource tool for tribal, state and federal entities involved in Indian child custody proceedings." This guide is available both in print or online as are many of the very useful NILL publications.

For those who are unfamiliar with the Indian Child Welfare Act, the introduction to the guide explains that the Indian Child Welfare Act (ICWA) was enacted in 1978. It established minimum federal jurisdictional, procedural and substantive standards aimed to achieve the dual purposes of protecting the right of an Indian child to live with an Indian family and to stabilize and foster continued tribal existence.

To keep up with announcements regarding Indian Law, consider reading the NILL blog.

Summary 2007 WY 161

Summary of Decision issued October 11, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and 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 note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, 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: Betty Mathisen, Harold Shipley, Patricia Brown, Vicki Ruiz, Bobby Shipley, Jr., Jimmy Shipley, Monica Miller and Robin Shipley v. Thunder Basin Coal Co., LLC, Jacobs Ranch Coal Co., Consol Energy, Inc., and Consolidation Coal Co.

Citation: 2007 WY 161

Docket Number: 06-276

Appeal from the District Court of Campbell County, the Honorable Michael N. Deegan, Judge

Representing Appellants (Plaintiffs): Patrick Dixon, Casper, Wyoming

Representing Appellee Thunder Basin Coal Co. (Defendants): Thomas J. Davidson of Dorsey & Whittney LLP, Cheyenne, Wyoming.

Representing Appellees Jacobs Ranch Coal Co., Consolidation Coal Co. and Consol Energy, Inc. (Defendants): Mark D. Taylor, Gillette, Wyoming; Thomas P. Johnson and Andrea Wang of Davis Graham & Stubbs LLP, Denver, Colorado. Argument by Mr. Johnson.

Issues: Whether under the terms of the deed, Consol was obligated to pay the surface royalty even though it never mined the coal. Whether the surface royalty clause ran with the land so as to obligate Consol’s successors, Jacobs Ranch and /or TBCC, to make surface royalty payments to the Mathisens when the coal was mined.

Facts/Discussion: The Appellants’ predecessors in interest conveyed 120 acres in Campbell County to Appellee Consolidation Coal Company (Consol). Even though the federal government owned the coal underlying the property and Consol did not have a right to mine it, the deed stated that part of the consideration for the transfer included a “surface royalty” for all coal removed and sold “by Consol” from the property. Consol never acquired the right to mine the coal underlying the property; consequently, it never removed any coal or paid any surface royalty to the Appellants or their predecessors. Appellee Jacobs Ranch Coal Company (Jacobs Ranch) eventually acquired the title to the property. Appellee Thunder Basin Coal Company, LLC (TBCC) ultimately obtained the federal lease to mine the coal, leased the surface property from Jacobs Ranch and began mining operations. The Appellants filed a complaint for payment of the surface royalty contemplated in the deed.
Standard of Review: When a district court considers materials outside the pleadings in entering a judgment on the pleadings or ordering a W.R.C.P. 12(b)(c) dismissal, the Court treats the ruling as a summary judgment. The Court reviews a summary judgment de novo.
The Court began with the language of the deed in which the Shipleys conveyed the Property to Consol. The Court interpreted the deed as a type of contract, examining the terms of the deed and giving them their plain and ordinary meaning. The obligation to pay the royalty was limited by its plain language to coal mined, removed and sold by Consol. The language supported the district court’s ruling that because Consol did not mine any coal, it was not obligated to pay the Mathisens a surface royalty.
The next question was whether Jacobs Ranch as Consol’s successors in interest was obligated to pay the surface royalty when the coal was actually mined. The Mathisens maintained the provision was a covenant that ran with the land. They needed to demonstrate that the original covenant was enforceable, the parties to the original covenant intended that the covenant run with the land, the covenant touched and concerned the land, and that there was privity of estate between the parties to the dispute.
The Court focused on whether the original parties intended the covenant to run with the land. The selective inclusion of the terms of succession in specific places throughout the deed strongly indicated to the Court that the failure to include similar language in the surface royalty provision was deliberate. The provision also specifically stated that the surface royalty obligation was given as “further consideration…by Owner to Consol” indicating the obligation was personal between the Shipleys and Consol and related only to the original sale.
The Mathisens argued the Court should consider the circumstances surrounding the transfer of the Property. The undisputed fact that Consol did not have a federal lease to mine the coal when it purchased the Property was a circumstance that should be considered in interpreting the deed. But, the Court stated it did not help the Mathisens’ argument because it could suggest the parties intended the provision to run with the land so the Shipleys or their successors would eventually receive further compensation or, Consol could have been uncertain it would ever be able to mine the coal and so may not have wanted to encumber the Property with such a covenant that could burden it in the future. The Court declined to speculate.
The Mathisens suggested that the value of the coal was unknown at the time the deed was executed and the royalty payment would have been necessary for them to have received fair value for their property. However, they provided no evidence in support of that position.
Because neither the plain language of the deed nor evidence of the circumstances surrounding the transfer raised a question of material fact, the Court found no basis for overturning the trial court’s conclusion that the parties to the deed did not intend for Consol’s successors to be bound by the surface royalty obligation. The Court’s finding that the parties did not intend that the surface royalty provision run with the land was dispositive making it unnecessary for the Court to consider the other requirements for a covenant to run with the land or the other arguments presented by the parties in the case.

Holding: The Court held that the district court properly granted judgment as a matter of law to the Appellees. The plain language of the deed established that Consol was not obligated to pay a surface royalty to the Mathisens because it never mined the coal on the Property. Moreover, the Mathisens failed to establish an essential element required for the surface royalty provision to run with the land, i.e., the original parties intended it to run with the land. Thus, Consol’s successors in interest were not obligated to make surface royalty payments to the Mathisens when the coal was mined.

Affirmed.

J. Kite delivered the opinion.

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