Summary 2008 WY 34

Summary of Decision issued March 28, 2008

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

Case Name: Garrison v. CC Builders, Inc.; CC Builders, Inc. v. Garrison

Citation: 2008 WY 34

Docket Number: S-07-0132; S-07-0133; S-07-0162

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

Representing the Garrisons: Lawrence B. Hartnett of Law Offices of Lawrence B. Hartnett, Jackson, Wyoming.

Representing CC Builders, Inc.: Kenneth S. Cohen of Cohen Law Office, PC, Jackson, Wyoming; and Heather Noble of Jackson, Wyoming.

Facts/Discussion: CC Builders built the Garrisons a house in Teton County on a “cost plus” basis. The litigation is a result of the parties’ subsequent disagreement as to the reasonable cost of construction. Both parties appealed from the district court’s award of damages and costs to the Garrisons.
Are the district court’s findings of fact as to damages clearly erroneous: The Court noted that they accept the district court’s findings of fact unless they are clearly erroneous. The district court relied upon specific numbers in its computation of the amount of damages which meant there was an underlying evidentiary basis for the district court’s conclusion. After reviewing the record, the Court stated that it could not conclude that the district court’s finding was clearly erroneous.
Are the district court’s conclusions of law as to damages inconsistent with its findings of fact: This issue was couched in terms of the district court not following its own announced methodology in determining the damage award. The Court noted that the district court used their “methodology” but used different numbers than those the Garrisons thought were the “right” numbers.
Did the district court err in concluding that CC Builders had not committed fraud: The Court thoroughly combed the record and agreed with the district court that the Garrisons did not prove their fraud claims against CC Builders. They did not find any clear and convincing evidence of actual fraud in the record. There was no evidence of a false representation by CC Builders and no detrimental reliance by the Garrisons. The claim relating to labor charges failed because the testimony of industry custom and practice was not sufficiently uniform to establish that any deviation therefrom must be fraudulent. The district court found that some of the charges were not reasonable and therefore exceeded the reasonable cost of a “cost plus” contract. The evidence supported that conclusion.
Did the district court abuse its discretion in its award of costs to the Garrisons: After entry of the Judgment, the Garrisons filed a Bill of Costs and CC Builders filed a timely objection. The Garrisons’ costs were awarded as requested. A verified bill of costs is prima facie evidence that the items listed were necessarily expended and are properly taxable as costs. The Court stated that the instant case was fundamentally a breach of contract case won for the most part by the Garrisons. The district court did not abuse its discretion in finding the Garrisons to be the prevailing party and in awarding their costs. However, the bill of costs was not verified and of the ten discovery depositions for which costs were requested, only two were used at trial. Three of the remaining depositions were noticed by CC Builders and the appropriate costs related thereto are awardable to the Garrisons. The remaining five had no substantiation. The record did not contain a transcript of the district court hearing on the motion to award costs. The district court’s finding did not reveal any analysis under Rule 501(a)(3)(D). The Court concluded the Garrisons did not overcome the limiting language of the Rule in regard to those five discovery depositions. The Court reduced the costs awarded in the Judgment from $11,042.70 to $4,895.20.

Holding: The Court stated that the district court’s findings of fact were not clearly erroneous, its conclusions of law were not inconsistent with the findings of fact and it did not err in concluding that the Garrisons had failed to prove by clear and convincing evidence that CC Builders committed fraud. The Judgment as reduced by the district court upon remand to $72, 062.77 was affirmed. The Court stated that the award of costs must be reduced to $4.895.20 and remanded to the district court for entry of a new judgment in the appropriate amount.

Affirmed in part and reversed in part.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/3clto6 .

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

Authenticated Public and Private Laws for 110th Congress

Announcement from GPO (3/27/2008)

---

GPO is pleased to announce the release of Authenticated Public and Private Laws for the 110th Congress on GPO Access. In May 2007, GPO released a beta version of this database. The unsigned PDF files in the existing database for Public and Private Laws for the 110th Congress will be replaced with the authenticated PDF files previously in the beta application. Search or browse Public and Private Laws at:
<http://www.gpoaccess.gov/plaws/index.html>.

GPO's Authentication initiative focuses on establishing GPO as the trusted information disseminator and providing the assurance that an electronic document has not been altered since GPO disseminated it.

The Public and Private Laws application provides authenticated Adobe Portable Document Format (PDF) files for the 110th Congress only.

Authenticated public and private laws within this application contain digitally signed and certified PDF files that contain GPO's Seal of Authenticity. These files have been digitally signed and certified using Public Key Infrastructure (PKI) technology. GPO is using PKI and Digital Signature technologies to verify the authenticity of the electronic U.S. Government documents that it disseminates through the FDLP [Federal Depository Library Program]. GPO's Seal of Authenticity notifies users that a document has not been altered since it was authenticated and disseminated by GPO.

Summary 2008 WY 33

Summary of Decision issued March 27, 2008

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

Case Name: Patterson v. State

Citation: 2008 WY 33

Docket Number: S-07-0005

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

Representing Appellant (Defendant): Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; Ryan R. Roden, Assistant Appellate Counsel; Diane E. Courselle, Director, and William Elliott, Student Intern, of the Defender Aide Program.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Assistant Attorney General.

Facts/Discussion: Patterson appealed his conviction of being an accessory before the fact to second degree murder. He claimed the evidence was insufficient to support a conviction for being an accessory and that the jury was improperly instructed on the elements of second degree murder.
Sufficiency of the Evidence: Patterson claimed that his actions on the night of Blankenship’s death did not equate to aiding and abetting second degree murder. He argued that since Blankenship died of head injuries and that he (Patterson) never kicked Blankenship in the head – only in the torso, he did not participate in the acts which led to the injuries which caused Blankenship’s death. The Court did not agree, stating that accomplice liability is inherently derivative because the accomplice does not directly perform the acts constituting the substantive crime. The jury was properly instructed that the State had to prove that the defendant knowingly associated himself with the crime in some way as a participant, not as a mere spectator. Patterson’s actions conclusively associated him with the unidentified man who maliciously, purposely, stomped on Blankenship’s head. Patterson aided and abetted by initiating the violent attack as Blankenship was lying on the ground and then by helping prevent him from rising or otherwise defending himself.

Holding: The evidence adduced at trial overwhelmingly supported a finding that Patterson aided and abetted in the culpable conduct that resulted in the second degree murder of Blankenship. Patterson effectively disabled Blankenship, kicked him as he lay on the ground and continued to kick him as someone else “stomped” multiple times on his head. Given the viciousness of the attack, Blankenship’s death was a virtual certainty. No alteration in the jury instructions as proposed by Patterson would change the outcome of the case.

Affirmed.

J. Golden delivered the decision.

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

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

Summary 2008 WY 32

Summary of Decision issued March 24, 2008

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

Case Name: Jasper v. Brinkerhoff

Citation: 2008 WY 32

Docket Number: S-07-0124

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

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

Representing Appellee (Defendant): Douglas J. Mason of Mason & Mason, PC, Pinedale, Wyoming.

Facts/Discussion: Jasper filed a complaint seeking to set aside what she deemed a fraudulent conveyance of real property made by her former husband Brinkerhoff. Jasper and Brinkerhoff were divorced in New York in 1986. Under the terms of the divorce, Brinkerhoff was to pay Jasper alimony until she remarried or died. Jasper averred that while the two parties were in litigation over past due alimony and attorney’s fees awards. Brinkerhoff transferred his interest in the home owned by him and his new wife to his wife as trustee for the Brinkerhoff Family Trust.
Jasper’s Motion to Amend her Complaint: The Court assumed that the district court intended to deny Jasper’s motion to amend her complaint by its failure to consider or rule on her motion.
Did the District Court Err in Granting Summary Judgment for Brinkerhoff: The Court reviews the same materials as did the district court and follow the same standards as applied in the court below. The Court concluded that the district court was correct in concluding that Jasper was a “creditor”. However, the uncontroverted evidence established that Brinkerhoff was not insolvent after the contested conveyance nor had he transferred property with an actual intent to hinder, delay, or defraud Jasper of her alimony payments.

Holding: The failure of the district court to consider or grant Jasper’s motion to amend her complaint was not an abuse of discretion. The record on appeal established that there were no genuine issues of material fact, and that Brinkerhoff was entitled to judgment as a matter of law.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/35ry47 .

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

Summary 2008 WY 31

Summary of Decision issued March 20, 2008

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

Case Name: Haines v. Old Rep. Nat’l Title Ins. Co.

Citation: 2008 WY 31

Docket Number: 06-147

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

Representing Appellant (Plaintiff): Gibson Sean Benham, Casper, Wyoming.

Representing Appellee (Defendant): Keith R. Nachbar of Keith R. Nachbar, PC, Casper, Wyoming.

Facts/Discussion: Haines asked the Court to decide for the first time whether a title insurance policy that insures legal access requires the insurer to affirmatively obtain a recorded easement or right of access or compensate the insured for the lack of recorded access rights. The trial court granted summary judgment to Old Republic holding that Haines was not entitled to either remedy because she had access to her property and had suffered no loss entitling her to compensation under the policy.
Haines contended that as a matter of law, an insurer’s failure to remedy a title defect or compensate for the insured’s having to establish the right of access under these circumstances breaches the title insurance policy. The Court found in the instant case that the insurer had adequately established that the alleged marketability or other title problems did not really exist and thus Haines could not suffer any loss or damages, and the Court affirmed the grant of summary judgment.

Holding: Haines had two other methods of access and presented no evidence that these were not legally enforceable. Only defects shown in the public record relating to a legal right of access are covered under the policy.

Affirmed.

J. Golden delivered the decision.

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

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

Summary 2008 WY 30

Summary of Decision issued March 20, 2008

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

Case Name: Weiss v. Weiss

Citation: 2008 WY 30

Docket Number: S-07-0117

Appeal from the District Court of Sweetwater County, the Honorable Nena James, Judge

Representing Appellants (Defendants): C. M. Aron of Aron and Hennig, LLP, Laramie, Wyoming.

Representing Appellees (Plaintiff/Defendants): Marvin L. Tyler of Busart, West & Tyler, PC, Rock Springs, Wyoming; Dale W. Cottam and Lindsay A. Woznick of Hirst & Applegate, PC, Cheyenne, Wyoming; and Roger Franson of Hickey & Evans, LLP, Cheyenne, Wyoming.

Facts/Discussion: Neil M. Weiss, Sam Jay Weiss, and Stan L. Weiss (Appellants) sought review of an order of the district court entitled “Final Order Approving Plan for Winding Up and Distribution of the Assets of the Weiss Limited Partnership.” Melvin J. Weiss, Morris Weiss and Johanna Weiss Richards (Appellees) contended that the district court’s order should be affirmed as the only practical solution to what has been an insoluble problem for the family. Appellants contended that the General Partner was also a party but no brief was filed by the General Partner. The Receiver, who was appointed by the district court in 2006 to manage the partnership in the absence of the six partners’ ability to reach any sort of agreement about managing the partnership, is not a party to the proceedings. The Weiss Limited Partnership was included in the caption of the case in the district court and was represented by counsel throughout the proceedings below. However, it does not appear in the caption of this appeal and it made no appearance in the Court.
Appellants suggested that the district court’s order although captioned as a “final order” was not really final because additional proceedings in the district court were almost certain to be required before this case was resolved. Appellee’s relied on W.R.A.P. 1.05(e)(2). The Court stated that there are some areas of the law where “finality” can be elusive. The Court stated that Appellee’s reliance on Rule 1.05(e)(2) was plausible. They determined that further analysis was unnecessary because the parties did not thoroughly brief or argue the basis, or bases, for the appeal.
It was undisputed that the parties were unable to decide on how to distribute the partnership assets. It was equally apparent that it was the express will of all partners that the partnership be dissolved and that its assets be equally divided among them. This has been recognized as a proper basis for dissolution of a partnership. Appellants relied on the partnership agreement to argue that each sibling was to be involved in the management of the partnership’s assets and that they may not be compelled by the district court to receive their interest in any form other than cash, and not in kind. They also relied upon Wyo. Stat. Ann. § 17-14-705. The Court stated the statute did not support Appellants’ argument and that they failed to state a sound basis for their objections to distribution of the real estate in kind, in equal-sized and equal-value shares other than that it was not the distribution that they preferred.

Holding: The Court was satisfied that the order of the district court was appealable and that it was as “final” as could be fashioned in the case. The Wyoming statutes authorize a district court to wind up a limited partnership’s affairs and distribute the assets to the limited partners. Upon consideration of the unique circumstances of the instant case, the Court concluded that the district court did not err in entering the order which was the subject of the appeal.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/38b7zx .

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

Summary 2008 WY 29

Summary of Decision issued March 17, 2008

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

Case Name: Mickelson v. State

Citation: 2008 WY 29

Docket Number: 06-156

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

Representing Appellant (Defendant): Robert T. Moxley, PC, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Assistant Attorney General.

Facts/Discussion: Mickelson was convicted of one count of possession of a deadly weapon with unlawful intent and was simultaneously acquitted of a charge of aggravated assault. Appellant contended that there was insufficient evidence to support his conviction, that there was a fatal variance between the charging document and his eventual conviction, and that the verdict was inconsistent.
The Court noted that Mickelson invited the error because the jury instruction was one which he proposed. The instruction led the jury to consider two methods of committing an offense where only one was originally charged. That would be prejudicial error if the evidence was not sufficient separately to support conviction based on each method. The record reflected that the prosecution presented evidence that Mickelson transported the gun from the alley and on the subsequent chase through town with the intent to threaten his victim. The jury could have inferred that he intended to threaten the welfare of the victim.
The question of a fatal variance between the charging document and the charge ultimately presented to the jury was also an error of his own making. The variance occurred as a result of Mickelson’s insistence on the addition of the “transport” wording.
The jury’s finding of guilt for possession of a deadly weapon with unlawful intent was not inconsistent with the acquittal for assault with a deadly weapon. The Court has repeatedly stated that consistency is not a requirement for a valid jury verdict in a criminal trial.

Holding: The doctrine of invited error precludes a finding for Mickelson either on sufficiency of the evidence or on the variance between the initial charges and the eventual verdict returned by the jury. There is no need for consistency in a criminal jury verdict as long as sufficient evidence was presented to support each conviction.

Affirmed.

C.J. Voigt delivered the decision.

D.J. James dissenting: District Judge James dissented because she did not believe the district court had jurisdiction over a case where the defendant had not had a preliminary hearing in circuit court and had not properly waived his right to that hearing under the rules. The Trujillo case cited by the majority was a challenge involving alleged defects in the preliminary hearing. That case determined that defects in a hearing were waived if not raised before trial, but did not address a total lack of such a hearing.

Link: http://tinyurl.com/2of7la .

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

Summary 2008 WY 28

Summary of Decision issued March 14, 2008

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

Case Name: Abitbol v. State

Citation: 2008 WY 28

Docket Number: S-07-0118; S-07-0186

Appeal from the District Court of Natrona County, the Honorable W. Thomas Sullins, Judge (S-07-0118), the Honorable Scott W. Skavdahl (S-07-0186)

Representing Appellant (Defendant): Tina N. Kerin, Appellate Counsel, Wyoming Public Defender’s Office; Diane E. Courselle, Director, and Ian Sonshine, Student Intern, Defender Aid Program.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Terry L Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General.

Facts/Discussion: Abitbol claimed that her sentences in both cases were illegal because the district court did not properly credit her for presentencing incarceration. A criminal defendant is entitled to credit, against both the minimum and maximum sentence for time spent in confinement prior to sentencing, provided that the confinement was solely to a financial inability to post bond on the offense for which the defendant was convicted and awaiting disposition. Sentencing decisions are reviewed for an abuse of discretion.
Abitbol claimed that because she received concurrent sentences, the credit given against each sentence should be equally applied to the sentence in the other case. The Court’s decision in Weedman does not apply in this case because these were not concurrent sentences imposed in a single case.
Abitbol’s first complaint concerned the district court’s refusal to award her credit against her sentence for the thirty days she spent in custody between her arrest and release on bond. In Smith v. State the Court held that a defendant is not entitled to credit for time spent in custody awaiting proceedings relating to the revocation of bond, because the confinement would have persisted regardless of the defendant’s financial ability to post bond. However, the district court erred in not granting Abitbol credit for the time spent in custody following the revocation hearing and the posting of the new bond.
Abitbol claimed the district court erred in denying her credit for time served between August and September 2005. She was effectively confined in relation to both criminal cases but that period of confinement would have persisted in S-07-0186 regardless of her bond posting capabilities so the Court stated that Abitbol was not entitled to additional credit for that jail time against her sentence in S-07-0118.
Abitbol argued that sentencing was unnecessarily delayed in No. S-07-0186 but the Court disagreed because the record indicated that Abitbol contributed or cased much of the delay.
Finally, Abitbol contended that she should have been given credit in both cases because her incarceration in Arizona was extended due to Wyoming’s delay in transporting her from Arizona. The Court did not consider the claim because it was presented at appeal for the first time without factual basis supported by the record and with no cogent legal argument.

Holding: The Court affirmed the judgment and sentence of the district court underlying the appeal in No. S-07-0186. They held that Abitbol was entitled to additional credit in No. S-07-0118. Therefore the Court reversed the district court’s sentence and remanded with instruction to give credit for seven days.

Affirmed in part, reversed in part and remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/243grr .

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

How-to: Legal Tech Trends by Dennis Kennedy

Dennis Kennedy, an information technology lawyer and legal technologist, has written his predictions for legal technology during this potential economic recession. From LLRX.com, his Eight Legal Technology Trends for 2008 – Good Times, Bad Times or Hard Times in Legal Tech? mentions the always sensible though dreaded word "audit" more than once. Luckily, he also mentions more intriguing ideas, such as exploring audio and video and collaborative software.

1. Making Better Use of What You Already Own.
2. Lawyers Win Round 1 in the E-discovery Battle... by a Wide Margin.
3. Security Begins to Matter... Really.
4. The Death Throes for Email?
5. Going Mobile.
6. Opening Audio and Video Channels.
7. Dancing with a Recession.
8. Smart Ways to Work Together – Collaboration Tools.

How-to: Password Checker

You've probably seen the various suggestions about how to make a password more secure--minimum of 8 of characters, using a combination of uppercase & lowercase letters, numbers and symbols. Now you can check that strong password against Microsoft's password checker to see if it's really as good as you think. And if you discover that easy to remember password is not as safe as you thought, there is a link to tips for making a better password.

And for all the closet conspiracy theorists out there, Microsoft even added a note assuring your super super secret password will not be collected, stored or transmitted.

"Password Checker does not collect, store, or transmit information beyond the computer that you use to access Password Checker. The image works on your computer desktop until you navigate away from the page."

Summary 2008 WY 27

Summary of Decision issued March 11, 2008

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

Case Name: Blanton v. State

Citation: 2008 WY 27

Docket Number: S-07-0090

Appeal from the District Court of Laramie County, the Honorable Denise Nau, Judge

Representing Appellant (Defendant): Robert T. Moxley, Robert T. Moxley, PC, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Terry L Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; James Michael Causey, Assistant Attorney General.

Facts/Discussion: Blanton pleaded guilty to felony property destruction. As a first time offender, his prosecution was deferred and he was placed on probation. The State later petitioned to revoke his probation, enter his guilty plea and impose sentence. The district court never held a hearing on the State’s petition but instead entered an order purporting to transfer the case to the circuit court judge for disposition in the drug court. After a hearing the circuit court judge revoked Blanton’s probation, and accepted his guilty plea. Blanton was then placed on probation a second time. When he failed the requirement that he complete a drug court treatment program, his probation was revoked again and the underlying prison sentence was imposed.
The Court reviewed the respective jurisdictions and functions of the district court, the circuit court and the drug court. Blanton was charged with a felony which was squarely within the jurisdiction of the district court. The district court has original jurisdiction over all cases except those placed within the exclusive jurisdiction of another court. The circuit courts have original jurisdiction in all misdemeanor criminal cases. The drug court does not have the authority to make a “disposition” of any case. The drug court program is a sentencing alternative and is no different than something such as Adult Community Corrections or Intensive Supervised Probation.

Holding: The district court did not rule on the State’s petition to revoke Blanton’s probation the first time. The circuit court did not have original jurisdiction to hear the felony case and it was not validly assigned jurisdiction by the district court. The drug court lacked jurisdiction to make any disposition of the case. The order revoking Blanton’s first probation was invalid. That prevented the court from reaching the merits of the appeal of the revocation of the second probation. The case was remanded.

Reversed and remanded.

J. Burke delivered the decision.

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

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

Summary 2008 WY 26

Summary of Decision issued March 6, 2008

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

Case Name: Vogt v. MBNA America Bank

Citation: 2008 WY 26

Docket Number: S-07-0188

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

Representing Appellant (Defendant): Pro se.

Representing Appellee (Plaintiff): Rocklon L. Edmonds, Cheyenne, Wyoming.

Facts/Discussion: Vogt appeals from the district court’s order confirming an arbitration award and granting a judgment to MBNA.

Jurisdiction: The record on appeal contained no evidence relevant to the jurisdiction issue. The Court accepted the district court’s factual finding that MBNA was a “National Bank.” Vogt offered no pertinent legal authority or cogent argument to contest the legal conclusion that because MBNA was a “National Bank” it had jurisdiction to confirm the arbitration award.
Consent/Agreement to Arbitrate Dispute: The appellant has the responsibility to designate a sufficient record and Vogt did not, therefore the Court rejected this argument because there was no information for the Court to review his claim of error.
Objections to MBNA’s Motion to Confirm Arbitration Award: A party may raise objections to an arbitration award by filing a timely petition to vacate, modify or correct the award or a timely answer to a petition to confirm the award. The application must be made within 90 days of the date of delivery of a copy of the award to the applicant or if the application to vacate the award is predicated upon corruption, fraud or undue means it shall be made within 90 days after the grounds are known or should have been known. Absent a timely objection, the district court was required to confirm the arbitration award.

Holding: The record on appeal contained only one filing by Vogt in response to MBNA’s motion to confirm the arbitration award. There was nothing to indicate that he filed a motion to vacate, modify or correct the arbitration award or otherwise object to the award. Thus the district court did not have any basis on which to question the arbitration award and properly confirmed it in accordance with § 1-36-113.

Affirmed.

J. Kite delivered the decision.

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

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

Summary 2008 WY 25

Summary of Decision issued March 6, 2008

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

Case Name: Sam v. State

Citation: 2008 WY 25

Docket Number: S-07-0057

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

Representing Appellant (Defendant): Tina N. Kerin, Appellate Counsel, Wyoming State Public Defender Program.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Elizabeth C. Gagen, Chief Deputy Attorney General.

Facts/Discussion: Sam entered a plea of guilty to possession of a controlled substance with intent to deliver. The plea was part of a negotiated plea bargain wherein he reserved his right to challenge the constitutionality of the search of his car which uncovered the evidence that incriminated him. The district court conducted a hearing in response to Sam’s motion to suppress the fruits of that search, which the State justified on the basis that it was conducted incident to his arrest for violation of a protection order and for driving while his license was suspended. The search at issue uncovered evidence of drug crimes. The district court concluded the search was proper under governing law.
The district court conducted a hearing and took evidence concerning the search and seizure issue. The Court noted their review was disadvantaged by the district court’s very limited findings. The Court stated that the resolution of the case turned on the application of their decision in Vasquez v. State. The Court recently applied Vasquez to Pierce v. State. In that instance the Court limited their consideration to only that exception which sanctioned a search of the car for evidence which might have related to the crime for which he was arrested.
In the instant case, the record was clear that the initial stop and the initial arrest were for violations of a protection order. The Court’s review of the record convinced them that the search was reasonable under all of the circumstances. The Court stated they did not think there was a requirement that a police officer be able to recite a specific list of what sorts of evidence might be relevant in such a circumstance but some items identified were cell phones or writings of any sort that indicated Sam’s intentions with respect to the individuals protected by the protection order. The officer was aware that Sam was the subject of a protection order and that he had violated it. The record suggested that it was a “pattern” of violating the protection order. In Vasquez, the Court said that a drunk driving stop justified the search of the car’s passenger compartment for intoxicants that could serve as evidence to support the crime. Here the Court stated it was equally apt there be a search for evidence that might serve to sustain Sam’s prosecution for violation of the protection order and/or that he might have been an imminent and serious danger to his victims, given his behavior over the preceding several days.

Holding: The district court’s order denying the motion to suppress was not erroneous. Therefore the Court affirmed Sam’s Judgment Upon Plea of Guilty and his sentence in all respects.

Affirmed.

J. Hill delivered the decision.

C. J. Voigt dissenting; J. Golden joined: The dissent stated that they did not disagree with the proposition that factors such as officer safety and the presence of evidence may justify the search of an arrested person’s vehicle. There was no showing in this case at the suppression hearing that those or similar factors existed. The Wyoming Constitution forbids the search of a car incident to the arrest of its driver unless the search is reasonable under all of the circumstances. This search, being purely a search incident to arrest without justification under all the circumstances, was unlawful.

Link: http://tinyurl.com/3c6k2c .

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