Summary 2008 WY 101

Summary of Decision issued August 28, 2008

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

Case Name: Jacobs Ranch Coal Co. v. Thunder Basin Coal Co, LLC

Citation: 2008 WY 101

Docket Number: S-07-0280

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

Representing Appellant: Thomas P. Johnson and Andrea Wang, Davis Graham & Stubbs, LLP, Denver, Colorado; Amy Jo Stefonick, Rio Tinto Energy America, Gillette, Wyoming.

Representing Appellee, Thunder Basin Coal: Stephen D. Bell, Dorsey & Whitney, LLP, Denver, Colorado; Randall T. Cox, Randall T. Cox, PC, Gillette, Wyoming.

Representing Appellee Consolenergy, Inc.: No appearance.

Facts/Discussion: Jacobs Ranch appealed the district court’s summary judgment decision that Thunder Basin was not liable for surface royalty payments in this case because the surface royalty at issue was not a covenant running with the land.
Covenant that runs with the land: In Mathisen v. Thunder Basin the Court stated that the party seeking to establish that a covenant runs with the land must demonstrate the original covenant is enforceable; the parties to the original covenant intended that the covenant run with the land; the covenant touches and concerns the land; and there is privity of estate between the parties to the dispute. The surface royalty provision in question specified that Consol as “Grantee shall pay” the surface royalty but as in Mathisen there was no language indicating that Consol’s successors in interest or assigns would be bound by the provision. Jacobs Ranch raised two main arguments against the conclusion that the surface royalty was not a covenant running with the land. First, Jacobs Ranch argued that it presented undisputed evidence that when the property was conveyed both parties intended that the surface royalty would run with the land. The Court looked to the language of the written instrument and noted that the language was not ambiguous. The evidence offered by Jacobs Ranch was inadmissible as it constituted only the parties’ own extrinsic expressions of intent.
Jacobs Ranch next maintained that no coal company would intentionally obligate itself to pay a royalty for coal mined by its competitors. Thunder Basin asserted that Consol was free to agree on the purchase price it paid and even if it appears unwise in hindsight, the agreement should be enforced as written. The Court agreed with the district court. There was no agreement on Thunder Basin’s part to assume the surface royalty obligation so Consol’s promise to pay a surface royalty as part of the purchase price cannot be enforced against Thunder Basin.
Thunder Basin obligated to indemnify Jacobs Ranch: Jacobs Ranch asserted an express indemnity claim against Thunder Basin. The Court agreed with the district court that the claims in the case were not of such character to be included within the indemnity provision. The claims arose from Jacobs Ranch’s own contractual obligations and not from Thunder Basin’s operations on or use of the land.
Jacob Ranch’s claim for implied indemnity suffered the same flaw as its claim for express indemnity: the claims do not arise from Thunder Basin’s coal mining activities on the land but from Jacob Ranch’s own contractual obligations.
Jacobs Ranch and Thunder Basin have an express indemnity agreement which does not apply to claims for surface royalty agreements. The Court stated it would be inappropriate to enlarge or add to Jacob Ranch’s rights of indemnification using an equitable indemnity theory.

Holding: The Court agreed with the district court that there was no agreement on Thunder Basin’s part to assume the surface royalty obligation so Consol’s promise to pay surface royalty as part of the purchase price cannot be enforced against Thunder Basin. The Court affirmed the district court’s summary judgment decision denying Jacob Ranch’s indemnity claim under the three theories of express, implied, and equitable indemnity.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/5gsflp .

[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 100

Summary of Decision issued August 27, 2008

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

Case Name: Decker v. State, ex rel., Wyoming Medical Commission

Citation: 2008 WY 100

Docket Number: S-07-0051

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

Representing Appellant: Bill G. Hibbler of Bill G. Hibbler, PC, Cheyenne, Wyoming.

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

Facts/Discussion: This is the second appeal in Decker’s effort to be awarded worker’s compensation benefits. Decker made a claim for worker’s compensation benefits for an allegedly work related aggravation of symptoms associated with thoracic outlet syndrome (TOS). The Division denied the claim. The case was referred to the Medical Commission for hearing. After a hearing before a medical hearing panel, the Medical Commission upheld the denial.
Violation of due process: Decker questioned the procedure followed by the Medical Commission hearing panel on remand. Decker asserted that the hearing panel’s order was void because it did not comply with Wyoming’s Public Meetings Act (PMA). He argued that the Commission violated his rights when the hearing panel did not deliberate its decision in a public meeting. The legislature created the Commission and empowered it to assemble medical hearing panels solely as necessary to hear medically contested worker’s compensation cases. The Commission attempts to individualize panels by appointing commission members with expertise relevant to the circumstances of the case being heard. As a consequence, multiple medical hearing panels may exist at any given time or none may exist because there are no outstanding medically contested cases to be heard. A medical hearing panel is a transitory body, existing and operating exclusively under the auspices of the Medical Commission and does not fall within the definition of “agency” as used in the PMA.
Decker suggested that the Commission violated his due process rights on remand by not allowing him to present additional evidence. The Court’s mandate did not require the case be reopened to allow additional evidence. It only required the Commission to enter a new order more thoroughly explaining the reason for its denial of benefits based on the evidence adduced at the hearing so the Court could review its decision.
Substantial evidence: Decker argued that the decision of the Commission was not supported by substantial evidence. The Commission’s decision was essentially that the initial diagnosis of wrist tendonitis was correct and the condition completely resolved within a few months. The Court reviewed the record and stated that the evidence when viewed in the context of the record as a whole was not substantial. The Court stated that the evidence supporting a finding that Decker’s original complaints were symptoms of TOS was overwhelming. The symptoms fell well within the rubric of TOS.
The remaining question was whether Decker adequately proved his TOS symptoms were caused by his work effort. The Commission concluded that Decker’s work effort was not a materially aggravating factor for two primary reasons: the symptoms did not begin until after he had been working for over seven years and the symptoms did not improve after he quit working. The Court noted that the most obvious change was Decker’s change in employment which required him to work longer hours without an assistant. The second issue brought into question the possible existence of other aggravating factors. There was testimony that the progression of symptoms of TOS is unpredictable. The Court found that the heavy reliance of the Commission on what they deem to be an increase in symptoms for the purpose of determining causation to be lacking in evidentiary support. Several doctors opined that the repetitive overhead exertion was an aggravating factor in his complaints. The Commission decided to discount the opinions on causation because they did not have all the relevant, accurate patient history. The court disagreed as regarding Dr. Schabauer who had received and reviewed the complete medical history before continuing to opine that Decker suffered from TOS which was aggravated by his overhead work activities.

Holding: The Medical Commission followed the proper procedures on remand from Decker I. The Public Meetings Act did not require the Medical Commission to allow Decker to attend new deliberations as argued by Decker. There was also no requirement for the Medical Commission to reopen the hearing for the taking of additional evidence. The Medical Commission was well within its discretion to simply enter a new, more thorough order explaining its position and reasoning.
The decision of the Medical Commission denying benefits to Decker for a work-related aggravation of symptoms related to TOS is not supported by substantial evidence when viewed on the record as a whole. The order denying benefits is hereby reversed.

Reversed and remanded.

J. Golden delivered the decision.

J. Kite dissenting, with J. Voigt joining: The Justices would have held that the Commission panels fit the statutory definition of “agency” under § 16-4-402(a)(ii). Deliberations of a panel constitute a “meeting” under § 16-4-402(a)(iii) where “action” is taken. Therefore, the deliberations of the Commission’s hearing panels must be held in conformity with the requirements of the PMA.

Link: http://tinyurl.com/64mh5o .

[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 99

Summary of Decision issued August 19, 2008

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

Case Name: Nagle v. State, ex rel. Wyoming Workers' Safety and Compensation Division

Citation: 2008 WY 99

Docket Number: S-07-0222

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

Representing Appellant: Sean W. Scoggin of Tiedeken & Scoggin, PC, Cheyenne, Wyoming.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; Kristi M. Radosevich, Senior Assistant Attorney General.

Facts/Discussion: In 1987, Nagle suffered an open fracture, dislocation and crush injury to the first, second and fourth metatarsals of his left foot. Since then, he has continued to experience worsening medical complications, which he claims can be traced to that injury.
Permanent Total Disability under the Odd Lot Doctrine: The Court stated it would apply their recently revised standard of review. The Court also noted its opinion in Cardin v. Morrison-Knudsen where they adopted a definition of the “odd-lot doctrine” as providing permanent total disability to those workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well known branch of the labor market. Nagle’s two claims, one for permanent disability and a second for benefits associated with his second compensable injury were referred to the Medical Commission. The Commission did not look at the case under the strictures of the odd lot doctrine but rather took a narrow view of what constitutes “permanent total disability” and disregarded Nagle’s evidence and the burden of proof that largely fell to the Division and the employer. The record irrefutably established that the degree of Nagle’s obvious impairment, coupled with his mental capacity, education, training, and age, clearly placed him prima facie in the odd lot category. The burden shifted to the Division to present evidence that some special work of a light or sedentary nature was actually available to him. The Court concluded that when all the evidence was considered in context, the only sustainable conclusion was that Nagle was permanently disabled from doing work at any gainful occupation for which he was reasonably suited by experience and training.
Nagle’s Fall Injuries and the Second Compensable Injury Rule: The Court stated that the standard of review to be applied here was well summarized in Alvarez v. State. With respect to the injuries Nagle suffered in his stumble and fall, Nagle’s report was plausible in every respect. There was no basis for disbelieving his testimony. There was likewise no factual circumstance contained in the record that would disallow application of the second compensable injury rule.

Holding: The order of the district court affirming the Medical Commission was reversed and remanded to the district court with directions that it further remand the case to the Medical Commission with directions that it award permanent total disability benefits to Nagle. In addition, it shall direct the Medical Commission to order that Nagle be paid benefits for the injuries he suffered to his wrist and hip when he fell because of his gait/walking instability associated with his original injuries.

Reversed and remanded.

J. Hill delivered the decision.

Link: http://tinyurl.com/6hvzxe .

[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 98

Summary of Decision issued August 19, 2008

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

Case Name: Smith v. State

Citation: 2008 WY 98

Docket Number: S-07-0160

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

Representing Appellant: Megan L. Hayes, Laramie, Wyoming.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney general; Graham M. Smith, Assistant Attorney General.

Facts/Discussion: Smith was convicted after a jury trial of possession, manufacture or disposition of a deadly weapon with unlawful intent, use of a firearm while committing a felony and first degree murder. Shortly after sentencing, an article was published in the Wyoming Lawyer which quoted Juror Hanschen about his attitude toward the “insanity plea” and guilt.
Motion for New Trial on Basis of Newly Discovered Evidence: The State argued that Smith’s allegation of juror misconduct was not properly raised in a motion for a new trial on the basis of newly discovered evidence. They argued that only newly discovered evidence concerning the merits of the criminal case may be presented under Rule 33(c) and that juror misconduct should have been brought in a petition for post-conviction relief. When a federal rule of criminal procedure is similar to the State’s corresponding rule, the Court looks to federal case law for guidance. The Court reviewed federal court cases interpreting Fed.R.Crim.P. 33(b)(1). Many of the cases assume, without discussion, that such a complaint may be brought pursuant to the rule provided the evidence is truly “newly discovered.” The Court noted that in deciding the issue, it was helpful to consider Braley v. State. The Braley decision indicated that the Court would not limit the application of Rule 33(c) to newly discovered evidence pertaining to the merits of the crime.
Juror Misconduct: In order to obtain a new trial on the basis of newly discovered evidence, a defendant must establish each of the following factors: he did not become aware of the new evidence until after the trial; it was not because of lack of due diligence that the new evidence did not come to light sooner; the evidence is so material that it would probably produce a different result; and the evidence is not cumulative. The State focused on the substantive question of whether Smith could show that Hanschen was biased against Smith’s mental illness defense and did not honestly answer voir dire questions about that bias. Requests for a new trial on the basis that a juror was not honest during voir dire or was biased may be brought in different ways. A claim may be brought under the principles articulated in McDonough where the party must demonstrate that a juror intentionally failed to answer honestly a material question, and then further show that a correct response would have provided a valid basis for a challenge for cause. The district court concluded that the article, the notes and author Angell’s testimony taken together were confused and inconclusive as to whether Hanschen had a pre-existing bias or prejudice. Also, Hanschen consistently stated that he would follow the court’s instructions. A party can also obtain a new trial by showing that the juror has an actual or implied bias. The Court agreed with the district court’s acceptance of Hanschen’s explanation of the inconsistencies in his statements as believable. The Court noted that even a prospective juror who has bias may be properly seated on a jury if he can set aside any supposed bias and decide the case only on the evidence presented in court.

Holding: The Court concluded that Smith’s motion for a new trial was properly before the Court. Smith did not offer a cogent argument that Mr. Hanschen was impliedly biased in accordance with Skaggs, presumably because there was no evidence that he had any personal connection to the parties or circumstances of the trial or that there were similarities between Mr. Hanschen’s personal experiences and the issues being litigated.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/5dxrkl .

[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 97

Summary of Decision issued August 18, 2008

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

Case Name: Eaton v. State

Citation: 2008 WY 97

Docket Number: 04-180 & 06-255

Appeal from the District Court of Natrona County, the Honorable David B. Park, Judge.

Representing Appellant: Kenneth M. Koski, Public Defender; Tina N. Kerin, Senior Assistant Appellate Counsel; Marion Yoder, Senior Assistant Public Defender; Ryan R. Roden, Senior Assistant Appellate Counsel; and Donna D. Domonkos, Appellate Counsel.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling; David L. Delicath; and Melissa Swearingen, Senior Assistant Attorney General.

Facts/Discussion: Eaton sought review of his conviction for the crime of first degree murder, three counts of felony murder, aggravated kidnapping, aggravated robbery and first degree sexual assault, and the sentence of death which was imposed on June 3, 2004.
The Court divided the opinion into three parts. Part I dealt with those asserted errors that occurred in the guilt/innocence phase of the trial that would require reversal of Eaton’s convictions. Part II dealt with whether or not there were errors in the sentencing phase of the trial that would require reversal of the sentence of death. Part III dealt with the issues raised in Eaton’s appeal of the district court’s denial of his motion for a new trial.

TABLE OF CONTENTS

Introduction-------------------------------------------------------------------------------¶ 1

Issues--------------------------------------------------------------------------------------¶ 2

Facts and Proceedings-------------------------------------------------------------¶¶ 3-10

Discussion--------------------------------------------------------------------------¶¶ 11-12

PART I. Guilt/Innocence Phase

A. Was Eaton Incompetent During Trial and the Proceedings in this Court

(i) Competency as a medical/mental issue.---------------------------¶¶ 13-23

(ii) Competency as suggested by events at trial.---------------------¶¶ 24-30

B. Voir Dire as Predisposing Jury to Find Eaton Guilty----------------------¶¶ 31-32

C. Ineffective Assistance of Counsel--------------------------------------------¶¶ 33-37

(i) Did the theory-of-the-case defense chosen by defense

counsel meet the ABA Guidelines for the Appointment and

Performance of Defense Counsel in Death Penalty Cases

(February 2003).----------------------------------------------------------¶¶ 38-47

(ii) No challenge to DNA.------------------------------------------------¶¶ 48-50

(iii) Failure to know the applicable law.--------------------------------¶¶ 51-54

(iv) Concession of guilt without Eaton’s consent.-------------------¶¶ 55-61

(v) Defense counsel’s election to allow the trial to proceed

when Eaton was not competent to stand trial constitutes

ineffective assistance of counsel.--------------------------------------------¶ 62

(vi) Waiver of venue.----------------------------------------------------¶¶ 63-65

(vii) Failure to object to instructions.----------------------------------¶¶ 66-73

(viii) The foregoing arguments, in combination,

demonstrate that Eaton was abandoned by defense counsel.-----¶¶ 74-76

D. Hostility/Prejudice/Bias Toward Eaton at Guilt/Innocence

Phase; Additional Remand--------------------------------------------------¶¶ 77-79

(i) Guilt/innocence phase prejudice/bias/hostility.------------------¶¶ 80-81

(ii) Need for additional remand.---------------------------------------------¶ 82

E. Juror Misconduct--------------------------------------------------------------¶¶ 83-91

F. Admission of Evidence--------------------------------------------------------------¶ 92

(i) Testimony of Joe Dax.-----------------------------------------------¶¶ 93-96

(ii) Dr. Thorpen in the jury box.---------------------------------------¶¶ 97-98

(iii) Mary Follette.-------------------------------------------------------¶¶ 99-100

G. Record Incomplete---------------------------------------------------------¶¶101-102

H. Prosecutorial Misconduct-------------------------------------------------¶¶ 103-104

I. Cumulative Error--------------------------------------------------------------------¶ 105

CONCLUSION-------------------------------------------------------------------------¶ 106

PART II: Sentencing Phase---------------------------------------------------------¶ 107

A. Voir Dire----------------------------------------------------------------------¶¶ 108-114

B. Application of the 2003 Statute to this Case---------------------------¶¶ 115-125

C. Ineffective Assistance of Counsel------------------------------------------------¶ 126

(i) 2003 statute---------------------------------------------------------------¶ 127

(ii) Whether Trial Counsel Provided Ineffective

Assistance in the Investigation and Presentation in

the Sentencing Phase of Mitigating Evidence---------------------¶ 128-185¶

(iii) Instructions-------------------------------------------------------¶¶ 186-188

(iv) Sentencing form inadequate------------------------------------------¶ 189

D. Hostility of Judge-----------------------------------------------------------------¶ 190

E. Prosecutorial Misconduct----------------------------------------------------------¶ 191

(i) In closing argument----------------------------------------------¶¶ 192-200

(ii) During examination of witnesses------------------------------¶¶ 201-205

(iii) Destruction of evidence-----------------------------------------------¶ 206

F. Allowing Dr. Ash to Testify------------------------------------------------¶¶ 207-210

G. Instructions Improper-----------------------------------------------------¶¶ 211-213

H. Record Incomplete---------------------------------------------------------------¶ 214

(i) Instructions conference/other discussions---------------------¶¶ 215-216

(ii) Remand hearing too limited-------------------------------------------¶ 217

I. Error in Admission of Too Much Evidence About 1998 Conviction--------¶ 218

Conclusion-------------------------------------------------------------------------------¶ 219

Part III: Motion for New Trial-------------------------------------------------------¶ 220

Discussion-----------------------------------------------------------------------¶¶ 221-227

Conclusion------------------------------------------------------------------------¶¶ 228-230

Holding: The Court examined the briefs of the parties and the record on appeal and held that no error occurred during the guilt/innocence phase of Eaton’s trial that would require reversal of his seven convictions. Therefore, the judgment was affirmed in all respects. The Court found no reversible error in the penalty phase and affirmed the death sentence. A constitutional death penalty sentencing scheme must ensure the availability of meaningful judicial review as a final safeguard that improves the reliability of the sentencing process. Throughout the opinion the Court applied the final safeguard as provided in § 6-2-103(c) (d) and (e). The Court was satisfied that the evidence supported the jury’s findings with respect to aggravating and mitigating circumstance. It was the Court’s determination that the sentence of death was not imposed under the influence of passion, prejudice or any other arbitrary factor.
The Court affirmed the judgment and sentence of the district court, as well as its order denying Eaton’s motion for a new trial. The case was remanded to the district court for the purpose of vacating the suspension of the sentence of death and setting a specific date for the execution of that sentence.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/5j69ta.

[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.]