Summary 2008 WY 130

Summary of Decision issued October 23, 2008

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

Case Name: Drury v. State

Citation: 2008 WY 130

Docket Number: S-07-0250

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

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; John D. King, Faculty Director, Grant Curry and Jon Aimone, Student Interns of Defender Aid Program.

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: Appellant Drury was convicted by a jury of felony larceny under Wyo. Stat. Ann. § 6-3-402(a)(c)(i). The district court deferred judgment and sentencing until both sides could submit materials related to a mistrial motion the defense brought during Officer Brown’s testimony. The motion was denied and Judgment and Sentence entered on August 21, 2007.

Testimony Regarding Credibility: Appellant had the burden of showing that she was prejudiced by the district court’s denial of the motion for mistrial. The testimony at issue was inappropriate. Officer Brown testified about his training in interview techniques, made comments about Appellant’s credibility, his opinion of her guilt and about the credibility of other suspects he interviewed. The question was whether the error required reversal or was harmless under W.R.A.P. 9.04. It was evident from the record that defense counsel, the prosecutor and the district court all had difficulty controlling the witness. The Court considered the improper evidence in light of the trial as a whole. The Court also considered the strength of the testimony to determine whether the jury could have found differently in the absence of the improper testimony. In light of the overwhelming evidence and Appellant’s confession, the Court could not say that the jury would have found differently in the absence of improper testimony. For the same reasons, the district court did not abuse its discretion in denying Appellant’s motion for mistrial.
Taped Interviews: Appellant admitted that the production of the recordings in question would have been impossible. The Court noted that the United States Court of Appeals for the Tenth Circuit considered the question in United States v. Gomez and determined the issue was more properly one of due process to be decided under Brady v. Maryland and its progeny.
Due Process Rights: Appellant contended that her due process rights were violated when Officer Brown destroyed the recordings of Appellants’ and other witness’ interviews. A showing of bad faith is required where an appellant cannot show that the destroyed evidence had exculpatory value that would have been apparent before destruction. Appellant failed to allege that the tapes could have had exculpatory value or that Officer Brown should have been aware of that value before he destroyed the tapes. Each of the interviewed employees was interviewed at trial. Defense counsel did not question any of the witnesses about the substance of the interviews nor about the contents of the tapes. Appellant had access to the reports prepared by Officer Brown. There was no evidence that the tapes had any possible exculpatory value. Officer Brown destroyed the recordings as a part of his routine procedure.

Holding: The district court did not abuse its discretion when it denied Appellant’s motion for a mistrial. The district court’s instructions to the jury were well-designed to mitigate any possible prejudice resulting from improper testimony. Any error in admitting the testimony was harmless in light of the compelling evidence presented against Appellant. Appellant failed to show that her due process rights were violated when tapes of witness interviews were destroyed. There was no dispute as to the content of the tapes, no showing of their having been exculpatory, and Appellant had access to all the witnesses as well as the interviewing officer and his reports of the interviews.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/65mw48 .

[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.]

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Summary 2008 WY 129

Summary of Decision issued October 22, 2008

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

Case Name: Garwood v. Garwood

Citation: 2008 WY 129

Docket Number: S-07-0235

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

Representing Appellants: Scott W. Meier and Howard V. Scotland III of Hickey & Evans, LLP, Cheyenne, Wyoming.

Representing Appellee William J. Garwood: Frank J. Jones of Wheatland, Wyoming.

Facts/Discussion: Appellee William Garwood initiated this lawsuit in order to have the district court direct the Appellants, who are the trustees of the Family Trust to pay him a sum of money sufficient to provide for his support in the manner to which he was accustomed. The Appellants are two of his three children, Carol Jones and Orlan Garwood. Judy Kechter was named as a defendant below because she is a Trustee, but she has aligned herself with her father in the proceedings. The Trust at issue was created by Mr. Garwood and his wife in 1992. Mrs. Garwood died in 2005. When she died, the Trust divided into two separate trusts, a Marital Trust (Mr. Garwood as Trustee) and a Family Trust (the three Garwood children as Trustees.)

Allocation of the Assets: The Court concluded that the district court’s findings of fact were not clearly erroneous and its application of the law to the circumstances was likewise not erroneous. The Garwoods were victims of a “fill-in-the-blank” trust form that was ill-suited to their needs and has served to squander a significant portion of their savings on legal proceedings and attorney’s fees. The district court fashioned a suitable and practical resolution to the problems brought before it. It was not clear from the record which of its statutory, common law or equitable powers the district court relied upon in deciding the case, but any one or more of them could form a solid basis for the district court’s resolution of the case.
Appointment of Corporate Trustee: The district court’s judgment simplified the role of the trustees to little more than sending Mr. Garwood a check once a month. If the Trust has not been exhausted by the time he dies, the Trustees are only required to divide the Trust residue into three equal parts and convey them to the Garwood children or their heirs.

Holding: The district court’s factual findings were not clearly erroneous, and its disposition of the issues was sound as a matter of law. Appellants demonstrated no need for the district court to alter the terms of the Trust with respect to who should serve as Trustees. Continuing litigation over matters associated with the instant case should be resolved expeditiously and in conformance with the spirit and letter of the opinion.

Affirmed.

J. Hill delivered the decision.

C.J. Voigt special concurrence: The Chief Justice concurred with the result reached by the majority but thought that both the majority opinion and the specially concurring opinion of J. Burke went too far in addressing the issue of whether or not equity and the common law remain in the arsenal of the district court when faced with questions involving modification of a trust. Under the facts presented, Wyo. Stat. Ann. § 4-10-413(a) justified the district court’s conclusion.

J. Burke special concurrence: J. Burke concurred with the result reached by the majority but wrote separately because he questioned the majority’s reliance on common law principles as support for the authority of the district court to modify a trust agreement.

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

[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 128

Summary of Decision issued October 22, 2008

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

Case Name: Stafford v. JHL, Inc.

Citation: 2008 WY 128

Docket Number: S-07-0285

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

Representing Appellant: John H. Robinson of Jamieson & Robinson, LLC, Casper, Wyoming; Timothy W. Miller, Casper, Wyoming.

Representing Appellee: Glen W. Myers of Moore Myers & Garland, LLC, Jackson, Wyoming.

Facts/Discussion: A breach of contract claim between Appellant Stafford and JHL was tried before a jury. Subsequently, Stafford sought an award for attorney’s fees pursuant to a contract provision.

Inadequacy of Itemization of Attorneys’ Fees: Wyoming follows the American Rule which states that each party is responsible for his own attorney’s fees in the absence of an express contractual or statutory provision to the contrary. Even in the event of a valid contractual provision for attorney’s fees, the Court has clearly stated that a trial court has the discretion to exercise its equitable control to allow only such sum as is reasonable or the court may properly disallow attorney’s fees altogether on the basis that such recovery would be inequitable. The record showed that the attorneys’ fees were meticulously recorded but that Stafford failed to sufficiently itemize the fees to show which were properly recoverable and which were not. Additionally, the district court found that both parties came to the court having breached the contract. Accordingly, the court did not abuse its discretion in denying the award of attorneys’ fees on equitable grounds. The claim for appellate attorneys’ fees was also denied. The Court stated it would be inconsistent to award appellate fees after finding no abuse of discretion in the district court’s denial of attorneys’’ fees.

Holding: The Court affirmed the district court’s denial of attorneys' fees and denied any attorneys’ fees associated with the appeal.

Affirmed.

District Judge Fenn delivered the decision.

Link: http://tinyurl.com/58h5km .

[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.]

Librarian Offices Move

Due to the move of Kathy, Meg and Katie's offices, only the main library phone number will be active from October 23-29, 2008. Please call (307-777-7509) to reach us.

Law Library Move--Not Yet

You may have heard the exciting news that the Supreme Court will very soon move back into the newly renovated Supreme Court Building. That does include Kathy, Meg and Katie's offices.

But, it does not yet include the library. So Kathy, Meg and Katie are investigating warm snow boots.

We're not exactly sure why (we are not going to ask--this is, after all, a government operation), but the shelving for the library was contracted to not be installed until (hopefully) the middle of November and likely won't be finished until mid- to late December.

The current plan is to close the library November 17 and open again just after the new year, 2009. However, if you need reference assistance, you can still contact us.

By February and March 2009 we will be well on our way to again providing those reporters, law reviews, state statutes, Federal Registers, historic CFRs and treatises--all the books you've missed these last two years. Yay!

Remember, too, we will still have Westlaw public access, HeinOnline, LexisNexis Congressional, and Shephard's!

Summary 2008 WY 127

Summary of Decision issued October 15, 2008

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

Case Name: Ringolsby, Jr. v. Johnson

Citation: 2008 WY 127

Docket Number: S-08-0022

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

Representing Appellants: John B. “Jack” Speight and Robert T. McCue of Speight, McCue & Associates, Cheyenne, Wyoming.

Representing Appellees: James R. Salisbury and Don W. Riske of Riske, Salisbury & Kelly, PC, Cheyenne, Wyoming.

Facts/Discussion: Appellants Ringolsby and Swanhorst appeal from the district court’s order denying their claim for attorneys’ fees. One issue was presented for review: whether the trial court abused its discretion by ruling that Appellants did not meet their burden of proving the reasonableness of their attorneys' fees where Appellant submitted redacted billing statements along with an offer of in camera review to the trial court.
Wyoming has adopted the federal lodestar test for the determination of reasonableness of attorneys’ fees which requires that two factors be considered: whether the fee charged represents the product of reasonable hours times a reasonable rate and whether other factors of discretionary application should be considered to adjust the fee either upward or downward. Appellants made no showing of the nature of the services performed in the instant case. In looking at the redacted billing statements, the district court had no way of ascertaining the nature of the services performed, and thus the reasonableness of such services. The affidavit provided did not contain enough explanation to serve as a sufficient basis to determine the reasonableness of the fees.
The trial court held that the suggestion for the Court to review the statements provided by Appellants and then request review in camera if necessary amounted to a request that the Court first determine whether Plaintiffs met their burden of proof and then give them a second chance to meet the burden of proof. The Wyoming Supreme Court has specifically rejected such attempts to prove reasonable attorney fees after once failing to do so.

Holding: The district court did not abuse its discretion by ruling that Appellants did not meet their burden of proof in establishing the reasonableness of their attorneys’ fees based on the fact that they did not prove the fees in conformity with the requirements of precedent.

Affirmed.

District Judge Cranfill delivered the decision.

Link: http://tinyurl.com/4krjmp

[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 126

Summary of Decision issued October 13, 2008

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

Case Name: Gose v. City of Douglas, Wyoming

Citation: 2008 WY 126

Docket Number: S-07-0242

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

Representing Appellant (Plaintiffs): Richard V. Gose and Celeste M. Gose, Pro Se

Representing Appellee (Defendant): Rick L. Koehmstedt and Peter J. Timbers of Schwartz, Bon, Walker & Studer, Casper, Wyoming

Facts: The Appellee did not approve a subdivision proposed by Appellants. The Appellants filed a complaint seeking money damages from the City, based on a claim of inverse condemnation. The district court dismissed the damages claim, with prejudice, because, among other reasons, the Appellant’s complaint did not allege that their notice of governmental claim complied with the certification and signature requirements contained in Wyo. Const. art. 16 § 7. The district court also found that the Appellants’ claims were untimely in that the notice of claim was not filed within two (2) years of the date of the alleged act, error or omission. The district court additionally denied Appellants’ claim for mandamus relief because the City had no clear legal obligation to approve the subdivision.

Issues: Whether Appellants’ complaint and notice of claim adequately complied with the Constitution’s signature requirements. Whether the 2 year limitations of action period began to run when the city denied the Appellants’ subdivision application. Whether the district court erred in denying mandamus relief. Whether the district court has the legal ability to elect which facts to use to decide a motion of dismissal when Appellants had not waived their rights to a jury trial.

Holdings: The timely filing of a proper claim with the government requires that the complaint allege compliance with the signature and certification requirements of the state constitution as well as the statutory requirements. It is incumbent upon a plaintiff to allege in his or her complaint not only compliance with statutory filing requirements, but compliance with constitutional signature and certification requirements. In the present action, the Appellants’ complaint includes no reference to the constitutional requirements, nor does it include an indication that the constitutional requirements were met. Moreover, the notice of claim itself does not include any reference to compliance with the constitutional requirements. Thus, Appellants’ complaint failed to meet the requirements. Because the Appellants’ complaint did not allege compliance with the constitutional signature requirements, the district court never acquired jurisdiction over the inverse condemnation claim. Thus, the district court did not have jurisdiction to determine whether the Appellants’ notice of claim was timely. Once the district court determined the complaint did not meet the requirements, its jurisdiction was at an end. It should not have addressed whether the notice of claim was timely. According to the Appellants’ complaint, their notice of claim was dated March 8, 2007. The Appellants filed their complaint on April 20, 2007, well within the one-year statute of limitations found in Wyo. Stat. 1-39-114 (2007). The dismissal order was entered on September 17, 2007. Thus, at the time the case was dismissed, the Appellants remained within the one year statute of limitations. Under these circumstances, we find that the dismissal should have been without prejudice. The action will be remanded for entry of an order dismissing, without prejudice, the inverse condemnation claim. The dismissal order should establish for the Appellants a reasonable time within which to file a new complaint.
The function of mandamus is to command the performance of a ministerial duty that is plainly defined and required by law. Mandamus will not lie unless the duty itself is absolute and incontrovertible, or clear, certain, and indisputable. If the lower tribunal has the right to exercise discretion regarding an issue, mandamus is not an appropriate remedy. Thus, the question in the present action is whether the City had an absolute or incontrovertible duty to approve the Appellants’ proposed subdivision. It is clear that the Appellee had the authority to approve or disapprove the proposed subdivision because that subdivision is within one mile of city limits. Such approval is contemplated by Wyo. Stat. 34-12-103 (2007). The next question is whether the City retained discretion in this regard. The right and duty of the city to approve a plat necessarily carries with it the right to set reasonable and just prerequisites and requirements for approval of the plat, and in particular in the area of bringing the plat into conformity with other areas with respect to lots, blocks, streets, and the like. Thus, it is clear that the Appellee maintains discretion to approve, or disapprove, the proposed subdivision. The Appellants do not point to any law establishing that the Appellee had a “ministerial duty that is plainly defined and required by law” to approve the subdivision. Instead, the Appellants attack the Appellee’s exercise of its discretion and the reasons used to support its exercise of discretion. However, the remedy of mandamus is not so broad as to encompass such matters. While such attacks may be proper for a declaratory judgment action, those attacks are beyond the scope of mandamus. The dispositive issue here is that the Appellee maintains discretion to approve or disapprove the subdivision, and the Appellants have not established otherwise. Thus, they are not entitled to the limited remedy of mandamus. The district court’s denial of mandamus relief is affirmed.
A motion to dismiss is based upon legal grounds, which is the exclusive province of the Court as opposed to a jury. Moreover, the Appellants do not identify precisely what factual issues were necessary for determination of the legal issues addressed in this opinion.

Affirmed in part, reversed in part and remanded.

J. Golden delivered the opinion.

Link: http://tinyurl.com/44txnp

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