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Representing Appellee State: Bruce A. Salzburg, Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Assistant Attorney General.
Facts/Discussion: Chavez applied to the Wyoming Workers’ Safety and Compensation Division (the Division) for reimbursement of medical expenses relating to his back surgery in 2006. He claimed the surgery was necessary because of a work-related injury he suffered in 1989.
Substantial Evidence: The parties do not dispute the connection between Chavez’s 2006 surgery and his 1991 surgery. The testifying doctors disagreed on whether the medical problems addressed by the two surgeries were caused by the workplace injury Chavez suffered in 1989. There was substantial evidence in the record to support the Commission’s choice to accept Dr. Ruttle’s opinion over Dr. Beer’s and the Court deferred to that choice. Dr. Ruttle opined there was no causal connection between the 2006 surgery and the 1989 work-related injury and he stated that Chavez suffered from a preexisting condition making the 2006 surgery non-compensable. The findings of fact were supported by substantial evidence and its legal conclusions were sound. Injuries which occur over a substantial period of time: Wyoming law allows for claims involving injuries that occur over a substantial period of time. Chavez claimed the Commission was required to analyze his case under § 27-14-603(a). the statute explicitly requires a claimant to prove the injury occurring over time was caused by the conditions of his work. Chavez did not present evidence to the Commission to suggest such a causal connection. Second compensable injury rule: There was no basis on which to award benefits under the second compensable injury rule because the Commission explicitly chose to give more weight to the opinion of Dr. Ruttle who testified that Chavez’s 2006 surgery was not the result of the incident in 1989 and concluded the surgery was not compensable.
Conclusion: The testimony supported the Commission’s finding that the 2006 surgery was not causally related to the compensable work injury of 1989. Based on that finding, they concluded that the 2006 surgery was not compensable.
[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.]
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Cramer v. Powder River Coal, LLC
Citation: 2009 WY 45
Docket Number: S-08-0049
Appeal from the District Court of Campbell County, the Honorable Michael N. Deegan, Judge.
Representing Appellant Cramer: C. John Cotton, Cotton Law Offices, Gillette, Wyoming.
Representing Appellee Powder River Coal: Billie Addleman and Richard Mincer, Hirst Applegate, PC, Cheyenne, Wyoming.
Facts/Discussion: Cramer brought suit against the owner and the operator of Caballo Mine, seeking to hold them liable for damages he suffered in an accident that occurred while he was working at the mine site as an employee of Weld Test Inspection & Service. The Caballo Mine is a large surface coal mine located in the Powder River Basin and is owned and operated by two affiliated companies, Powder River Coal, and Caballo Coal known as “PRC”.
Release: PRC requires visitors to the mine to sign their Release. Cramer as a contractor was considered a visitor and was required to sign it. Throughout pretrial proceedings, the parties sharply disputed the meaning and significance of the Release. Their disagreements were raised before the district court numerous times in the context of discovery disputes and motion hearings. As a result, the district court issued several different rulings and decisions regarding the Release. Limiting discovery concerning PRC’s financial status: The district court granted protective orders to PRC regarding discovery requests for financial information related to Cramer’s punitive damages claim. The parties referred to Campen v. Stone where the Court adopted an approach and procedure for the discovery and presentation of evidence of the financial status of a defendant when punitive damages are sought. The Court reviewed the record and noted the list of facts asserted by Cramer were sufficient only to support a claim of ordinary negligence. Exclusion of the Release from evidence: The Release was a statement made by PRC that could tend to make it more likely that PRC had breached its duty of taking reasonable precautions to protect visitors from foreseeable hazards. However, not all relevant evidence is admissible. The district court excluded the Release on the basis that it was potentially misleading or confusing to the jury. Limiting discovery regarding the Release: For the most part, Cramer did not specify which discovery request that PRC should have been required to answer, nor does he suggest how discovering that information might have helped his case. Claim for “damages for violation of duties imposed by contract”: Cramer pleaded a cause of action alleging that PRC’s conduct violated duties imposed by federal coal leases. He also presented evidence concerning certain MSHA regulations and instructed the jury that regulatory violations could be used as evidence in support of his negligence claim. The three cases Cramer cited, Downtown Auto Parts, Inc. v. Toner, Becker v. Mason and Natrona County v. Blake did not support his contention that PRC’s alleged breach of contract provided him with a basis for pursuing a separate tort claim against PRC apart from the negligence claims he pursued at trial. Expert testimony regarding whether PRC violated applicable regulations: The record established that the district court allowed all of the expert testimony offered by Cramer dealing with the regulations and the standard of care. When a statute or regulation establishes the applicable standard of care with reasonable clarity, expert testimony as to that standard and its breach are unnecessary. It was not unreasonable for the district court to determine that the expert opinion testimony in this instance was unnecessary and not helpful to the jury. Response to jury question: The Court found no abuse of discretion in the district court’s decision to remain consistent with its prior ruling that the expert’s opinion was not admissible because it was not helpful to the jury. Applying collateral estoppels to claims involving cervical injuries: The Division allowed the claims for the injuries to Cramer’s foot and knee but denied the claim for neck injuries on the basis that he failed to prove that it was caused by or related to his workplace accident. In his suit against PRC, Cramer included claims for damages relating to his neck injury. Because the jury found that PRC was not liable for any of Cramer’s damages, any issue relating solely to damages was moot.
Conclusion: The Court agreed with the district court that Cramer failed to make a prima facie showing of a viable punitive damages claim. Given the district court’s conclusion that the Release was only marginally relevant, it was not unreasonable for it to exclude it from evidence. Expert opinion testimony is unnecessary when a statute or regulation establishes the applicable standard with reasonable clarity.
[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.]
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Parris v. Parris
Citation: 2009 WY 44
Docket Number: S-08-0247; S-08-0248
Appeal from the District Court of Laramie County, the Honorable Peter G. Arnold, Judge.
Representing Appellant Father: Daniel E. White and Rhonda Sigrist Woodard of Woodard & White, PC, Cheyenne, Wyoming.
Representing Appellee Mother: Mary T. Parsons of Parsons & Cameron, PC, Cheyenne, Wyoming.
Facts/Discussion: Father appealed from the child custody provisions of a decree and a clarified decree entered in the parties’ divorce action.
The Court focused on three areas of analysis: First, a decision letter does not constitute a judicial determination which may be considered a final order. The trial ended in April 2007 and in September 2007, the district court issued a decision letter. The living circumstances of the parties changed between then and October 2008 when the district court entered the decree in the matter. During the interim, among other motions, Father had filed a motion for reconsideration of its decision not to forbid contact between Child and Mother’s boyfriend (TM.) The Court noted the district court was free to revise its rulings prior to judgment and could have heard the pre-judgment motion to reconsider. Secondly, the circumstances that existed at the time of trial no longer existed at the time the decree was entered. The primary issue of concern – TM’s contact with Mother and Child - was exactly the opposite of what the trial testimony said it would be. Third, the district court ordered a shared custody arrangement be set in place despite the lack of evidence that the parents in the instant case could make a success of shared custody. In addition, the record did not show that a comprehensive evaluation had occurred prior to determining custody.
Conclusion: The district court abused its discretion by entering a decree containing child custody provisions that were not in the best interest of the child.
[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.]
Representing Appellee State: Bruce A. Salzburg, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Michael T. Kahler, Assistant Attorney General.
Facts/Discussion: Colyer’s driver’s license was suspended because he refused to submit to a chemical test of his blood alcohol content after a traffic stop. That suspension was affirmed after a contested case hearing and again after a petition for review was filed in the district court. The focal issue is whether the arrest was unlawful, which, if so, would negate the Appellant’s statutorily implied consent to chemical testing and would require reversal of the driver’s license suspension. The Court stated the dispositive issue was whether Colyer’s detention by a Bureau of Indian Affairs (BIA) officer on the Wind River Indian Reservation rendered unlawful the otherwise lawful arrest of him by a Fremont County deputy sheriff.
Colyer relied almost exclusively on Marshall v. State ex rel. DOT and United States v. Atwell. The State relied primarily upon Pogue v. Allison and United States v. Santiago. The hearing examiner concluded that the BIA officer’s detention was not unlawful stating that he had jurisdiction to stop the vehicle and once he determined that Colyer was not Native American had the authority to detain him until the Sheriff’s Deputy arrived to take custody. Jurisdiction for the detention of Colyer was conferred on the BIA officer by the deputy sheriffs while on route to the scene and because the BIA officer had reasonable cause to believe a crime was occurring and that it involved an immediate threat of serious bodily injury or death. The Court was not comfortable with the hearing officer’s legal analysis stating that the “peace officer” to which reference is made in § 7-2-101 on its face does not include BIA officers, the incident did not involve extraterritorial authority because neither officer left his respective territorial jurisdiction and the reasoning of Santiago did not apply. The Court noted this was not a unique question. It reviewed cases from courts around the country noting the decision in Oliphant v. Suquamish Indian Tribe where the United State Supreme Court detailed the history of the congressional presumption that Indian tribes did not have criminal jurisdiction over non-Indians on reservations and then stated that the tribes are to promptly deliver up any non-Indian offender rather than try and punish him themselves. In Duro v. Reina, the United States Supreme Court stated that tribal officers may exercise their power to detain the offender and transport him to the proper authorities. Viewing the facts of the instant case in the context above, the Court concluded that nothing occurred in the detention of Colyer to render his arrest unlawful.
Conclusion: Colyer was lawfully detained by the BIA officer pending his lawful arrest by the deputy sheriff. The State proved by a preponderance of the evidence the statutory elements required for the suspension of Colyers’ driver’s license due to his refusal to submit to a chemical test of his blood alcohol content.
[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.]
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Greene, D.C. v. State, ex rel., Board of Chiropractic Examiners
Citation: 2009 WY 42
Docket Number: S-08-0137
Appeal from the District Court of Laramie County, the Honorable Michael K. Davis, Judge.
Representing Appellant Greene: Bill G. Hibbler, Cheyenne, Wyoming.
Representing Appellee State: Bruce A. Salzburg, Attorney General; Michael L. Hubbard, Deputy Attorney General; Ryan Schelhaas, Senior Assistant Attorney General; Kennard F. Nelson, Senior Assistant Attorney General.
Facts/Discussion: Two patients of licensed chiropractor Greene filed complaints against him with the Wyoming Board of Chiropractic Examiners (Board). Following a contested case hearing, the Board entered an order dismissing one of the complaints and indefinitely suspending Greene’s license to practice based on the second complaint.
Evidentiary Error: Mental Health Records: Dr. Greene attempted to obtain copies of the complainant SS's mental health records. Following a hearing, the OAH examiner found that the information sought was protected by privilege and did not fall within any exception. For the exception in § 33-27-123(a)(iii) to apply, a patient must allege mental or emotional damages in litigation and SS did not do so. Rather, she was a witness in an administrative licensing proceeding before the Board and no damages were recoverable. Lack of Notice: Dr. Greene relied on Slagle which stands for the principle that a licensing board may not consider in a contested case hearing matters concerning allegations of which the licensee has not been given notice. The Court stated that the letter of intent and notice of hearing clearly notified Dr. Greene of the allegations giving rise to the disciplinary action. From documentation provided in discovery, he had notice of specific witness statements. From the record, the Court noted there was no question that Dr. Greene had notice of the conduct and violations being alleged against him and the matter the Board considered at the hearing. Non-complaining Witness Testimony: Dr. Greene asserted the Board erred in allowing a non-complaining witness to testify. The Court noted no such requirement in the statute or rule. There is no requirement that a patient having information relevant to proceedings against a chiropractor brought by another patient must file a complaint. Administrative hearings are governed by WAPA and administrative agencies acting in a judicial or quasi judicial capacity are not bound by the rules of evidence that govern trials by courts or juries. The standard for admissibility of evidence at an administrative hearing is contained in § 16-3-108(a). The Board did not abuse its discretion in allowing the testimony because it concerned an alleged incident 20 years before the complaints giving rise to the disciplinary proceeding. Whether testimony should be excluded is a discretionary decision for the agency. Mr. Blanchard’s Testimony: Blanchard, a licensed professional counselor, testified on Dr. Greene’s behalf. Dr. Greene argued that the Board did not mention all the testimony from Blanchard. As the trier of fact, the Board was entitled to give Blanchard’s testimony the weight it concluded it deserved in light of other evidence presented. Licensing Records of Dr. Greene’s Experts: After reviewing the record, the Court concluded that neither the Board nor the OAH committed any evidentiary error with respect to Dr. Greene’s expert witnesses’ licensing records. The hearing examiner properly declined to admit the records into evidence, the State’s questions to Dr. Blanchard concerned information found in his C.V. and with only one exception, the State’s questions to Dr. Brown likewise did not require his licensing records. While confidential records may have been improperly obtained, they were not admitted into evidence for consideration by the board. The Court noted their concern about the State’s effort to use information concerning Dr. Brown from the Board of Chiropractic Examiners’ file. Without the consent of Dr. Brown or a court order, the assistant attorney general was not authorized to obtain and the Board was not authorized to release confidential information from the file. Sufficiency of the Evidence: In its findings, the Board specifically found that the witnesses were credible and the statements they gave during the investigation were consistent with their hearing testimony. In contrast, the Board found that Dr. Greene’s testimony concerning events was sometimes not supported by his notes on patient charts. The Board also found that Dr. Greene’s statements during the investigation were sometimes different than his hearing testimony and his testimony on cross sometimes contradicted his direct examination testimony.
Conclusion: Having reviewed the record, the Court held that clear and convincing evidence was presented which would persuade the Board that the contentions that Dr. Greene acted improperly and violated the Board Rules and ethical standards was highly probable.
[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.]
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Forbis v. Forbis
Citation: 2009 WY 41
Docket Number: S-08-0063
Appeal from the District Court of Laramie County, the Honorable Edward L. Grant, Judge.
Representing Appellant Forbis: Mitchell E. Osborn, Cheyenne, Wyoming.
Representing Appellee Forbis: Matthew H. Romsa, John M. Kuker and James M. Peterson or Romsa & Kuker, Cheyenne, Wyoming.
Facts/Discussion: Wife sought review of the district court’s divorce decree which ended her marriage to Husband. Wife asserted error in the district court’s division of the marital property. When the district court announced its decision from the bench on the division of the marital property, it awarded to Wife her premarital home, the parties’ interest in J & F Investments, LLC, the Crestliner boat, and two vehicles. To Husband, the court awarded the marital home, his premarital home, TD Real Estate, LLC, and two vehicles. Two days later, the district court sent a letter notifying the parties that it had erred in its oral pronouncement concerning the Cestliner boat stating that it had intended to award the boat to Husband instead of Wife. The Court’s review of the record did not reveal evidence supporting Wife’s claim that the district court’s decision to award the boat to Husband was premised on a mistake concerning marital assets. The record reflected the district court misstated its intention regarding the boat in announcing its decision from the bench. The district court was not bound by its oral pronouncement and may modify its decision regarding marital assets until entry of the divorce decree. Wife faulted the district court for not awarding her a judgment against Husband for $16,000 in premarital funds. However, she failed to identify any factual or legal grounds on which her claim was based. Husband requested attorney fees and costs for having to defend what he claimed was a frivolous appeal. Sanctions under Rule 10.05 are not generally available on an appeal that challenges a trial court’s discretionary ruling.
Conclusion: The Court found no abuse of discretion in the district court’s allocation of the parties’ marital property.
[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.]
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Voss v. Goodman
Citation: 2009 WY 40
Docket Number: S-08-0060
Appeal from the District Court of Albany County, the Honorable Wade E. Waldrip, Judge.
Representing Appellant Voss: Pro se.
Representing Appellee Goodman: Gay Woodhouse and Deborah L. Roden of Gay Woodhouse Law Offices, PC, Cheyenne, Wyoming.
Facts/Discussion: Mark and Laura Voss requested relief from a district court decision in a declaratory judgment action finding that the Albany County Board of County Commissioners (Board) did not have the authority to grant them temporary access across Goodman’s land during a private road condemnation case.
Jurisdiction: The single issue before the district court was whether the Board had the authority to grant the Vosses temporary access during the private road condemnation case. It was apparent from the decision letter that the district court limited its decision to the appropriate legal issue before it. The Court’s interpretation of the Declaratory Judgment Act makes clear that there remains the prerequisite that the party seeking declaratory relief present the court with an actual controversy. After reviewing the four elements necessary to make a justiciable controversy, the Court stated the case presented a justiciable question and the district court had jurisdiction to decide the question. Summary Judgment – Interpretation of the Statute: The Court examined the district court’s interpretation of the statute. It noted that while the Board was correct that it was possible for an agency to have implied powers in conjunction with express statutory grants of power, the instant case was not a situation where such an implied power existed. Wyoming’s private road statutes provide the mechanism by which a landowner may petition the exercise of the State’s eminent domain access between his own property and a public road. The statute makes no provision for temporary access. The purpose of a private road condemnation action is to determine whether a landowner meets the statutory requirements that allow a board of county commissioners to exercise its very limited powers of eminent domain. A grant of temporary access, while convenient, is not necessary step in the process. The Vosses sought leave to amend their Answer to add a claim for injunctive relief granting them temporary access to their property during the pending private road proceeding on the theory that the district court could grant such access through equity. The Court held in Bush v. Duff that a district court may not exercise the right of eminent domain. The Voss’ proposed amendment asked the district court to exercise powers of eminent domain not even granted to the executive branch at the time of the request, therefore such a request was futile.
Conclusion: The district court had subject matter jurisdiction to entertain the action for declaratory judgment and correctly determined that the Board had no authority under § 24-9-101 to grant the Vosses temporary access over Goodman’s land during a pending private road proceeding. The district court did not abuse its discretion when it refused to allow Voss to amend their Answer to add a futile claim.
[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.]
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Langberg v. State ex rel. Wyoming Workers’ Safety and Compensation Division
Citation: 2009 WY 39
Docket Number: S-08-0001
Appeal from the District Court of Laramie County, the Honorable Nicholas G. Kalokathis, Judge.
Representing Appellant Langberg: Thomas L. Lee, Cheyenne, Wyoming.
Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General; J.C. Demers, Special Assistant Attorney General.
Facts/Discussion: Langberg suffered two separate injuries to his left wrist while on the job. After his original injury, he felt a pop and experienced pain. After his second injury the pain in his wrist increased in severity. Ultimately, he underwent surgery. The Workers’ Compensation Division (Division) covered the initial treatment for the injuries but denied coverage for the surgery. The Division found the surgery to be necessitated by a preexisting condition that was not materially aggravated by his job injuries.
Causation of Keinbock’s Disease: Langberg argued the evidence was sufficient to prove the cause of his Keinbock’s was a single traumatic injury relying upon the fact that the x-rays taken after the first injury did not show any abnormalities. The x-rays taken after the second injury showed changes. He argued the circumstantial evidence irrefutably pointed to the work injuries being the trigger for the onset of his Keinbock’s disease. Langberg’s treating physician testified that he couldn’t say the injury did cause the onset of the disease but he also couldn’t rule out that the injury did not cause the onset of the disease. In the face of this testimony, the Court found the OAH’s decision was not against the overwhelming weight of the evidence. It agreed Langberg’s Keinbock’s disease was not caused by his work injuries but rather was a preexisting condition. Material aggravation of a preexisting condition: It was Langberg’s burden to prove by a preponderance of the evidence that his work-related injuries materially aggravated, accelerated, or combined with his Keinbock’s to necessitate the surgery for which he was seeking compensation. Langberg relied upon the circumstances of his case, including the fact that he had no history of left wrist problems before the work injuries and upon the testimony of his doctor stating that the injuries materially exacerbated his Keinbock’s. The parties differed over the definition of “exacerbate” with Langberg arguing it was synonymous with “aggravate.” The Division argued the two terms were mutually exclusive. Each party found support in reference books including a medical dictionary and the AMA Guides to the Evaluation of Permanent Impairment. Under the specific circumstances of the case, the Court found no ambiguity in the use of the term “exacerbate.” It was used consistently with its common dictionary definition. Any finding to the contrary was against the overwhelming weight of the evidence. The doctor’s direct testimony on the issue overwhelmingly established the requisite causal connection between Langberg’s work-related injuries and his surgery.
Conclusion: Upon review of the record as a whole, the Court held the evidence overwhelmingly supported a finding that Langberg’s work-related injuries led to his need for surgery.
[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.]
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Omohundro v. Sullivan; Sullivan v. Omohundro
Citation: 2009 WY 38
Docket Number: S-08-0027; S-08-0028
Appeal from the District Court of Johnson County, the Honorable David B. Park, Judge.
Representing Appellants Omohundro Trust in case S-08-0027: Kendal Hoopes, Yonkee & Toner, LLP, Sheridan, Wyoming; Anthony T. Wendtland, Wendtland & Wendtland, LLP, Sheridan, Wyoming.
Representing Appellees Sullivan Group in case S-08-0027: Kim P. Cannon and Sasha Johnston, Davis & Cannon, LLP, Sheridan, Wyoming.
Facts/Discussion: Appellants (Omohundro Trusts) own interests in Tract 6 of the Twin Lakes subdivision near Buffalo, Wyoming, and Appellees (Sullivan Group) own Tracts 1-4. The parties dispute whether under the subdivision restrictive covenants, Omohundro Trusts was required to obtain consent from all of the landowners before they could take action which would allow the City of Buffalo to obtain the water rights appurtenant to the subdivision lands. The district court ruled on summary judgment that the restrictive water rights unambiguously required the approval of the owners of all the tracts. In the document entitled “Covenants for Twin Lakes, Buffalo, Wyoming,” Tracts 1-5 are referred to as Exhibit “A” lands while Tract 6 is referred to as Exhibit “B” lands. The language at the heart of the dispute reads: Notwithstanding any other provision in this declaration, any action, step or procedure (including without limitation, the further subdivision of any lot within the development) or the omission of any act, step or procedure which would allow or entitle the City of Buffalo to take possession, ownership, and control of the irrigation water rights applicable to the development on Exhibit “B” lands as set forth in said attached agreement shall require the written consent and approval of 100% of all lot owners within the development as well as the record owner(s) of Exhibit “B” lands. The Court considers all parts of the covenants in interpreting a provision. The Court stated that by its language the caveat included the recitation paragraphs that Omohundro Trusts claimed should be interpreted as applying to the Exhibit “A” lands. Omohundro Trusts offered the affidavit of William Omohundro as support for its reading of the covenants in its summary judgment action. The Court noted that evidence of the declarants’ subjective intention was not relevant or admissible to interpret the contract, whether its language was ambiguous or not. In addition, the relevant facts and circumstances surrounding the execution of the document could be gleaned from the covenants themselves and the documents attached including the Water Connector’s Agreement with the City.
Conclusion: The Court agreed with the district court that the disputed language unambiguously required the approval of the owners of all the tracts.
Affirmed.
J. Kite delivered the decision.
J. Burke dissented, J. Golden joined: J. Burke disagreed with the majority’s conclusion that the pertinent language in the restrictive covenants was unambiguous. Objectively, the language was ambiguous and subject to differing interpretations regarding the necessity of consent from all Exhibit “A” lot owners before subdivision of Exhibit “B” lands could occur. The interpretation of an ambiguous restrictive covenant raised genuine issues of material fact that precluded summary judgment.
[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.]
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Nelson v. State
Citation: 2009 WY 37
Docket Number: S-07-0299
Appeal from the District Court of Campbell County, the Honorable Michael N. Deegan, Judge.
Representing Appellant Nelson: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.
Representing Appellee State: 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: Nelson was convicted by a jury of aggravated assault and battery as a result of an attempted traffic stop by Sergeant Boisvert. During the incident, Nelson backed his truck into the patrol car requiring Boisvert to jump out of the way. Nelson caused damage to camper trailers as well as to the patrol car.
Discovery: Nelson complained that his entire defense rested on the assertion that the Sergeant was biased and jaded because he had experienced similar past events. Nelson also asserted that testimony concerning other, similar occurrences was the only way to test the Sergeant’s credibility. The Court supported the district court’s decision to deny the request stating that the information relative to the Sergeant’s past work-related affairs was not material in light of the facts. Simply being involved in similar circumstances did not give rise to any presumption of a negative predisposition to such events. Recall of Sergeant Boisvert: The reason given for calling the Sergeant was to question him about specific past events. The district court denied the request on the grounds that the proposed testimony was not relevant and would likely confuse the jury. The Court agreed stating that any involvement by the Sergeant in prior, similar events was irrelevant to the credibility of his testimony in the instant case.
Conclusion: The Court found no abuse of discretion by the district court in the contested discovery and evidentiary rulings.
Affirmed.
J. Golden delivered the decision.
C.J. Voigt dissented: The Chief Justice noted he would have found an abuse of discretion in the district court’s refusal to allow the appellant to call Sergeant Boisvert as a witness in his case-in-chief. Nelson should have been allowed to question the Sergeant about the prior similar incidents to test whether his perception of the appellant’s intent may have been colored by those incidents. It was relevant and admissible.
[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.]
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Eaton v. State
Citation: 2009 WY 36
Docket Number: S-08-0235
Order Continuing Stay of Execution Pending Disposition of State Post-Conviction Relief Proceeding
The United States Supreme Court denied Mr. Eaton’s petition for writ of certiorari. Mr. Eaton intends to file a petition for post-conviction relief pursuant to Wyo. Stat. Ann. §§ 7-14-101 through 7-14-108. The Court found that consistent with Harlow v. State, it should continue the current stay of execution of sentence pending the filing and during the pendency of the post-conviction relief proceeding.
[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.]
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court
Case Name: Latta v. State
Citation: 2009 WY 35
Docket Number: S-08-0065
Appeal from the District Court of Carbon County, Honorable Wade E. Waldrip, Judge
Representing Appellant (Plaintiffs): Dion J. Custis., Cheyenne, Wyoming.
Representing Appellee (Defendant): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Jeremy C. Schwendiman, Student Intern.
Facts: Before he pled guilty to felony possession of marijuana with intent to deliver, Appellant filed a motion to suppress evidence seized from his vehicle after a traffic stop. The district court denied his motion, and Latta now claims on appeal that the district court erred in denying the motion because, although he conceded that the initial stop was legal, he did not voluntarily consent to the trooper’s second round of questions and the trooper did not have a reasonable suspicion of criminal activity justifying his detention until a drug dog arrived.
Issues: Whether the trial court abused its discretion and commit reversible error when it denied Appellant’s Motion to Suppress.
Holdings: The right of citizens to be free from unreasonable searches and seizures is guaranteed by article 1, § 4 of the Wyoming Constitution and the Fourth Amendment to the United States Constitution. A waiver of constitutional rights under our constitution must appear by clear and positive testimony, and, if a search or seizure is based upon the proposition that consent was given, there should be no question from the evidence that consent was really voluntary and with a desire to invite search or further questioning, and not done merely to avoid resistance. Acquiescence and nonresistance have not been deemed sufficient under Wyoming law to establish consent. The totality of the circumstances will be examined to determine if consent was voluntary. Among the factors considered are: the demeanor of the law enforcement officer, whether the individual was told he could refuse the request, the presence of other law enforcement officers, the length of the detention and nature of the questioning before consent was given, and other coercive factors. In light of the totality of the factual circumstances in the present, Appellant’s consent was voluntary. The initial traffic stop was brief, the trooper’s conduct was professional, courteous, and non-coercive throughout the length of the entire encounter, and the consents given by Appellant were unhesitant and immediate. Even when considering the fact that the patrol car’s lights remained flashing and that there were two uniformed officers present, under the totality of the circumstances the consent to a second round of questions was voluntary. A reasonable person in the appellant’s position at the time would have felt that he could have said ‘no’ and proceeded on his way. Having concluded that Appellant’s consent was voluntary, whether the Trooper had reasonable suspicion of illegal activity to warrant further questioning need not be considered. Voluntary consent obviates the necessity of determining whether the trooper had sufficient reasonable suspicion of criminal activity to pursue further questioning.
Conclusion: The district court did not abuse its discretion or otherwise err as a matter of law in denying Appellant’s Motion to Suppress. The Judgment and Sentence of the district court is Affirmed.
[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]
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court
Case Name: Block v. State of Wyoming, ex rel. Wyoming Workers’ Safety and Compensation Division
Citation: 2009 WY 34
Docket Number: S-07-0283
Appeal from the District Court of Teton County, Honorable Nancy J. Guthrie, Judge
Representing Appellant (Plaintiffs): James R. Salisbury and Sean C. Chambers of Riske, Salisbury & Kelly, Cheyenne, Wyoming
Representing Appellee (Defendant): 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: Appellant suffered a work injury found to be compensable by the Workers’ Compensation Division. A little more than two years after his injury, he applied for permanent partial disability (PPD) benefits. By statute, Appellant would be eligible for PPD benefits if, because of his work-related injury, there were no jobs available for him in Wyoming that paid at least ninety-five percent (95%) of his prior wage. A labor market survey indicated there were no jobs available fulfilling the statutory requirements for Appellant in Wyoming. After receiving the labor market survey, the Division approached Appellant’s employer at the time of his injury. At the Division’s encouragement, the employer stated it would offer to rehire Appellant to his prior position with appropriate accommodations. Based on this assurance, and before the employer formally offered Appellant his old job, the Division denied Appellant’s application for PPD benefits. Appellant declined the job offer he eventually received from his former employer. Appellant contested the denial of his application for PPD benefits and lost after a contested case hearing. The district court affirmed the denial.
Issues: Whether the Hearing Officer committed an error of law in its application of Wyoming Statute § 27-14-405 in denying permanent partial disability benefits to Appellant. Whether the Order entered by the Hearing Officer is supported by substantial evidence. Whether the Order entered by the Hearing Officer is arbitrary and capricious and contrary to Wyoming law. Whether the Order entered by the Hearing Officer on April 27, 2007, is contrary to public policy.
Holdings: An injured worker has the burden to prove each of the elements of his claim by a preponderance of the evidence. Since Wyo. Stat. § 27-14-102(a)(xv) (2007) defines “permanent partial disability” as “the economic loss to an injured employee . . . resulting from a permanent physical impairment,” in order to be eligible for PPD benefits, a claimant must demonstrate he has suffered a loss of earning capacity due to a work-related injury. According to § 27-14-405, an injured employee awarded permanent partial impairment benefits who applies for a permanent disability award must show that because of the injury, he is unable to return to employment at a wage that is at least ninety-five percent (95%) of the monthly gross earnings the employee was earning at the time of injury, that the application for permanent partial disability was filed not before three (3) months after the date of ascertainable loss or three (3) months before the last scheduled impairment payment, whichever occurs later, but in no event later than one year following the later date, and that the employee has actively sought suitable work, considering the employee’s health, education, training and experience. The only question in the instant appeal is whether Appellant could find employment in Wyoming at a wage that was at least ninety-five percent (95%) of his pre-injury wage. Appellant presented a labor market survey stating that Appellant, because of his work-related injury, would not be able to find a job in the general economy that paid 95% of his pre-injury wage. This is enough to constitute a prima facie case for entitlement. The Division has attempted to rebut this survey with the assertion that one job meeting the statutory requirements did exist – the position offered to Appellant by his former employer. However, there are several problems with finding the job offer was a bona fide offer. First, the record clearly discloses the offer was based on misinformation. The employer assumed Appellant could perform 95% of the job duties of his prior position and only minor accommodations would be necessary. The employer had no access to Appellant’s worker’s compensation file and did not know about Appellant’s 7% whole body impairment rating. The employer also had not seen the Functional Capacity Evaluation limiting Appellant to medium duty work. Indeed, the letter offer makes clear the fact that the employer had no immediate knowledge of Appellant’s work restrictions. Appellant, who introduced the only evidence of the actual work requirements of his former position, testified the position regularly involved activity that exceeded his current physical ability. He believed more than minor accommodations would be necessary for him to be able to perform his prior job. Yet it is to that specific job that employer extended its employment offer to Appellant. Given the lack of concrete information and the mistaken assumptions underlying the offer, the offer can at best be considered contingent. It would be sheer speculation to assume employer would have maintained its offer to Appellant once it learned Appellant’s true functional capacity. The company’s lack of knowledge regarding Appellant’s functional capacity is unmistakable in the written offer and necessarily creates ambiguity. The only certain term is the job title. Appellant’s tasks and exact wage were to be determined based on information not currently in the company’s possession. The company stated it was willing to accommodate Appellant’s work restrictions, but no indication was given as to the nature or extent of those accommodations. In short, the written offer was devoid of information necessary for a reasonable person to be able to seriously consider the offer. Appellant cannot be faulted for not accepting such an illusory offer.
Conclusion: The order of the district court affirming the denial of Appellant’s PPD benefits is reversed. The case is remanded for the district court to order the Division to award Appellant appropriate PPD benefits.
[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.]
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court
Case Name: Jones v. State
Citation: 2009 WY 33
Docket Number: S-08-0045
Appeal from the District Court of Campbell County, Honorable Dan R. Price II, Judge
Representing Appellant (Plaintiffs): Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; and Eric M. Alden, Senior Assistant Appellate Counsel.
Representing Appellee (Defendant): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Jenny L. Craig, Assistant Attorney General.
Issues: Whether an award of restitution for loss of support constitutes an illegal sentence. Whether an unauthorized amendment of the charge against Appellant leave him unaware of the charge to which he pled guilty and constitute plain error. Whether the plea was supported by an adequate factual basis to prove voluntariness since Appellant was not adequately informed at his change of plea hearing about the definition of the term “deadly weapon” as used in § 6-2-502(a)(ii).
Holdings: On December 14, 2007, the Wyoming Supreme Court issued Hite v. State (2007 WY 199) stating that a restitution ordered for “loss of support,” without more specificity, is insufficient to assure that the trial court complied with the statutory mandate, pursuant to Wyo. Stat. Ann. § 7-9-103(b), and that restitution be ordered only for “pecuniary damages” caused by a defendant’s criminal conduct. The record in the present action is insufficiently specific to permit the conclusion that the “loss of support” portion of the restitution ordered here comported with the statutory definition of “pecuniary damages.” Thus, this issue is remanded to the district court for the limited purpose of conducting a new, more specific restitution hearing.
Appellant claims that the amended felony information was never properly authorized and that he never received a preliminary hearing on the amended aggravated assault and battery charge. Appellant asserts that because of this, he was never adequately informed that he would be called to account for using a “deadly weapon” against his wife and, therefore, was unable to consider whether the instrument he used against her fit the definition of “deadly weapon” pursuant to § 6-2-502(a)(ii). However, neither the preliminary examination requirement, nor the amendment process, is jurisdictional, inasmuch as both can be waived by failure to raise the issue before trial. Here, not only did Appellant fail to raise an objection to the amended felony information in his case, but he consented to being prosecuted under the amended document in district court and waived his right to a preliminary hearing on the amended charge. The record is clear that the amending of the information occurred well before Appellant’s scheduled trial and subsequent guilty plea, bringing the amended information within the provisions of Rule 3(e)(2)(A). The amended information was also permitted by the district court because it could not have prejudiced Appellant’s substantial rights. Appellant was put on notice that he would have to defend against the amended charge between the close of his preliminary hearing and his arraignment, and what is more, the amended information was based in large part on the same facts and evidence as the original charge and stemmed out of the exact same occurrence. Although Appellant did not receive a preliminary hearing on the amended charge, his implicit waiver of his right to a preliminary hearing is quite apparent on the record. No demand for another preliminary hearing was ever made by Appellant’s defense counsel. Appellant himself, after discussing the new charging document with his counsel, proceeded to enter a plea, prepare for trial, and ultimately pled to the charges in the amended information without objection. Accordingly, there was no error.
A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes). In Wyoming, this test is fulfilled when the requirements of W.R.Cr.P. 11(b)(1) are followed. Before accepting a plea of guilty, this rule requires the district court to advise a defendant about the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law and other sanctions which could attend a conviction including, when applicable, the general nature of any mandatory assessments (such as the surcharge for the Crime Victim Compensation Account), discretionary assessments (costs, attorney fees, restitution, etc.) and, in controlled substance offenses, the potential loss of entitlement to federal benefits. The intent of the procedural requirements of Rule 11 is to “prevent the individual charged with a crime from being misled into a waiver of substantial rights.” In some circumstances, a simple reading of the information and allowing a defendant to ask questions satisfies the requirements of Rule 11; however, in other situations it may be necessary to explain the elements of the crime and define complex legal terms. The actions required of the district court in any particular case depend largely on whether the elements of the offense are difficult to understand, considering both their complexity to the average person with no legal training and the sophistication of the individual defendant.
At the change of plea hearing in the present action, the district court read to Appellant each count of the amended information, including the appropriate portion of the habitual offender statute that had been agreed upon pursuant to the plea agreement. Additionally, the court also gave Appellant the appropriate admonitions regarding maximum terms and fines associated with each count, the imposition of court costs, the Crime Victims’ Compensation surcharge, restitution, and repayment of public defender fees. Furthermore, Appellant was advised, among other things, that he could lose certain civil rights, that he was giving up his right to challenge any errors or omissions in the charging documents, and that he was waiving any defenses and the presumption of innocence. Appellant was asked by the court if he had discussed his choice to plead guilty with his attorney and whether he was doing so voluntarily. All of Appellant’s answers indicated that he knew full well what he was doing, that he was not under the influence, and that there existed no other factor that would affect his ability to understand the charges.
Given the facts and circumstances of the crime, the prosecutor’s offer of proof regarding what evidence would have been presented had the case gone to trial, and Appellant’s statement, the district court was presented with a sufficient factual basis to accept the guilty plea. The district court made no error in its determination that this was so.
Conclusion: The district court’s judgment and sentence with respect to the crimes charged and the penal sentences imposed is affirmed. However, we reverse that portion of the sentence which ordered Appellant to pay restitution for “loss of support,” is reversed and this matter is remanded to the district court for further proceedings in that regard.
[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]
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court
Case Name: Montoya v. State of Wyoming, ex rel, Wyoming Workers’ Safety and Compensation Division
Citation: 2009 WY 32
Docket Number: S-07-0203
Appeal from the District Court of Campbell County, Honorable Michael N. Deegan, Judge
Representing Appellant (Claimant): Kenneth DeCock, Plains Law Offices, Gillette, Wyoming
Representing Appellee (Respondent): No appearance.
Facts: Claimant appeals the denial of his claim for worker’s compensation benefits. Claimant claims that he suffered injuries from an accident during work-related activities that aggravated a preexisting medical condition. The Wyoming Workers’ Compensation Division found Claimant’s condition solely related to his preexisting condition. The Division’s denial was upheld by the Office of Administrative Hearings (OAH). The OAH decision was affirmed by the district court.
Issues: Whether there is substantial evidence to support the Hearing Officer’s conclusion. Whether the the Hearing Officer’s decision was arbitrary and capricious. Whether the Hearing Officer misinterpreted case law and held Claimant to an improper burden of proof. Holding: Preexisting disease or infirmity of the employee does not disqualify a claim under the “arising out of employment” requirement if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought. Expert opinion testimony ordinarily will be required to establish the link between the employee’s work activity or injury and the preexisting disease or condition; the expert need not state with specificity that the work activities or injury materially or substantially aggravated, accelerated, or combined with the preexisting disease or condition to necessitate the medical treatment for which compensation is sought; and the expert need not apportion between the work activity or injury and the preexisting disease or condition; the relative contribution of the work activity or injury and the preexisting disease or condition is not weighed. In applying this analysis, the overwhelming weight of the evidence supports a finding that Claimant’s work-related fall aggravated a preexisting condition. Even should the medical evidence be considered weak, there is other, strongly circumstantial, evidence supporting Claimant’s claim. Both Claimant and his wife testified that, while Claimant suffered some similar symptoms before his fall, after the fall the symptoms were exacerbated and new symptoms appeared. All medical evidence supports this testimony. Most telling, and incontrovertible, is the fact that Claimant was able to perform his job functions for over three years after the automobile accident which caused his original injury. After his work-related fall, he was no longer able to perform these same functions. Conclusion: The overwhelming weight of the evidence proves a material aggravation of pre-existing condition.
[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]
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court
Case Name: Taylor v. State
Citation: 2009 WY 31
Docket Number: S-08-0158
Appeal from the District Court of Natrona County, Honorable Jeffrey A. Donnell, Judge
Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel
Representing Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric A. Johnson, Director, and Charles F. Pelkey, Student Intern, Prosecution Assistance Program.
Facts: Appellant appeals his conviction on numerous criminal charges, including first-degree murder, on the ground that the district court abused its discretion by admitting certain uncharged misconduct evidence.
Issues: Whether the district court abused its discretion by admitting evidence of two prior uncharged instances in which the appellant threatened someone.
Holdings: While uncharged misconduct evidence is admissible to prove or disprove consequential facts such as intent, knowledge, motive, preparation, or plan, it is not admissible to show that a defendant has a propensity to commit crimes. A four-part test has been adopted for testing the admissibility of uncharged misconduct evidence: (1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the probative value of the evidence must not be substantially outweighed by its potential for unfair prejudice; and (4) upon request, the trial court must instruct the jury that the uncharged misconduct evidence is to be considered only for the proper purpose for which it was admitted. As to the first question—whether the evidence was offered for a proper purpose—in the present action, the district court agreed with the State that the evidence was properly offered to prove motive and intent, especially as those concepts helped to establish the element of malice. The district court concluded that evidence of the three prior instances was probative, in particular, of the concept of jealousy as motive. For all intents and purposes, the only question facing the jury in this case was whether the appellant acted in a sudden heat of passion, or acted with malice. It was appropriate for the State in these circumstances to produce evidence of motive and intent. Thus, it cannot be said that the district court abused its discretion in determining that all three instances of prior misconduct were being offered for a proper purpose. The second question a trial court must answer in deciding whether to admit uncharged misconduct evidence is whether the evidence is relevant. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. This question is usually answered, at least in part, by an affirmative response to the first question. It should nearly go without saying that any proper purpose for admission of the evidence is a purpose that is relevant. In the foregoing discussion, for instance, if intent and malice were not relevant, they would not be proper purposes for admission of the uncharged misconduct evidence. The district court correctly concluded that the uncharged misconduct evidence was relevant in this case because it went to the heart of the matter—in effect, it tended to rebut the appellant’s “heat of passion” argument. Stated in terms of the rule, the evidence made it less likely that the appellant acted suddenly and without malice, motivated only by the “heat of passion.” The third question to be asked in a trial court’s determination of the admissibility of uncharged misconduct evidence is whether the probative value of the evidence is substantially outweighed by its potential for unfair prejudice. In determining the probative value of prior bad acts evidence, the trial court should consider the following factors: 1.How clear is it that the defendant committed the prior bad act? 2. Does the defendant dispute the issue on which the state is offering the prior bad acts evidence? 3. Is other evidence available? 4. Is the evidence unnecessarily cumulative? 5. How much time has elapsed between the charged crime and the prior bad act? Evidence is unfairly prejudicial if it tempts the jury to decide the case on an improper basis. In balancing against its probative value the unfair prejudice created by the evidence, the trial court should consider the extent to which the evidence distracts the jury from the central question whether the defendant committed the charged crime. The trial court should weigh these additional factors against the probative value of the evidence: 1. The reprehensible nature of the prior bad act. The more reprehensible the act, the more likely the jury will be tempted to punish the defendant for the prior act. 2. The sympathetic character of the alleged victim of the prior bad act. Again, the jury will be tempted to punish the defendant for the prior act if the victim was especially vulnerable. 3. The similarity between the charged crime and the prior bad act. The more similar the acts, the greater is the likelihood that the jury will draw the improper inference that if the defendant did it once, he probably did it again. 4. The comparative enormity of the charged crime and the prior bad act. When the prior act is a more serious offense than the charged crime, the introduction of that act will tend to place the defendant in a different and unfavorable light. 5. The comparable relevance of the prior bad act to the proper and forbidden inferences. Evidence of the prior bad act may be much more probative of bad character than it is of any legitimate inference permitted by Rule 404(b). 6. Whether the prior act resulted in a conviction. The jury may be tempted to punish the defendant if they believe he escaped punishment for the prior bad act. The record reveals that in the present action the district court scrupulously complied with the guidelines, devoting a separate section of its decision letter to each of the four general issues, and discussing, in turn, each of the eleven factors directed specifically to balancing probative value against the danger of unfair prejudice. However, the appellant contends that the district court erred in the following particulars and thus abused its discretion: (1) the district court’s conclusion that the prior acts were sufficiently similar to the charged act to be probative of the appellant’s reaction to jealousy and conflict; (2) the district court’s conclusion that the prior acts were sufficiently dissimilar to the charged act, in that the appellant maintained some level of self-control in the former, that the jury would not be swayed toward making the improper inference of bad character; and (3) the district court’s conclusion that, because the prior acts were less serious than the charged act, the jury would likewise not be inclined to draw that same improper inference. In short, the appellant argues that the uncharged misconduct evidence was probative of nothing more than bad character, and should not have been admitted. An abuse of discretion is not proven by a showing that a different decision could have been made. The findings of the district court should not be second guessed, especially where those findings are based upon a thorough review of the proffered testimony and a detailed application of the appropriate law. The existence of W.R.E. 404(b) presupposes that some uncharged misconduct evidence is admissible. In the instant case, taking cognizance of the nature of the charges and the nature of the uncharged misconduct evidence, the district court determined that evidence of two prior acts was offered for a proper purpose—to prove motive and intent as those concepts relate to malice—that it was relevant because it tended to make the existence of those consequential facts more likely than not, and that it was more probative than unfairly prejudicial because it met the proper standard. There was no abuse of discretion in the process or in the conclusions. For the sake of completeness, the fourth element of the mandatory four-part test for the admissibility of uncharged misconduct evidence will be mentioned: whether a limiting instruction was given, if requested. The district court’s order admitting the evidence stated that “a limiting instruction is appropriate in the case and [the court] will consider any limiting instruction submitted by the Defendant.” No limiting instruction was located in the record, and the parties have not indicated that one was ever offered or given. Consequently, the fourth factor is inapplicable.
Conclusion: The district court did not abuse its discretion in admitting evidence of two of three incidents of uncharged misconduct proffered by the State. The evidence was offered for a proper purpose, it was relevant, and its probative value was not outweighed by the danger of unfair prejudice.
[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.]
We have received the next load of boxes from storage. Get ready for the law reviews and journals -- that 1959 Commercial Law Journal is all yours now. Only a few thousand boxes to go!
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treatises
Wyoming legislative information
current Wyoming, Nebraska, South Dakota, Montana, Idaho, Utah, and Colorado statutes
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Hull v. D’Arcy
Citation: 2009 WY 30
Docket Number: S-08-0058
Appeal from the District Court of Platte County, the Honorable David B. Park, Judge.
Representing Appellant Hull: Frank J. Jones, Wheatland, Wyoming.
Representing Appellees D’Arcy and Dalton: Jack John C. Hoard, Casper, Wyoming.
Facts/Discussion: The appeal concerns the validity of a tax deed. Ms. Hull the former owner, contends that the tax deed is invalid because she did not receive the statutorily required notice prior to issuance of the deed. The district court granted summary judgment in favor of the tax deed grantee, Dalton, and the current owners of the property, D’Arcy. Ms. Hull and her husband owned a residential property in Guernsey. They did not pay the property taxes for 1999 and in 2000 the Platte County Treasurer conducted a tax sale of the property. Dalton paid the delinquent taxes and obtained a certificate of purchase to the property. In 2006, Dalton applied for and received a tax deed. He subsequently conveyed the property to the D’Arcys. They are the current owners of the property and have made improvements to the property since obtaining ownership. At the time that Dalton began the deed application process, the Hulls had separated and were living in different locations from one another. Ms. Hull contended she never received a copy of any of the letters sent by Dalton nor did she see the notice published in the paper. The district court appeared to conclude as a matter of law that Ms. Hull received actual notice of the forthcoming application for a tax deed based upon its finding that Mr. Hull was Ms. Hull’s agent for receipt of the mailed notice. The Court stated there was insufficient information indicating agency to justify the finding that Mr. Hull was Ms. Hull’s agent. The Court determined that a genuine issue of material fact existed regarding whether Ms. Hull could be found within Platte County upon exercise of due diligence. In Thompson-Green, the Court addressed a similar situation and ordered summary judgment to the title owners because the tax sale buyer relied upon service to the father and that the son living within Laramie County could have been found upon diligent inquiry.
Conclusion: When the Court considered Ms. Hull’s affidavit in the light most favorable to her, it concluded that a genuine issue of material fact existed regarding whether she could be found within the county upon the exercise of due diligence. Summary judgment in favor of Appellees was inappropriate.
[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.]
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: White v. Woods; Adamson v. Woods
Citation: 2009 WY 29
Docket Number: S-08-0078; S-08-0085
Appeal from the District Court of Albany County, the Honorable Jeffrey A. Donnell, Judge.
Representing Appellant Whites: Philip White, Jr., Laramie, Wyoming.
Representing Appellee Adamson: Pro se.
Representing Appellee Woods: Frank J. Jones, Wheatland, Wyoming.
Facts/Discussion: The Woods filed suit in district court seeking to quiet their title to several small pieces of property located in the interior of their ranch property. Among the defendants were Adamson and the Whites. The district court entered summary judgment against Adamson and the Whites. Their separate appeals were consolidated before the Court. Background: Tax deeds in Wyoming: There are many specific and detailed requirements applicable to tax sales and tax deeds. Particularly relevant here are the requirements that, upon applying for a tax deed, notice must be provided in a specified manner to the person in whose name the taxes were assessed, to the person in actual possession or occupancy of the property, to the record owner, and to mortgagees. After receiving a tax deed, the tax-sale purchaser must file the notices and proofs of service to be recorded as instruments affecting the conveyance of real property. Wyoming courts have required strict compliance with the statutory requirements and have declared tax deeds invalid for relatively minor deviations from the requirements. The problems facing tax deed purchasers are due in part to a strong policy of protecting the former owner’s rights to redeem and recover his property. In 1975, the legislature enacted provisions meant to promote more stability and better marketability for tax deeds. Adamson and the Whites purchased their lots thirty-five years ago and obtained their tax deeds nearly thirty years ago but have never taken possession of their lots. In contrast, the Woods have used the lots as part of their ranch. Their principle claim was that they had acquired title by adverse possession. When the Woods acquired their ranch, the tax deeds were of record. Because the Woods did not own the ranch when the lots were sold for taxes, it is not clear they should benefit from the policy favoring former owners and their rights to redeem and recover property. The Woods’ claims against Adamson and the Whites: The Woods filed for summary judgment stating they had acquired the property by the combination of a quit claim and a warranty deed. The Woods challenged the Adamson and Whites’ tax deeds on the basis of noncompliance with the statutory requirements for providing notice to interested parties. It is undisputed the Woods did not own or claim an interest in the property when the lots were sold at the tax sale or when Adamson and the Whites applied for their tax deeds, but the Woods appear to claim that they are entitled to challenge the tax deeds as successors. The question of whether summary judgment was precluded by the existence of genuine issues of material fact is intertwined with the issue of standing. After reviewing the record, the Court stated there remained the question of whether the Woods were successors in interest to the Kents. The Woods were not the owners at the time of the tax sale or tax deed, so the Court reviewed the record to determine whether they submitted facts adequate to show that they were prejudiced or injured and that a favorable court decision would provide them redress. The record was devoid of facts establishing that the Woods were the successors in interest to the Kents. Based on the record, Adamson was entitled to judgment as a matter of law because even if his tax deed was invalid, the Woods had no valid claim to the property. A court decision in their favor could not vest title in the Woods or otherwise redress their alleged injury. Statutes of limitation: The parties have disputed whether two different statutes of limitation bar the Woods’ challenge to the tax deeds. Wyo. Stat. Ann. § 34-2-132(a) or § 39-13-108(e)(vii)(D). By its plain language, the first statute applies only if the grantee has been in possession of the property for six months. The record demonstrated that the Whites never took possession of the lot, so the statute of limitation did not apply. The Whites claimed constructive possession but the Court stated that the Woods had been in possession of the land from the date of purchase and continuously since then, using it as part of their ranch activities. The second statute mentioned was a limitation on actions for the recovery of real property. The Woods’ action in the case was not one to recover the property since they were in possession of it. The Whites have never been in possession and the statute of limitation never commenced to run in favor of the Whites. It does not bar the Woods’ quiet title action. Payment of property taxes: The Whites asserted they have paid property taxes on the lot ever since the tax sale and insist that the payment of taxes must mean something to the law. The legislature has provided remedies for tax purchasers whose tax deeds are discovered or adjudged to be invalid.
Conclusion: The Court determined that the district court improperly granted summary judgment in favor of the Woods in their challenges to the tax deeds of Adamson and the Whites.
[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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Case Name: In re: MM
Citation: 2009 WY 28
Docket Number: S-08-0120
Appeal from the District Court of Park County, the Honorable Gary P. Hartman, Judge.
Representing Appellant MM: David M. Clark of Worrall & Greear, PC, Worland, Wyoming.
Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Elizabeth B. Lance, Assistant Attorney General.
Guardian Ad Litem MM, a minor: Andrea L. Earhart of McCarty and Reed, Cody, Wyoming.
Facts/Discussion: Father appealed from the adjudication order incorporating the jury’s verdict that the Child was abused while in his custody. Father claimed that the State’s failure to produce the recording of the conversation with the Kempe Children’s Center to the respondents in a timely manner violated the W.R.P.J.C. and the constitutional mandates set forth in Brady v. Maryland. Rule 3(b)(1) clearly required the State to notify the respondents of all information which tended to negate their involvement in the charged offense. Rule 3(c) required the State to promptly furnish any exculpatory information to the respondents and Rule 3(g) made the duty to disclose continuing. In the district court, the State claimed it was not required to produce the recording because it was privileged work product and not subject to discovery. The Court assumed for the purposes of the case that the evidence was not work product and was subject to disclosure. The record indicated that the recording was played for the jury and the information was available for respondents to use in cross examining the State’s witnesses and that Father referred to it in closing arguments. Father could have requested a continuance in order to fully prepare for its effective use on cross. As he did not, the Court did not feel the district court abused its discretion. In Brady, the United States Supreme Court held that suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of good faith or bad faith of the prosecution. Father had the burden of proving the prosecution suppressed evidence, the evidence was favorable to the defense, and the evidence was material because it was reasonably probable that had the evidence been disclosed to the defense the result of the proceeding would have been different. In Thomas v. State, the Court concluded the defendant’s due process rights were not violated when the State revealed exculpatory evidence on the second and third day of trial because the defense was able to use the evidence for cross and argument during trial and did not request a continuance. In the instant case, the State produced the recording to the respondents the day before trial and it was played for the jury. The defense referred to it during opening statements, had the opportunity to cross examine and emphasized it in closing arguments. In addition, Father did not request a continuance. The Court considered the evidence in the context of the other evidence presented at trial. The strength of the evidence was reduced because the doctor on the recording did not examine the child at the time of the alleged abuse. His testimony would have been limited to a review of the photographs or medical records. The Court could not conclude that there was a reasonable probability that had the evidence been disclosed to the defense in a timelier manner, the result of the proceeding would have been different.
Conclusion: The juvenile court properly addressed, pursuant to the Wyoming Rules of Procedure for Juvenile Courts, the State’s failure to disclose the evidence by ordering production of the information to Father. In light of the State’s production of the evidence to Father prior to trial and the strength of the State’s case, the Court concluded that Father failed to show a violation of his due process rights.
[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.]
