Summary 2009 WY 59

Summary of Decision issued April 29, 2009

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

Case Name: VanKooten v. State

Citation: 2009 WY 59

Docket Number: S-08-0205

Appeal from the District Court of Laramie County, the Honorable Michael K. Davis Judge.

Representing Appellant VanKooten: Dion J. Custis of Cheyenne, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Paul S. Rehurek, Senior Assistant Attorney General.

Facts/Discussion: VanKooten entered a conditional guilty plea to felony possession of a controlled substance, reserving the right to appeal the district court’s denial of his motion to suppress the cocaine evidence discovered during a search of his vehicle.

VanKooten claimed the district court erred in concluding that the trooper had reasonable suspicion of criminal activity to detain him for a canine sniff of the exterior of his vehicle after the lawful traffic stop had concluded. The Court noted that VanKooten invoked Article 1, Section 4 of the Wyoming Constitution as grounds for suppressing the drug evidence arguing the detention was nonconsensual. However, the instant case was about reasonable suspicion, not consent. VanKooten also attacked the reliability of an anonymous tip concerning his drug activities. There was no evidence in the record concerning the alleged anonymous tip, so the Court would not consider that aspect of his argument. The Court then turned its attention to whether VanKooten’s brief detention for the canine sniff violated the Fourth Amendment. After reviewing the record, the Court agreed with the district court that the trooper possessed reasonable suspicion to detain VanKooten including: the trooper had information that the driver of the car was transporting drugs between Colorado and Torrington and dealing drugs in Torrington; the car was spotted five miles south of Torrington headed south; when the trooper first saw the car, it was traveling 65 mph; and when the trooper passed the car, and turned around, it sped up to 125 mph. The Court stated the aggregate of the factors provided the trooper with an objectively reasonable basis for suspecting that VanKooten was involved in criminal activity, thus warranting further detention pending the canine sniff of his vehicle.

Conclusion: The Court found that reasonable suspicion existed justifying VanKooten’s detention. The Court held that the district court properly denied VanKooten’s motion to suppress.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/c9znwt .

[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 2009 WY 58

Summary of Decision issued April 28, 2009

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

Case Name: Steele v. Neeman

Citation: 2009 WY 58

Docket Number: S-08-0117

Appeal from the District Court of Campbell County, the Honorable Dan. R. Price II, Judge.

Representing Appellant Steele (Mother): Christopher M. Wages of Goddard, Wages & Vogel, Buffalo, Wyoming.

Representing Appellee Neeman (Father): DaNece Day and Christopher R. Ringer of Lubnau & Bailey, PC, Gillette, Wyoming.

Facts/Discussion: Mother sought an upward modification of child support against Father. The district court modified the child support amount but downward to less than half the statutorily determined presumptive amount. The district court cited the child’s poor relationship with the father which included lack of visitation as the reason for deviation.

Deviation from presumptive child support amount: Wyo. Stat. Ann. § 20-2-304 established a method for determining child support amounts based on the parents’ incomes. The amount determined is rebuttably presumed to be the correct amount of child support to be awarded in any proceeding to establish or modify temporary or permanent child support amounts. Section 20-2-307(b) established the method by which the determining court might deviate from the presumptive amount. As the Court stated in Sharpe, lack of visitation and negative feelings between a noncustodial parent and child are not proper factors that a court may consider in determining whether to deviate from the presumptive support guidelines. The amount of time a child spends with each parent is relevant only in regard to calculating the expenses each parent incurs when physically in custody of a child.

Conclusion: A parent is supposed to be a financial resource for his/her child. It is a responsibility of parenthood. This responsibility exists regardless of visitation or negative feelings between parent and child. The district court erred when it used those criteria as the basis for deviating from the established presumptive child support.

Reversed and remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/d6ykwj .

[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 2009 WY 57

Summary of Decision issued April 21, 2009

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

Case Name: Williams v. State ex rel., Wyoming Workers’ Safety & Comp. Div.

Citation: 2009 WY 57

Docket Number: S-08-0034

W.R.A.P. 12.09(b) Certification from the District Court of Laramie County, the Honorable Edward L. Grant, Judge.

Representing Appellant Williams: Donal J. Sullivan of Sullivan Law Offices, PC, 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.

Representing Amicus Curiae Watchtower Bible and Tract Society of New York, Inc.: Paul D. Polidoro and Keturah A. Dunne, Associate General Counsel, Patterson, New York; Diana Sampson Rhodes of Rhodes Law Firm, LLC, Cheyenne, Wyoming.

Facts/Discussion: Sharon Williams sought worker’s compensation death benefits as the surviving spouse of Howard Williams who died from injuries suffered in a work-related car accident. The Division denied the claim on the basis that Mr. Williams refused reasonable and necessary medical treatment. The OAH also denied benefits stating that Mr. Williams had forfeited all right to benefits when he refused to allow the use of blood products to treat his injuries because of his religious beliefs.

Constitutionality of § 27-14-407: Procedurally, Mrs. Williams is barred from raising the constitutional claim in the context of the case because administrative agencies have no authority to determine the constitutionality of a statute. Neither the district court nor the Supreme Court has jurisdiction on appeal of an agency action to consider it.

Substantial evidence: The decisive question was whether the hearing examiner’s determination that Mr. Williams’ decisions ran afoul of § 27-14-407 was supported by substantial evidence viewed in light of the record as a whole. The Court found the record evidence did not adequately support such a determination. The statute established two forms of conduct by which a claimant forfeits compensation: if a claimant engages or persists in an unsanitary or injurious practice which tends to imperil or retard his recovery or second, if a claimant refuses to submit to medical or surgical treatment reasonably essential to promote his recovery. In the instant case, the hearing examiner determined Mr. Williams had engaged in both forms by his refusal to allow the use of blood products to treat his lacerated spleen. The Court disagreed noting that the critical evidence consisted of the Doctor’s testimony in which she repeatedly stated that she could not say whether Mr. Williams would have survived had blood products been transfused.

Conclusion: The constitutionality of §27-14-407 was not properly before the Court. As for the evidentiary issue; the Division needed to present positive evidence that Mr. Williams failed to survive because of his refusal to accept foreign blood products. It did not do so. The determination granting forfeiture of benefits was reversed. The Case was remanded to the district court with instructions to reverse the order of the OAH and enter the order that the Division award the applicable death benefits to Mrs. Williams.

Reversed and remanded.

J. Golden delivered the decision.

C.J. Voigt dissented: The Justice stated that the underlying facts were not in dispute and there was not even a question as to whether the employee refused to submit to medical or surgical treatment. The only question was whether the treatment he refused was reasonably essential to promote his recovery. While the treating physician was not willing to say that the employee’s refusal to accept blood products and his delay of surgery until his son’s arrival, were the difference between life and death, she said everything short of that. The statutory test established by the legislature was not whether the refused treatment would have saved the employees life but rather whether the treatment was reasonably essential to promote his recovery.

Link: http://tinyurl.com/cu9hcd .

[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 2009 WY 56

Summary of Decision issued April 21, 2009

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

Case Name: Kolar v. R & P, Inc.

Citation: 2009 WY 56

Docket Number: S-08-0116

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

Representing Appellant Kolar: Richard J. Mulligan of Mulligan Law Office and Heather Noble, Jackson, Wyoming.

Representing Appellee R & P, Inc.: Stefan J. Fodor of Fodor Law Office, PC, Jackson, Wyoming.

Facts/Discussion: Kolar was employed by R & P, Inc. from 1997 to 2004. Kolar experienced some health problems and surgeries during his employment. After that, he was fired from his job premised on his poor performance as an assistant manager. Kolar filed a claim with the Dep’t of Employment Fair Employment Program (DEFEP) alleging that his discharge was based on R & P’s perception that he was disabled. DEFEP’s attempt to conciliate Kolar’s claim failed and the case was referred to the EEOC. The EEOC issued a Notice of Right to Sue and informed Kolar that it was ending its processing of the claim. Kolar then filed the instant suit in Teton County and the district court declined to address the claim on the basis that Kolar had failed to exhaust his administrative remedies.
In Hoflund, the Court restated the law applicable to the instant case. If another remedy for violation of a social policy which resulted in the discharge of an employee exists, no separate court action will lie. In Allen, the Allens argued that even though their employment was “at will”, their discharge was in violation of public policy and therefore they could assert a tort claim for damages. The Court concluded that both the Wyoming Fair Employment Practices Act and Title VII of the Civil Rights Act of 1964 provided a remedy for discrimination on the basis of sex.
DEFEP has adopted rules and regulations in furtherance of its statutory authority. Section 4(h) provides that if a determination is made that the conciliation process has failed either party may request the complaint be referred to an independent hearing officer for a hearing. Kolar failed to avail himself of the fair hearing process.

Conclusion: The district court did not err in declining to address Kolar’s claim because he had not exhausted his administrative remedies.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/ceuvgm .

[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 2009 WY 55

Summary of Decision issued April 21, 2009

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

Case Name: Riverview Heights Homeowners’ Ass’n v. Rislov

Citation: 2009 WY 55

Docket Number: S-08-0126

Appeal from the District Court of Fremont County, the Honorable Norman E. Young, Judge.

Representing Appellant Riverview Heights: Kelly A. Rudd, Baldwin, Crocker & Rudd, PC, Lander, Wyoming.

Representing Appellee Rislov: Pamala M. Brondos and Peter C. Nicolaysen, Nicolaysen & Wilking, PC, Casper, Wyoming.

Facts/Discussion: Riverview Heights, a residential subdivision northwest of Riverton, filed suit against Rislov seeking to enforce an amendment to the subdivision’s restrictive covenants. Riverview Heights contended the district court erred in ruling that the 2004 Amended Covenants were invalid as a matter of law.
Restrictive covenants are interpreted according to principles of contract law. The Court focused on Paragraph 14 which stated the covenants were irrevocable and perpetual unless amended by instruments executed and acknowledged in the form prescribed for the execution of deed by 75% of the owners of the total acreage contained in the tract. Riverview Heights contended that the 2004 Amendment complied with the requirements because the officers signed the document and their signatures were notarized. The Court was unconvinced because the language asked for the signatures of 75% of the owners.
The Court referred to Goglio v. Star Valley Ranch Ass’n making note that homeowners associations serve three primary functions: levying and collecting assessments; managing and maintaining common property for the benefit of residents; and enforcing covenants that govern developments. The Court concluded that regardless of any inherent powers of the Association’s officers, they cannot amend the covenants without the requisite approval of 75% of the lot owners.
Attached to the 2004 Amendment were signature pages purporting to reflect approval of the amendment. Several of the pages were not notarized. Those not notarized were not properly executed and therefore were ineffective as approvals of the Amendment. Subtracting out the ineffective approvals, only 64% of the total owners approved the Amendment.

Conclusion: The Court determined the 2004 Amendment to the restrictive covenants was invalid. It affirmed the district court’s decision granting summary judgment against the Association.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/ddt4p9 .

[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 2009 WY 54

Summary of Decision issued April 16, 2009

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

Case Name: Bowser v. State

Citation: 2009 WY 54

Docket Number: S-08-0061

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

Representing Appellant (Plaintiffs): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel.

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

Facts: Appellant appeals his convictions on two counts of immoral or indecent acts with a minor in violation of Wyo. Stat. 14-3-105 (2005). He challenges the district court’s decision permitting the alleged victim, a minor child, to testify at trial by video deposition. He also contends that the seating arrangement at the video deposition violated his constitutional right to confront witnesses against him because he was prevented from seeing the witness while she testified.

Issue: Whether there was a violation of Appellant’s right to confront witnesses against him as a result of failure to follow the requirements of Wyo. Stat. Ann. § 7-11-408.

Holdings: As a general proposition, in criminal cases, witness testimony should be presented by oral testimony of the witness at trial. W.R.Cr.P. 26(a) provides: “In all trials, the testimony of witnesses shall be taken orally in open court, unless otherwise provided by statute, or by these rules, by the Wyoming Rules of Evidence, or by other rules adopted by the Supreme Court of Wyoming.” The particular statute at issue in this case is Wyo. Stat. Ann. § 7-11-408 which permits videotaped depositions in sexual assault cases when the victim is a child less than twelve (12) years of age. The statute also establishes a procedure to be followed.
It is undisputed that, in this case, the alleged victim was a child under the age of twelve. It is also undisputed that Appellant was charged with incest and sexual assault. Before ordering that deposition, however, the court “shall find” that the testimony is “relevant and material,” that the “best interests of the child” would be served by permitting the deposition, and that “[a] potential physical or psychological harm to the child is likely to occur . . . which would effectively render the child incapable to testify at the trial.” The court in this action made no specific findings and there was no evidence presented to the court by the State in support of its request to take the deposition.
It appears to be undisputed that the seating arrangement at the deposition resulted in Appellant having, at best, an obstructed view of the witness during her testimony. Pursuant to Wyo. Stat. 7-11-408(d)(i), denial of face-to-face confrontation is permitted only if two conditions are met. The first is that the defendant must be “alleged to have inflicted physical harm or is alleged to have threatened to inflict physical harm upon the child.” Here, it is questionable whether this requirement was met. There is no specific allegation of physical harm in the Information and the State did not allege that Appellant committed or threatened physical harm to the witness in support of its motion to permit the videotape deposition.
The second requirement of the statute that must be satisfied is that “physical or psychological harm to the child is likely to occur if there is a face-to-face confrontation of the child by defendant.” Wyo. Stat. 7-11-408(d)(i). The trial court must also find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis. Here, the district court did not make any finding that this requirement had been satisfied. More significantly, there was no evidence in the record that would support that finding. The State did not present any evidence on the issue. In the absence of such a finding, and evidence to support it, the Appellant was denied his right of face-to-face confrontation.
Use of the deposition in lieu of trial testimony is governed by Wyo. Stat. Ann. § 7-11-408(e). Before the deposition may be introduced at trial the judge must find, after a hearing, that “[a] potential physical or psychological harm to the child is likely to occur if the child is required to testify which would effectively render the child incapable to testify at the trial.” The court made no specific findings and there was no evidence presented by the State in support of its request to use the deposition in lieu of the witness’s testimony. According to the State: “the district court has implicitly adopted the States [sic] uncontroverted showing that a videotape deposition was both in the witness’s best interest as well as that she would be effectively rendered incapable of testifying.” Even if we were to agree that “implicit findings” were sufficient to satisfy the statutory mandate, there is no evidence in the record to support those findings. In the absence of any evidence satisfying the requirement of Wyo. Stat. Ann. § 7-11-408(e)(iv), the district court erred in permitting DM’s testimony to be presented by video deposition.
Having found that there was a failure to comply with Wyo. Stat. Ann. § 7-11-408, it must be determined whether the error was harmless. The State bears the burden of establishing that an error violating a defendant’s constitutional right to confront adverse witnesses is harmless beyond a reasonable doubt. In conducting the analysis, the witness’s testimony must be disregarded in its entirety. “An assessment of harmlessness cannot include consideration of whether the witness’ testimony would have been unchanged, or the jury’s assessment unaltered, had there been confrontation; such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence.” Any attempt to determine the impact of the testimony had it occurred in open court or had Appellant been afforded face-to-face confrontation would “involve pure speculation.” Absent this testimony, Appellant’s conviction cannot stand. At most, the remaining evidence establishes that Appellant masturbated in his home, and that he viewed pornography, but it does not establish that the child was present during those incidents. Neither activity is sufficient to sustain convictions for indecent acts with a minor if the minor is not present. It is impossible for the Court to conclude beyond a reasonable doubt that the violations of Appellant’s Sixth Amendment rights were harmless.

Conclusion: The State failed to satisfy the requirements of Wyo. Stat. § 7-11-408 because it failed to provide any evidentiary foundation for the restricted seating arrangement at the deposition or use of the video deposition at trial.

Reversed and remanded.

J. Burke delivered the opinion for the court.

Link: http://tinyurl.com/cbljoc .

[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]

CLE Opportunity

The 2009 Children's Justice Conference will be held at the Little America Hotel & Resort Conference Center in Cheyenne on June 23-25. Conference registration is free and open to all individuals involved in the Juvenile Courts, Child Welfare and Juvenile Justice Systems in Wyoming.

To register online go to: http://gal.state.wy.us and click on "Annual Conference" tab.

Contact Little America to make hotel reservations; tell them you are attending the "Children's Justice Conference."

Outlook Attachment Reminder Script

Here's a great tip from the April 9, 2009 Colorado Bar Association weekly e-newsletter, E-Brief. Thank you to Reba Nance for permission to pass this on to you.

---

Outlook Attachment Reminder script

We’ve all done it. You send an e-mail to someone, saying that you’ve included an attachment. But you forget to attach it. Wouldn’t it be nice if next time, Outlook let you know that, “It appears that you meant to send an attachment, but there is no attachment to this message," and offer you the opportunity to attach the missing file?

It takes 5 minutes to set this up. Simply follow the instructions here. Don’t worry, all you have to do is cut-and-paste. Here’s how to set up an Outlook macro using Visual Basic that will accomplish this for you. This tip was developed by Mark Bird, and can be found at http://mark.bird.googlepages.com/home.

Outlook Attachment Reminder

This Outlook macro will politely remind you to attach a file if it finds the word "attach" in your email and no actual attached file.

Adding a macro to Outlook is easy. Just copy everything below starting with "Private Sub" through "End Sub." In Outlook, select the "Tools | Macro | Visual Basic Editor" menu option. You may need to expand the project by clicking the plus signs under Project1 until you see ThisOutlookSession, and then double-click it. Click into the big white empty page and hit Paste.

Click Save and you'll be all set. If you've previously disabled macros you'll need to enable them.

*Note: Outlook Express doesn't support macros.

*Update: Outlook counts files used in Signatures as attachments. If your signature uses one or more files, find the line intStandardAttachCount = 0 and make it equal the number of files in your signature. Thanks to Kevin Rowe for pointing this out.

Copy and Paste this:

Private Sub Application_ItemSend(ByVal Item As Object, Cancel As Boolean)

Dim m As Variant

Dim strBody As String

Dim intIn As Long

Dim intAttachCount As Integer, intStandardAttachCount As Integer

On Error GoTo handleError

'Edit the following line if you have a signature on your email that includes images or other files. Make intStandardAttachCount equal the number of files in your signature.

intStandardAttachCount = 0

strBody = LCase(Item.Body)

intIn = InStr(1, strBody, "original message")

If intIn = 0 Then intIn = Len(strBody)

intIn = InStr(1, Left(strBody, intIn), "attach")

intAttachCount = Item.Attachments.Count

If intIn > 0 And intAttachCount <= intStandardAttachCount Then

m = MsgBox("It appears that you mean to send an attachment," & vbCrLf & "but there is no attachment to this message." & vbCrLf & vbCrLf & "Do you still want to send?", vbQuestion + vbYesNo + vbMsgBoxSetForeground)

If m = vbNo Then Cancel = True

End If

handleError:

If Err.Number <> 0 Then

MsgBox "Outlook Attachment Reminder Error: " & Err.Description, vbExclamation, "Outlook Attachment Reminder Error"

End If

End Sub

Please feel free to contact Reba Nance at reban@cobar.org if you have any questions.

Summary 2009 WY 53

Summary of Decision issued April 13, 2009

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

Case Name: Krafczik v. Morris

Citation: 2009 WY 53

Docket Number: S-08-0003; S-08-0079

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

Representing Appellant Krafczik: Steve C.M. Aron, Aron and Hennig, LLP, Laramie, Wyoming.

Representing Appellee Morris: Stacy L. Rostad and Jason M. Tangeman, Anthony, Nicholas & Tangeman, LLC, Laramie, Wyoming.

Facts/Discussion: In 2004 Mr. Allan Kraczik executed a Warranty Deed conveying to Morris an interest in a rental property he owned in Laramie, Wyoming. The deed established Krafczik and Morris as owners of undivided one-half interests as joint tenants with rights of survivorship. In late 2004, Krafczik’s cousin, Joseph Krafczik and his wife were appointed as guardians of Mr. Krafczik. The Krafcziks filed suit on behalf of Mr. Krafczik against Morris claiming that she obtained the property interest through undue influence. While the litigation was pending, the Krafcziks executed a Quitclaim Deed with the express purpose of terminating her rights of survivorship. They filed a motion for approval of that conveyance in their conservatorship case.

Undue influence: The Krafcziks claimed the district court’s factual findings were contrary to the evidence. The Court reviewed the record and noted the evidence could have supported the existence of a confidential relationship but it could have supported the contrary as well. However, there was very little evidence that Mr. Krafczik’s mental condition left him dependent upon Morris. In contrast, there was substantial evidence to support the trial court’s findings that he did not depend upon her in completing his daily activities, his financial affairs, or his personal affairs.
Motion at the close of plaintiffs’ case: After the Krafcziks presented their case during the bench trial, Morris made a motion for judgment on partial findings arguing that the evidence was insufficient to establish the existence of a confidential relationship between Mr. Krafczik and Morris. The district court denied the motion explaining that the Krafcziks had presented sufficient evidence to survive the motion for judgment but the court had not concluded that a confidential relationship existed.
Court approval of a conservator’s property conveyance: The Krafcziks as conservators executed a Quitclaim Deed by which they attempted to convey Mr. Krafczik’s joint tenancy to himself as a tenancy in common in an effort to destroy Morris’ right of survivorship. It was undisputed they did not receive approval of the transaction from the district court. The Court considered the question of whether they should have. The deed was executed as an independent act regardless of the outcome of the litigation and not in furtherance of the prosecution or defense of any claim. The Quitclaim Deed represented an incomplete conveyance because the Krafcziks executed it prior to obtaining court approval and Mr. Krafczik died before the district court confirmed the sale.

Conclusion: There was substantial evidence to support the district court’s conclusion that there was not a confidential relationship between Morris and Mr. Krafczik. The Quitclaim Deed was an incomplete conveyance because the Krafcziks executed it prior to obtaining the district court’s approval and Mr. Krafczik died before the district court confirmed the sale.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/cbzooc .

[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 2009 WY 52

Summary of Decision issued April 13, 2009

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

Case Name: Short v. State

Citation: 2009 WY 52

Docket Number: S-08-0014

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

Representing Appellant Short: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, State Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny L. Craig, Assistant Attorney General.

Facts/Discussion: Appellant sought review of the district court’s denial of his motion to dismiss based on the State’s alleged violation of his rights under the Interstate Agreement on Detainers.

IAD processes can be generated by the state wherein charges are pending or by the person incarcerated in another jurisdiction. If the procedures are brought by the state, the person must be brought to trial within 120 days of that person’s arrival in the receiving state. If initiated by the person, he must be brought to trial within 180 days of delivery of his request for disposition. The parties agreed that Short initiated the proceedings but he argued in his brief that Wyoming authorities initiated the procedures. The Court applied the 180 day period because it was consistent with the facts and it would not consider an argument not argued below. The period begins to run when the prisoner has delivered his request for disposition. On November 21, 2006, Short gave his IAD paperwork to Colorado officials for forwarding to Wyoming. On January 8, 2007, the paperwork was received by Wyoming officials. Short delayed the Wyoming proceedings by seeking a continuance of the preliminary hearing from March 1, 2007 to May 4, 2007. Short provided no facts from which the Court could conclude that the length of delay was unreasonable or that it should not be attributed to him. The Court agreed with the State, that the trial was timely held on June 25, 2007.

Conclusion: Under Wyo. Stat. Ann. § 7-15-101 (Article III), the jury trial must commence within 180 days of the date the prisoner has delivered his request for disposition to the prosecutor and court of the charging state. Unreasonable time delays caused by the custodial state do not toll the statutory period. The period is tolled for any amount of time attributable to the prisoner’s conduct that renders him unavailable for trial.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/dcxkea .

[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.]

Free Online Seminar: Enhance Your Research Experience with Customizable Westlaw

For those of you who have Westlaw access, here's a free training opportunity from Westlaw. And if you don't have Westlaw access in your office or home, you can use the law library's free public Westlaw access!

---

Westlaw has a whole new level of customization to enhance your Westlaw experience! Now you can build and rearrange the content on your Westlaw tabs so it fits your workflow. It's just another way Westlaw helps you quickly access the information you need so you get better results faster.Sign up for this informative online seminar that will show you how to do the following to customize your Westlaw experience:

• Drag and drop databases, database groups, and tabs so the ones you use most often are right where you want them.
• Add or delete content, rename tabs, rename database groups, select display options and copy "shortcut" tools to another tab.
• Create customized tabbed pages from scratch
• E-mail personalized pages to colleagues and customers
• Write on-screen sticky notes and reminders while doing your research

Plus, since it's a live, interactive seminar, you'll have a chance to ask questions. Please feel free to forward this e-mail to colleagues that may be interested in the session.

Registration is simple. Select a day and time that works best for you, then click on it to sign up.

Webinar Times
Tuesday, April 14, 2009 @ 10:00 a.m. Central Time
Thursday, April 16, 2009 @ 2:00 p.m. Central Time

Please register by April 13.

If you're not available for this seminar, or if you'd prefer a one-on-one teleconference regarding your specific research needs, please call 1-800-328-0109 to speak with your dedicated attorney trainer for training.

Collection Update #3

The latest load of boxes from storage was tiny--only about 200 boxes. We're unpacking the current state statutes for the remaining states. The next batch that we will get in for unpacking will be the reporters. All you book lovers will again be able to embrace the Pacific Reporter. However, we won't be getting them until after May 1, 2009. Be patient for just a bit longer.

Here is what we have on the shelves so far: treatises, Wyoming legislative information, current and historic state statutes, ALRs, CFRs, and Federal Registers.

Summary 2009 WY 51

Summary of Decision issued April 9, 2009

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

Case Name: Inman, Jr., v. Williams, f/k/a Inman

Citation: 2009 WY 51

Docket Number: S-08-0113

Appeal from the District Court of Lincoln County, the Honorable Norman E. Young, Judge.

Representing Appellant Inman, Jr.: John D. Bowers and Joshua T. Smith of Bowers Law Firm, PC, Afton, Wyoming.

Representing Appellee Williams: William L. Combs of Combs Law Office, LLC, Evanston, Wyoming.

Facts/Discussion: Father appealed from a district court order which settled several matters that were in dispute between Father and Mother. The Court reviewed this matter previously in Inman I. Although two years have passed, the problems between the parties with respect to child visitation still have not been fully resolved. The instant proceedings were initiated by Father’s petition to relocate along with the children to South Carolina.

The Court noted an important distinction between the circumstances of the appeal in Inman I and those in the instant case. In the instant case, the district court order established a concrete visitation schedule and delayed but did not deny Father’s ability to relocate to South Carolina. Two years have passed with the parties no closer to resolution of their disputes. The Court noted that they did not intend to create a precedent which suggested that by merely being obdurate for a long enough period of time, a party may elevate an “insubstantial right” to a “substantial” one. It appears that Father side-stepped his obligations as imposed by the district court and his decision to move to South Carolina would further frustrate Mother’s rights to visitation. Although he has flaunted court orders, he cannot be denied his constitutional right to relocate. The Court concluded that the order from which the appeal was taken was an appealable final order as contemplated by W.R.A.P. 1.05.
The Court’s focus was on the reinstatement of Mother’s longstanding, but unenforced rights to visitation and a modification of those rights so as to ensure and facilitate her rights in light of Father’s desire to relocate. Father contended the district court erred in ordering him to post a $50,000.00 bond if he chose to move. The Court noted the record of Father’s behavior warranted the imposition of the bond. Father contended the district court violated his fundamental rights by negating his selection of a counselor for the children. The argument was not supported by the record or by cogent argument or pertinent authority. Father contended that the district court erred when it ordered the potential re-opening of Mother’s petition to modify custody in the event Father continued to flaunt the orders of the court. The Court viewed the district court’s orders in this instance as a warning to Father. Father contended that the district court abused its discretion in requiring him to pay Mother a per diem when visiting the children. The Court stated it was inclined to embrace a principle established in Nebraska that there is no immutable standard for the allocation of travel expenses for the purpose of visitation; instead the determination of reasonableness is made on a case-by-case basis. Father contended the district court erred in permitting the GAL to indirectly testify at a hearing. Because the GAL’s participation in this case was unusually comprehensive, her participation in the proceedings did not undermine the validity of the court’s order. The Court reviewed the record in consideration of the best interests of the children with respect to visitation and concluded the determination was supported by the record. Father contended the district court erred in not requiring Mother to pay child support. The parties previously stipulated that neither would pay the other support and that stipulation remained in full force and effect. The Court declined to impose sanctions as requested by Mother because it determined that the order from which the appeal was taken was an appealable order.

Conclusion: None of the provisions of the district court’s order constituted an abuse of discretion nor were any of its provisions invalid as a matter of the law.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/cgfat7 .

[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 2009 WY 50

Summary of Decision issued April 9, 2009

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

Case Name: Mendoza v. Gonzales

Citation: 2009 WY 50

Docket Number: S-08-0059

Appeal from the District Court of Carbon County, the Honorable Wade E. Waldrip, Judge.

Representing Appellants Mendoza and Cano: William L. Hiser and Kelly N. Heck of Brown & Hiser LLC, Laramie, Wyoming.

Representing Appellee Gonzales: Thomas A. Thompson and Brandon W. Snyder of MacPherson, Kelly & Thompson, LLC, Rawlins, Wyoming.

Facts/Discussion: The matter involves a family dispute over the disposition of certain trust property. Mendoza and Cano claim that their brother Gonzales wrongfully induced them to disclaim their interest in a large portion of the trust property.

Gonzales transferred property owned by the Trust to himself individually so § 4-10-802(b) controlled. The transactions are voidable unless one of the exceptions applies. The only applicable exception is (b)(iv) regarding consent. The record was clear that Mendoza and Cano signed the documents indicating their consent. The Court reviewed whether the district court erred in its finding that Mendoza and Cano were aware of their rights and the material facts surrounding the breach of trust. Both Mendoza and Cano had significant experience working with legal and business documents.
The Court then considered the facts in light of whether the appellants’ consent was obtained by improper conduct by the appellee. Mendoza and Cano did not point to any improper conduct, rather they provided a list of duties that Gonzales breached while acting as trustee. The Court stated the breach of duty arguments were immaterial to the question as the appellants waived their rights to any of the trust assets other than cash. The only alleged breach that may have had bearing on the validity of the appellants’ consent was the alleged breach of the duty to inform and report. However, Mendoza and Cano failed to call the Courts’ attention to any fact that Gonzales deliberately or wrongfully hid.

Conclusion: The Court’s review of the record revealed that the district court’s findings were not clearly erroneous. Gonzales entered into transactions favoring his personal interests over those of Mendoza and Cano but the Court affirmed upholding those transactions because the appellants consented to them in writing. The Court also sustained the district court’s conclusion that the appellants were not wrongfully induced to consent to the transactions or deprived of their ability to understand their rights or the material facts surrounding their consent.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/cs4fs2 .

[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 2009 WY 49

Summary of Decision issued April 8, 2009

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

Case Name: Hernandez v. State

Citation: 2009 WY 49

Docket Number: S-08-0229

Appeal from the District Court of Natrona County, the Honorable W. Thomas Sullins, Judge.

Representing Appellant Hernandez: Mark Hernandez, pro se.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny L. Craig, Assistant Attorney General.

Facts/Discussion: Hernandez appeals the denial of a motion to correct an illegal sentence and seeks credit for pre-sentence confinement. Hernandez was sentenced for the felony crime of conspiracy to deliver a controlled substance. As a result, he was an inmate at the CRC in Casper. He later was charged with failing to return to CRC after a work assignment and received a sentence to run concurrently with the drug conspiracy.

A criminal defendant is entitled to credit against his sentence for the time he was incarcerated prior to sentencing, provided that the confinement was due to his inability and failure to post bond for which he was awaiting disposition. As in the instant case, a defendant is not entitled to credit for time spent in custody when his confinement would have continued despite his ability to post bond.

Conclusion: The district court did not err in denying Hernandez’s motion because he was not entitled to credit against his sentence for pre-sentence confinement.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/bvhdzf .

[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 2009 WY 48

Summary of Decision issued April 7, 2009

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

Case Name: Board of Professional Responsibility, Wyoming State Bar v. Sue Davidson

Citation: 2009 WY 48

Docket Number: D-08-0003

Order Suspending Attorney from Practice of Law and Assessing Costs

The matter came before the Court upon a Report and Recommendation for Discipline filed September 19, 2008, by the Board of Professional Responsibility for the Wyoming State Bar. The Court reviewed the Board’s record and transcript of the hearing before the Board, read the parties’ briefs and heard oral argument. The Court concluded that Davidson violated the professional conduct rules by clear and convincing evidence as they relate to the allegation that Judge Arnold participated in improper ex parte communications with opposing counsel.

The Court ordered: That the Report and Recommendation be approved, confirmed and adopted. That Davidson be suspended from the practice of law for two months and that she pay to the Board, $6,676.67 plus $1,000.00 for an administrative fee.

C.J. Voigt delivered the order for the court.
J. Golden would have reduced the suspension to one month.
Judge Donnell sat in for J. Burke who recused himself in the matter.

Link: http://tinyurl.com/d99nc7 .

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summary 2009 WY 47

Summary of Decision issued April 2, 2009

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

Case Name: Robinson v. State, ex rel., Wyoming Workers’ Safety & Comp. Div.

Citation: 2009 WY 47

Docket Number: S-07-0277

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

Representing Appellant Robinson: Megan Overmann Goetz of Pence and MacMillan LLC, Laramie, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General; Kristi M. Radosevich, Senior Assistant Attorney General.

Facts/Discussion: Robinson worked as a pipe-fitter and welder for 25 years. He developed respiratory problems that he relates to his occupation. He sought medical benefits from the Division who determined that Robinson did not suffer from a work-related injury and denied benefits. Robinson visited his primary physician, Dr. Palmer, who referred him to a pulmonologist, Dr. Laura Brausch, who suggested he visit Dr. Cecile Rose at the National Jewish Hospital. The hearing officer was presented with all the medical records from the doctors.

Evidentiary issues: The Court noted that the decision essentially came down to a determination of whether to accept Dr. Brausch’s opinion or Dr. Rose’s opinion. Robinson argued that the hearing officer was unjustified in relying on Dr. Rose’s medical opinion. The Court stated the evidence against Dr. Rose’s opinion was not overwhelming. Robinson’s testimony in conjunction with Dr. Brausch’s testimony and records did not amount to overwhelming evidence in contradiction of Dr. Rose’s opinion.
Arbitrariness: The injury claimed by Robinson was a work-related lung disease. Dr. Rose refuted he had such a disease. Because the hearing officer accepted Dr. Rose’s opinion, there was no need to go any further in consideration of factors in § 27-14-603(a). The Court reviewed the order and the record and stated that although the hearing officer could have been clearer about why he believed Dr. Rose to be more persuasive than Dr. Brausch, the order was complete enough to assure that he had engaged in a reasoned analysis.
Otherwise not in accordance with law: Robinson proceeded on one theory – that he suffered an injury occurring over a substantial period of time. There was nothing in the argument that could be considered as properly alerting the hearing officer that he intended to proceed under any other alternate theory. The hearing officer did not err when he did not consider alternate theories of recovery on Robinson’s behalf.

Conclusion: The OAH decision denying benefits to Robinson was supported by substantial evidence. Dr. Rose took into account all relevant information in reaching her opinion that Robinson did not, to a degree of medical probability, suffer from a work-related lung disease. The decision and order are not otherwise arbitrary, capricious or not in accordance with law.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/c3wqae .

[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.]