Summary 2009 WY 120

Summary of Decision issued September 29, 2009

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

Case Name: Cellers v. Adami

Citation: 2009 WY 120

Docket Number: S-08-0110; S-08-0111

Appeal from the District Court of Johnson County, the Honorable John G. Fenn, Judge.

Representing Nora Cellers: Greg L. Goddard of Goddard, Wages & Vogel, Buffalo, Wyoming.

Representing Adami: Benjamin S. Kirven and Dennis M. Kirven of Kirven & Kirven, PC, Buffalo, Wyoming.

Facts/Discussion: This review of a summary judgment involves the interpretation of a marital settlement agreement. The primary issue was whether in that agreement the former wife relinquished her right as the named beneficiary to the proceeds of an investment account maintained by her former husband, now deceased.

Adami relied on Aetna Life Ins. Co. v. Bushnell arguing that the Court should apply it to the Cellers’ marital settlement agreement and hold that Nora Cellers relinquished her expectancy interest as the beneficiary by signing that agreement which contained language that set over to Stewart Cellers the investment account as his sole and separate property. Nora Cellers relied upon Costello v. Costello and stated that Costello appeared to have softened Bushnell’s implied renunciation rule in favor of a specific disclaimer rule. The Court noted in Wadsworth that the failure to distinguish properly between present property rights in insurance policies and the expectancies of beneficiaries has created confusion in interpreting property settlement agreements incorporated in divorce decrees and made difficult the court’s task of determining to whom insurance proceeds should be paid. There the court adopted a rule that to the extent no community property rights are invaded, the named beneficiary will generally be entitled to the proceeds. The Court commented on decisions from other states and noted that one of the rules that has been adopted was that the language must be an explicit waiver or relinquishment of the beneficiary’s interest. The Court agreed with those courts that hold the language in the property settlement agreement or divorce decree must reveal a specific and explicit waiver or relinquishment of the named beneficiary’s expectancy interest.

Conclusion: The Court held that under the unambiguous language of the marital settlement agreement, the former wife did not relinquish her right as the named beneficiary to the investment account proceeds; consequently, it reversed and remanded on that issue with directions that the district court enter judgment in favor of the former wife because further proceedings would serve no useful purpose.

Reversed and remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/ycgkrz2 .

[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 119

Summary of Decision issued September 29, 2009

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

Case Name: Anderson v. State

Citation: 2009 WY 119

Docket Number: S-09-0005

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

Representing Appellant Anderson: Diane Lozano, State Public Defender, PDP; Tina Kerin, Appellate Counsel; David E. Westling, 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; Jenny L. Craig, Assistant Attorney General.

Facts/Discussion: Anderson challenged her convictions on three counts of delivering marijuana to minors. She argued the State did not present sufficient evidence for the jury to conclude that she actually delivered the controlled substances to the minors.

Delivery can be accomplished by sharing or giving controlled substances to another. Testimony from the officers included the Appellant’s statement that she and the minors in the apartment had smoked marijuana that had come from her supply. The Court stated it was reasonable for the jury to conclude that Anderson had provided the marijuana to the minors.

Conclusion: The evidence supported the conclusion that Anderson supplied the marijuana. It was appropriate for the jury to conclude, based upon the evidence presented and the reasonable inferences which flowed from it, that the minors had smoked marijuana in the apartment that night and that Anderson provided it to them.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/yesr97a .

[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 118

Summary of Decision issued September 24, 2009

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

Case Name: Jacobs v. State, ex rel., Wyo. Workers’ Safety and Comp. Div.

Citation: 2009 WY 118

Docket Number: S-08-0255

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

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

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

Facts/Discussion: Jacobs injured his toe in a work-related accident in 1982. He received workers’ compensation benefits for a number of conditions related to the accident for many years including payment for treatment of chronic abdominal pain. In 2003, the Division entered a Final Determination denying further benefits for chronic abdominal pain. Jacobs challenged that action and the OAH determined that the claim was barred by the doctrine of collateral estoppel.

Claim barred under doctrine of collateral estoppel: Collateral estoppel applies in the administrative context. The Court considers four factors: whether the issue decided in the prior adjudication was identical with the issue presented in the present action; whether the prior adjudication resulted in a judgment on the merits; whether the party against whom collateral estoppel is asserted was a party or in privity; and whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. The Court stated it was clear that no prior adjudication had resulted in a judgment on the merits. The Court’s affirmance in Jacobs II sustained the denial of benefits for the knee and lung claims but allowed that benefits for Jacobs’ chronic abdominal pain had not been denied and no decision determining that issue had been formalized.
OAH jurisdiction: Jacobs asserted that the availability of benefits should have been determined under § 27-14-605, which governs modification of benefits previously awarded. The Court stated that the Division’s Final Determination denying benefits was not an effort to modify benefits relating to the original toe injury or retract or modify the previously-uncontested benefits paid in relation to the chronic abdominal pain. Instead, the Final Determination dealt with a new claim and was a separate administrative determination.

Conclusion: After reviewing the record on appeal, the Court was unable to say that a final decision was ever entered determining that Jacobs’ chronic abdominal pain was or was not, causally related to this original, compensable injury. Thus the OAH’s conclusion that Jacobs’ was estopped from raising the claim for benefits was not in accord with the law. The Court found that collateral estoppel does not preclude the Division from determining the compensability of benefits for the chronic abdominal pain. Finally, because the Division was not modifying an award of benefits, its denial of benefits was not subject to the requirements of § 27-14-605.

Reversed and remanded.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/ycyflkq .

[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 117

Summary of Decision issued September 23, 2009

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

Case Name: Snow v. State

Citation: 2009 WY 117

Docket Number: S-08-0222

Appeal from the District Court of Laramie County, the Honorable Edward L. Grant, Judge.

Representing Appellant Snow: Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel.

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

Facts/Discussion: Snow appealed from a felony stalking conviction. That conviction is one part of the complicated factual and procedural posture of the case.

Double jeopardy: There was no double jeopardy motion or objection below. The Court has previously held that the issue of double jeopardy is jurisdictional because it involves the power of the State to bring the appellant into court and therefore may be raised at any time. Snow contends that his right to protection against double jeopardy was violated when he was convicted and punished for the August 23, 2006 protection order violation and then was convicted and punished for stalking based on a course of conduct that included the same incident.
The Court noted first that the State was correct in its assertion that the felony stalking retrial was not a subsequent proceeding but a continuation of the earlier proceeding. The Court was left with the question of whether Snow could have initially been charged with both the violation of the protection order and felony stalking and whether once Snow was convicted of both, the crimes merged for the purposes of sentencing. If double jeopardy was violated, it had to have been in the sense of multiple punishments rather than subsequent prosecutions. The fact that a continuing course of conduct engendered several charges creates no impediment to multiple convictions and sentences. The fact the appellant was punished for violating a protection order did not prohibit his also being punished for felony stalking.
Lesser-included offense instruction: The elements of the crime of criminal entry are not a subset of the elements of felony stalking. The Court noted that it continues to follow the statutory elements test of Blockburger.
Questions submitted by jury: During deliberations, the jury sent a note to the judge asking a question. The Court has followed the rule that no party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury is instructed, stating distinctly the matter to which the party objects and the grounds of the objection. The Court allowed that the page in the exhibits folder that appeared to be a jury question and that the parties treated as such would suffice as the alleged error. The rule of law in the instant case was clear and unequivocal: criminal defendants are entitled to a jury trial with the jury as the sole fact-finder. Within that context, the Court considered whether the district court usurped the fact-finding role of the jury by identifying for it the evidence that the State contended amounted to the course of conduct underlying the stalking charge. The Court determined that the response invaded the province of the jury.
The Court stated the instant case was nothing like Heywood v. State. In Heywood the failure was that the verdict form was inadequate. In the instant case, the given instructions and the verdict form were appropriate. The district court’s error was not harmless. Snow had a constitutional right to have the facts of the case determined solely by the jury. The fact that one jury had already failed to convict him of stalking based upon the same evidence and that the jury indicated in its question that it was unsure of what facts made up the course of conduct necessary to find the appellant guilty supported the reasonable probability that without the judge’s inappropriate evidentiary guidance, the jury would not have reached the verdict that it did.

Conclusion: Snow’s constitutional right against double jeopardy was not violated by the district court’s failure to dismiss the stalking charge. The retrial after a mistrial did not invoke subsequent jeopardy and Snow was not punished twice for the same offense, inasmuch as the crime of violation of a protection order is not a lesser-included offense of the crime of stalking. Neither, for the same reason, did the district court commit plain error in refusing to instruct the jury that criminal entry is a lesser-included offense of stalking. The district court committed plain error, however, by guiding the jury toward particular evidence during the jury’s deliberations. This resolution makes the fourth and fifth stated issues and the second part of the jury question issue moot, and the Court declined to address them.

Reversed and remanded.

C.J. Voigt delivered the decision.

J. Burke dissenting: The justice dissented stating that the district court correctly provided a substantive response to the jury questions as mandated by our decision in Heywood. That substantive response did not “invade the province of the jury.” There was no plain error and the conviction should have been affirmed.

Link: http://tinyurl.com/nvpnru .

[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 116

Summary of Decision issued September 22, 2009

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

Case Name: Painovich v. Painovich

Citation: 2009 WY 116

Docket Number: S-09-0031

Appeal from the District Court of Sweetwater County, the Honorable Jere A. Ryckman, Judge.

Representing Appellant Steven Painovich: James M. Peterson and John M. Kuker of Romsa & Kuker, LLC, Cheyenne, Wyoming.

Representing Appellee Jacqueline Painovich: John A. Zebre of Zebre Law Offices, PC, Rock Springs, Wyoming.

Facts/Discussion: In 2006, Jacqueline filed for divorce from Steven. Subsequently, Steven answered the complaint and retained counsel. Following a hearing to dispose of the marital property, in which Steven failed to appear, the district court entered judgment in favor of Jacqueline.
The Court has repeatedly stated that it is the appellant’s burden to bring a complete record to the Court for review. When the appellant fails to do so, the Court must accept the district court’s findings as being based upon sufficient evidence. Steven failed to appeal the denial of the motion for relief from judgment as required by the Wyoming Rules of Appellate Procedure. Consequently, the latter claims and arguments were not properly before the Court and could not be considered.

Conclusion: After reviewing the record on appeal, the Court could not find that the district court abused its discretion in denying Steven’s motion to vacate filed pursuant to W.R.C.P. 60. Steven failed to provide a record on appeal adequate for the Court to properly evaluate the district court’s exercise of discretion. In addition, many of the arguments in the appeal were related to the denial of a second motion that was not appealed.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/ns9ssb .

[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 115

Summary of Decision issued September 17, 2009

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

Case Name: Boe v. State, ex. Rel., Wyoming Workers’ Safety and Comp. Div.

Citation: 2009 WY 115

Docket Number: S-08-0240

Appeal from the District Court of Sweetwater County, the Honorable Jere A. Ryckman, Judge.

Representing Appellant Boe: Ethelyn “Lynn” Boak, Cheyenne, Wyoming.

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

Facts/Discussion: Boe appealed from the district court’s order affirming the OAH denial for his claim for worker’s compensation benefits for failure to timely file his application for temporary total disability (TTD.)
Boe contended he was not required to apply for benefits for the period from April 2006 through December 2006 while an earlier claim was pending. Boe relied on Gerdes where the Court held that § 27-14-404(d) did not apply to claims that accrue during the pendency of a contested case. The Division relied on Alcorn in which the Court affirmed the denial of TTD benefits on the ground that Alcorn did not file a timely claim properly certified by one of his healthcare providers for the time period at issue. The Court stated that neither Gerdes nor Alcorn controlled in the instant case. The plain language of the statutes was determinative. The Court stated that Boe’s claim was not an initial claim but rather a claim for additional benefits after a prior determination in his favor involving the same injury. Section 27-14-404(d) allows an employee who had received an earlier TTD award to apply for additional benefits under § 27-14-605.

Conclusion: The OAH’s order denying Boe’s claim on the ground that it was not timely filed was reversed with instructions to vacate the order and remand to OAH for entry of an order awarding TTD benefits from April 2006 through November 2006 on the ground of increased incapacity.

Reversed.

J. Kite delivered the decision.

J. Burke dissented: The Justice dissented because he was uncomfortable with the majority’s interpretation of §§ 27-14-404 and -605. The hearing examiner and the district court never considered whether the four-year limitation period applied and the Division was not provided with the opportunity to weigh in on the issue. He was also concerned that following its interpretation, an employee would have only sixty days to file an initial claim for TTD benefits but up to four years from the date of last payment for additional benefits to file a claim for additional TTD benefits.

Link: http://tinyurl.com/km9kcs .

[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 114

Summary of Decision issued September 15, 2009

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

Case Name: Stone v. Devon Energy Production Co., LP

Citation: 2009 WY 114

Docket Number: S-08-0267

Appeal from the District Court of Johnson County, the Honorable John G. Fenn, Judge.

Representing Appellants Stone and Loundagin: Stpehen R. Winship of Winship & Winship, PC, Casper, Wyoming.

Representing Appellees Devon Energy and Carpenter & Sons: Scott P. Klosterman of Williams, Porter, Day & Neville, PC, Casper, Wyoming.

Facts/Discussion: Stone and Loundagin assigned their operating rights under a state oil and gas lease to Devon and Carpenter. When Devon and Carpenter did not offer to reassign the operating rights to them six months before the lease expiration date, Stone and Loundagin filed an action against them for breach of contract, ejectment, trespass, conversion, an accounting and injunctive relief. In Stone I the Court held that the contract required Devon and Carpenter to make a reassignment offer six months before the lease expiration date but affirmed the partial summary judgment because it concluded Stone and Loundagin could not prove they suffered damages.
The Court considered whether the district court properly granted summary judgment for Devon and Carpenter on the claims for ejectment, specific performance, trespass, conversion, an accounting and injunctive relief. The record reflected that at the time the first summary judgment order was entered, the parties and the district court intended the order to be the final judgment. In Stone I the Court held that Devon breached the supplemental agreement when it did not make the reassignment offer by October 2, 2001. The Court further concluded that the lease never terminated and Devon retained the right to drill and produce the lands subject to the lease. Because Devon retained the right to drill and produce the lands, Stone and Loundagin could not show that they were entitled to possession of those lands or that Devon unlawfully kept them out of possession. The claims for trespass, conversion, specific performance or injunctive relief failed as well for the same reason.

Conclusion: Devon retained the right to drill and produce the lands so Stone and Loundagin could not show that they were entitled to possession of those lands or that Devon unlawfully kept them out of possession. The claims for trespass, conversion, specific performance or injunctive relief also failed for the same reason.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/psfh9h .

[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 113

Summary of Decision issued September 14, 2009

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

Case Name: CBC Geosolutions, Inc. v. Gas Sensing Technology Corp.

Citation: 2009 WY 113

Docket Number: S-08-0214

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

Representing Appellant (Defendants): Peggy A. Trent of Trent Law Office, Laramie, Wyoming.

Representing Appellee (Plaintiff): Philip A. Nicholas and Jason M. Tangeman of Anthony, Nicholas & Tangeman, Laramie, Wyoming

Issues: Whether the district court applied the correct legal standard in considering the request for a preliminary injunction to enforce non-compete and non-disclosure agreements between the parties. Whether the district court abused its discretion when it issued a preliminary injunction to enforce non-compete and non-disclosure agreements between the parties pending trial on the merits in this action.

Holdings: The purpose of a temporary injunction is to preserve the status quo until the merits of an action can be determined. And a temporary injunction rests upon an alleged existence of an emergency, or a special reason for such an order, before the case can be regularly heard. Also, the award of a temporary injunction is an extraordinary remedy which will not be granted except upon a clear showing of probable success and possible irreparable injury to the plaintiff, lest the proper freedom of action of the defendant be circumscribed when no wrong has been committed. In granting temporary relief by interlocutory injunction courts of equity do not generally anticipate the ultimate determination of the questions of right involved. They merely recognize that a sufficient case has been made out to warrant the preservation of the property or rights in issue in statu quo until a hearing upon the merits, without expressing, and indeed without having the means of forming a final opinion as to such rights.

In the present action, Appellants argue that the district court applied a federal standard not used in Wyoming when it required some showing of likelihood of success on the merits before it granted the preliminary injunction. Although the district court stated that there was a substantial likelihood that Appellee would prevail substantially on the merits it did not mention the federal standard or quote any federal precedent in its Findings of Fact. Further, a review of the correct standard makes it clear that likelihood of success on the merits is actually a factor that a district court must consider before granting a preliminary injunction under Wyoming law.

Appellants also contend that the district court improperly based its decision on the fact that the contracts signed by Appellants provide for injunctive relief. Appellants claim that the court ordered the injunction as a matter of contract, and therefore did not exercise its equitable powers in issuing the injunction. The district court did make a finding of fact that the non-compete agreements specifically authorize injunctive relief, however, it did so in the context of analyzing the facts under the proper standard for injunctive relief. It is proper for a court acting in equity to consider the remedies contemplated by the parties in reaching its conclusion on the equities. Thus, the district court did not erroneously award an injunction pursuant to contract but properly applied the equitable standards for granting an injunction.

Appellants next claim that the district court’s findings of fact are inadequate as a matter of law because the court did not make a finding that there was no adequate remedy available at law. Injunctions should only be issued when the harm is irreparable and no adequate remedy at law exists. Injunctive relief is appropriate when an award of money damages cannot provide adequate compensation. An injury is irreparable where it is of a peculiar nature, so that compensation in money cannot atone for it. The district court found that Appellees would suffer immediate, great, and irreparable harm and damage in the event that Appellants were allowed to compete with them in violation of the covenants-not-to-compete. Irreparable harm is, by definition, harm for which there can be no adequate remedy at law. Thus, the district court’s findings were not insufficient as a matter of law.

Appellants also argued that the district court abused its discretion in issuing the injunction because enforcement of the non-compete agreement was barred by the statute of frauds. However, there was enough evidence of the existence of a written contract to allow the district court to issue an injunction pending discovery and trial. Given the amount of evidence presented at the hearing indicating the existence of a written non-compete agreement, the district court did not abuse its discretion when it ordered an injunction pending further discovery and trial.

Appellants finally argued that a preliminary injunction was not appropriate because the non-compete agreements are unenforceable as a matter of law. However, these determinations will necessarily depend on facts that must be developed in due course at the appropriate stage of litigation. The district court found, based on the limited review required for a preliminary injunction, that the covenants were likely to be enforced. The district court found that there was evidence that a covenant not to compete existed in writing, that the document was signed ancillary to a legitimate employment relationship that constituted reasonable consideration, and that Appellee had presented evidence that could lead the court to conclude that a restriction that was national in nature but narrowly tailored to one aspect of the industry was reasonable under the circumstances. If any part of a covenant not to compete is found unreasonable and therefore unenforceable, the court may decline to enforce the unreasonable provisions. None of the terms of the non-compete agreement in this case were facially unreasonable and the court did not abuse its discretion when it found, based on the evidence before it at the hearing, that Appellee was entitled to an injunction pending full development of the facts and determination on the merits.

Conclusion: The district court correctly applied the law and did not abuse its discretion when it issued a preliminary injunction prohibiting Appellants from competing with their former employer during the pending litigation to enforce a covenant not to compete.

Affirmed.

C.J. Voigt delivered the opinion for the court.

Link: http://tinyurl.com/lqvbwm .

[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 of Decision issued September 11, 2009

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

Case Name: Lamar Outdoor Advertising v. Farmers Co-Op Oil Co. of Sheridan, WY

Citation: 2009 WY 112

Docket Number: S-08-0131

Appeal from the District Court of Sheridan County, the Honorable John G. Fenn, Judge.

Representing Appellant Lamar: Timothy M. Stubson of Brown, Drew & Massey, LLP, Casper, Wyoming.

Representing Appellee Farmers: Clint A. Langer of Davis & Cannon, LLP, Sheridan, Wyoming.

Representing Appellee Maverick Country Stores: Steven T. Waterman of Ray Quinney & Nebeker PC, Salt Lake City, Utah.

Facts/Discussion: During litigation among the parties concerning Lamar’s claim that other parties had not honored Lamar’s lease-based right of first refusal that provided Lamar the opportunity to purchase certain property upon which Lamar maintained an advertising sign, the parties executed a settlement agreement. Lamar appealed the district court’s summary judgment order that under the terms of the parties’ unambiguous settlement agreement Sheridan failed to act on Lamar’s variance application within eight weeks from the date the variance application was submitted and consequently, the parties remained bound by the terms of their settlement agreement.
Farmers and Maverik argued that Lamar submitted its variance application on August 2, 2006 which started the eight week clock as provided in the parties’ settlement agreement. The parties agree that Sheridan acted on Lamar’s application when it denied it on October 12, 2006. The eight week clock expired on October 2, 2006. Consequently, under the language of the parties’ agreement, the settlement agreement became fully binding.
Lamar relied upon the Mentock affidavit attached to its response. The Court determined the affidavit was insufficient. The affiant’s statement that he was “familiar with the matters set forth herein and they are true to the best of his knowledge, information and belief” did not meet the “personal knowledge” requirement. In addition, the applications for the variation and the required letter of notification to property owners were not attached to the affidavit.

Conclusion: The Court held that Farmers’ and Maverik’s argument prevailed and that Lamar’s argument had no evidentiary support.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/nyow52 .

[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 111

Summary of Decision issued September 4, 2009

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

Case Name: Causey v. State

Citation: 2009 WY 111

Docket Number: S-08-0145

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

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

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

Issues: Whether the district court properly instructed the jury regarding Appellant’s right of self-defense with the questions being whether the evidence was sufficient to support a finding that Appellant was the aggressor and whether the phrase “provoke the conflict” has a specialized meaning within the context of self-defense which requires an instruction to define the phrase in accordance with that specialized meaning. Whether the prosecutor improperly commented on Appellant’s right to silence.

Holdings: A trial court is given wide latitude in instructing the jury, and its decisions regarding instructions will be upheld if they are supported by any competent evidence. A review of the record discloses competent evidence to support the district court’s ruling. Key to this determination is the trial testimony of the victim in who’s version of the incident, Appellant was the aggressor. It is true that Appellant provided an alternative version, in which the victim was the aggressor, but the court’s task is not to weigh the evidence, only to determine whether the district court could reasonably conclude that there was competent evidence from which the jury might find that Appellant was the aggressor. If the jury believed the victim, that was enough. The district court did not err in overruling Appellant’s objection and giving instructions regarding aggression to the jury.

At trial, Appellant objected to the proposed instruction, but solely on the basis that there was insufficient proof that Appellant was the aggressor. He made no objection aimed at the phrase “provoking the conflict.” He presented no argument to the district court that the phrase had a specialized legal definition, and he offered no alternate instruction defining the phrase. An objection is not properly preserved on appeal unless the objection was made at trial. Although Appellant did not raise this objection at trial, still plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court. Plain error exists when: 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right which materially prejudiced him. The error that Appellant alleges was not an obvious transgression of any clear and unequivocal rule of law. He does not cite any Wyoming case establishing a clear-cut rule of law that the jury must be instructed on a specialized legal definition of provocation. A specialized legal definition of the phrase “provokes the conflict” can be derived only through a meticulous examination of the subtle discussions contained in a number of cases cited by Appellant. If the issue were properly before us, the court might well agree with Appellant’s thoughtful analysis of the definition of “provokes the conflict.” But even if that specialized definition were to be accepted on appeal, it would not establish that, during Appellant’s trial, the failure to define the phrase was so plainly erroneous that the judge should have noticed and corrected the mistake even though the parties failed to raise the issue. Similarly, Appellant cites no Wyoming case establishing that verbal insults alone cannot constitute provocation. He relies solely on cases from other jurisdictions. Again, if the court were to follow those other jurisdictions at this point, that ruling would still not demonstrate that any clear and unequivocal rule of Wyoming law was violated during Appellant’s trial.

The self-defense instructions given by the district court were not plainly erroneous, and do not require reversal of Appellant’s conviction.

The right to remain silent when accused of a crime is founded on the Fifth Amendment to the United States Constitution and on Article 1, Section 11 of the Wyoming Constitution, and is one of the most fundamental rights accorded a defendant in our criminal justice system. This right is protected zealously. Thus, a prosecutor’s comments on a defendant’s silence are inherently prejudicial, and entitle the defendant to a reversal of his conviction. To determine if a prosecutor has made an improper comment on the right to silence, the record is reviewed as a whole and the prosecutor’s questions and statements placed in the context of the entire trial. In isolation, the prosecutor’s remarks in this case could appear to be an impermissible comment on Appellant’s post-arrest silence. However, when considered in context, the prosecutor was instead making a permissible argument about the evidence presented at trial. Appellant voluntarily gave extensive statements to law enforcement officers at the scene of the incident. His description of the events at that time was substantially different from the description he provided later at trial. The prosecutor highlighted the differences through the testimony of the law enforcement officers. Thus, the prosecutor’s questioning amounted to comments on what Appellant said or neglected to say rather than comments on the exercise of his right to silence. It was not improper for the prosecutor to question the witnesses as a way of highlighting inconsistencies in Appellant’s different versions of the events.

After evidence of the inconsistencies had been admitted, it was also appropriate for the prosecutor to point out the inconsistencies in closing argument. Placed in context with the evidence, the prosecutor’s closing argument appears more of an attempt to convince the jury that Appellant’s trial testimony was not credible, and less of an effort to convince the jury that Appellant’s silence was evidence of his guilt. Thus, the prosecutor’s closing argument was not an attempt to use Appellant’s silence to the State’s advantage, and was, therefore, not an impermissible comment on the right to silence.

Conclusion: Appellant has not demonstrated reversible error based on either of the issues he raises on appeal.

Affirmed.

J. Burke delivered the opinion for the court.

Link: http://tinyurl.com/n6yhmz .

[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 110

Summary of Decision issued September 3, 2009

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

Case Name: State v. Kaczmarek

Citation: 2009 WY 110

Docket Number: S-08-0208; S-08-0209

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

Representing Appellant State: Bruce A. Salzburg, Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General.

Representing Appellant Canon Oil: Clark D. Stith and Melissa J. Lyon of Rock Springs, Wyoming.

Representing Kaczmarek: James R. Salisbury of Riske, Salisbury & Kelly, PC, Cheyenne, Wyoming.

Facts/Discussion: Kaczmarek applied to the Wyoming Workers’ Safety and Compensation Division (Division) for reimbursement of medical expenses relating to his back surgery in 2006 claiming that the surgery was related to injuries sustained in a 1979 work-related accident.

Proper burden of proof: In a second compensable injury case, the claimant must show by a preponderance of the evidence that it was more probable than not that there existed a causal connection between the first and second injuries. The hearing examiner explicitly acknowledged the stricter burden of proof in § 27-14-605 and that Kaczmarek was only required to show the causal connection to a reasonable degree of medical probability rather than that the second injury was due “solely” to the original compensable injury.

Against the great weight of evidence: Kaczmarek relied on expert testimony from two physicians. The testimony did not establish that it was more probable than not that the first injury was causally related to the second injury. The hearing examiner concluded that there was no competent medical evidence which demonstrated that Kaczmarek’s current chronic low back pain and herniated disc were directly related to the 1979 work injury. Without some evidence or testimony showing it was more probable than not that the second injury was caused by the first, the claimant could not satisfy his burden of proof.

Conclusion: The Court found as a matter of law that the hearing examiner used the proper burden of proof when deciding whether Kaczmarek was entitled to benefits under the second compensable injury rule. Also, the Court held that the hearing examiner’s conclusion that Kaczmarek was unable to prove that his 2006 condition was related to the 1979 injury was supported by substantial evidence.

Reversed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/mn7yas .

[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 109

Summary of Decision issued September 2, 2009

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

Case Name: RLA v. State, Dep’t of Family Services

Citation: 2009 WY 109

Docket Number: S-08-0274

Appeal from the District Court of Sweetwater County, the Honorable Nen R. James, Judge.

Representing Appellant RLA: John M. Burman, Faculty Supervisor, UW Legal Services Program; Aaron S. Hockman, Student Intern; and Matthew Landers, Student Intern.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Sue Chatfield, Senior Assistant Attorney General.

Guardian Ad Litem: Donald K. Slaughter, Rock, Springs, Wyoming. No appearance.

Facts/Discussion: RLA (Father) appealed from the district court’s order terminating his parental rights to his son, LA (Child), pursuant to Wyo. Stat. Ann. § 14-2-309(a)(iv) because he was incarcerated on a felony conviction and was unfit to have custody and control of Child. Father claims DFS did not present sufficient evidence to establish he was unfit. Child was born in 2006 and tested positive for methamphetamine at birth. DFS took him into protective custody. Mother later relinquished her rights to Child. DFS prepared a case plan listing the permanency goal as family reunification. The determination of whether a parent is unfit to have care and custody of a child must be made within the context of a particular case and will depend upon the situation and attributes of the specific parent and child.
DFS presented evidence that Father did not have an emotional bond with Child. It also produced evidence of Father’s on-going drug problem and significant criminal history. Father also continually declined opportunities to visit while a warrant was out for his arrest, offered to relinquish his parental rights to secure more lenient treatment and refused to comply with many of the provisions identified by DFS in the case plans to develop his child rearing skills. The Court contrasted the instant case with BA v. Laramie County Dep’t of Family Servs. where BA continued to attempt to maintain contact with her children from the time they were removed from her home, even when she left the jurisdiction to avoid criminal prosecution. In addition, BA completed a variety of courses to address her drug dependency, parenting problems and employment needs.

Conclusion: Father had very limited contact with Child during his life, made little effort to develop or maintain a relationship with him or to improve his parenting skills and did not have the present ability to provide for the ongoing physical , mental and emotional needs of Child. Therefore, DFS presented clear and convincing evidence showing Father was unfit to have care and custody of Child.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/ndw7pn .

[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 108

Summary of Decision issued September 2, 2009

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

Case Name: Moore v. State

Citation: 2009 WY 108

Docket Number: S-08-0276

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

Representing Appellant Moore: Timothy D. Moore, Pro se.

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

Facts/Discussion: Moore was convicted of four felonies. Three of his felonies were ordered to be served concurrently with each other. Those three concurrent sentences were ordered to be served consecutively to the fourth felony sentence. Moore argued that the Order Granting Motion for Sentence Reduction made all of his sentences concurrent. He submitted that when the district court granted his motion for sentence reduction, it granted the only relief requested in the motion – that all sentences run concurrently. He claimed that the reduction in the maximum term (from 10 to 8 years) was a grant of additional relief. He also asserted that the Order Denying Sentence Modification was so confusing that he was compelled to seek clarification.

Jurisdiction: Moore’s 2005 pleadings were actually a series of letters, the first of which was a request to clarify the Order Granting Motion for Sentence Reduction. The Court found authority for Moore’s “motion” in W.R.Cr.P. 36 which allows error in the record to be corrected. The Court stated there was a lack of clarity in the Order. The Court found that the letters were a proper motion to correct clerical error and concluded that the district court had jurisdiction.

Res Judicata: The Court focused on whether Moore raised or had the opportunity to raise, the same issue presently before the Court in any previous proceeding. The district court clarified the 2004 Order Granting Motion for Sentence Reduction with its 2005 Order Denying Sentence Modification. The 2005 order clearly denied Moore’s requests for relief regarding the interpretation of the order including Moore’s argument that the prior order made all his sentences concurrent. The district court did not grant Moore any relief in its 2005 order. Moore did not appeal from the 2005 order. Thus, any claims denied by that order, were res judicata.

Conclusion: The district court did not grant Moore any relief in its July 12, 2005 order. It denied the requested relief. And it granted no affirmative relief. The district court’s September 18, 2008 order was entirely consistent with the July 12, 2005 order. The district court’s Order Clarifying July 12, 2005 Order Denying Sentence Modification was affirmed.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/ldkv5y .

[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.]