Summary 2009 WY 155

Summary of Decision issued December 30, 2009

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

Case Name: State, Dept of Family Services v. TWE, III

Citation: 2009 WY 155

Docket Number: S-09-0123

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

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

Representing Appellee TWE,III: Kenneth Bert DeCock, Plains Law Offices, LLP, Gillette, Wyoming.

Facts/Discussion: DFS appealed the district court denial of a petition to terminate Father’s parental rights.
Father argued the case had become moot and bore the burden of bringing to the reviewing court a sufficient record on which to base its decision. The affidavit of his counsel which was attached to his brief on appeal was not properly part of the record on review. Because the record contained no proper support the Court did not consider it further. The case was not moot because the Court’s decision could have a practical impact on DFS’s subsequent actions, Father’s parental rights and the children’s futures.
The evidence showed the case began as one about ensuring that the children had a clean, safe environment with appropriate medical, dental and other care that became a case about whether Father wanted to be with his children enough to stop using marijuana. Termination of parental rights requires clear and convincing evidence that the child’s health and safety would be seriously jeopardized by remaining with or returning to the parent. The Court deferred to the district court’s findings of fact.

Conclusion: Under the applicable standard of review, the district court’s decision was subject to strict scrutiny. The Court defers to the district court’s findings if they are supported by evidence in the record. In the instant case, the district court correctly applied the law and there was evidence in the record sufficient to support its findings of fact.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/ydza9pu .

[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.]

Final Collection Update

We have received the last load of boxes from storage! These are historical and rare treatises.

The collection is now complete (though it is not completely on the shelves): treatises, Wyoming legislative information, reporters, current and historic federal and state statutes, ALRs, digests, CFRs, Federal Registers and other miscellaneous federal government publications.

Summary 2009 WY 154

Summary of Decision issued December 17, 2009

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

Case Name: Cross v. State

Citation: 2009 WY 154

Docket Number: S-09-0066

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

Representing Appellant Cross: Donna D. Domonkos of Burg, Simpson, Eldredge, Hersh & Jardine, PC, Cheyenne, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin Daraie, Prosecution Assistance Clinic Student Director and Intern.

Facts/Discussion: Cross appealed from several related convictions for forgery and uttering a forgery. Contending that the district court erred in denying his motion for a new trial, and that his trial counsel was ineffective for failing to interview a potential witness.
Motion for new trial: The record is clear that Cross and his attorney were aware of the witness before trial. At the motion hearing, Cross did not testify that the witness was not called because they did not know that he could or should be a witness. In addition, the Court agreed with the district court that the testimony was not likely to have affected the outcome of the trial because the witness’s memory was sketchy and tended to corroborate the State’s theory that shortly before filing bankruptcy, Cross went to extraordinary lengths to get the overriding royalty interests out of his name and into his daughter’s.
Ineffectiveness of trial counsel: Cross alleged that his attorney was ineffective because he did not adequately investigate the case and call the witness. Because the Court decided that at best, the witness would have been a neutral witness, the Court could not conclude that defense counsel’s actions exhibited deficient performance.

Conclusion: The district court did not abuse its discretion in denying Cross’s motion for a new trial. The identity of the witness was not newly discovered. Cross was not prejudiced by the witness’s absence given the highly questionable value of his testimony. For the same reasons, counsel was not ineffective in failing to call the witness.

Affirmed.

J. Voigt delivered the decision.

Link: http://tinyurl.com/y8mqdyb.

[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 153

Summary of Decision issued December 14, 2009

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

Case Name: Crescent H Homeowners Assoc., Inc. v. Crescent H Assoc. of Homeowners, Inc.

Citation: 2009 WY 153

Docket Number: S-07-0275

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

Representing Appellant Crescent H Homeowners Assoc., Inc.: Brent R. Cohen, Rothgerber Johnson & Lyons, LLP, Casper, Wyoming; William Phillip Schwartz, Ranck & Schwartz, Jackson, Wyoming.

Representing Appellee Crescent H. Assoc. of Homeowners, Inc.: Jessica Rutzick, Jessica Rutzick Law Offices, Jackson, Wyoming.

Representing Appellee, Jones Holdings, LLC: Jennifer Ann Golden and Andrea L. Richard, the Richard Law Firm, PC, Jackson, Wyoming.

Facts/Discussion: The appeal involved a dispute between two homeowner associations regarding regulation of fishing and land use activities within the Crescent H Ranch. Crescent H Homeowners Assoc., Inc. (First Filing Assoc.) contended that it and Crescent H Assoc. of Homeowners, Inc. (Fourth Filing Assoc.) formed a contract that made them jointly responsible for creating and enforcing rules governing recreational activities on the Ranch. The Fourth Filing Assoc. and Intervenor, Jones Holdings, assert that the Fourth Filing Assoc. has the sole right to regulate these activities.
The Fishing License and Use Agreements at issue resulted from settlement of an adversarial bankruptcy proceeding initiated by First Filing Association. With regard to the fishing licenses, the parties specifically agreed that upon entry of an order approving the bankruptcy settlement, the Licensor would sell, grant and convey to each of the Homeowners a fishing license which was to be an interest in real property and have provisions for appropriate recording in the real property records. In addition, it was undisputed that the Fishing License Agreement identified the Licensor as the regulating authority. The First Filing Association has never been designated as a Licensor or been assigned any rights as a Licensor as required by the new Fishing License and Use Agreements. First Filing bases its claim of joint regulatory authority upon a 1997 document entitled Crescent H Ranch Rules and Regulations. However, First Filing was ignoring the language of the Bankruptcy Settlement which specifically stated that the New Fishing Licenses and New Use Agreements were to supersede and replace all existing fishing licenses, access rights, and amenity use agreements rendering all such existing agreements null and void.

Conclusion: The district court correctly determined that regulatory authority is governed by the new Fishing and Use Agreements and that regulatory authority has been assigned to the Fourth Filing Association. The First Filing Association failed to establish any genuine issue of material fact entitling it to joint regulatory authority. In light of that, the Court did not need to address other issues raised by the First Filing Assoc.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/ye8pgzw.

[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 152

Summary of Decision issued December 14, 2009

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

Case Name: Wallace v. State

Citation: 2009 WY 152

Docket Number: S-09-0060

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

Representing Wallace: Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; and Kirk A. Morgan, Senior Assistant Appellate Counsel, Wyoming Public Defender Program.

Representing State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senio0r Assistant Attorney General; and Graham M. Smith, Assistant Attorney General.

Facts/Discussion: Wallace appealed the district court’s finding that a deputy did not lack reasonable suspicion to detain him and his vehicle for a dog sniff. Wallace contended that the deputy impermissibly expanded the scope of an otherwise lawful stop by requesting the narcotic detection dog.
The Court may sustain a decision of the lower court on any basis found in the record. Although the district court found reasonable suspicion in the case, the Court affirmed on the basis argued by the State that the initial stop was not prolonged beyond the time reasonably required by the officer to write the citations and that an exterior dog sniff does not constitute a search. As the Court noted in Lindsay v. State, the basis for and the circumstances surrounding the stop rather than an arbitrary time limit govern a stop’s permissible length. The district court concluded that the detention lasted no longer than was necessary to achieve the purpose of the stop inasmuch as the sniff was concluded before the deputy had finished issuing the citations.

Conclusion: The Court held that the initial stop was not prolonged by the exterior dog sniff.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/y9ky4sj.

[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 151

Summary of Decision issued December 11, 2009

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

Case Name: Cheek, II v. Jackson Wax Museum

Citation: 2009 WY 151

Docket Number: S-09-0063

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

Representing Cheek, II: Christopher S. Leigh, Jackson, Wyoming; Leonard R. Carlman of Hess, Carlman & D’Amours, LLC, Jackson, Wyoming.

Representing Jackson Wax Museum: Vonde M. Smith of Law Offices of Vonde M. Smith, PC, Jackson, Wyoming.

Facts/Discussion: The Museum and Cheek entered into a brokerage agreement whereby Cheek agreed to act as the Museum’s exclusive broker for leasing property owned by the Museum. Cheek found a tenant which entered into a lease with the Museum and the Museum paid Cheek the commission due. After the term of the initial lease, the Museum and the tenant renegotiated the lease but Cheek was not paid a commission.

Cheek contends the district court erred in concluding the First Amendment to Lease Agreement was an entirely new lease rather than a renewal or extension of the original lease. In their analysis, the Court applied the rules governing contract interpretation. In reviewing the Lease and the Amendment to the Lease, the Court noted language that supported Cheek’s contention that the amendment was only an amendment and not a new agreement. In portions of the agreement where fixed rent and percentage rent provisions of the original lease were amended, the lease years were identified as 11-12, 13-15 and 16-20 and not as 1-2, 3-5 and 6-10 as would have been done in an entirely new lease. The Court also reviewed the brokerage agreement to determine the parties’ intent with respect to modifications or extensions of the lease. The plain meaning of the language indicated that Cheek and the Museum intended a commission to be paid if the original lease was extended or renewed.

Conclusion: The language of the brokerage agreement clearly and unambiguously provided for payment of a commission upon renewal of the lease. The language of the First Amendment to Lease Agreement clearly and unambiguously modified and extended or renewed the original lease.

Reversed and remanded.

J. Kite delivered the decision.

Link: http://tinyurl.com/yel24bd.

[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 150

Summary of Decision issued December 10, 2009

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

Case Name: Grommet v. Newman

Citation: 2009 WY 150

Docket Number: S-08-0148, S-08-0149

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

Representing Grommet: Patrick J. Murphy of Williams, Porter, Day & Neville, PC, Casper, Wyoming and Thomas S. Peters of Peters Associates, LLC, Teton Village, Wyoming.

Representing Newman: Michael E. Warren of Sawyer & Warren, PC, Torrington, Wyoming.

Facts/Discussion: Newman asserted that he was owed a real estate commission and an award of attorney’s fees by Grommet, in accordance with the terms of a real estate listing agreement between them. The real estate sale affected a large ranch property owned by Grommet and the Wyoming National Guard (WNG) was the purchaser. Newman’s appeal hinged on the contention that the district court resolved the issues in the case on perceived equities rather than the four corners of the contract.

The Contract: Grommet and Newman disputed which contract was in force at the times crucial to the outcome of the case. The Court noted the existence of a contract that ran from 2003 through 2005. Another agreement was signed in August 2005 which interrupted the 2003 agreement and was in fact an extension of the original agreement with an increased sales price. Newman made a disclosure pursuant to § 33-28-306 at the time the 2003 agreement went into effect. The Court concluded it was sufficient to fully advise Grommet and to comply with the statute.
The Court stated the facts pointed clearly and convincingly to the conclusion that an oral extension of the listing contract existed after it expired in February 2006 which continued the contract until the end of March 2006 when Grommet sent the letter to Newman terminating his services.
Newman contended that he was due the commission for the sale since the word “earned” in the agreements meant “procuring cause” of the sale. The Court disagreed stating that earned meant only that a subsequent broker did whatever he was required to do under his contract to earn a commission.
Bad Faith: Newman alternatively alleged that Grommet acted in bad faith and the he was therefore responsible to pay the commission regardless of the listing agreement. The facts showed that up until he was terminated in March 2006, Newman was doing all he could to facilitate the sale including advertising and lobbying the legislature and the governor. His efforts were ongoing through requests by, the knowledge of and the acquiescence of Grommet. The district court found bad faith did exist on the part of Grommet believing that the termination letter from Grommet was an after-the-fact document prepared to serve as a paper trail for dismissing Newman and that the termination was designed solely to lower the real estate commission and get Brockman’s assistance in raising the sale price. Brockman’s assistance was primarily that of appraiser.

Case No. S-08-0148
Special contract of employment: The Court held that whether the contract at issue was a “special” or “general”: contract was simply not an issue of significance in the case and declined to embrace the reasoning offered by Grommet.
Application of “procuring cause of sale”: Grommet did not associate the discussion with any particular portion of the district court’s findings, so the Court concluded that it need not further address the issue.
New broker extinguishes Newman’s claims: Grommet contended that the hiring of Brockman extinguished any right Newman had to earn a commission because their contract protected him from paying “dual commissions.” The record supported the district court’s findings that Grommet breached the covenant of good faith and fair dealings.
Oral extension of contract: When the Court considered all the testimony offered by Newman and disregarded the contradictory testimony offered by Grommet, the Court concluded that the district court’s findings were not clearly erroneous.
Denial of due process: The matter was thoroughly discussed and resolved during the trial. When the district court made its decision to reverse its initial grant of partial summary judgment it was made clear that Grommet could recall witnesses that had already testified and been excused. The district court’s decision to consult more recent cases that enlarged upon previous precedents pertinent to the implied covenant of good faith and fair dealing did not unfairly surprise Grommet or alter the landscape of the case.
Grommet did not breach the implied covenants: Grommet’s arguments depended almost entirely on the testimony and actions of Grommet and his witnesses. The district court accorded no credibility to them. In addition, the Court noted that the WNG and the State must operate transparently. The record strongly suggested that the price of the ranch was raised only because WNG had $10M appropriated for the purchase of lands to enlarge the military training area around Guernsey. There were no authentic competing buyers.
Filing of lis pendens by Newman: Grommet contended that the filing with the intent of blocking the sale of the ranch was a tort. The filing did not delay the sale. The Court deemed the matter to have been resolved by the parties and that it played no role in the resolution of the issues raised in the instant case.
Extension void under brokerage disclosure statute: Grommet claimed that the listing agreement and any extension thereof was void under § 33-28-306 because his broker’s disclosure had not been acknowledge by all sellers. The Court agreed the extended contract was enforceable based upon the ongoing relationship of Newman and Grommet in buying, selling and swapping real property.
Newman’s fraud on the Wyoming Real Estate Commission: Grommet claimed that Newman defrauded the real estate commission when he submitted evidence to the commission in connection with his assertion that Newman violated Wyoming Statutes and the ethics of his profession. Grommet claims to have been damaged when the Commission dismissed Grommet’s complaint. The Court examined the evidence produced at trial and state the claims were not supported by the evidence.
Newman’s breach of fiduciary duties owed to Grommet: The Court found no credible evidence in the record to support Grommet’s assertions that Newman breached the contract first by failing to tell of offers made on the ranch by other buyers.
Attorney’s fees for Grommet: The district court’s findings were fully supported by the evidence adduced at trial and the district court faithfully applied the correct rules of law to those facts, therefore, the Court would not consider an award of attorney’s fees for Grommet.

Case No. S-08-0149
The Court was comfortable in sustaining the district court’s explicit and implicit findings that Newman was the “procuring cause” of the sale. The Court was also comfortable in concluding that Newman sold the ranch and that he earned the commission provided for in the governing contract. The Court also noted that it was comfortable that Brockman was not the procuring cause of the sale, did not sell the ranch and did not earn a commission. The Court disagreed with the district court’s finding/conclusion that Grommet only violated the implied covenants of good faith and fair dealing and not the contract itself. By the terms of the contract, Newman was entitled to a reasonable attorney’s fees award.

Conclusion: The judgment of the district court awarding Newman his commission was affirmed. That part of the district court’s judgment which determined that an attorney’s fee award would be inequitable under the circumstances of the case was reversed and the matter remanded for ascertaining a reasonable attorney’s fee to award to Newman.

Case No. S-08-0148: Affirmed.
Case No. S-08-0149: Reversed and remanded.

J. Hill delivered the decision.

Link: http://tinyurl.com/yhwd3am.

[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 149

Summary of Decision issued December 9, 2009

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

Case Name: Leyva v. State

Citation: 2009 WY 149

Docket Number: S-09-0034

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

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

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

Date of Decision: December 9, 2009

Appellant entered a conditional plea of no contest to one count of possessing methamphetamine with intent to deliver, reserving the right to appeal the district court's denial of his motion to suppress. Appellant maintains the evidence should have been suppressed because no reasonable suspicion existed to detain him for a dog sniff of his vehicle following the conclusion of a traffic stop.

Issues: Whether the trial court erred in denying Appellant's motion to suppress evidence obtained from the detention of Appellant and search of Appellant's car.

Holdings: Initially, Appellant's challenge to the district court's suppression ruling is premised on both Article 1, § 4 of the Wyoming Constitution and the Fourth Amendment to the United States Constitution. However, the state constitutional argument presented by Appellant does not constitute the "precise, analytically sound approach" required for the Court to undertake an independent state constitutional analysis. Appellant's argument is disjointed and consists of little more than a recitation and summary of passages of prior decisions. The court will not consider an assertion, unsupported by any cogent analysis.

The law is well settled that a law enforcement officer may detain a motorist if the officer has an objectively reasonable suspicion that the person is engaged in criminal activity. The existence of objectively reasonable suspicion of criminal activity is determined by evaluating the totality of the circumstances. The whole picture must be considered; common sense and ordinary human experience are to be employed, and deference is to be accorded a law enforcement officer's ability to distinguish between innocent and suspicious actions. In the present case, looking at the whole picture, along with rational inferences, the trooper possessed reasonable suspicion to detain Appellant. The factors supporting the trooper's reasonable suspicion included: Appellant's reluctance to pass the patrol car even though the trooper slowed his traveling speed to well below the posted speed limit; the strong odor of air freshener; the inability of Appellant and the passenger to provide the name of the uncle whose funeral they supposedly attended; the inconsistent answers provided by Appellant and his passenger concerning when they departed from Casper for the uncle's funeral, their dating history, and Appellant's place of residence; and Appellant's visible nervousness during the stop. Although any of these factors alone may not have justified the detention, in the aggregate they provided the trooper with an objectively reasonable basis for suspecting that criminal activity was afoot, thus warranting Appellant's further detention pending the arrival of the canine unit.

Accordingly, the detention did not violate the Fourth Amendment to the United States Constitution and, consequently, the district court properly denied Appellant's motion to suppress.

Affirmed.

J. Golden delivered the opinion for the court.

Link to the case: http://bit.ly/8njJ6Q

[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]

Summary 2009 WY 148

Summary of Decision issued December 9, 2009

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

Case Name: Sutton v. State

Citation: 2009 WY 148

Docket Number: S-09-0072

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

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

Representing Appellee (Plaintiff): 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.

Date of Decision: December 9, 2009

After conditionally pleading guilty to a controlled substance offense, Appellant challenges the district court's denial of his motion to suppress evidence discovered during a search of the vehicle he was driving. He maintains that he was unconstitutionally detained for a canine drug sniff.

Issues: Whether the continued detention of Appellant after he refused to consent to a search was supported by reasonable suspicion.

Holdings: There are three tiers of interaction between police and citizens under the Fourth Amendment-consensual encounter, investigatory detention and arrest. A traffic stop is analogous to a second tier investigatory detention. An investigative detention must be temporary, lasting no longer than necessary to effectuate the purpose of the stop. The officer may expand the investigative detention beyond the scope of the initial stop only if the traveler consents to the expanded detention or if there exists an objectively reasonable suspicion that criminal activity has occurred or is occurring. In determining whether an officer had a reasonable suspicion under the Fourth Amendment, the court looks to the totality of the circumstances and how those circumstances developed during the officer's encounter with the occupant of the vehicle. In considering the totality of the circumstances, common sense and ordinary human experience are to be employed, and deference is to be acco rded a law enforcement officer's ability to distinguish between innocent and suspicious actions.

In the present action, the officer found a car rental agreement that contradicted and was inconsistent with the Appellant's stated travel plans; the fact that the rental agreement indicated that Appellant had only rented the car for one day and it should have been returned the day before the stop was a legitimate factor in the reasonable suspicion analysis.

Additionally, Appellant's explanation of his trip was strange. Appellant told the trooper that he had begun his trip in San Francisco, where he had been staying for approximately one month, and he was traveling to Denver. He had, however, passed the exit to Denver by several miles. Appellant stated that his girlfriend was living and attending school in Denver and he had made a last minute decision to travel to Denver to attend the birth of his child, although he was already one day past the due date. He also stated that he did not know how long he would stay in Denver. Further, when the trooper attempted to clarify whether Appellant's Illinois driver's license correctly stated a Chicago address since he had come from California, Appellant explained that the Illinois address was correct and he had been in California for about a month because he was "taking a break" from Chicago and wanted to see if he would like to live there. However, later in the stop, Appellant stated that he had just started a new job in Illinois before he left to go to California, but he was allowed to take a month off because business was slow. The trooper was certainly entitled to rely on the unusual nature of this story in making his reasonable suspicion determination.

The presence of the cooking bags on the front passenger seat was also suspicious. The trooper, who was specially trained in drug interdiction, testified that he was aware that such bags are used by drug couriers to package marijuana because they mask the smell and do not crush the controlled substance. The presence of a potential odor masking agent is an appropriate factor for consideration in the reasonable suspicion analysis.

The trooper also testified that he considered Appellant's unusual level of nervousness as a factor in his reasonable suspicion analysis. Generic nervousness has little weight in establishing reasonable suspicion because a citizen may be expected to be somewhat nervous when stopped by law enforcement for a traffic violation. However, extreme and continued nervousness is entitled to more weight. Moreover, factors such as acting evasive or breaking eye contact when asked certain questions can also form the basis for reasonable suspicion. There is nothing in the record to contradict the trooper's testimony that Appellant was unusually nervous throughout their encounter and reacted suspiciously when asked whether he was transporting marijuana. Consequently, Appellant's nervousness is a factor that may be given some weight in the reasonable suspicion analysis.

These factors, the past due rental agreement, the unusual travel plans, the oven cooking bags and the unusual nervousness, when viewed individually could be seen as innocuous. Nevertheless, when they are all considered together and in relation to one another, they justify the trooper's suspicion that Appellant was engaging in illegal activities. Appellant's constitutional rights were not violated when the trooper detained him for the canine drug sniff.

Affirmed.

J. Kite delivered the opinion for the court.

Link to the case: http://bit.ly/6h3VIf

[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]

Summary 2009 WY 147

Summary of Decision issued December 3, 2009

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

Case Name: Motley v. Platte County, WY

Citation: 2009 WY 147

Docket Number: S-08-0171

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

Representing Appellant Motley: H. Michael Bennett of H. Michael Bennet, PC, Cheyenne, Wyoming.

Representing Appellee Platte County: Bruce A. Salzburg, Wyoming Attorney General; Thomas W. Rumpke, Senior Assistant Attorney General; Richard Rideout, Law Offices of Richard Rideout, PC, Cheyenne, Wyoming.

Facts/Discussion: Motley worked for the Platte County Sheriff’s Department as a deputy sheriff. In 2006, he filed a complaint against the county, the Sheriff’s Department and Sheriff Steve Keigley alleging he was suspended and later terminated without cause and without notice and opportunity for a hearing in violation of § 18-3-611.
In Beaulieu II, the Court held that the failure of the complaint in a governmental claims action to allege compliance with both the statutory filing requirements of § 1-39-113 and the constitutional signature and certification requirements of Art. 16, § 7 precludes the district court from acquiring subject matter jurisdiction over the claim. The Court noted it had regularly upheld the strictness of the rule over the intervening years and stated that stare decisis dictated adherence to the rule in the instant case.

Conclusion: Because Motley’s complaint failed to allege the requisite constitutional compliance under Beaulieu II, the district court never acquired subject matter jurisdiction over the action. Since the Court was also without jurisdiction, the appeal was dismissed.

Dismissed.

J. Golden delivered the decision.

C.J. Voigt concurred: W.R.C.P. 8(a)(1) requires a civil complaint to contain a short and plain statement of the grounds upon which the court’s jurisdiction depends. The district court’s jurisdiction over a governmental claim depends upon the plaintiff’s compliance with Art. 16, § 7 of the Wyoming Constitution and with the Wyoming Governmental Claims Act (WGCA).
J. Burke joined by J. Kite dissented: The Justices dissented for the same reasons they identified in the dissent in the July 2009 McCann decision. The Justices disagreed with the application of stare decisis in the instant case. They noted that McCann was the first case in which a litigant lost the right to have a case determined on the merits solely on the basis that the complaint failed to meet the judicially created pleading requirements announced in Beaulieu II. Left unanswered in McCann and Beaulieu II are questions relating to the applicability of the Wyoming Rules of Civil Procedure to governmental claims litigation. The judicially created pleading rules relating to governmental claims should either be eliminated or applied in accordance with the W.R.C.P. As they are being applied now, they conflict with the W.G.C.A. and constitute an over-reaching by the judicial branch.

Link: http://tinyurl.com/yc8hpm7 .

[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 146

Summary of Decision issued December 1, 2009

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

Case Name: Forbes v. State

Citation: 2009 WY 146

Docket Number: S-08-0278

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

Representing Appellant Forbes: Diane M. Lozano, State Public Defender; Tina N. 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; Eric Alan Johnson, Director, Prosecution Assistance Program; Justin A. Daraie, Student Intern; Christopher J. King, Student Intern.

Facts/Discussion: Forbes pled guilty to two counts of third-degree sexual abuse of a minor. The district court imposed concurrent sentences of six to eight years, but suspended those sentences and placed Forbes on supervised probation. Subsequently, the State moved to revoke the probation. The district court, after a hearing, revoked probation and imposed the underlying sentence.

Probation revocation proceedings are governed by W.R.Cr.P. 39. A probation violation will not justify revocation unless the violation was willful. The Court reviewed the district court’s finding that Forbes willfully violated a condition of his probation by having a woman and her minor son in his hotel room (his home.) As a condition of his probation, Forbes was ordered not to “initiate, maintain or establish contact” with any minor child. Although it was unclear how contact with the minor was initiated, the district court found Forbes did not terminate contact as required. According to testimony, Forbes was instructed that having the child in the room was a violation. Despite that, the mother and child were again in the room when the probation officer returned with law enforcement.
Forbes contended his actions were justified because they were necessary to prevent the woman and child from spending the night on the street. The Court stated it was unclear whether the defense of necessity was available to defend a violation of probation. In the instant case, there was insufficient evidence to establish the defense. The record showed the district court considered the circumstances of the incident in determining the consequences for the violation.
The Court considered whether the trial court committed reversible error when it did not permit Forbes to allocate at the probation revocation hearing. Although Wyoming has long recognized the right of a defendant to speak in mitigation at sentencing, it has not faced the question of whether a probationer has a right to allocute at a probation revocation hearing. W.R.Cr.P. 39 is silent regarding a defendant’s right to allocute. Forbes cited Anderson to support his claim that the allocution provision of W.R.Cr.P. 32(c)(1)(C) should apply in probation revocation proceedings. In Anderson, the defendant was not sentenced until her probation was revoked; in the instant case, Forbes was challenging a probation revocation proceeding governed by W.R.Cr.P. 39. The Court noted the split of authority on the issue and recommended the Advisory Committee for the Wyoming Rules of Criminal Procedure address the question.

Conclusion: In the instant case and in light of W.R.Cr.P. 39’s silence, the Court could not find that the district court erred in failing to offer allocution to Forbes.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/yjejypd .

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