Summary 2010 WY 9

Summary of Decision issued January 28, 2010

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

Case Name: JLW v. CAB

Citation: 2010 WY 9

Docket Number: S-09-0097

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

Representing Appellant JLW: John M. Burman, Director, Legal Services; Marci Day, Student Director, Legal Services.

Representing Appellee CAB: Juan Leo DeHerrera, DeHerrera & Bach Law Center, PC, Rawlins, Wyoming.

Facts/Discussion: JLW (Father) appealed the district court’s order terminating his parental rights. He claimed the district court failed to satisfy the social study requirements and that there was insufficient evidence to support the finding that he was an unfit parent.

Social study: The social study required by § 14-2-314 was not completed until after the trial was complete. The social study was filed with the court on January 15, 2009 and Father’s rights were terminated on February 20, 2009. It was not clear from the record whether the district court reviewed the study prior to entry of the termination order. Father failed to identify any information that should have been included in the study that was not presented to the district court during trial. The information in the study was cumulative and nothing contradicted the trial evidence.
Sufficiency of evidence: The district court specifically found that Father’s incarceration for aggravated burglary did not by itself demonstrate unfitness. The amount of time Father spent in prison had an impact on his fitness, that he did not initiate legal action to obtain visitation rights, and that he never voluntarily paid child support. Although Father contended he would be released from jail in 2010, felony charges were still pending in Utah. The Court stated the decision was supported by clear and convincing evidence.

Conclusion: The information in the social study (completed after trial) was cumulative and nothing in the study contradicted the trial evidence. The district court’s decision was supported by clear and convincing evidence. The Court found no error in the district court’s determination that Father’s parental rights should have been terminated.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/yauh5bn .

[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 2010 WY 8

Summary of Decision issued January 28, 2010

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

Case Name: Foster v. State

Citation: 2010 WY 8

Docket Number: S-09-0056

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

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

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

Facts/Discussion: Following a jury trial, Foster was convicted of numerous drug-related crimes. She appealed the convictions, alleging that the district court abused its discretion by admitting two letters into evidence and alleging that cumulative error occurred.

Letters admitted into evidence: W.R.E. 901 is identical to its federal counterpart, F.R.E.901. Authenticating handwriting through familiarity by a lay witness requires nothing more than familiarity of some sort on the part of the witness with the handwriting of the person who, according to the witness, either did or did not pen the writing in issue. The witness testified she was able to identify the handwriting on the first letter as Foster’s because as Lieutenant of the jail, she received written requests and grievances from the inmates. She acquired her familiarity with the handwriting by reading it repeatedly. Even though a state actor, the Lieutenant did not acquire her familiarity for the purpose of litigation. As to the second letter purportedly written by Walsh, Foster argued that no testimony was offered to show that Walsh authored the letter. The testimony provided made clear that the witness’ knowledge and familiarity with the letter came from watching Walsh on a video camera place the letter where it was found. Foster’s arguments go to the weight of the evidence rather than whether Walsh actually wrote the letter.
Cumulative error: Foster argued that error occurred when the district court refused to provide a limiting instruction after it sustained defense counsel’s objection to statements made by the prosecutor during closing argument. Since Foster failed to demonstrate any resulting prejudice, the Court found it unnecessary to determine whether the failure to provide a limiting instruction was error. For the second error, Foster pointed to several instances of irrelevant and prejudicial evidence including: testimonial evidence of minor witness’s drug use, drug testing and past crimes; testimony from a State’s witness that she came to know Foster in prison; and testimony from the Lieutenant that Foster was an inmate in the jail. Foster argued that the comments from the minor witness about her drug use amounted to a “community outrage” argument. In the instant case, the Court stated the minor witness’s testimony and the prosecutor’s statements were relevant to the credibility of the witness because they did not seem to appeal to the jury’s sense of duty to help local law enforcement. The testimony from a State’s witness that she came to know Foster in jail was considered foundational by the Court. The Court stated that identity is always a material issue. In order to lay an adequate foundation for the Lieutenant to be able to testify as to whose handwriting was on the letters, it was necessary to show how the Lieutenant acquired such knowledge. It was not a big surprise to the jury to find that Foster had been in jail as a result of being charged with eleven drug-related crimes. The third instance Foster pointed to as error was related to questions and comments made by the prosecutor during Walsh’s testimony and closing argument. Although the prosecutor asked several “were-they-lying” questions, Foster opened the door to such questions by calling Walsh as a witness. The prosecutor lightened any prejudicial effects by reminding the jury in closing that it was their task to determine credibility issues. The fourth instance of error referred to a statement made by the prosecutor that Foster alleged constituted improper vouching for the credibility of a witness. The Court stated that the comment by the prosecutor that the witness’s testimony went “basically uncontradicted” pointed out the reasonable inference that she was not lying and that did not rise to the level of vouching.

Conclusion: The Court concluded the district court did not abuse its discretion when it admitted into evidence the letters purportedly written Foster and Walsh. The State properly authenticated the letter purportedly written by Foster through testimony. The State properly authenticated the letter written by Foster based on a video which captured images of Walsh hiding the note in the location in which it was discovered. Cumulative error did not occur. While it was improper for the State to utilize the “were-they-lying” technique, Foster failed to demonstrate sufficient prejudice to amount to cumulative error.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/ya2momg .

[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 2010 WY 7

Summary of Decision issued January 25, 2010

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

Case Name: Lawrence v. City of Rawlins and Trans. Comm. of Wyo.

Citation: 2010 WY 7

Docket Number: S-09-0134

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

Representing Appellant Lawrence: Bruce T. Moats, Law Office of Bruce T. Moats, Cheyenne, Wyoming.

Representing Appellee City of Rawlins: Daniel T. Massey and Amy L. Bach of City of Rawlins, City Attorney’s Office, Rawlins, Wyoming.

Representing Appellee Transportation Commission of Wyoming: No appearance.

Facts/Discussion: This is an appeal from two related district court orders in a declaratory judgment action between Lawrence and the City over a junkyard, which action was consolidated with the appeal of Lawrence’s municipal court conviction for violation of a nuisance ordinance. The junkyard was begun in 1958 prior to zoning. In 1973 a zoning ordinance was adopted by the City. In 1982 the City and the Lawrences signed a Settlement Agreement in which it was agreed that Lawrence would never deny the validity of the 1973 zoning ordinance, that he had no grandfathered rights in certain areas zoned residential and highway business, and that he agreed to fence and otherwise organize his business located on parcel 8. (There is a diagram of the parcels included in the opinion.)

Validity of the 1982 Settlement Agreement: One of the centrally contested issues was the validity of the zoning ordinance. The City believed its ordinance was valid and enforceable. Lawrence believed it was not. The parties agreed to settle that controversy by having Lawrence agree not to contest the validity and enforceability of the ordinance. The doctrine of mutual mistake does not fit that scenario. The district court had all the available documentation including the materials filed by both parties in support of their respective motions for summary judgment. Lawrence has not shown that the district court was not able to determine what parcels of land were at issue. Basically, the summary judgment rejected the applicability of the doctrine of mutual mistake, concluded that the Junkyard Control Act applied the Lawrence’s junkyard and left all remaining questions for the bench trial. The Court found no error in that resolution.
Grandfathered right to use areas not zoned industrial: All of the parcels were purchased prior to the 1989 effective date of the readopted zoning ordinance, the 1982 Settlement Agreement and the 1979 zoning change. It was clear from the evidence that all of the parcels were used in the junkyard business at one time or another. Nonconforming uses may obtain a grandfather exception but conforming uses have no such need. The junkyard remained legal in the areas not zoned industrial because they were “legal” in those areas before zoning occurred when there was nothing to forbid the use. Any grandfathered right to have the junkyard in the residential portions of parcels 4 and 6 and the highway business portion of parcel 3 were specifically relinquished and abandoned in the 1982 Settlement Agreement. The grandfathered right to use parcel 7 in the junkyard business has not been abandoned or discontinued.
Abandoned or discontinued use: The junkyard was a legal conforming use in the industrial zone both before and after the 1989 zoning ordinance adoption. All of parcels 1, 2, 5, and 8 were zoned industrial. The portion of parcel 3 south of parcel 5 and the portions of parcels 4 and 6 south of the residential zone were also zoned industrial. Lawrence has not abandoned or discontinued her junkyard use in those areas.

Conclusion: Lawrence’s junkyard is a conforming use in those areas that are zoned industrial. The concepts of abandonment or discontinuation of a nonconforming use are not applicable to those areas, and the district court must be reversed to the extent that they contradict that conclusion. Pursuant to the 1982 Settlement Agreement, the district court ordered Lawrence to screen parcel 8 and the Court affirmed that order.
Any grandfathered right for the existence of the junkyard as a nonconforming use in the residential zoned areas in parcels 4 and 6, and the highway business zoned area of parcel 3 was relinquished in the 1982 Settlement Agreement. The junkyard is not a legal nonconforming use in those areas and the order of the district court to that effect was affirmed. The junkyard was a grandfathered nonconforming use on parcel 7 which use has not been abandoned or discontinued. The order of the district court was reversed to that extent.

Affirmed in part, reversed and remanded in part.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/y8f2dm4 .

[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.]

Privacy Online

Do You Have Any Legal Right To Privacy For Information Stored Online?

This article briefly asks the question regarding the legal right (or not) to privacy for our information in the cloud. The author references a recent law review article by David A. Couillard, Defogging the Cloud: Applying Fourth Amendment Principles to Evolving Privacy Expectations in Cloud Computing.

Photo attribution: "Please!" by hyku.

PDF Security

How certain are you that the PDF you just sent cannot be altered? Did you password protect it? Are you relying on the hope that the person to whom you sent it does not have Adobe Acrobat? Keith Jones and Ryan Lerminiaux talk about the pitfalls of PDF security and offer suggestions for increasing your confidence in the safety of your information: How Secure Is Your PDF?.

Summary 2010 WY 6

Summary of Decision issued January 19, 2010

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

Case Name: Baker v. State

Citation: 2010 WY 6

Docket Number: S-08-0094

Appeal from the District Court of Natrona County, the Honorable David B. Park, Judge.

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

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

Facts/Discussion: A jury convicted Baker of one count of possessing controlled substance precursors with intent to engage in a clandestine laboratory operation associated with that crime, three counts of conspiracy, and two counts of child endangerment. He was sentenced to concurrent terms of six to eight years on the first four counts and concurrent terms of eighteen to twenty-four months on the child endangerment charges. The terms were to be served consecutively.

Denial of motion to suppress – consent: Baker argued the warrantless entry into his home was a violation of the Fourth Amendment of the United States Constitution and art. 1, § 4 of the Wyoming Constitution because he did not consent to the search. The facts known to the officers at the time of the search support the conclusion that the live-in girlfriend, Merck, had the authority to consent to a search of the residence. Merck reported a domestic disturbance from her home at the hands of her live-in boyfriend. She expected Baker to not answer the door and told officers that they could go inside the home. She unlocked the door with her own key from her personal keychain.
Denial of motion for judgment of acquittal – child endangerment: Baker claimed the district court erred when it denied his motion for judgment of acquittal with respect to the two counts of child endangerment because the State failed to prove the children were present at the time of the manufacturing activities. Through various witnesses the State established that for several months during 2006 Baker conspired with various individuals to operate a clandestine meth lab. Merck unequivocally admitted to the criminal activity taking place in her home over the course of basically a year. There was ample evidence presented to allow the jury to convict Baker of two counts of endangering children.
Jury instructions – child endangerment: Baker asserted the district court failed to adequately instruct the jury regarding the elements of child endangerment. The instruction tracked almost exactly to the Wyoming Criminal Pattern Jury Instructions. In addition the instruction mirrored the language of the statute. Baker showed the alleged error was clearly on the record but could not show where a clear and unequivocal rule of law was violated in a clear and obvious, not merely arguable, way.
Jury instructions – conspiracy: Baker argued that the district court instructed the jury under the wrong conspiracy statute and thus, his convictions should have been reversed. Baker argued on appeal that the proper conspiracy statute to be applied was § 6-1-303 but the one his defense counsel insisted upon was § 35-7-1042. Baker’s charged conduct of conspiring to possess precursors and lab equipment or supplies is not delineated as a crime under the conspiracy provision of § 35-7-1059(a)(iv). Baker was convicted of crimes that do not legally exist. Lacking a legal basis, those convictions must be reversed.
Ineffective assistance of counsel: Baker argued that he received ineffective assistance of counsel at trial because of his trial attorney’s insistence that § 35-7-1042 was the correct conspiracy statute. Strickland requires that to prove ineffective assistance of counsel, an appellant must prove that counsel’s performance was deficient and that the deficient performance prejudiced the defendant in such a manner as to deprive him of a fair trial. The Court concluded that Baker’s trial counsel was ineffective. However, neither of the conspiracy statutes proposed by the State and the defendant was applicable to the instant case. Thus although counsel’s performance may have been deficient, the Court could not conclude that absent that deficiency, the result of the proceedings would have been altogether different.
Merger: Finally, Baker contended that Counts II, III, and IV (the conspiracy counts) should have merged for the purposes of charging and sentencing. The Court stated that since Baker’s charged conduct was not delineated as a crime under the conspiracy provision of § 35-7-1059(a)(iv) the charges and convictions were reversed.

Conclusion: The evidence seized during the warrantless search of Baker’s home should not have been suppressed as his live-in girlfriend’s consent was valid. Furthermore, Baker’s two convictions for child endangerment stand, and the court’s instructions on those charges were appropriate. The Court reversed Baker’s convictions on Counts III and IV because the incorrect conspiracy statute was applied. Because of that, Baker’s trial counsel was deficient, though he did not suffer any prejudice.

Affirmed in part and remanded in part.

J. Hill delivered the decision.

Link: http://tinyurl.com/yzsqb64 .

[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.]

E-mail tips from Judge Lebovits

Raymond Ward points to an extensive article by Judge Lebovits (New York) on e-mail. Much of Judge Lebovits' article contains e-mail etiquette and niceties very familiar to us. However, he throws in a few more bits and pieces that even I had not considered. It's definitely worth a scan.

the (new) legal writer: E-mail tips from Judge Lebovits

TechnoLawyer Blog: SmallLaw: Fill Out Forms With Adobe Acrobat Instead of a Typewriter

TechnoLawyer Blog: SmallLaw: Fill Out Forms With Adobe Acrobat Instead of a Typewriter is a great post for those of you who wish to make the lonely typewriter in your office disappear.

And yes, the law library still has not only one, but two typewriters.

Overview of Cloud Computing (SaaS)

The ABCs of Cloud-Based Practice Tools by Joshua Poje, published by ABA's Law Practice Today, is an excellent overview of what cloud computing is, the pros and cons (mobility, functionality, service and support, and cost), what services you might already be using that are part of the cloud, and finally, questions to ask if you are considering cloud computing on a broader scale.

(Image source: http://infreemation.net/cloud-computing-linear-utility-or-complex-ecosystem/)

Summary 2010 WY 5

Summary of Decision issued January 14, 2010

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

Case Name: Hutchinson v. Taft

Citation: 2010 WY 5

Docket Number: S-09-0028, S-09-0067

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

Representing Appellant in Case No. S-09-0028: Matthew H. Romsa, John M. Kuker and James M. Peterson of Romsa & Kuker, LLC, Cheyenne, Wyoming.

Representing Appellees in Case No. S-09-0028: James R. Salisbury of Riske, Salisbury & Kelly, PC, Cheyenne, Wyoming.

Facts/Discussion: Gerald D. Hutchinson’s predecessors in interest (the Hutchinsons) leased property owned by Josephine Taft. After leasing the property for about ten years, the Hutchinsons ceased making the lease payments but continued to use the property. When a trustee of the Tafts later listed the Taft property for sale, the Hutchinsons filed a claim to quiet title to the property in them on the theory of adverse possession.

Order granting motion on partial findings: A permissive user may change his possession into adverse title with a clear, positive, and continuous disclaimer and disavowal of the title of the true owner brought home to the latter’s knowledge. The Court stated that the Hutchinson’s claim failed noting the Tafts’ actions of entering into oil and gas leases on the property and selling a portion of the property to the State constituted overt acts of ownership inconsistent with the adverse possession claim.
Exhibit 9: On the day of trial, prior to opening statements, the Tafts objected to the Hutchinsons’ Exhibit 9 (Cara Taft’s and Leon Harney’s discovery responses.) The district court did not “rule” on the admissibility of Exhibit 9. Rather, upon hearing the motion, the district court deferred ruling and moved ahead with opening statements. The issue was not addressed again because the Hutchinsons rested their case without offering the exhibit. While it was apparent from the record that the Hutchinsons intended to offer the exhibit, the opportunity never arose because the district court granted judgment for the Tafts at the close of the Hutchinsons’ case.
Denial of motions to amend findings and for new trial: In denying the Hutchinsons’ post-trial motions, the district court found that the Hutchinsons had not presented sufficient evidence to show that what began as permissive use became hostile use. Implicit in the finding is the conclusion that neither the admission of Exhibit 9 nor Cara Taft’s anticipated testimony would have changed that result. It would not have satisfied the obligation to show a clear, positive, and continuous disavowal of the Tafts’ title to the property.

Conclusion: Given the evidence presented, the Court could not conclude the district court’s determination was unreasonable. The Hutchinsons’ use of the Taft parcel remained essentially the same from the time they rented it in 1961 to the time of trial. As occasions arose when they could have disavowed the Tafts’ ownership and asserted their own, the Hutchinsons did neither. In the face of division orders and royalty payments to the Tafts as owners of the property, the Hutchinsons did nothing; in the face of the State’s efforts to purchase a strip of the Taft property, the Hutchinsons did nothing. The Hutchinsons’ evidence was insufficient to establish adverse use. The district court did not abuse its discretion in denying the post-trial motions.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/yk3m9m9 .

[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 2010 WY 4

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

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

Case Name: Winter v. Pleasant

Citation: 2010 WY 4

Docket Number: S-09-0058, S-00-59

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

Representing Gaye Winter and JO/ETTA, LLC, a Wyoming close limited liability company: V. Anthony Vehar of Vehar Law Offices, Evanston of Wyoming

Representing Andy Pleasant, doing business as A. Pleasant Construction: Patrick J. Crank and Matthew D. Obrecht of Speight, McCue & Crank, Cheyenne, Wyoming.

Date of Decision: January 12, 2010

These combined appeals arise from a judgment relating to a construction contract. In S-09-0058, Don Winter, Gaye Winter, and Jo/Etta, LLC (Winter) appeal from the district court's ruling that a materialman's lien (Amended Lien Statement) filed against their property, was valid. In S-09-0059 Andy Pleasant, doing business as A. Pleasant Construction (Pleasant Construction), appeals the district court's holding that Winter did not breach the Contract, the district court's interpretation of the Contract, and the district court's damages award.

Issues: Whether the district court erred in finding that an Amended Lien Statement complied with the requirements of Wyo. Stat. 29-1-301 (2009). Whether the district court erred in finding the word "monthly," as used in the Contract, to be ambiguous. Whether the district court erred in finding that the Project Manual was incorporated into the Contract. Whether the district court's damages calculation is factually and legally flawed.

Holdings: Lien statutes create remedies in derogation of common law and must be strictly construed. Accordingly, in order to perfect a materialman's or mechanic's lien, full compliance with all statutory requirements is necessary. In order to have a perfected lien pursuant to this title, a lien claimant shall file with the county clerk a lien statement sworn to before a notarial officer. In the present action, the notary block of the Amended Lien Statement reads:

On this 11th day of May, 2006, before me personally appeared Robert T. McCue, to me personally known, who being by me duly sworn, did say that he is the attorney for A. Pleasant Construction and that the above and foregoing AMENDED LIEN STATEMENT was signed on behalf of A. Pleasant Construction by authority of Andy Pleasant.

For a lien statement to be valid, the plain language of the phrase "sworn to" in the lien statute requires that the lien affiant swear to the truth and accuracy of the lien statement. Wyo. Stat. 32-1-105(b) (2009) provides that "a notary establishes the identity of the person signing the document and attests that the signature on the document was made in his presence." Given the fact that § 32-1-105(b) requires that the notary public determine the identity of the affiant, it would make little sense to conclude that the affiant need only swear to his or her identity. Moreover, swearing to one's identity does nothing to assure the factual accuracy of the lien statement. Interpreting § 29-1-301(a) in any way except to require that the accuracy and truth of the contents of the lien statement be "sworn to" would lead to an absurd result.

The Amended Lien Statement here fails to indicate that the affiant, Robert T. McCue, was swearing to the accuracy of the lien statement. Instead, the Amended Lien Statement, merely indicates that he duly swore to his identity and/or to his authority as a representative of A. Pleasant Construction. That statement is insufficient to create a valid lien statement under the plain language of § 29-1-301(a). The district court erred as a matter of law when it concluded that the Amended Lien Statement was valid.

It is unnecessary to determine whether the district court correctly found the term "monthly" to be ambiguous because the court may affirm a decision on any legal grounds appearing in the record. In this action, prior to Winter's non-payment, Pleasant Construction was in material breach of contract for changing the Contract without first obtaining written change order authorization, failing to comply with the plans and specifications, and for not building the Winters Professional Building in a workmanlike manner. The party first committing a substantial breach of contract cannot complain that the other party fails to perform. Accordingly, Winter was not in breach for failing to make further payments.

Similarly, because none of the breaches by Pleasant Construction are dependent on finding that the Project Manual, in whole, was incorporated into the Contract, it is unnecessary to determine whether the district court did in fact find that the entire Project Manual was incorporated by reference into the Contract, and if it did, whether or not that was error. The first breach relies on a part of the Project Manual that Pleasant Construction admits was incorporated into the Contract, and the remaining three breaches exist as a result of the Contract itself, not as a result of any part of the Project Manual. There was sufficient evidence in the record supporting the district court's finding that Pleasant Construction's work resulted in numerous construction defects which were not in conformity with the parties' agreement, which left Pleasant Construction in breach of contract. Thus, the district court did not err in finding that Pleasant Construction was the first to breach the Contract by failing to perform the work in a workmanlike manner.

In general, the legal remedy for a breach of contract is the award of damages designed to place the plaintiff in the same position in which he would have been had the contract been fully performed, less proper deductions. In awarding damages to Pleasant Construction, the district court stated "[Pleasant Construction] is entitled to the value of labor and materials expended in [Winter]'s project if those values are demonstrated with prima facie evidence. However, because of [its] breach of contract, [Pleasant Construction] must reimburse [Winter] for defective construction and overcharges as supported by the evidence." This case is different than the typical damages case for a breach of contract, in that the breaching party, Pleasant Construction, was awarded damages, instead of the non-breaching party, Winter. However, because "[t]he law will not put a victim in a better position than he would have been in had the wrong not been done,", Winter was required to pay for the labor and materials expended by Pleasant Construction, which resulted in a net damages award for Pleasant Construction. The district court's damages calculation were not clearly erroneous as all of the challenged deductions were supported by testimony and evidence in the record.

The district court erred as a matter of law when it found that the Amended Lien Statement was valid. Accordingly, that portion of the district court's decision is reversed. However, the invalidity of the Amended Lien Statement does not affect the damages portion of this opinion. The district court did not err by finding that Winter had not breached the contract, by finding Pleasant Construction in breach of contract, or in calculating damages. Therefore, uphold those portions of the district court's decision are upheld. However, it is necessary to remand this case to the district court in order for it to address the apparent mathematical error in the damages calculation.

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

Link to the case: http://bit.ly/6CNBX5.

Summary 2010 WY 3

Summary of Decision issued January 11, 2010

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

Case Name: Shelest v. State, ex rel., Wyo. Workers’ Safety and Compensation Div.

Citation: 2010 WY 3

Docket Number: S-09-0026

Appeal from the District Court of Uinta County, the Honorable Dennis L. Sanderson, Judge.

Representing Appellant Shelest: Donna D. Domonkos, Cheyenne, Wyoming.

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

Facts/Discussion: Shelest was injured in a motorcycle accident that occurred on his return trip to Evanston from a training program held in Rock Springs. At the time, he was an employee of WYDOT and he was attending a required program.
The Court has explained that there must be a causal nexus between the injury and some condition, activity, environment or requirement of the employment. An injury sustained by an employee while commuting to and from work is generally not compensable but an injury sustained during a trip taken as part of his work and for which he is reimbursed, is generally compensable. When an employee is on a work-related trip for which he is reimbursed but takes a side trip, he is no longer acting within the scope of his employment and is therefore not entitled to worker’s compensation benefits if an injury should occur.
Shelest insisted that a journey becomes a side trip or deviation only if there is an identifiable, concrete, personal errand to be accomplished. The Court stated that enjoying the scenery and weather may not be a specific, identifiable errand but it was sufficiently personal in nature to support the finding that Shelest was acting outside the scope if his employment while traveling the alternate route. The Court noted that the difference in distance between the alternate route and the direct route should be considered when determining whether a route is an alternate. In the instant case, the route was 50 miles longer and took approximately an hour longer than the direct route.

Conclusion: It is not necessary to identify a specific personal errand as the purpose of a deviation. The purpose identified by Shelest was purely personal. When pursuing that personal purpose, Shelest was acting outside the scope of his employment. Because the findings were not inconsistent the decision could not be considered arbitrary or capricious.

Affirmed.

J. Burke delivered the decision.

J. Hill dissenting joined by J. Kite: The Justices dissented because they felt the majority opinion applied an incorrect standard of review and that the more enlightened authorities on point held that merely using a longer alternative route to reach a location while traveling either to or from a work location absent any personal errand, the entitlement to receive workers’ compensation benefits is not affected.

Link: http://tinyurl.com/yfw4brc .

[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 2010 WY 2

Summary of Decision issued January 8, 2010

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

Case Name: Cheyenne Newspapers, Inc. v. Bldg. Code Bd. of Appeals, Cheyenne

Citation: 2010 WY 2

Docket Number: S-09-0103

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

Representing Appellant Newspaper: Bruce T. Moats of Law Office of Bruce T. Moats, PC, Cheyenne, Wyoming.

Representing Appellee Bldg. Board: Kate M. Fox of Davis & Cannon, LLP, Cheyenne, Wyoming

Facts/Discussion: The Newspaper appealed from a summary judgment granted by the district court in favor of the Board declaring that certain Board action did not violate the Wyoming Public Meetings Act and that such action therefore was not null and void.
Quasi-judicial deliberations under WAPA subject to the Wyoming Public Meetings Act: All meetings of the governing body of an agency are public meetings. The Board was created by an ordinance of the City of Cheyenne which is a municipality. The Board is the group having ultimate control over its decisions, not the city council. Therefore, the “governing body” is the board itself. The Board met to discuss and deliberate the appeal from the action of the City’s Historic Preservation Board. Quasi-judicial deliberations after a WAPA contested case hearing may not be closed to the public. Section 16-4-403(a) mandates that all meetings of the governing body of an agency are public meetings except for executive sessions as described in § 16-4-405. The Act intends that an agency’s deliberations occur during a public meeting.
Action of the Board null and void: The Court noted the facts in the instant case were similar to those in Mayland v. Flitner where the commissioners entered into executive session in violation of the Act but took action later at an appropriately called public meeting. In the instant case, although § 16-4-403(a) was violated when the private meeting took place, the second sentence was not violated because the agency’s action took place at a public meeting. Therefore, the action was not null and void.

Conclusion: The Board violated the statute by deliberating at a closed meeting, but the agency action took place at a public meeting, so that agency action was not null and void. The Court reversed the conclusion of the district court that the Act does not apply to quasi-judicial deliberations of an agency after a WAPA contested case hearing, but the Court affirmed the conclusion of the district court that the Board took no action that must be declared null and void.

Affirmed in part, reversed in part.

C.J. Voigt delivered the decision.

J. Kite concurring, joined by J. Hill: The Justices agreed that the Board was a governing body covered by the Act and its meeting in executive session was illegal. The legislature has stated in clear and unequivocal language that agencies are prohibited from deliberating behind closed doors. For some reason, the Board concluded it was exempt from these requirements and went so far as to adopt regulations which purported to provide it with authority to ignore the statute and hold executive sessions whenever it chose. The Board also ignored the city attorney’s request that it conduct its deliberations in public. In the face of that direct defiance of the law, injunctive relief may have been appropriate.
J. Burke concurring in part and dissenting in part: J. Burke agreed with the majority that an agency’s deliberations after a contested case hearing are subject to the requirements of the Wyoming Public Meetings Act and that the Board violated the Act when it deliberated at a closed meeting. However, he concluded that the record was insufficient to support a finding that the board took no action during the meeting. He would therefore have reversed the district court’s grant of summary judgment, and remanded for further proceedings to resolve that genuine issue of material fact.

Link: http://tinyurl.com/y8gy9bo .

[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 2010 WY 1

Summary of Decision issued January 4, 2010

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

Case Name: Budig v. State

Citation: 2010 WY 1

Docket Number: S-09-0038

Appeal from the District Court of Natrona County, the Honorable Scott W. Skavdahl, Judge.

Representing Appellant Budig: Harry G. Bondi of Harry G. Bondi Law Offices, PC, Casper, Wyoming.

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

Facts/Discussion: Budig challenged his conviction for third-degree sexual assault and sexual abuse of a minor. Budig asserts that his constitutionally protected right to confrontation was violated and that the prosecutor improperly vouched for the credibility of the victim witnesses.
Right to confrontation: The Court noted their summary of the limits a court may place on cross-examination in Miller v. State. In order for there to be a violation of the right of confrontation, a defendant must show more than just a denial of the ability to ask specific questions of a particular witness. A defendant’s right is not unfettered but subject to the trial court’s discretion to prevent questioning that was repetitive or of marginal relevance. The trial court held a motion hearing regarding the character evidence he intended to address during cross-examination. The Court stated that since none of the evidence was directly related to Budig, its relevance was marginal and its probative value limited. Past sexual conduct evidence falls into the class of evidence the rape shield law was specifically designed to exclude. Budig was given the opportunity to challenge the victims’ credibility, motives, and biases using other admissible evidence.
Improper vouch for credibility of victims: Budig asserted that the prosecutor improperly vouched for the credibility of the victim witnesses in statements he made during closing argument. After reviewing the record provided on appeal and particularly the trial transcripts, the Court found that the prosecutor’s comments relating the victims’ actions to the general behaviors described by the expert were not tantamount to vouching for the victims’ credibility. The statements informed the jury about the relevance of the testimony and suggested how that testimony might assist the jury in determining the facts at issue. Relating the general behaviors described by the expert witness to the specific behaviors exhibited by the victims was important to effective prosecution in the instant case because one defense strategy was to argue that the victims’ behaviors were inconsistent with the allegations made.

Conclusion: The Court held that Budig’s constitutionally protected right to confrontation was not abridged when the district court refused to allow him to question the victims about prior alleged sexual conduct or about specific instances showing the victims’ mean or manipulative character traits, which instances did not involve Budig. The prosecutor did not improperly vouch for the victims’ credibility during closing argument.

Affirmed.

J. Voigt delivered the decision.

Link: http://tinyurl.com/y8gcn4q .

[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.]