Law Library Letter: March 2010

Wednesday, March 31, 2010

Redaction Update

A recent article on Law Technology News by Kim Walker provides the steps to using redaction tools in Adobe Acrobat (versions 8 or 9) and MS Word 2007. If you're using these tools, redaction can be a simple, safe process to prevent access to metadata or private information.

How to Keep Sensitive Data Blacked Out

Friday, March 26, 2010

Summary 2010 WY 38

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

Case Name: Lovato v. State

Citation: 2010 WY 38

Docket Number: S-09-0073

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

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

Representing Appellee (Plaintiff): 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: Appellant entered a conditional guilty plea to two drug-related charges, reserving his right to appeal the denial of the suppression motion.

Issues: Whether the trial court erred in finding that (1) there was "probable cause" to conduct a traffic stop of Appellant's car; and (2) the scope of the traffic stop was not exceeded by the trooper's actions.

Holdings: When district court's decision to deny a motion to suppress is reviewed, the appellate court will defer to the district court's findings of fact unless they are clearly erroneous.

In the present action, Appellant's initial contact with the trooper was an investigatory traffic stop, not an arrest. The distinction is significant because it takes less to justify a traffic stop than an arrest. Because of its limited nature, a law enforcement officer is only required to show "the presence of specific and articulable facts and rational inferences which give rise to a reasonable suspicion that a person has committed or may be committing a crime" in order to justify the detention.

The trooper in the present action readily admitted that this stop was prompted by the information provided by the confidential informant that Appellant was carrying illegal drugs. The trooper believed that this information, by itself, was insufficient to justify a stop. However, an officer is permitted to make a traffic stop if he personally observes a traffic violation, without regard to his subjective intent. The trooper testified that he observed two traffic violations. Almost as soon as he spotted Appellant's car, he "could see the sunlight glinting off of a crack on the windshield on the upper left side of the windshield." This, the trooper testified, suggested a possible violation of Wyo. Stat. 31-5-955(a). A short time later, the trooper observed that he was unable to read the car's rear license plate number because of "a dark-tinted license plate cover on the rear license plate." This suggested a possible violation of Wyo. Stat. 31-2-205(a)(i).

Appellant points out in that there were inconsistencies in the testimony about the location of the crack in the windshield and as to when the cracked window violation was added to the warning ticket issued Appellant for his traffic offenses. However, after considering conflicting evidence, the district court found the exact position of the windshield crack is immaterial in determining whether the trooper possessed the necessary level of suspicion to stop Appellant. The uncontroverted fact is that a windshield crack existed that was noticeable from both the interior and exterior of the vehicle. The finding of the district court is consistent with the trooper's testimony. Although Appellant's evidence to the contrary is sufficiently persuasive that the district court might reasonably have found in his favor, it did not, but that alone does not make the finding clearly erroneous.

Evidence about the license plate cover is also troublesome. According to the trooper, he could not read the license plate on the back of Appellant's car, but could read the one on the front "just fine." According to both Appellant and his wife, there were identical license plate covers on the front and the back of the car. In addition, the trooper described the license plate as "dark-tinted," and testified that the date sticker on the upper left corner of the license plate was "covered by the frame of the license plate protector." The actual license plate cover was accepted into evidence during the suppression hearing. It is the same translucent plastic material throughout, with no frame that could have blocked the trooper's view of the date sticker. While the plastic is not entirely transparent, it is a stretch to describe it as dark-tinted. The plastic is shiny, however, and it is conceivable that in some angles of sunlight, the combination of glare and tinting could make the license plate harder to read. The trooper did not mention the angle of the sunlight or any other such details, but he did testify unequivocally that the license plate cover obscured his view of the license plate on the rear of Appellant's car. The appellate court is not in a position to assess the credibility of this testimony, or to weigh it against the conflicting evidence. The district court was in that position. Based on its findings of fact, the district court concluded that the trooper possessed more than the necessary reasonable suspicion to stop Appellant because he personally observed Appellant driving in violation of two statutes. Having deferred to the district court's findings of fact, there was sufficient probable cause to provide the trooper with the reasonable suspicion necessary to stop Appellant. The initial stop was justified.

A traffic stop must be of reasonably short duration, and that there are limits to the questions that may be asked of the detained driver. An investigative detention must be temporary, lasting no longer than necessary to effectuate the purpose of the stop, and the scope of the detention must be carefully tailored to its underlying justification. During a routine traffic stop, a law enforcement officer may request the driver's proof of insurance, operating license, and vehicle registration, run a computer check, and issue a citation or warning. The officer may detain the driver and his vehicle only for the period of time reasonably necessary to complete these routine matters. Once the driver has produced a valid driver's license and proof that he is entitled to operate the vehicle, he must be allowed to proceed without further delay. During the stop, an officer generally may not ask the detained motorist questions unrelated to the purpose of the stop, including questions about controlled substances, unless the officer has reasonable suspicion of other illegal activities.

According to the dispatch records kept by the Wyoming Highway Patrol, the trooper initiated the traffic stop of Appellant at 11:01:23 a.m. and the canine unit arrived at the scene at 11:05:38, and reported by radio at 11:06:09 that the dog had alerted on Appellant's car. Appellant concedes that the drug detection dog's alert gave the troopers probable cause to detain him further, search his car, and subsequently search his person. Thus, the initial detention that Appellant challenges lasted only from the initiation of the traffic stop until the drug detection dog alerted, a total of four minutes and forty-six seconds. The limited amount of time that the trooper was in verbal contact with Appellant does not indicate that his initial detention was unreasonably prolonged. As to the subject matter of the questions, the trooper testified that he asked the driver several questions regarding his trip, as far as his origin - his origin and destination. Questions regarding travel plans are an acceptable area of inquiry during a traffic stop. There is no indication that the trooper used these questions to prolong Appellant's detention unreasonably. Appellant's detention was prolonged, and his car was searched, not because of his questioning by the trooper, but because the drug detecting dog alerted on his car. Having considered the totality of the circumstances, it cannot be said that the district court erred in concluding that the trooper's questioning of Appellant was reasonable.

The district court's denial of Appellant's suppression motion is affirmed.

J. Burke delivered the opinion for the court.

Link: http://bit.ly/9fyt8i.

[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 using the Universal Citation format, please contact the Wyoming State Law Library.]

Thursday, March 25, 2010

Summary 2010 WY 37

Summary of Decision issued March 25, 2010

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

Case Name: Morris v. CMS Oil & Gas Co.

Citation: 2010 WY 37

Docket Number: S-09-0103; S-08-0104

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

Representing Appellant Morris (Plaintiff): Patrick G. Davidson and Rebecca L. Winkler of Daly Law Associates, LLC, Gillette, Wyoming.

Representing Appellee CMS Oil & Gas Co. (Defendant): Thomas F. Reese, Drake D. Hill and Orintha E. Karns of Brown, Drew & Massey, LLP, Casper, Wyoming.

Facts/Discussion: Morris owns an overriding royalty interest in gas wells operated by CMS. Morris brought suit under the WRPA because she believed that CMS was not reporting production or paying her royalties properly.

Royalty payments: Morris failed to prove she was owed royalties or interest beyond what CMS had paid as of November 2002. She expressly testified she was unsure of the amount owed but that her expert would know. The expert testified that while there were some irregularities in the reports, they ultimately were resolved. Morris claimed she was unable to prove her damages because CMS refused to produce the necessary documentation during discovery. CMS’s expert testified he provided Morris’ expert with all the pertinent material he had in his possession and Morris’ expert acknowledged the same. Relying on an internal CMS memo, Morris asserted that the documentation provided was unreliable. The Court stated that while the memo disclosed that CMS had some initial problems with its reporting on some wells, it does not prove that the information ultimately provided was unreliable. Morris argued that CMS’s reported production numbers differed from those reported to the WOGCC as reflected on the website. The evidence suggested that the WOGCC numbers that Morris relied upon were not reliable. Morris’s expert testified he found thirty-three wells for which she had never received payment but he was never asked to calculate the royalty amount due on those wells. CMS’s expert testified only three such wells existed and testified the production numbers and volumes calculated by Morris’ expert were correct. No competent evidence on the sales price was presented. The Court upheld the district court’s conclusion that CMS ultimately paid Morris more than she was due.
Lack of reporting: The district court concluded that CMS failed to properly report for twenty-nine months. Neither party challenged the district court’s finding that CMS failed to report during the specified time period or argued that the finding was not supported by the record. The district court concluded that a producer who fails to submit a complete monthly report is liable to the interest owner in the amount of $100 per month. The clear intent of § 30-5-305(b) was that interest owners would receive all of the information identified in subparagraphs (i) through (xi) on a regular monthly basis. It authorizes the information to be provided by lease, property or well. Anyone who failed to do so would be liable to the interest owner for $100 for each month that a complete report was not provided. The district court correctly determined that CMS was liable to Morris in the amount of $100 for each month complete reporting did not occur. The evidence supported the district court’s determination that CMS failed to submit complete monthly reports from July 2000 through March 2002. The district court found CMS was required to report beginning December 1999. The Court noted the first sale was in December 1999 making the first payment and report due July 2000. On remand, the district court should consider the issue and determine the proper penalty.
Attorney’s fees and costs: The Court has defined whether a party is a prevailing party (for purposes of awarding costs of litigation) as one who improves his or her position by the litigation. Morris obtained payments she otherwise would not have, proved that CMS violated the WRPA and obtained a judgment requiring CMS to pay reporting penalties thereby improving her position. The Court upheld the district court’s determination that Morris was the prevailing party for the purposes of attorney’s fees. Morris claimed the district court erred in awarding fees to CMS. The district court’s award of attorney fees to CMS when Morris was the prevailing party cannot stand. The practical effect of the district court’s award of attorney’s fees to CMS was to punish Morris for not voluntarily dismissing her claim once CMS made some payment. This runs counter to the entire purpose of the WRPA as well as the express language of § 30-5-303(b) authorizing an attorney’s fee award to the prevailing party.
Application of the escrow provision: Morris asserted the district court erred when it held CMS was not in violation of the WRPA once it escrowed the funds in April 2002. She claimed the ruling failed to take into account that there were some wells for which she never received payment or reports so that CMS was continuing to violate the WRPA after it escrowed the funds. Therefore the calculation of the reporting penalty was incorrect. The testimony and evidence tended to show that upon paying Morris $38,657.41 as of November 2002, CMS had paid approximately $3,000 more than it owed. The ruling was supported by the evidence.

Conclusion: The district court’s conclusion that Morris received all the royalty payments she was due was supported by the evidence. The district court correctly concluded CMS failed to submit reports as required by WRPA. The district court’s conclusion that CMS violated the WRPA by failing to either pay Morris the royalties due or place them in escrow was supported by the evidence. Morris was the prevailing party and was properly awarded her attorney’s fees. The district court erred in awarding CMS attorney’s fees.

Affirmed in part, reversed and remanded in part.

J. Kite delivered the decision.

J. Golden, dissented: The Justice’s review of the record noted that attached to every payment made was a check detail containing the requisite statutory information. He would have reversed the district court’s ruling on reporting penalties. The Justice discussed the “catalyst theory” which the Court has never expressly commented upon. The theory runs directly contrary to the language and intent of § 30-5-303(b). The United States Supreme Court discussed the definition of “prevailing party” at length in Buckhannon. In order to be deemed a prevailing party, there must be a material modification in the legal relationship of the parties. The Justice would hold that a party can only be considered a “prevailing party” in a juridical action if the party receives some form of juridical relief such as judgment on the merits or a court ordered consent decree or court-approved settlement agreement. The Justice would follow the lead of the United State Supreme Court and adopt a bright-line rule defining a person who improves her position through litigation as a person who receives relief sought by means of some form of juridical action. Only juridical action can change the legal relationship between parties, the proper function of any legal action.

Link: http://tinyurl.com/yefmdqw .

[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 using the Universal Citation format, please contact the Wyoming State Law Library.]

Wednesday, March 24, 2010

Summary 2010 WY 36

Summary of Decision issued March 23, 2010

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

Case Name: Ultra Resources, Inc. v. Hartman

Citation: 2010 WY 36

Docket Numbers: S-08-0258, S-08-0259, S-08-0260, S-08-0261, S-08-0262, S-08-0263, & S-08-0264

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

Representing Appellant Ultra Resources, Inc. and Williams Production Rocky Mountain Co. (Defendant): Douglas J. Mason of Mason & Mason, Pinedale, Wyoming; George W. Mueller of Burns, Wall, Smith and Mueller, P.C., Denver, Colorado.

Representing Appellant Arrowhead Resources (U.S.A.) LTD (Defendant): Nancy D. Freudenthal of Davis & Cannon, Cheyenne, Wyoming; Rebecca Hitchcock Noecker of Beatty & Wozniak, Denver, Colorado.

Representing Appellant Lance Oil & Gas Company, Inc. (Defendant): Paul J. Hickey of Hickey & Evans, Cheyenne, Wyoming; David W. Stark and Ezekiel J. Williams of Faegre & Benson, Denver, Colorado.

Representing Appellants Shell Rocky Mountain Production, LLC and SWEPI, LP (Defendants): David B. Hooper of Hooper Law Offices, Riverton, Wyoming; Phillip D. Barber of Phillip D. Barber, P.C., Denver, Colorado.

Representing Appellees Doyle and Margaret M. Hartman, John H. Hendrix Corporation, Michael L. Klein and Jeanne Klein, Ronnie H. Westbrook and Karen Westbrook (Plaintiffs): Michael J. Sullivan and John A. Masterson of Rothgerber, Johnson & Lyons, Casper, Wyoming; James M. Lyons and D. Elizabeth Wills of Rothgerber, Johnson & Lyons, Denver, Colorado; J.E. Gallegos and Michael J. Condon of Gallegos Law Firm, Santa Fe, New Mexico.

Facts: This case encompasses seven appeals and cross-appeals and involves seven plaintiffs and six defendants. The contest is over a net profits interest (NPI) granted by Malco Refineries, Inc., El Paso Natural Gas Company, and Continental Oil Company (referred to in the documents as “First Parties”) to Novi Oil Company (Novi) in the 1950s. The NPI was consideration for Novi’s assignment of certain oil and gas leases to First Parties. Generally, the district court concluded that the NPI continues to exist and is owned by the plaintiffs, who are successors to Novi, and the defendants, as successors to First Parties, are obligated to pay net profits to them. The district court also awarded statutory penalties, interest and attorney fees to the plaintiffs.

Issues: Whether the plaintiffs were entitled to summary judgment on the question of whether the NPI survived termination of the Pinedale Unit. Whether the plaintiffs were entitled to summary judgment on the question of whether they own the NPI and whether the defendants have standing to contest plaintiffs’ claim of ownership. Whether the district court erred by granting the defendants’ Rule 52(c) motion regarding the plaintiffs’ duty to provide proof of their ownership of the NPI under Section 5 of the Pinedale Unit Area Net Profits Contract (Unit NPI Contract) or by determining that the plaintiffs gave sufficient notice of their ownership. Whether the district court erred in granting the defendants’ Rule 52(c) motion on the plaintiffs’ claim for breach of the implied covenant of good faith and fair dealing. Whether the district court erred in granting the non-operator defendants’ Rule 52(c) motion on the plaintiffs’ Wyoming Royalty Payment Act, Wyo. Stat. §§ 30-5-301 through 305 (2009) (WRPA) claims. Whether the district court correctly determined that the non-operating defendants breached the Unit NPI Contract by failing to pay the NPI. Whether the district court erred by ruling that plaintiffs were entitled to be awarded WRPA interest and penalties against the operating defendants Shell and Ultra when the Unit NPI Contract provided that they could withhold payment of net profits, without interest, during the pendency of any dispute regarding ownership of the NPI. Whether the district court properly determined that State Lease 79-0645 was a “replacement lease” under the Unit NPI Contract. Whether the district court erred by ruling that plaintiffs’ claims were not time barred under either the statute of limitations or the equitable doctrine of laches. Whether the district court erred by refusing to exclude certain expenses from the net profits calculation. Whether the district court erred by holding all defendants jointly and severally liable for the entire judgment. Whether the district court properly granted credit to the defendants for plaintiffs’ settlement with Questar/Wexpro. Whether the non-operators were the prevailing parties and, therefore, entitled to an award of attorney fees under the WRPA. Whether the district court abused its discretion by awarding plaintiffs over $3.9 million in attorney fees.

Holdings: The district court properly granted summary judgment on the plaintiffs’ claim that the NPI continued to encumber the relevant leases after termination of the Pinedale Unit. To the extent that the district court’s second summary judgment order stated that the plaintiffs had provided a sufficient showing of their ownership of the NPI to entitle them to payment from the defendants, the decision is affirmed. However, to the extent that it was intended to quiet title in the plaintiffs against any claims by others who are not parties to this action, there was no justiciable controversy and the decision is reversed.

The district court properly granted the defendants’ Rule 52(c) motion regarding the plaintiffs’ obligation to give notice under Section 5 of the Unit Net Profits Contract and correctly ruled that plaintiffs’ letter was sufficient notice under the contract to obligate the defendants to start paying the NPI in March 2006. The district court also properly granted the defendants’ Rule 52(c) motion on the plaintiffs’ claim for breach of the implied covenant of good faith and fair dealing and the non-operator defendants’ Rule 52(c) motion on the plaintiffs’ WRPA claims.

After the bench trial, the district court correctly concluded that the non-operating defendants breached the Unit NPI Contract, although they did not violate the WRPA. Operating defendants Shell and Ultra were rightly found liable under the WRPA for interest and penalties for failing to pay or escrow the NPI payments after the plaintiffs’ gave notice of their ownership of the NPI. The district court also properly determined that State Lease 79-0645 is a “replacement lease” under the Unit NPI Contract and, therefore, burdened by the plaintiffs’ NPI and the plaintiffs’ claims were not time barred under either the statute of limitations or laches.

The district court, however, made some errors in its damages award. Although it properly interpreted the overhead expense provisions of the First Parties’ and Novi’s agreement, it incorrectly concluded that produced gas used on the lease was to be included as revenue for the net profits calculation. This aspect of the judgment is reversed and remanded for recalculation of the damages. The district court also erred by making the non-operators jointly and severally liable for the entire judgment, and the district court’s ruling is reversed in that regard. The district court properly granted credit to the defendants for plaintiffs’ settlements with Questar/Wexpro.

Finally, we conclude the district court properly determined that plaintiffs were the prevailing parties in this litigation and did not abuse it discretion in making its attorney fees award.

Affirmed in part; reversed and remanded in part.

J. Kite delivered the opinion for the court.

Link: http://tinyurl.com/ykawvn6 .

C.J. Voigt dissented: The state of the record is not such that the plaintiffs have given the defendants sufficient notice of their ownership of the NPI, if it exists at all, to require the plaintiffs to pay them millions of dollars to satisfy the NPI. Summary judgment should not have been granted to the plaintiffs on the ownership issue.

[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.]

Tuesday, March 23, 2010

Summary 2010 WY 35

Summary of Decision issued March 23, 2010

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

Case Name: Hamilton v. Hamilton

Citation: 2010 WY 35

Docket Number: S-09-0135

Appeal from the District Court of Sublette County, the Honorable Marvin L. Tyler, Judge.

Representing Appellant Pamela: W. Keith Goody, Cougar, Washington.

Representing Appellee Harry: John A. Thomas, Evanston, Wyoming.

Facts/Discussion: Pamela was adjudged in contempt of court for violating a temporary order entered by the district court in her divorce case. She claimed the ruling was null and void because the district court did not follow the procedures required in a criminal contempt hearing.

Contempt – civil or criminal: The type of punishment to be imposed is the factor that decides whether a civil or criminal contempt has been committed. The basic purpose of the contempt order was to remedy the harm done to Harry and not to protect the public. The fact that Pamela can purge her contempt by paying the amount spent in violation of the order into a joint account suggests it is civil as well. Pamela is also required to pay Harry’s attorney fees. In divorce cases, the allowance of attorney fees is an exercise of the district court’s equitable powers and not a penalty. The Court reviewed the financial documents submitted but without a record of the hearing, the Court was unable to determine whether the spending they reflect was in violation or compliance with the temporary restraining order.

Conclusion: No order had been issued imposing punishment on Pamela. There was no final appealable order in her case therefore the Court lacked jurisdiction.

Dismissed.

J. Burke delivered the decision.

Link: http://tinyurl.com/yaz649b .

[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 34

Summary of Decision issued March 23, 2010

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

Case Name: Excel Construction, Inc. v. HKM Engineering, Inc.

Citation: 2010 WY 34

Docket Number: S-09-0120

Appeal from the District Court of Big Horn County, the Honorable Steven Cranfill, Judge.

Representing Appellant Excel: Patrick J. Murphy of Williams, Porter, Day & Neville, PC, Casper, Wyoming.

Representing Appellee HKM: Matthew F. McLean of Crowley Fleck PLLP, Bozeman, Montana.

Facts/Discussion: This was an appeal from a summary judgment granted to HKM by the district court. The case involves a dispute between Excel and HKM related to a contract for the replacement and improvement of water and sewer lines in Lovell, Wyoming. HKM agreed to be Lovell’s representative during construction. Lovell entered into a separate agreement with Excel to serve as general contractor on the project.

Modify Rissler decision: In Rissler, the trial court granted summary judgment in favor of HKM based upon the economic loss rule which bars recovery in tort when a plaintiff claims purely economic damages unaccompanied by physical injury to persons or property. Excel argued that the Court should modify its ruling in Rissler to permit suit by a contractor against a professional project engineer like HKM on theories of negligence and negligent misrepresentation. It argues that other stated have permitted suit against design and construction management professionals in spite of the economic loss rule. The Court believes that parties to a construction project have the opportunity to allocate the economic risks associated with the work and that they do not need the special protections of tort law to shield them from losses arising from risks including negligence of a design professional, which are inherent in performance of the contract.
Tortious interference with contract: HKM was charged with determining compliance with the contract, approving change orders and otherwise serving as decision-maker for Lovell by the express terms of the agreement. HKM therefore acted as an agent and as an agent with the power to make decisions on behalf of the town. Its actions, if they breached the contract, may entitle Excel to recover against the town for that breach but Excel may not recover from HKM on a theory of intentional interference with a contract for actions taken as the town’s agent.
Misrepresentation: As already noted, the Court’s decision in Rissler, would bar claims against HKM based upon negligent misrepresentation. Excel argued that its claim of misrepresentation is really a claim of intentional misrepresentation or fraud. The claim can only be construed as one for negligent misrepresentation. Excel did not allege that HKM intentionally made representations which it knew to be false, even though fraud must be pled with particularity. In addition, Excel specifically described its claim as one for negligent misrepresentation. The record does not suggest that Excel ever sought to amend its claim to add allegations of fraud. Under the circumstances, the Court can only conclude that Excel made a claim for negligent representation and not for fraud. Under Rissler, this type of claim falls within the bar of the economic loss rule.
Good faith and fair dealing: The Court has recognized that all contracts contain an implied covenant of good faith and fair dealing. Excel did not contract directly with HKM, and therefore no implied covenant. The Court does not construe the clause as creating an obligation on the part of the engineer to act in good faith in all decisions affecting the contractor as might arguably be the case under an implied covenant of good faith and fair dealing. The exculpatory clause would just limit the engineer’s liability to claims that involve an element of bad faith. Excel may not maintain a claim of intentional interference with contract against the agent of a party to its contract, and it did not present a claim of intentional misrepresentation or fraud to the trial court on the pleadings in the case.

Conclusion: The Court declined to modify the economic loss rule in Rissler to permit actions against a design professional based on negligence. Although a party may be able to maintain an action for the intentional tort of interference with contract under Rissler, Excel may not maintain such a claim against HKM for actions taken in its capacity as Lovell’s agent under the Excel-Lovell contract. While a party may be entitled to maintain a claim for intentional misrepresentation or fraud under certain circumstances notwithstanding the economic loss rule enunciated in Rissler, HKM did not present such a claim to the district court, and Excel’s claim for negligent misrepresentation is barred by Rissler. The language of the HKM – Lovell contract did not impose a duty similar to that of the implied covenant of good faith and fair dealing on HKM, but rather limited the exculpatory language contained in that paragraph to claims not involving bad faith. The clause would not have barred tort claims involving an element of bad faith but Excel either could not maintain its intentional tort claims as a matter of substantive law or did not raise them in the trial court.

Affirmed.

D.J. Davis delivered the decision.

Link: http://tinyurl.com/yjq4vuc .

[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 33

Summary of Decision issued March 23, 2010

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

Case Name: Hernandez v. State

Citation: 2010 WY 33

Docket Number: S-09-0065

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

Representing Appellant Hernandez: Diane Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; and Kirk Allan Morgan, Senior Assistant Appellate Counsel.

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

Facts/Discussion: Hernandez challenged his convictions on four charges relating to illegal drugs.

Denial of motion to suppress: Hernandez did not dispute that the officers stopped him after he failed to signal a turn. He argued that the prosecution presented no evidence about the scope, duration, or intensity of the detention under all of the circumstances and thereby failed to meet its burden. Hernandez’s motion to suppress challenged only the validity of the initial stop and not the reasonableness of the detention or search. The record leaves no doubt that defense counsel made affirmative statements that induced the prosecutor not to present evidence about the detention and search and the district court not to consider the issue of their reasonableness. The Court applied the doctrine of invited error and did not address the issue further.
Irrelevant and prejudicial evidence: First, Hernandez characterizes as irrelevant the testimony of Agent Ford. The agent related that he interviewed two people who had been arrested on drug charges. They told him they had purchased drugs from Mr. Moxley and agreed to participate in a controlled purchase from him. Agent Ford testified about the arrest of Moxley. One of the men Moxley purchased drugs from was Hernandez. The testimony related directly to the events culminating in the arrest of Hernandez. A law enforcement officer’s testimony about the course of an investigation leading to a defendant’s arrest is not irrelevant evidence. Hernandez also challenged testimony about the amounts of methamphetamine purchased by Moxley. The evidence was about purchases made directly from Hernandez and his colleagues. Since Hernandez was charged with possession of illegal drugs with intent to deliver, the evidence of earlier deliveries tended to prove the element of intent to deliver. Hernandez also challenged the testimony that Moxley was selling a lot of drugs in Rawlins. That testimony was introduced during defense counsel’s cross-examination of Moxley. The court’s admission of evidence elicited by defense counsel cannot serve as a basis for reversal. The Court considered the testimony from Spec. Agent Bisceglia that “methamphetamine is a major problem” in Carbon County. The testimony was based on the Agent’s experience. Agent Bisceglia established his level of experience by testifying that he investigated drug-related crimes on a daily basis and that he had been involved with a large number of cases.
The prosecutor’s comments in closing arguments urged the jury to “take care of” Hernandez to help reduce the drug problem; to convict because the meth problem was so bad in Rawlins and not because of the evidence against Hernandez. After considering the comments in context, the Court stated they remained improper community outrage or protection arguments and they transgressed a clear and unequivocal rule of law. However, the Court was unable to say that the comments materially prejudiced Hernandez. Since the evidence was overwhelming, there was no reasonable probability that the improper comments changed the jury’s verdict.
The Court held there was no basis for reversing the convictions due to cumulative error.

Conclusion: The Court applied the doctrine of invited error to Hernandez’s arguments about the motion to suppress. The testimony that Hernandez complained was irrelevant directly related to the events culminating in arrest. Evidence of earlier deliveries tended to prove the element of intent to deliver and therefore was not irrelevant. Evidence elicited by defense counsel could not serve as a basis for reversal. Since the evidence was overwhelming, there was no reasonable probability that the improper comments changed the jury’s verdict. There was no basis for reversing the convictions due to cumulative error.

Affirmed.

J. Burke delivered the decision.

C.J. Voigt, dissenting: The Chief Justice would have reversed because the State’s community safety argument in the instant case was indistinguishable from the State’s community safety argument in Strange v. State which the Court found reversible.

Link: http://tinyurl.com/ye4sua4 .

[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.]

WestlawNext Pricing - Simple Chart to Answer All Your Questions

Here's a follow-up on WestlawNext pricing from Greg Lambert.

3 Geeks and a Law Blog: WestlawNext Pricing - Simple Chart to Answer All Your Questions

Check Scams That Target Lawyers | Oklahoma Bar Association

Robert T. Luttrell III of Oklahoma has an article on the Oklahoma Bar Association web site that describes a scam which is targeting attorneys. Hopefully none of you have been hit with this, or if you have, you've figured it out before getting caught. This article explains it in non-bankese and details what to do if the scam shows up in your email.

Check Scams That Target Lawyers | Oklahoma Bar Association

Open Source Your OS

David Whelan, a lawyer and librarian in Canada, has posted an article on Slaw.ca about some operating system choices outside of Microsoft. He mentions Mac, but spends more time describing some of the Linux options (Ubuntu or Linux Mint). He also questions some of the usual reasons for sticking with the Windows operating system, such as compatibility and the lack of legal-specific software for systems outside of Windows. Whelan mentions several open source software options for use with Linux that are great substitutes for the Microsoft Office suite.

This is a great, short read that may give you some ideas for switching up your office technology.

Open Source Your OS – Slaw

Monday, March 22, 2010

Summary 2010 WY 32

Summary of Decision issued March 22, 2010

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

Case Name: Presbury v. State

Citation: 2010 WY 32

Docket Number: S-09-0111

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

Representing Appellant Presbury: Diane Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; and Eric M. Alden, 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; and Leda M. Pojman, Senior Assistant Attorney General.

Facts/Discussion: Presbury pleaded guilty to one count of aggravated robbery. After not being given the opportunity to address the court during sentencing, he appealed.
Federal courts have recognized that in the absence of an opportunity to allocute being given, it is almost impossible to ascertain what the effect of the opportunity would have been had the error not occurred. Presbury was not addressed by the court nor given a chance to say anything on his own behalf. The rule is clear in its language: “Before imposing sentence, the court shall…”

Conclusion: Because Presbury was denied his right to allocution by the district court, the Court remanded to the district court for resentencing after he has been afforded the opportunity to allocute.

Reversed and remanded.

J. Hill delivered the decision.

Link: http://tinyurl.com/yfdjmen .

[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 31

Summary of Decision issued March 22, 2010

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

Case Name: Singer v. New Tech Engineering L.P.

Citation: 2010 WY 31

Docket Number: S-09-0024

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

Representing Appellant Singer: Mark L. Carman of Carman Law Office, PC, Billings, Montana; and Cody L. Balzer of Balzer Law Firm, PC, Loveland, Colorado.

Representing Appellee New Tech Engineering: Roger E. Shumate and James C. Worthen of Murane & Bostwick, LLC, Casper, Wyoming.

Facts/Discussion: After suffering debilitating injuries while working on a drilling rig owned by Caza Drilling (Caza) in northeastern Wyoming, Leonard Singer brought a negligence case against New Tech Engineering (New Tech), the company who hired safety coaches to provide “safety services” on the rig.

Employee/agent or independent contractor: The Court has stated that in regard to determining whether an individual is an employee or an independent contractor, the overriding consideration is the employer’s right to control the means and manner of the work. Harrington (the safety coach) was provided no benefits from New Tech, no contract existed between the two, no deductions for federal income taxes were made and the ultimate control came from Caza. Caza controlled Harrington’s schedule, provided a truck, on-site living provisions and an occasional computer. In addition, Caza had ultimate control over the hiring and firing of safety consultants. The Court considered who had the right of control over the means and manner of the work as differentiated from control over the end product of the work to be performed. Typically, when a worker is an independent contractor, the employer is interested only in the results of the work and does not direct the details of how the work is performed. The record supported the contention that Caza and not New Tech had control over the means and manner of the work. Caza had the ultimate decision over who it selected as its safety consultants.
Restatement (Second) of Torts § 429: Singer next argued that because Caza relied on New Tech to supply “safety services,” New Tech was liable to Singer. The Court noted that it discussed this Restatement section only once before and in a medical malpractice action. Research showed that § 429 is typically applied in the medical context but sometimes is applicable in other circumstances. The Court concluded that Caza relied on the coaches for safety services and only relied on New Tech to provide the names of safety coaches.
Oral contract: Singer contended that New Tech assumed affirmative safety duties when it agreed to provide safety services. The deposition testimony that Singer relied upon was testimony as to the safety coach’s duties and not New Tech’s duties. Caza retained control of its own safety program evidenced by its use of New Tech to place a safety coach. Caza never contracted orally or otherwise with New Tech to provide safety services.
Non-delegable duty: The Court agreed with the district court that the safety program was specifically a Caza program. New Tech provided no instruction, guidance, or supervision regarding safety issues on the rig. New Tech was a placement service.

Conclusion: The Court found no question of material fact regarding whether the safety coach was an employee or independent contractor – the record showed that he was an independent contractor. Also, there was no indication that Restatement § 429 imposed any liability whatsoever on New Tech. New Tech did not assume any affirmative duties regarding safety, nor is New Tech responsible for Singer’s injuries due to any “non-delegable” duty – no such duty on the part of New Tech existed.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/yjlalnc .

[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.]

Thursday, March 18, 2010

WestlawNext Pricing

Greg Lambert of 3 Geeks and a Law Blog has managed to find some pricing information for WestlawNext. This may put a slight hitch in any excitement about Thomson Reuter's newest search service. Just a tiny impediment.

WestlawNext Pricing - Up To $3400 Per Hour!!

U.S. Supreme Court - New Web Site

For Immediate Release

For further information contact:
Kathy Arberg (202) 479-3211

Today the Court will commence in-house hosting of its Web site, assuming site management responsibilities from the Government Printing Office (GPO), which had provided hosting services since the site's inception ten years ago. The Court received funding in its FY 2010 appropriation to make the transition from GPO to in-house management. That transition will enable the Court to integrate the Web site with the Court’s other operations, improve the quality of the site, and expand services for the public's benefit. The Web address for the site will change from www.supremecourtus.gov to www.supremecourt.gov, but either address will provide access through July 1, 2010.

Visitors will find that the Supreme Court Web site has an updated and more user-friendly design. The site continues to provide online access to the Court’s slip opinions, orders, oral argument transcripts, schedules, Court rules, bar admission forms, and other familiar information. But it also has several new features, including enhanced search capabilities, an interactive argument calendar, improved graphics, and additional historic information. The Court plans to continue to update and expand the site’s features over time. The process of launching the new design may occur over several hours, but the new version of the Web site should be available to all users by the end of the day.

Summary 2010 WY 30

Summary 2010 WY 29

Summary of Decision issued March 18, 2010

[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: Heimer v. Antelope Valley Improvement and Service District

Citation: 2010 WY 29

Docket Number: S-08-0169

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

Representing Appellant (Plaintiffs): Tom C. Toner and Kendal R. Hoopes of Yonkee & Toner, Sheridan, Wyoming.

Representing Appellee (Defendant): Rick L. Koehmstedt of Schwartz, Bon, Walker & Studer, Casper, Wyoming.

Date of Decision: March 18, 2010

Facts: Appellants claim a water main maintained by the Appellees leaked for several years causing damage to their residence. In 2004, the water main broke, allegedly causing additional damage. The Appellants filed a governmental claim against Appellees and subsequently brought suit in district court. The Appellees moved for summary judgment, arguing that the action was barred because Appellants failed to file their governmental claim within the statutory time limit. The district court granted summary judgment.

Issues: Whether there are genuine issues of material fact concerning whether Appellants' claims were timely under Wyo. Stat. Ann. § 1-39-113(a) when Appellants did not discover what was causing the subsidence to their property, despite diligent efforts to do so, until November 19, 2004. Whether the Appellants' claims for damages resulting from the total separation of the Appellee's water main occurring on November 30, 2004, which was a separate incident of negligence, timely under Wyo. Stat. Ann. § 1-39-113(a).

Holdings: The Appellee is a governmental entity. Although governmental entities are traditionally immune from suit under the doctrine of sovereign immunity, the Wyoming legislature recognized "the inherently unfair and inequitable results which occur in the strict application of governmental immunity" and enacted the Wyoming Governmental Claims Act, Wyo. Stat. §§ 1-39-101 through 1-39-121 (2009). Among the provisions included in the Wyoming Governmental Claims Act is the procedure to be followed in pursuing a claim against a governmental entity. Strict adherence to this procedure is required. Wyo. Stat. §§ 1-39-113(a) requires claimants to present their claim within two years of when they knew or should have known, with the exercise of due diligence, of the governmental entity's "alleged act, error or omission." The exact date of the beginning of the leak in this case, and accordingly, the date of the Appellee's alleged act, error or omission is undetermined. The discovery rule contained in the statute is, therefore, squarely at issue.

The application of the discovery rule to a statute of limitations involves a mixed question of law and fact; consequently, the entry of summary judgment on the issue of when a statute of limitations commences to run is typically inappropriate. The question can only be resolved as a matter of law if uncontroverted facts establish when a reasonable person should have been placed on notice of his claim. The Appellee argued, and the District court agreed, that the Appellants discovered that the Appellee's act, error or omission was the cause of the damage to their home at least by September 7, 2004, and their letter of that date demonstrated that discovery thereby and triggered the two year limitation period. That is one plausible interpretation of the evidence.

However, Appellee's reply letter stated that the 'testing' which has been done by Appellants has not eliminated other potential causes of his household problems and that the Appellee was not willing to allow the testing of the water lines absent information from Appellants that they have taken sufficient steps to eliminate other causes. The Appellants engaged a firm to do detailed borehole testing. The results of these tests provided to the Appellants on November 19, 2004, indicated that the excess water was coming from the direction of the Appellee's main. When all of the evidence is reviewed, there appear genuine issues of material fact as to whether the Appellants discovered, or should have discovered, the Appellee's act, error or omission by September 7, 2004, and whether due diligence required the Appellants to discover the continuous water leak prior to November 19, 2004. Those issues of material fact should be determined at trial.

The district court did not separately address the water main break in its summary judgment decision letter, apparently believing the break was related to the long term water leak and thereby governed by the same limitation period. The Appellants argue the break in the water main on November 30, 2004, was a separate incident, involving a separate limitation period. The evidence presented in the summary judgment submissions indicated that the water main separated at a joint, which showed no signs of 'wear markers' which would support a claim of long term leaking problems. That evidence implies that the joint that separated was not the source of a long-term leak. An engineering report indicated that the separation was caused by differential movement in the supporting soil, creating a factual question about the cause of such movement. The answer to that question could raise other factual questions as to whether the separation was caused by an act, error or omission by the Appellee and whether it was related to the alleged water main leak. The facts need to be further developed before the beginning of the limitation period for the water main break can be established. Therefore, summary judgment was inappropriate on this issue. On remand, the fact finder will need to determine whether the water main break involved the same act, error or omission as the alleged long term water leak. If so, then the fact finder's determination on the discovery issue regarding continuous water leak will determine the start of the limitation period for the water main break. However, if the fact finder determines that the water main break was not related to a long term leak, then the date of the break, November 30, 2004, would mark the beginning of a new limitation period and the Appellants' filing of their governmental claim on October 19, 2006 was timely.

Genuine issues of material fact exist as to when the statute of limitation began running on the Appellants' water leak claim. The fact finder must determine when the Appellants discovered or should have discovered the Appellee's "act, error or omission" for purposes of starting the limitation period. Moreover, there are genuine issues of material fact surrounding the commencement of the limitation period on the Appellants' claim for damages associated with the water line break.

Reversed and remanded for further proceedings consistent with this opinion.

J. Kite delivered the opinion for the court.

Link: http://bit.ly/9N1biA.

Summary 2010 WY 28

Summary of Decision issued March 18, 2010

[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: LW v. The State of Wyoming Department of Family Services

Citation: 2010 WY 28

Docket Number: S-09-0049

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

Representing Appellant (Respondent): Jamie M. Woolsey, Casper, Wyoming.

Representing Appellee (Petitioner): Bruce A. Salzburg, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; and Susan K. Stipe, Senior Assistant Attorney General.

Representing Guardian ad Litem: Lori Gorseth, Casper, Wyoming.

Date of Decision: March 18, 2010

Facts: The principal effect of the order at issue here was to permanently place the children with foster parents, who had cared for the children for over one year, with the further intent that Mother's parental rights be terminated and the children adopted by the foster parents. A secondary effect was to eliminate Mother's brother and his wife, who we will refer to as Uncle and Aunt, as the alternative, "kinship" placement for the children as provided for under Wyo. Stat. § 14-3-208(a)(iii) (2009), as well as applicable federal statutes and rules and regulations of DFS.

Issues: Whether a parent whose children are in the custody of the Department of Family Services has standing to argue that the familial rights of her brother and sister-in-law have been violated by the court's permanency plan of adoption by the children's foster parents. Whether the court properly considered the best interests of the minor children when conducting a permanency hearing that resulted in an order placing the minor children outside the home despite a clear Department of Family Services Policy and Supreme Court preference that makes relative [kinship/family] placement a priority.

Holdings: Standing to sue requires a legally protectible and tangible interest at stake in the litigation. The phrase tangible interest has been equated with the phrase personal stake in the outcome. The person alleging standing must show a perceptible, rather than a speculative harm from the action; a remote possibility of injury is not sufficient to confer standing. Insofar as this appeal is concerned, Mother is on the brink of having her parental rights terminated, but that has not been accomplished yet. Wyo. Stat. Ann. § 14-3-402(a)(xvi) (2009) provides:

§ 14-3-402. Definitions.
....
(xvi) "Residual parental rights and duties" means those rights and duties remaining with the parents after legal custody, guardianship of the person or both have been vested in another person, agency or institution. Residual parental rights and duties include but are not limited to:

(A) The duty to support and provide necessities of life;
(B) The right to consent to adoption;
(C) The right to reasonable visitation unless restricted or prohibited by court order;
(D) The right to determine the minor's religious affiliation; and
(E) The right to petition on behalf of the minor.

Thus, Mother has standing in this appeal.

By law, relative/kinship families are the placement of preference for children. The Wyoming Program Improvement Plan makes relative and kinship placements high priority for children placed in out of home care. DFS shall consider relative/kinship families as the placement of preference. DFS is required to make a diligent search for such kinship placements. Relative and kinship placements are less restrictive and therefore preferable to other types of out-of-home care. A DFS caseworker is responsible for conducting an ongoing diligent search for relatives and kin for any child in DFS custody until permanency is achieved. DFS shall consider relative/kinship families as both temporary and permanent resources for children who are unable to live safely with a parent. DFS recognizes that relative/kinship families are important to a child's sense of identity, belonging, and long term connections.( The Family Services Manual, Chapter 7 Section B (RELATIVE/KINSHIP CARE AND DILIGENT SEARCH) (2008)).

The State and the GAL characterize the kinship care policies articulated by the Social Security Act and DFS as merely precatory, i.e., they are "recommended" and should be "considered." In this case the GAL and DFS claim that they did consider them and determined that they were not feasible because of the geography separating Casper, Wyoming, and Miles City, Montana. The court is unable to accept these characterizations given the high stakes in play here. Tools, resources, and an Interstate Compact on the Placement of Children are available to achieve just the result that was "preferred." The district court concluded that the outcome of this case was fixed early on in the proceedings when Mother chose to do her "reunification" work in Casper, during which time the children were placed with the Foster Parents. By the time that concluded in failure, the district court found that it was too late to go back and consider the kinship placement. The court is unable to agree with those conclusions, although it should be emphasized that the district court was remarkably professional, thorough, and patient in creating a complete record, despite the resistance to the flow of information shown by the GAL and DFS, and other factors.

In the present action. when an Interstate Compact on the Placement of Children study was done, Uncle and Aunt were given extremely high marks for their ability to take in Mother's children. Based on the authority and, as a matter of ageless tradition, as a matter of federal law, and as a matter of Wyoming law, there exists a compelling preference that what is "best" for a child in circumstances such as those presented here, is placement with nuclear or extended family members.

The order of the district court is reversed and this matter is remanded to the district court with instructions that the children be placed with their Uncle and Aunt, this to be accomplished with all deliberate speed consistent with the children's well-being/best interests and under the supervision of qualified professionals in both Wyoming and Montana, the costs of that process to be borne by DFS and Natrona County.

J. Hill delivered the opinion for the court.

J. Golden filed a dissenting opinion in which J. Burke joined. Mother has no standing to bring the issues in this appeal. At this stage of the proceedings, there will be no further attempts to reunify Mother with the children. As the majority opinion informs us, termination of Mother's parental rights is a given. Under the circumstances, Mother has no legally cognizable personal stake in the outcome of the determination of the permanency goal for the children. It is true that, until terminated, Mother retains residual parental rights, but these rights do not include a right to determine the permanent placement of the children. Certainly, it is appropriate for Mother to have a voice in the proceedings below as to her preference for permanent placement, but that is a far different concept from legal standing to bring this appeal. Further, the issues Mother presents are couched in terms of the constitutional right to familial association. Her right to familial association is not at issue in this appeal. Rather, practically, it is Uncle and Aunt's right, if any, that is at issue. Mother has no standing to present arguments on behalf of Uncle and Aunt.

Pursuant to statutory mandates, the juvenile court held a hearing to determine which placement would be in the best interests of the children. The juvenile court took great pains to ensure everyone was able to speak his piece. After the hearing, the juvenile court issued a thorough and very thoughtful order. The possibility of permanent placement with Uncle and Aunt was given full consideration. In the end, however, the juvenile court determined that the permanency plan goal should be placement of the children with Foster Parents for adoption. In doing so, the juvenile court determined all the factors did not weigh equally between the two placements. Of special concern was the age of Son. Son's young age brings into play very real psychological attachment issues. The juvenile court determined removing Son from Foster Parents would not be in his best interest. Daughter also benefitted from the stability she had found in her life with Foster Parents. Whether this Court would make the same decision in the first instance is not the question. There is nothing in the record evidence that leads to the conclusion that the juvenile court erred in this matter.

Finally, the majority opinion goes too far in outright ordering placement of the children with Uncle and Aunt. At issue in this appeal is the goal of the permanency plan. This is only the beginning of the process. Much remains to be accomplished before permanent placement of the children with Uncle and Aunt becomes a reality, not least of which is the termination of Mother's parental rights. In the meantime, circumstances may change. The juvenile court, the MDT, and the DFS should retain the flexibility to continue to protect the best interests of the children throughout the process.

J. Burke filed a dissenting opinion in which J. Golden joined. The majority opinion fails to identify or apply any standard of review. The proper standard of review is abuse of discretion. Had the majority recognized and applied this standard, it could not have concluded that reversal was warranted. The juvenile court's analysis cannot be faulted. There clearly was no abuse of discretion. The children are flourishing in their current environment. There is no legal or factual justification for this further disruption of their lives. The decision should be affirmed.

Link: http://tinyurl.com/yhuytja.

Justice Kite to be next Wyoming Supreme Court Chief Justice

NEWS RELEASE
For more information contact

Chief Justice Barton R. Voigt
307-777-7573

Chief Justice Barton R. Voigt announced today that the Justices of the Wyoming Supreme Court have elected Justice Marilyn S. Kite to be the next Chief Justice, effective upon the expiration of Justice Voigt's term on July 1, 2010.Justice Kite, a native of Laramie, was appointed to the Supreme Court by Governor Jim Geringer and was sworn into office June 2, 2000. She received her B.A. in International Affairs from the University of Wyoming in 1970 with Honors and her J.D. from the University of Wyoming College of Law in 1974. Prior to her appointment to the Wyoming Supreme Court, Justice Kite served as Senior Assistant Attorney General for the State of Wyoming from 1974 through 1978. She entered private practice in 1979,joining the law firm of Holland & Hart. She was a Partner in the Jackson office until her appointment to the Wyoming Supreme Court. Justice Kite is married to Roy "Skip"Jacobson, Jr., and they have one son, Gus.Justice Kite will become the thirty-sixth Justice to serve as Chief Justice and Wyoming's first female Chief Justice. In addition to her current duties, she will assume the administrative responsibilities of the Wyoming court system. During her four-year term,Justice Kite will serve as the Chair of the Board of Judicial Policy of Administration,Chair of the Judicial Nominating Commission, and as the Chief Justice of the Wyoming Supreme Court.

Tuesday, March 16, 2010

Summary 2010 WY 27

Summary of Decision issued March 16, 2010

[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: Woyak v. State

Citation: 2010 WY 27

Docket Number: S-09-0055

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

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Bruce E. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Senior Assistant Attorney General.

Date of Decision: March 16, 2010

Facts: Appellant was convicted of three counts of sexual assault in the second degree in violation of Wyo. Stat. Ann. § 6-2-303(a)(v) (2005) and two counts of sexual exploitation of children in violation of Wyo. Stat. Ann § 6-4-303(b)(ii) (2009).

Issues: Whether the district court violated Appellant's constitutional rights to due process and confrontation by excluding him from a witness competency hearing in violation of Wyo. Stat. Ann. § 7-11-202 and W.R.Cr.P. 43. Whether the district court abused its discretion by failing to conduct an independent competency hearing of a minor child and failing to make a finding supported by competent evidence that the child possessed a memory sufficient to retain an independent recollection of the occurrence as required by Wyoming law. Whether the trial court erred by submitting a verdict form that was unspecific as to the nature of the charges over the objection of Appellant.

Holdings: In the present action, the questioning of Victim 1 went well beyond simple "competency" questions . Rather, it included many questions about the substantive testimony to be given by Victim 1 and the circumstances of the crimes with which Appellant was charged. Given these attendant facts, Appellant's presence could well have been a significant aid to his attorney in formulating additional questions, as well as additional lines of questioning. Thus, it was an error of law for the district court to deny Appellant the right to be present at the competency/taint hearing under the circumstances of this case. For this reason his conviction is reversed because there is no viable basis for a determination that this error was harmless beyond a reasonable doubt.

Because the Court determined that reversible error occurred when the district court excluded Appellant from the competency hearing, which was deemed to be a critical stage of the trial proceedings, it did not substantively deal with the soundness of the district court's conclusion that Victim 1 was competent to testify. However it was noted that a district court is duty bound to conduct a thorough hearing once the child's competency is sufficiently called into question by either party and that it was an oversight by the parties and by the trial court in this action to have that hearing sandwiched into a 45-minute time span while the jury was at lunch. Such timing suggests two things: (1) that the parties were remiss in aiding the district court in recognizing the importance and significance of the issue and the necessity for conducting a meaningful hearing into the competency/taint matters; and (2) that the timing of the hearing did not permit adequate flexibility for a more comprehensive hearing, in light of the taint and competency flaws that became evident at (and before) the limited hearing that was conducted. The appropriate time for such a hearing would have been before jury selection, in a time slot that allowed adequate time for a complete exploration of the issues brought to the fore by the defense counsel, and in a working space that allowed for Victim 1's comfort and Appellant's right to be present . This conclusion is buttressed by Wyo. Stat. § 7-11-408 (2009). That statute allows for videotape depositions in child sexual assault/abuse cases, where circumstances warrant. The defendant is allowed to be present at such depositions and must be able to exercise the right of confrontation at those proceedings. The expectation is that additional proceedings would continue in this case upon remand, and one of the principal orders of business would be a comprehensive consideration of the question of Victim 1's competence to be a witness against Appellant, including whether or not his testimony was tainted by the many persons who talked with him about the case during the time following the incidents that brought Appellant's alleged conduct to light.

Counts IV and V of the verdict form do pose a bit of a problem which demands closer attention in any additional proceedings. In Counts IV and V, Appellant is charged with causing each of the victims to engage in explicit sexual conduct. The instructions defined "explicit sexual conduct" thus: "'Explicit sexual conduct' means actual or simulated sexual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal, contact between persons of the same or opposite sex, bestiality, masturbation, sadistic or masochistic abuse or lascivious exhibition of the genitals or pubic area of any person." Notwithstanding, the instruction at issue here is no mere "definitional instruction..." the evidence could well support a finding of guilt on any one of several of the acts included within the boundaries of the definition set out above. It is impossible to tell which jurors found which act or acts to have constituted the violation of the statute. In any further proceedings more care should be taken in crafting any such instructions.

The judgment and sentence of the district court is reversed because Appellant was denied his right to be present at the competency/taint hearing. This matter is remanded to the district court for further proceedings consistent with this opinion.

J. Hill delivered the opinion for the court.

J. Burke dissented. Appellant has not established that he had the right, constitutional or otherwise, to be present at the hearing. In addition, there is a lack of meaningful guidance for future cases. If the decision to exclude is dependent on the circumstances, this Court should provide clear guidance to trial courts for deciding when exclusion is permissible. If exclusion is never permissible, the opinion should state so unequivocally. The district judge in this case properly balanced the important factors. It was aware of the young age of the child, the serious nature of allegations against the defendant, and the risk that the child would be traumatized if confronted by the defendant. It had the opportunity to observe the child and the defendant prior to ruling on the State's request to exclude the defendant. Based upon the information provided, the district court concluded that the defendant should be excluded from the hearing. There is no error in that decision.

The district court's determination that the child victim was competent to testify should also be affirmed. A district court's determination of competency will not be disturbed unless clearly erroneous. In evaluating whether that decision was clearly erroneous, an appellate court may review the entire record, including the trial testimony. A review of the entire record, including the child's trial testimony, shows that the district court's competency determination was not clearly erroneous.

Link: http://tinyurl.com/yzzxr83.

Collaborate Online With Whiteboards

Bev Butula, manager of library services at Wisconsin law firm of Davis & Kuelthau, has written a short article (Online collaborative whiteboards: An alternative to the face-to-face meeting?) on using online whiteboards to enhance online meeting and collaboration. Virtual whiteboards allow you (and others) to write or draw images on an online canvas--a feature that can make teleconferencing and online meetings much more effective, especially when working on specific documents or brainstorming. She lists some quick pros and cons, as well as some sites that offer free or low-cost access to interactive whiteboards.

Dabbleboard
ScribLink
Virtual Whiteboard
JotSpace

Monday, March 08, 2010

Summary 2010 WY 26

Summary of Decision issued March 8, 2010

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

Case Name: Braunstein v. Robinson Family Ltd. Partnership, LLP

Citation: 2010 WY 26

Docket Number: S-08-0115

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

Representing Appellant Braunstein: Paul J. Drew and Anita Ann Czapeczka of Drew Law Office, PC, Gillette, Wyoming.

Representing Appellee Robinson: Max Main of Bennett, Main & Gubbrud, PC, Belle Fourche, South Dakota.

Facts/Discussion: Braunstein appealed the district court’s order granting summary judgment to Robinson on its adverse possession complaint seeking title to Braunstein’s several parcels of land. The parties agree that Braunstein is the record owner of and has paid the property taxes assessed against the property and Robinson claims satisfaction of the several elements of adverse possession with respect to that property.

Affidavit of Alden C. Robinson: The paragraphs were only categorical assertions of ultimate facts without specific supporting facts. There were no specific facts informing the Court whether the fencing surrounded only the exterior of the Robinson family ranch lands within which is located the unfenced disputed property or whether Robinson separately enclosed the disputed property within a fence. There were also no specific facts about the acreage of the Robinson ranch lands, the ways in which the family members did not allow anyone else to use the disputed property, no specific facts concerning the type and number of livestock and where and how they were grazing on the disputed property. The Robinson’s claim to the property and their possession and use was subjective belief and opinion having no factual basis which is inadmissible. Statements about intent to include the disputed property in conveyances and about inadvertent omission of the property’s description were inadmissible self-serving subjective opinion. Failure to pay real estate taxes on the disputed property is a fact to be weighed along with the other circumstances in the case and intent is an inadmissible self-serving subjective opinion.
Affidavit of Justen T. Robinson: The affidavit was identical in most respects to the affidavit of Alden Robinson and was insufficient for the same reasons. Both failed to show an absence of genuine issues of material fact related to Robinson’s adverse possession claim.
Justen T. Robinson’s second affidavit: The affidavit did not contain enough factual content to have legal significance. It mentioned two appraisals but failed to note the name of the appraiser, there were no attached sworn or certified copes of the appraisals, and the affiant admitted that the disputed property was not included in the appraisals. This is another fact to be considered along with the failure to pay taxes or to include it in the title instruments to the family ranch lands which tends to weaken a claim of ownership by adverse possession.
Affidavit of Donald D. Zacher: The affidavit of the abstractor did not include the date on which he examined the title records. In addition, the documents attached were not sworn or certified copies as required by W.R.C.P. 56(e).
Quitclaim deed conveying the disputed property to Melvin and Elsie Braunstein: Robinson included the document in the summary judgment submissions but it was not a sworn or certified copy and no witness introduced it into the record.
Elsie Braunstein’s answers to plaintiff’s first interrogatories: The Court stated it found nothing in the answers that showed the absence of any genuine issue of material fact associated with the elements of Robinson’s adverse possession claim.
Robinson conveyances of the family ranch lands surrounding the property: The documents were not sworn or certified copies and no witness introduced them into the record.
Elsie Braunstein’s deposition: In Robinson’s memo in support of its summary judgment motion, there is only limited reference to Braunstein’s deposition. The Court reviewed the deposition testimony and found nothing that showed the absence of any genuine issue of material fact associated with the elements of Robinson’s adverse possession claim.

Conclusion: The Court found that most of the evidentiary materials submitted by Robinson in support of its summary judgment motion were legally insufficient under the requirements of W.R.C.P. 56 and summary judgment case law. It also failed to show the absence of genuine issues of material fact associated with the elements of the claim of adverse possession and because the issues raised important questions about the application of Wyoming’s “fence-out” doctrine in the context of an adverse possession claim, which questions require substantial factual development before they can be addressed, the Court reversed and remanded.

Reversed and remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/y8uv2rw .

[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.]

Friday, March 05, 2010

Summary 2010 WY 25

Summary of Decision issued March 5, 2010

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

Case Name: Powder River Basin Resource Council v. Wyo. DEQ

Citation: 2010 WY 25

Docket Number: S-09-0037

Rule 12.09(b) Certification from the District court of Laramie County, the Honorable Edward L. Grant, Judge.

Representing Appellant Powder River Basin Resource Council and Sierra Club: James S. Angell and Robin Cooley of Earthjustice, Denver, CO.

Representing Appellee Wyo. DEQ: Bruce A. Salzburg, Attorney General; Jay A. Jerde, Deputy Attorney General; Nancy E. Vehr, Senior Assistant Attorney General; Lucas J. Esch, Assistant Attorney General.

Representing Appellee Basin Electric Power Coop. Inc.: Patrick R. Day and Mark R. Ruppert of Holland & Hart LLP, Cheyenne, WY.

Representing Amicus Curiae Northern Cheyenne Tribe: John C. Schumacher, Riverton, WY; Brian C. Gruber of Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA.

Facts/Discussion: The DEQ issued an air quality permit to Basin Electric for a new coal-fired electric power plant, called Dry Fork Station, to be built in the Powder River Basin. The Powder River Basin Resource Council and the Sierra Club (PRBRC) challenged the air quality permit before the Wyoming Environmental Quality Council (Council). After hearings on the PRBRC’s different claims, the Council upheld the DEQ’s issuance of the permit. The PRBRC appealed to the district court which certified directly to the Court. The Northern Cheyenne Tribe was granted leave to file an amicus curiae brief.
The DEQ administers and enforces the Wyoming Environmental Quality Act. The Act is responsible for the air quality program and operates under Wyoming Air Quality Standards and Regulations. The Court defers to an agency’s interpretation of its own rules and regulations unless that interpretation is clearly erroneous or inconsistent with the plain language of the rules.

Increment protection: The PRBRC contends that because the second computer model run indicated exceedances of the increment, the DEQ could not legally issue the air quality permit for the Dry Fork Station. The DEQ and Basin Electric point out that in the second run using maximum actual emissions, Dry Fork’s contributions to the increment exceedances were so exceedingly small that the DEQ treated them as non-existent. DEQ and Basin Electric assert the agency had discretion to determine that Dry Fork would not cause or contribute to any actual exceedances of the increment. The PRBRC’s position was based on the language of the regulation. DEQ stated it was allowed a certain amount of flexibility in administering the air quality program and that it properly exercised its discretion to overlook the modeled increment exceedances because Dry Fork’s contributions were well below the Significant Impact Levels. The Court disagreed with the Council’s conclusion that the DEQ properly used Significant Impact Levels to determine that the Dry Fork Station would not cause or contribute to increment exceedances on the Reservation but affirmed on another basis. The regulation provides that the permit shall be issued only if the predicted impact is less than the increment. In applying its experience and scientific reason, the DEQ exercised its discretion to make a sound prediction of whether the impact of emissions from a proposed source would be less than the increment. Using the computer model as a tool to make predictions, the DEQ essentially decided that the predicted impacts of emissions from the Dry Fork Station would be less than the maximum allowable increment.
BACT – Control technology versus redesign: The Court agreed that BACT analysis did not have to include options that would require the proposed source to redefine its basic design. The record contained substantial evidence to support the Council’s findings that imposing supercritical boiler technology on the Dry Fork Station would require extensive changes to its basic design. These determinations lead to the conclusion that the DEQ was not required by the BACT regulations to consider supercritical boiler technology as an alternative to Basin Electric’s proposed subcritical boiler technology.
Greenhouse gas emissions: The Dry Fork Station is predicted to emit 3.7 million tons per year of carbon dioxide along with lesser amounts of other gases that the PRBRC characterizes as greenhouse gases. The PRBRC asserted that the DEQ was required to impose BACT requirements forcing Dry Fork to control its emotions of carbon dioxide. PRBRC maintains that carbon dioxide is subject to BACT analysis and control because it is subject to regulation under the federal Clean Air Act. The Court considered the issue solely under federal law. There are no limits, standards or control requirements for carbon dioxide. The EPA requires only monitoring and reporting for carbon dioxide emissions. In Deseret, the EPA stated that it had historically interpreted the term “subject to regulation” to include only those air pollutants subject to statutory or regulatory emissions controls, not pollutants such as carbon dioxide that are subject only to monitoring and reporting requirements. The Deseret decision established only that carbon dioxide is potentially subject to regulation at some future time. Shortly after Deseret was published, the EPA issued a memo reaffirming its historical interpretation that the term “subject to regulation” includes those pollutants for which a statute or regulation requires actual control of emissions of that pollutant. While PRBRC made a persuasive argument that carbon dioxide may be regulated in the future, it has not shown that it was subject to regulation when the Dry Fork permit was pending. The Court agreed with the DEQ and Basin Electric that the DEQ was not required to subject the Dry Fork Station’s carbon dioxide emissions to BACT analysis and control.

Conclusion: The Court affirmed the Council’s decision that the DEQ properly issued an air quality permit to Basin Electric for Dry Fork Station.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/ybks56m .

[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.]

Law Library Letter