If you are involved in the Juvenile Courts, Child Welfare and Juvenile Justice Systems in Wyoming, this is an absolute must-attend conference. This conference will be in Laramie at the Hilton Garden Inn UW Conference Center from June 2-4, 2010.
Registration is due by April 30, 2010, so act fast! Registration is quickly filling up.
Conference Registration/Agenda
On-line Registration
Summary of Decision issued April 23, 2010
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Fayard v. Design Comm. of Homestead Subdivision
Citation: 2010 WY 51
Docket Number: S-09-0145
Appeal from the District Court of Teton County, the Honorable Nancy J. Guthrie, Judge.
Representing Appellant Fayard and Galeforce: Paula A. Fleck and Susan L. Combs of Holland & Hart LLP, Jackson, Wyoming.
Representing Appellee Design Committee of the Homestead Div.: James K. Lubing of Law Office of James K. Lubing, Jackson, Wyoming; Douglas F. Schultz of Schultz Law Firm, LLC, Jackson, Wyoming.
Facts/Discussion: Fayard and Galeforce (Fayard) own lots in the Homestead Subdivision in Teton County. Fayard filed a declaratory judgment and injunctive action against the Design Committee and committee members, alleging the committee had improperly approved a special assessment to pave the common roads. Lots in the Homestead Subdivision are governed by a Declaration of Covenants, Conditions and Restrictions (CCRs.)
Restrictive covenants are contractual in nature and interpreted in accordance with principles of contract law. If the contractual language is clear, the court interprets it as a matter of law and summary judgment is appropriate. The committee argued that it acted within its authority to present the special assessment question to the lot owners because the unpaved roads presented an unusual condition that had arisen with regard to the access facilities or utilities which service the property. Fayard argued that summary judgment was inappropriate because the term “unusual” was broad and that there were genuine issues of material fact as to whether an “unusual condition” existed to justify paving the roads.
The fact that the covenants did not provide any limitations on what could be considered “unusual” indicated the declarant intended that the special assessment process apply to a wide variety of circumstances. The declarant’s use of the term did not mean the contract was ambiguous.
Conclusion: The “unusual condition” basis for imposing a special assessment under the CCRs was intentionally broad and the undisputed facts presented fell within that definition. There were no genuine issues of material fact and the contract was properly interpreted by the district court as a matter of law. The Design Committee acted within its authority under the CCRs in imposing the special assessment for paving the roads.
Affirmed.
J. Kite delivered the decision.
Link: http://tinyurl.com/2bspuma .
[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.]
Summary of Decision issued April 22, 2010
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Board of Professional Responsibility, Wyoming State Bar v. William Daniel Elsom
Citation: 2010 WY 50
Docket Number: D-07-0004
Order Lifting Disciplinary Suspension and Order Denying Reinstatement to the Practice of Law
The matter came before the Court upon the “Supplemental Findings of Fact and Conclusions of Law” filed March 26, 2010, by the Board of Professional Responsibility for the Wyoming State Bar. In its supplemental findings, the Board of Professional Responsibility recommended that Elsom be reinstated to the practice of law. The Court agreed that Elsom satisfied the terms of his disciplinary suspension however, he has not resolved his CLE suspension.
The disciplinary action was lifted. Due to Elsom’s continuing suspension for failure to comply with the CLE requirements, he was restricted from being reinstated to the practice of law at this time.
The Orders can be found at the link below.
C.J. Voigt delivered the order for the court.
Link: http://tinyurl.com/263ea2r .
[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]
Summary of Decision issued April 22, 2010
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Elk Horn Ranch, Inc. v. Bd. of Cty Commissioners of Crook County, Wyoming
Citation: 2010 WY 49
Docket Number: S-09-0137
Appeal from the District Court of Natrona County, the Honorable David B. Park, Judge.
Representing Appellant Elk Horn Ranch, Inc.: John M. Daly and Matthew R. Sorenson, Daly, Davidson & Sorenson, LLC, Gillette, Wyoming.
Representing Appellee Bd of Crook Cty Commissioners: Joseph M. Baron, Crook County Attorney.
Representing Appellee/Intervenor Crago Ranch Trust: Mark L. Hughes, Hughes Law Office, Sundance, Wyoming.
Facts/Discussion: Elk Horn Ranch, Inc. appealed the district court’s sua sponte dismissal of its petition for review of a decision by the Crook County Board of Commissioners (Board.)
The single issue is whether the district court erred in dismissing the petition for review. There are procedures that must be followed when dismissing a case sua sponte. The leading federal decision is Tingler v. Marshall in which the court outlined a five-step procedure for dismissal of complaints sua sponte: allow service of the complaint upon the defendant; notify all parties of the court’s intent to dismiss; give the plaintiff a chance to either amend his complaint or respond to the reasons stated in the notice; give the defendant a chance to respond or file an answer or motions; and if the claim is dismissed, state the reasons for the dismissal. The Court stated that the five-step process outlined in Tingler and adopted in Osborn v. Emporium Videos are required for a sua sponte dismissal of an administrative appeal.
Conclusion: The district court did not follow the five-step process required when dismissing a case sua sponte. It did not notify the parties of its intent to dismiss, or give the parties a chance to respond.
Reversed and remanded.
J. Burke delivered the decision.
Link: http://tinyurl.com/2aracle .
[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.]
Summary of Decision issued April 22, 2010
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Wyo. Dept. of Employment v. Jolley, Castillo, Drennon, LTD.
Citation: 2010 WY 48
Docket Number: S-09-0175
Appeal from the District Court of Natrona County, the Honorable David B. Park, Judge.
Representing Appellant Wyo. Dep’t of Employment: Bruce A. Salzburg, Wyoming Attorney General; Matthew J. Fermelia, Senior Assistant Attorney General; William L. Weaver, Senior Assistant Attorney General.
Representing Appellee Jolley, Castillo, Drennon, Ltd.: Stephenson D. Emory of Williams, Porter, Day & Neville, PC, Casper, Wyoming.
Facts/Discussion: The Department of Employment, Unemployment Insurance Commission (Commission) appealed the district court’s reversal of the Commission’s decision which found that Jolley, Castillo, Drennon, Ltd., d/b/a Sierra Engineering (Sierra) had payroll for services performed by employees subscribing it to unemployment tax under the Wyoming Employment Security Law (WESL).
The Commission’s decision incorporated many findings of fact made by the hearing officer and set forth dozens of its own, relating to many of the consultants in order to show that they were employees and not independent contractors because they did not meet the three prongs of the independent contractor test set forth in the statutes. The Court did not address all the findings because there were at least eight consultants who were undisputedly paid wages by Sierra for services performed in Wyoming between the years 2004 through 2006. There was no evidence in the record to support finding that they were independent contractors. In litigating the issue, Sierra treated its consultants as a class of workers however the statutes state it is the employer’s burden to prove that each individual consultant meets the elements of the statute.
Conclusion: The Court found the Commission’s decision that Sierra had payroll for services paid in Wyoming during the years 2004 through 2006 was supported by substantial evidence in the record and that Sierra failed to meet its burden of proving that all of its consultants were independent contractors. An audit remains to be performed by the UI Tax Division to determine precisely which consultants were in fact “employees” under the WESL and the amount of unemployment taxes Sierra owes for those “employees.” Having found that there was substantial evidence in the record to support the Commission’s decision, the district court was reversed, the Commission’s decision was affirmed and the case was remanded.
Reversed and remanded.
C.J. Voigt delivered the decision.
Link: http://tinyurl.com/2fd3ohm .
[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.]
Jim Calloway, Director of the Oklahoma Bar Association's Management Assistance Program, has posted an interesting article on faxing on his Law Practice Tips Blog. He proposes that you consider switching to Internet faxing (virtual faxing) to save time and money. It is especially recommended if you're trying to implement more paperless processes.
Are you still faxing?
For those of you who have Westlaw access, here's a free training opportunity from Westlaw. And if you don't have Westlaw access in your office or home, you can use the law library's free public Westlaw access!
Summary of Decision issued April 20, 2010
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Johnson v. State
Citation: 2010 WY 47
Docket Number: S-09-0029
Appeal from the District Court of Campbell County, the Honorable John R. Perry, Judge.
Representing Appellant Johnson: Kenneth DeCock of Plains Law Offices, LLP, Gillette, Wyoming.
Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda J. Pojman, Senior Assistant Attorney General.
Facts/Discussion: Johnson entered a conditional plea of guilty to one count of conspiracy to deliver a controlled substance. The dispositive issue is whether the drug evidence was obtained in violation of Johnson’s constitutional rights under the Fourth Amendment to the United States Constitution and Article 1, § 4 of the Wyoming Constitution. This is the second time for this case on appeal. The Court remanded the case to the district court for the limited purpose of the entry of a supplemental order including the factual findings required by W.R.Cr.P. 12(f) as well as a statement by the district court of the conclusions of law it reached on those findings.
Under both the Wyoming and United States Constitutions, the Court examines the totality of the circumstances to determine whether consent was voluntary. The Court agreed with the district court that the officers’ demeanor was appropriate, non-threatening and not coercive. No weapons were brandished. Johnson was not handcuffed or otherwise restrained. He was not placed under arrest. The discussion was brief and informational.
Conclusion: Whether analyzed under the Wyoming Constitution or the United States Constitution, Johnson’s argument that his consent was coerced, and thus involuntary, failed.
Affirmed.
J. Golden delivered the decision.
Link: http://tinyurl.com/y3qo4kh .
[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.]
Summary of Decision issued April 20, 2010
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Nava v. State
Citation: 2010 WY 46
Docket Number: S-09-0144
Appeal from the District Court of Laramie County, the Honorable Peter G. Arnold, Judge.
Representing Appellant Nava: Scott Powers of Law Office of Scott Powers, Cheyenne, Wyoming.
Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Anna C. Swain, Assistant Attorney General.
Facts/Discussion: Nava appealed from his conviction for felony possession of a controlled substance. He claimed that the district court erred in denying his motion to suppress the evidence found in his car during a traffic stop.
Nava contended that after he was issued a warning citation and told he was free to leave, the trooper’s further questioning resulted in custodial interrogation and he should have been “Mirandized” before being subjected to questions. General on-the-scene questioning as to facts and statements volunteered freely without compelling influences are not custodial interrogation. Four factors are relevant to the determination: whether a suspect is questioned in familiar or neutral surroundings; the number of officer present; the degree of physical restraint; and the duration and character of the interrogation. Nava did not analyze the trooper’s further questioning using the factors. He argued that the Appellant never felt free to leave any time after the issuance of the citation. The Court stated the subjective feelings of neither the trooper nor Nava were relevant to the question of whether a particular interrogation was custodial. The Court’s review of the record revealed the trooper was not required to give Miranda warnings before further questioning.
Next, the Court considered whether Nava’s consent to the search of his vehicle was valid. Consent is considered within the “totality of the circumstances” with no single factor determinative. Nava relied upon O’Boyle v. State. The State relied upon the Court’s decisions in Marquez-Guittierrez v. State and Marinaro v. State. The Court stated the factual circumstances in the State’s cases were similar to the instant case and the reasoning compelling. The Court found Nava voluntarily consented to the search.
Conclusion: Nava was not in police custody and therefore not entitled to Miranda warnings before further questioning after he received a warning citation and was told he was free to leave. Also, no violation of his Fourth Amendment right to be free from unreasonable searches and seizures occurred because Nava voluntarily consented to the further questioning and subsequent search of his vehicle.
Affirmed.
C.J. Voigt delivered the decision.
Link: http://tinyurl.com/y6zpqlu.
[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.]
Summary of Decision issued April 16, 2010
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Schreibvogel v. State
Citation: 2010 WY 45
Docket Number: S-09-0044
Appeal from the District Court of Carbon County, the Honorable Wade E. Waldrip, Judge.
Representing Schreibvogel: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.
Representing State: Bruce A. Salzburg, 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: Schreibvogel was convicted of two counts of first degree sexual assault and one count of robbery.
Motion to quash: Prior to trial, Schreibvogel served a subpoena duces tecum on the victim. The district court may quash or modify the subpoena if compliance would be unreasonable or oppressive. The subpoena requested all financial records, tax returns, and bank records for the past five years. Schreibvogel had the burden to show that the requested documents were specific, relevant, and not intended as a general fishing expedition. He did not satisfy that burden.
Victim impact testimony: The State agreed that the challenged testimony was victim impact testimony. It was relevant to counter the attack on the victim’s credibility. The State maintained the testimony was relevant to prove the victim had undergone a traumatic experience. The Court stated that the victim’s credibility was at issue and the challenged testimony bolstered her credibility and was appropriate under the circumstances.
Hearsay testimony: Schreibvogel challenged the testimony of the investigating officer, an x-ray technician, and an emergency room nurse who testified regarding statements made to them by the victim shortly after the incident. Because the challenged evidence was potentially admissible under several evidentiary rules, Scheibvogel failed to establish he was materially prejudiced by the admission of the evidence.
404(b) evidence: When the witness was testifying, he stated that Schreibvogel was “coked up” and behind on his child support payments. It did not appear from the record that the State, prior to trial, intended to utilize the evidence of drug use. The witness was asked to tell the jury what he had been told by Schreibvogel. If the prosecution did not intend to introduce such evidence, it was not required to provide the defense with notice.
Prosecutorial misconduct: During questioning of Schreibvogel the prosecutor asked several times whether testimony by other witnesses was correct. A witness may not comment on the truthfulness or veracity of another witness. It is the jury’s duty to resolve factual issues. It is error and misconduct for a prosecutor to ask a witness whether he thinks other witnesses are lying or mistaken. The Court stated that while the questioning was improper, it was brief and the prosecution did not draw attention to Schreibvogel’s answers during closing argument. The Court did not find unfair prejudice. Viewed in context, the prosecutor’s statements referenced the lack of corroboration of Schreibvogel’s version of the events.
Ineffective assistance of counsel: Schreibvogel was required to show that his counsel’s performance was so seriously deficient that he was denied his Sixth Amendment right to counsel. He also needed to show that the deficient performance prejudiced his defense. The Court reviewed the record and stated that Schreibvogel could not show that his defense was prejudiced by his trial counsel’s performance. There was no reasonable possibility that had trial counsel objected to the challenged evidence or questioned the victim about what she heard that night, the outcome of the trial would have been more favorable to Schreibvogel.
Conclusion: Schreibvogel did not satisfy his burden to prove the records requested were not a general fishing expedition. The challenged testimony bolstered the victim’s credibility and was appropriate under the circumstances. Because the challenged evidence was potentially admissible under several evidentiary rules, Scheibvogel failed to establish he was materially prejudiced by the admission of the evidence. The prosecution did not intend to introduce the evidence objected to by Schreibvogel, therefore it was not required to provide the defense with notice. While the prosecutor’s questioning was improper, it was brief. There was no reasonable possibility that had trial counsel objected to the challenged evidence the outcome of the trial would have been more favorable to Scheibvogel.
Affirmed.
J. Burke delivered the decision.
C.J. Voigt specially concurred: The Justice concurred because stare decisis required the Court to place upon Schreibvogel the impossible task of proving prejudice in cases such as this. The prosecutor in the case asked Appellant three times whether another witness was incorrect or mistaken. Perhaps the State would pay attention to the law that it is error and misconduct for a prosecutor to ask a witness whether he thinks other witnesses are lying or mistaken, if it bore the burden of proof as to the lack of prejudice.
Link: http://tinyurl.com/y7utnlw .
[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.]
Summary of Decision issued April 16, 2010
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Jones v. State
Citation: 2010 WY 44
Docket Number: S-08-0281
Appeal from the District Court of Campbell County, the Honorable John R. Perry, Judge.
Representing Jones: Michael H. Reese of Michael Henry Reese, PC, Cheyenne, Wyoming.
Representing State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Jenny L. Craig, Assistant Attorney General.
Facts/Discussion: Following a jury trial, Jones was convicted of second degree sexual abuse of a child and sentenced to a term of imprisonment of five to fifteen years.
Motion for judgment of acquittal: Jones contended the district court should have considered the rule articulated in Eagan v. State and the corpus delicti rule in evaluating the adequacy of the State’s evidence. The Eagan rule applies only to testimony by the accused. In the instant case, Jones did not testify and was not the sole witness to the criminal event as the rule mandates. Jones was incorrect in his assumption that insufficient evidence existed beyond Jones’ statement given to the detective. Testimony was also provided by the victim and the victim’s mother.
Sufficiency of the evidence: Jones contended the evidence was insufficient to support the jury’s determination that he touched the victim’s intimate parts with the intention of sexual arousal, gratification or abuse. The Court reviewed the testimony of the victim, his mother and the detective. Although there was no direct testimony that Jones had touched RH’s genitals, the facts could have led the jury to reasonably infer that he had done so with the intent of becoming sexually aroused.
Ineffective assistance of counsel: Jones faulted counsel with failing to request a jury instruction incorporating the Eagan rule and failing to request a bill of particulars to clarify the facts underlying the criminal charge. As the Eagan rule was not applicable, an Eagan instruction would not have been appropriate. Jones failed to explain how a bill of particulars would have altered or significantly aided the defense strategy which was a general denial of any wrongdoing.
Conclusion: The Court agreed there was sufficient evidence for the case to be submitted to the jury. The Court concluded the evidence was sufficient to support the jury’s guilty verdict. The Court found Jones had not shown that defense counsel rendered constitutionally ineffective assistance.
Affirmed.
J. Golden delivered the decision.
Link: http://tinyurl.com/y5r5tok .
[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.]
Summary of Decision issued April 15, 2010
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Luftig v. State
Citation: 2010 WY 43
Docket Number: S-09-0101
Appeal from the District Court of Albany County, the Honorable Jeffrey A. Donnell, Judge.
Representing Luftig: Galen Woelk of Aron and Hennig, LLP, Laramie, Wyoming.
Representing State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Micahel Pauling, Senior Assistant Attorney General; and Graham M. Smith, Assistant Attorney General.
Facts/Discussion: Luftig was convicted of burglary for entering a vehicle with intent to commit larceny. He appealed claiming the district court committed plain error by allowing the admission of improper testimony about a series of Colorado car thefts for which he pleaded guilty to one count of aggravated motor vehicle theft and that his trial counsel was ineffective.
Evidentiary error: Luftig argued that Officer Bruce’s testimony included evidence that was not admitted in the district court’s pre-trial 404(b) ruling and that much of the evidence was subject to objection for reasons such as hearsay or insufficient foundation. The State did not seriously contest Luftig’s assertion that a good deal of the testimony was inadmissible. The Court considered the prejudicial effect of allowing in the inadmissible evidence in the context of the district court’s uncontested pre-trial 404(b) ruling and the other trial evidence. The properly admitted evidence was sufficiently strong to overcome any prejudice which the inadmissible evidence may have caused.
Ineffective assistance of counsel: The Court evaluated counsel’s performance determining whether his actions could be considered sound trial strategy. It analyzed defense counsel from his perspective at the time of trial. Defense counsel’s strategy appeared to be one of defusing the prejudice that would result from the information about Luftig’s previous conviction in Colorado for a similar crime. When defense counsel did not object to testimony about acts that were not included in the 404(b) ruling, it did not appear that he was following a sound trial strategy and his performance was deficient. However, Luftig was not entitled to reversal because he failed to establish that he was prejudiced by counsel’s failure to object.
Conclusion: The properly admitted evidence was sufficiently strong to overcome any prejudice which the inadmissible evidence may have caused. Luftig was not entitled to have his conviction reversed because he failed to establish that he was prejudiced by his counsel’s failure to object to the inadmissible testimony.
Affirmed.
J. Kite delivered the decision.
Link: http://tinyurl.com/y5l2zez .
[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.]
Summary of Decision issued April 8, 2010
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Eres v. State
Citation: 2010 WY 42
Docket Number: S-08-0251
Appeal from the District Court of Laramie County, the Honorable Michael K. Davis, Judge.
Representing Appellant Eres: Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Public Defender; Wyoming Public Defender Program.
Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric Johnson, Faculty Director, Eric K. Thompson, Student Director, and Ryan W. Podlesnik, Student Intern, of the Prosecution Assistance Program.
Facts/Discussion: Eres appealed his felony conviction for receiving stolen property, asserting claims of instructional error and evidentiary insufficiency.
Jury instruction: Eres and the State dispute whether the district court erred in instructing the jury to determine the value of the stolen property at the time of its original theft. A review of the record showed that the timing of the valuation of the stolen property was not an issue under the facts of the case. Even assuming the district court misstated the law governing the valuation element, the court was unable to conclude that the error mandated reversal. Because of the lack of evidence of competing valuations, the Court was convinced there was no possibility that the jury verdict would have been different under the instruction requested by Eres.
Sufficiency of the evidence: Eres claimed the trial evidence was insufficient to establish the stolen property in question had a market value in excess of $1,000. The victim, Gonzales, provided specific testimony about the purchase price and the dates he had purchased them. The jury was instructed to consider the purchase price in assessing the market value of the property. Viewing the evidence as a whole, the Court had no trouble concluding the evidence was sufficient for a reasonable jury to find beyond a reasonable doubt that the value of the stolen property exceeded $1,000.
Conclusion: Lack of evidence of competing valuations convinced the Court there was no possibility the jury verdict would have been different under the instruction proposed by Eres. The Court found ample evidence to sustain Eres’ conviction.
Affirmed.
J. Golden delivered the decision.
Link: http://tinyurl.com/yg93r3s .
[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.]
Summary of Decision issued April 8, 2010
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Northfork Citizens for Responsible Development v. Bd. of County Comm. of Park Cty.
Citation: 2010 WY 41
Docket Number: S-09-0148; S-09-0149
Appeal from the District Court of Park County, the Honorable Steven R. Cranfill, Judge.
Representing Northfork: Debra J. Wendtland and Anthony T. Wendtland of Wendtland & Wendtland, LLP, Sheridan, Wyoming.
Representing Board of County Commissioners of Park County: James F. Davis, Deputy Park County Attorney, Cody, Wyoming.
Representing Worthington Group: Laurence W. Stinson and Dawn R. Scott of Bonner Stinson, PC, Cody, Wyoming.
Facts/Discussion: Northfork appealed the district court’s affirmance of the approval by the Board of a subdivision proposed by Worthington Group. Northfork raised evidentiary and procedural issues. Worthington contended that Northfork’s issues were moot because Worthington has built the subdivision.
Are Northfork’s issues moot: Worthington argued that when Northfork filed its petition for review in the district court in 2006, it sought neither a stay nor an injunction. Consequently, nothing prevented Worthington from completing the subdivision which it did. As the Court stated in Ebzery, “just as a plaintiff who collects a judgment which is appealed but is not superseded takes a risk of having to make restitution, so, too, does one who builds in accordance with a zoning variance which is appealed take the risk that it will have to tear down what it has built.” The Court continues to hold that in Wyoming, completion of a project under a variance or permit during the pendency of an appeal does not render the appellate issues moot.
Did the Board violate county regulations and state law: The Board concluded that its rules and regulations allow it to schedule over time the receipt from a developer of information required in the sketch plan-special use permit-final plat-subdivision plan approval process. That conclusion, based upon the interrelatedness of the separate processes, was not clearly erroneous, nor was it inconsistent with the plain meaning of the rules and regulations, when all are read together.
Did the Board violate county regulations: Northfork contended that the subdivision’s final plat was not consistent with its sketch plan. While the final plat is to be consistent with the sketch plan, it need not be identical to it or the entire process could end after the sketch plan was approved. A sketch plan was tendered with individual water wells. After staff input and public comment, a final plat was approved with a central water supply system. The Board did not err in determining that this was not such an “inconsistency” as to require denial of the final plat of the subdivision.
Dependable water source: Wyo. Stat. Ann. § 18-5-306 sets the minimum requirements that must be met before a subdivision permit may be granted. Worthington first proposed ground water wells on individual lots. Public comment and opposition led them to propose, instead, a centralized system based upon converted irrigation rights. After additional public comment and opposition, Worthington again revised its water supply proposal, this time to surface water from the river along with an exchange of water from the downstream Buffalo Bill Reservoir. The Board found that the single incident of a call on the river in 1977 was not such evidence of risk as to render the 2005 priority “undependable” as the subdivision’s water supply. The Board’s determination was not contrary to the great weight of the evidence.
Open space plan: Northfork contended that the Board violated the regulations by approving the subdivision’s final plat where the open space provided for therein was not a single contiguous parcel, was not entirely undeveloped, and did not fulfill Park County’s policy that open space promote wildlife habitat and migration. The final plat revealed that the open space in the subdivision consists of one very large tract north of the housing lots, three separate tracts of relatively significant size within the subdivision but largely surrounded by houses, a “beltway” surrounding the entire subdivision and several narrow corridors connecting the various tracts. Taken together, the tracts cover approximately 53% of the entire subdivision. The Board considered the requirement of the GR-5 zone, the requirements of Lot Grouping, the definition of “open space” and concluded that the open space configuration met the purposes of the Zoning Resolution.
Northfork unlawfully denied intervention: A proceeding is a contested case if it is a trial type hearing that is required by law. Although all involved treated the hearing that took place on July 12, 2006 as a contested case hearing, the Court was not made aware of any underlying statute or administrative regulation that required Worthington’s “appeal” of the five conditions placed upon the final plat and subdivision permit to be conducted as a trial type hearing. The hearing was assumed by all to be a contested case hearing, was held as one and has previously been judicially reviewed as if it were a contested case hearing. For the purposes of these related appeals, it was a contested case hearing. The Court was concerned with the three requirements of W.R.C.P. 24(a)(2): the applicant claims an interest; the applicant is so situated that the disposition may as a practical matter impair or impede the applicant’s ability to protect that interest; and the applicant’s interest is not adequately represented by an existing party. The Court did not agree that the Board adequately represented Northfork’s interests during the contested case proceedings. The record revealed the Board’s unyielding opposition to any participation by Northfork throughout the entire process. As recognized in Northfork I, Northfork has particularized and protectable interests in the development which interests do not appear to have been shared by the Board.
Remaining issues: The remaining issues – road dedication, gated access, and multi-family dwelling – are all issues that were heard and decided at the contested case hearing. Because the Court concluded that Northfork was wrongfully deprived of its right to intervene in that hearing, those remaining issues will be remanded as well.
Conclusion: The fact that Worthington constructed the subdivision during the pendency of the appeal did not render moot the issues raised by Northfork. The Board did not violate state law or its own regulations in allowing county officials to waive the collection of certain information regarding the subdivision at early stages of the development because the subdivision process provided that such information would be made available and evaluated prior to approval of the final plat and prior to granting of the subdivision permit. Changes in the water supply source during the development process did not render the final plat inconsistent with the sketch plan, inasmuch as the sketch plan process clearly contemplated such changes. The Board’s conclusion that the subdivision’s water supply was dependable was based upon substantial record evidence, with any potential conclusion to the contrary being mere speculation. The Board did not err as a matter of law in determining the open space configuration within the subdivision to be adequate under the Board’s Zoning Resolution. The Board did err in denying Northfork the right to participate in the contested case hearing.
Affirmed in part, reversed in part.
C.J. Voigt delivered the decision.
Link: http://tinyurl.com/ychundn .
[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.]
Summary of Decision issued April 2, 2010
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Fuentes v. Jednat
Citation: 2010 WY 40
Docket Number: S-09-0009
Appeal from the District Court of Teton County, the Honorable Nancy J. Guthrie, Judge.
Representing Appellant Fuentes: William R. Fix and Jenna V. Manraccia of William R. Fix, PC, Jackson, Wyoming.
Representing Appellee: Katherine L. Mead and Bradford S. Mead of Mead & Mead, Jackson, Wyoming for Margred and Paul Jednat; and Laurence W. Stinson of Bonner Stinson, PC, Cody, Wyoming for James Lewis.
Facts/Discussion: While they were driving in downtown Jackson, Fuentes and her daughter were rear-ended by a drunk, eighteen-year-old Jonathan Jednat. Jonathan was living with his uncle James Lewis in Jackson and driving a car Lewis had given to Jonathan’s parents for Jonathan’s use.
Fuentes argued that her claim against Jonathan’s relatives was a new claim and not a renewal of the case against Jonathan. She relied upon a theory of negligent entrustment arguing that because it is a different kind of breach of the duty of reasonable care than is driving while under the influence, the damages claimed are different. The Jednats argued that since Fuentes and her daughter have recovered their damages once, they cannot recover again.
The Court rejected Fuentes’ position. In her action against Jonathan, she presented evidence on all of her injuries and her daughters’ injuries, and damages resulting from the accident. The jury determined those damages and returned a verdict in her favor. Fuentes failed to establish how the damages caused by the Jednats’ and Lewis’ alleged fault differed from the damages resulting from Jonathan’s fault. When a judgment includes a determination of the entirety of recoverable damages suffered by the plaintiff for an indivisible injury and provides for their recovery by the plaintiff against one or more of the defendants, payment of the full amount of recoverable damages constitutes a satisfaction of the plaintiff’s rights against all tortfeasors legally responsible for the plaintiff’s indivisible injury.
Conclusion: The Court found no genuine issue of material fact and the Jednats and Lewis were entitled to judgment as matter of law. Neither Fuentes nor her daughter has a claim against the Jednats or any other possible defendant in the case, including Lewis.
Affirmed.
J. Hill delivered the decision.
Link: http://tinyurl.com/yafphhz .
[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.]
Summary of Decision issued April 1, 2010
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Alphin v. State ex rel., Wyo. Workers’ Safety & Comp. Div.
Citation: 2010 WY 39
Docket Number: S-09-0085
Appeal from the District Court of Sublette County, the Honorable Marv Tyler, Judge.
Representing Appellant Alphin: Donna D. Domonkos, Cheyenne, Wyoming.
Representing Appellee State: Bruce A. Salzburg, Attorney General; John W. Renneisen, Deputy Attorney General; and James Michael Causey, Senior Assistant Attorney General.
Facts/Discussion: Alphin challenged the order of the district court which affirmed the “Findings of Fact, Conclusions of Law and Order” issued by a hearing examiner for the OAH. Alphin was injured on the job in 2005. His employer, Black Horse Construction, Inc. convinced him to seek medical treatment outside the constraints of the Workers’ Compensation Act. The employer paid for his treatment for a short time, but fired him because he was unable to work and then discontinued making payments on his behalf. In mid-2006, Alphin filed a claim for benefits.
Substantial evidence test: The hearing examiner’s credibility determinations were supported by substantial evidence in the record. Alphin testified in person and contradicted his own testimony several times.
Burden of proof: Alphin had the burden of proof. He asserted he did not hurt his back until the time he went to work for Black Horse Construction but the medical evidence was not entirely consistent with his claims. Alphin argued that the only reasonable conclusion that could be reached given the record was that a blow from a backhoe such as the one he suffered required that the fact-finder accept as a given that Alphin must have suffered the sort of back injury he claims to have sustained. The Court stated its inquiry revealed that the facts and circumstances of the instant case do not merit bringing “res ipsa loquitor” to bear.
Arbitrary and capricious standard: Alphin contended that his ability to successfully prosecute his claim for worker’s compensation benefits was so hampered by his side deal with Black Horse and his subsequent inability to get timely medical attention for his back problems, that the Court should apply the arbitrary and capricious safety net described in Dale. The Court concluded that Alphin’s circumstances were not ones that called into play that safety net.
Conclusion: The Court stated there was substantial evidence to support the agency’s decision to reject the evidence offered by Alphin after considering whether that conclusion was contrary to the overwhelming weight of the evidence in the record as a whole. The Court concluded that the circumstances in the instant case did not call the Dale “safety net” into play.
Affirmed.
J. Hill delivered the decision.
Link: http://tinyurl.com/yaq4yhc .
[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.]
