Summary 2010 WY 69

Summary of Decision issued May 27, 2010

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

Case Name: Reynolds v. West Park Hospital District

Citation: 2010 WY 69

Docket Number: S-09-0201

Appeal from the District Court of Park County, the Honorable Steven R. Cranfill, Judge.

Representing Reynolds: G. Mark Garrison of Garrison & Krisjansons, PC, Cody, Wyoming.

Representing Hospital: Chris Edwards of Simpson, Kepler & Edwards, LLC, The Cody, Wyoming division of Burg Simpson Eldredge Hersh & Jardine, PC.

Facts/Discussion: Reynolds appealed the Hospital District’s decision to terminate her employment. Reynolds began working for the Hospital in 1984. In 2003, she voluntarily resigned and entered into a Separation and Non-Disclosure Agreement. In consideration for Reynolds’ resignation and waiver of potential claims, the Hospital District paid her twelve weeks pay and continued providing health coverage. At about the same time, a different position was found and she returned to work for the Hospital District. In 2002, the Hospital District adopted a new employee handbook which generally provided that employees hired after January 1, 2002 would be “at-will” employees and could be terminated for any or no reason.

Termination based upon wrong personnel handbook: Reynolds argued that her employment was governed by the 1984 employee handbook because she received no consideration to modify her employment contract. By signing the Agreement in 2003 and accepting the terms, she waived any rights she may have had under the 1984 handbook. The Court noted that Reynolds did not present a copy of the alleged 1984 handbook and failed to demonstrate that had the handbook been in effect, the outcome would have differed.
Procedure for discipline not in handbook: At the time of her termination, Reynolds was an at-will employee and the Hospital District could terminate her for any reason or no reason.
Breach: Reynolds argued that because she was provided discipline short of termination on prior occasions, she had a reasonable expectation that the Hospital District would continue to treat her in the same manner. In Scherer Constr., LLC the Court held that the existence of a contractual implied covenant of good faith and fair dealing is obviously incompatible with the at-will presumption.

Conclusion: Reynolds’ resignation and release of claims in 2003 terminated any rights she may have had under whatever employee handbook may have been in effect before that date. Reynolds’ 2003 employment was at-will, under the applicable 2002 employee handbook, and her rights thereunder were not violated when she was terminated in 2007. Reynolds did not show that the conduct of the Hospital District was arbitrary, capricious, or contrary to law and she has not shown such conduct to have violated a covenant of good faith and fair dealing.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/2vt5t9f .

[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 2010 WY 68

Summary of Decision issued May 26, 2010

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

Case Name: Gilbert v. Bd. of Cty Comm. of Park Cty

Citation: 2010 WY 68

Docket Number: S-08-0202

Appeal from the District Court of Park County, the Honorable Steven R. Cranfill, Judge.

Representing Gilbert: Dawn R. Scott and Laurence W. Stinson of Bonner Stinson, PC, Cody, Wyoming.

Representing Park County: James F. Davis and Bryan A. Skoric of the Park County Attorney’s Office, Cody, Wyoming.

Facts/Discussion: Gilbert, owner of a 21.85-acre parcel of property approximately one mile southeast of Meeteetse sought review of the decision of the Board of County Commissioners (Board), which the district court affirmed, that denied his request for a land use variance after extended public hearings.

Hearings de facto trial-type proceeding: Gilbert stated he never claimed he was entitled to a contested case proceeding when the Board provided a public hearing to consider his variance request. However, he contended the Board’s actions during its several public hearings functioned as a constructive contested case proceeding. Gilbert argued that the increasingly adversarial relationship resulted in a de facto contested case proceeding. The Court has not addressed the issue of de facto contested case proceedings. Gilbert offered cases from Oregon and Hawaii. After the Court’s analysis of the cases, it declined to recognize the concept of the de facto contested case.
Sufficient administrative record for review: The Court reviewed the record and noted that when an appellant is concerned that no report was made or was incomplete, appellant may prepare a statement of the evidence or proceedings from the best available means including appellant’s own recollection. The Court observed that both counsel in their respective briefing set out their statements of the case and facts with appropriate references to the record and at times inserted their recollections of the discussions of some board members.
Effect of Gilbert’s failure to appeal need for variance request: Gilbert and the Board presented argument on whether Gilbert needed to request a variance in the first place. The significance of the parties’ argument on the issue was whether judicial review should concern only the Board’s decision that Gilbert failed to satisfy the variance standards or instead should also include whether a variance request was necessary at all. The Court stated both matters were before the Board.
Resolution #2007-72 supported by substantial evidence: It was obvious to the Court from a review of the record that the Board considered conflicting evidence concerning whether a variance was necessary and whether Gilbert had shown that the variance standards were met. The conflicting evidence served both sides.
Board’s decisions arbitrary and capricious: The Court reviewed the record. The Board was presented with conflicting evidence and argument with room for two opinions to be derived from that conflict. An honest difference of opinion will not support a finding of arbitrariness and capriciousness.

Conclusion: The Court declined to recognize the concept of the de facto contested case. The Court was satisfied there was a sufficient record. The Board’s decisions were supported by relevant evidence which a reasonable mind might accept in support of those decisions. The Court was satisfied the Board’s decision were not in disregard of the fact and circumstances of the case.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/35lppoy .

[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 2010 WY 67

Summary of Decision issued May 25, 2010

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

Case Name: Gomez v. State, ex rel., Wyo. Workers’ Safety & Comp. Div.

Citation: 2010 WY 67

Docket Number: S-09-0226

Appeal from the District Court of Washakie County, the Honorable Robert E. Skar, Judge.

Representing Gomez: Bill G. Hibbler of Bill G. Hibbler, PC, Cheyenne, Wyoming.

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

Facts/Discussion: This is an appeal from a district court order affirming a determination by the OAH denying workers’ compensation benefits to the family of Gomez on the ground that his death was not compensable. Gomez was employed as a sheepherder along with his brother-in-law Ambrosio-Rojas by Sundown, Inc. The herders were on call 24 hours a day, 7 days a week. An argument began between the two men, in their work-provided cabin, apparently fueled by alcohol wherein Ambrosio-Rojas shot Gomez in the back, killing him instantly.

The OAH relied on language in Finley stating that an injury arises out of the employment when a causal connection exists between the injury and the conditions under which the work is required to be performed. The district court agreed there was substantial evidence in the record to support the Hearing Examiner’s findings. In prior cases denying compensation through application of the recreational or social activity exception to the definition of injury, the Court has found that the employer did not require the employee to participate in the particular activity. To find Gomez’s death compensable would require adoption of what would resemble a strict liability standard for cases where an employee is on call and on the employer’s premises. That is not the law in Wyoming where compensability requires some nexus between the work and the injury.

Conclusion: The OAH did not err as a matter of law in determining that Gomez’s death was not compensable because it did not arise out of his employment, but arose while he was engaged in recreational or social events that he was not required to attend, and where his death did not result from the performance of any task related to his job duties.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/24vw52s .

[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 2010 WY 66

Summary of Decision issued May 25, 2010

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

Case Name: Moss v. State, ex rel., Wyo. Workers’ Safety & Comp. Div.

Citation: 2010 WY 66

Docket Number: S-09-0124

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

Representing Moss: Donna D. Domonkos, Cheyenne, Wyoming.

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

Facts/Discussion: After doctors certified him as having reached maximum medical improvement from a work related back injury, Moss applied for permanent total disability (PTD) benefits. The Division denied his claim and the Medical Commission (Commission) held a contested case hearing. The Commission concluded Moss did not meet his burden of proving that he was entitled to PTD benefits.

Moss suffered a lumbar injury in 2003 when the auger he was operating struck a rock and he was thrown to the ground. Moss contends the Commission incorrectly ruled that he failed to prove his entitlement to PTD benefits because it did not apply the standards for determining his right to benefits under the “odd lot” doctrine. Permanent total disability is the loss of use of the body which permanently incapacitates the employee from performing work at any gainful occupation for which he is reasonably suited. The Court noted in Nagle that the odd lot doctrine permits a finding of PTD in the case of workers who are so handicapped that they will not be employed regularly in any well known branch of the labor market. To be entitled to an award of benefits under the odd lot doctrine, an employee must prove he is no longer capable of performing the job he had at the time of his injury and the degree of his physical impairment coupled with factors such as mental capacity, education, training and age make him ineligible for PTD benefits even though he is not totally incapacitated. The employee must show he made reasonable efforts to find work in his community and that he was so completely disabled that any effort to find employment would have been futile.
The Court reviewed the records including the video recording of Moss, the medical records and reports and Moss’ testimony. The Court was unable to discern a rational basis for the Medical Commission’s disagreement with the Social Security determination and rejection of Moss’s testimony and the opinions of Dr. Neal and Zondag. The record indicated that the Commission disregarded relevant evidence, made incorrect assumptions and viewed the evidence in a light most likely to result in a denial of benefits.
The Court then considered whether the Division came forward with sufficient evidence to refute Moss’s evidence and to prove work within his limitations was available. In addition to the opinion of three doctors that Moss was capable of gainful employment with restrictions, the Division presented evidence that light duty work was available to Moss. Relying on a vocational evaluation performed at the request of Moss’s attorney, the Division pointed out that the evaluator concluded Moss could find work in his geographic area in jobs such as cashier, rental clerk, telemarketer, desk clerk and customer representative.

Conclusion: The Court concluded substantial evidence supported the Commission’s ruling that Moss was not entitled to benefits under the odd lot doctrine. Although the Court was unable to discern a rational basis for the Commission’s decision to reject much of Moss’s evidence, the impairment ratings the Division presented called into question the opinions of Dr. Neal and Dr. Zondag. The Division also presented evidence that light work was available in Moss’s geographic area. That the Court might have reached a different result was not grounds for reversal. The Court could not conclude that the Commission’s ruling was against the overwhelming weight of the evidence.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/28r8zct .

J. Hill, dissenting: The Justice dissented noting principles and circumstances he argued must be viewed as determinative in the instant case. J. Hill would have rejected the Commission’s determination that there was work available within Moss’s physical limitations including his broken back, constant pain, anxiety and depression, ancillary to the pain and his inability to work and earn a living. The Court noted in Nagle and Tarraferro that medical science has very few reliable tools which can accurately assess the presence or severity of pain. The Justice also noted that the Court has held that the testimony of an injured worker alone is sufficient to prove injury. He also stated that treating physicians should be credited with having the most comprehensive knowledge of the injured worker’s condition and that the Commission should have acknowledged that SSA disability determinations are made after an onerous testing process and cannot be cast aside as irrelevant. The Justice noted several other examples where he felt the Commission played fast and loose with the facts. J. Hill would have applied the last of the standards of review articulated in Dale. The decision of the Commission was arbitrary and capricious and should not have been affirmed.

[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 2010 WY 65

Summary of Decision issued May 24, 2010

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

Case Name: Simek v. Tate

Citation: 2010 WY 65

Docket Number: S-09-0177

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

Representing Simek: Andrea L. Richard of the Richard Law Firm, PC, Jackson, Wyoming.

Representing Tate: Larry B. Jones, William L. Simpson, and Chris D. Edwards of Simpson, Kepler & Edwards, LLC, the Cody, Wyoming division of Burg Simpson Eldredge Hersh & Jardine, PC.

Facts/Discussion: This was an appeal from a district court order enforcing an oral settlement agreement requiring Simek to purchase certain real property from Tate (the Estate). There were two agreements: one from 2003 that was written and required the approval from the Illinois Probate Court and one from 2005 that was an oral settlement.

Simek’s motion for hearing: The Court affirmed the district court on the issue of the telephonic hearing because the numerous hearings provided the parties with ample opportunity to present evidence; the record revealed no reasons Simek, his witness, and attorney could not appear in person at the hearing; the parties consented; Simek showed no prejudice; the newly assigned district judge reviewed all the evidence that had been presented at all the hearings; and Yaekle v. Andrews stands for the proposition that a hearing is required if the terms or existence of a settlement agreement are in dispute not that a telephonic hearing is insufficient under such circumstances.
Simek’s motion to enforce earlier settlement agreement: The 2003 Agreement did not receive the required approval of the Illinois Probate Court. It therefore became void. The fact that some terms of the two agreements were inconsistent with one another was legally meaningless and had nothing to do with the question of whether the parties reached an oral settlement in 2005 or with the question of whether the 2005 Agreement should have been enforced. (There was extensive e-mail discussion between the attorneys regarding which agreement was in force.)
Estate’s motion to enforce settlement agreement despite statute of frauds: The district court concluded that the 2005 Agreement existed and that it was saved from the statute of frauds as a result of the doctrine of partial performance. The Court looked at the relations of the parties; the nature of the parol agreement; and the relative benefit and detriment derived by the parties. The district court concluded that the parties intended for their agreement to be effective upon its oral consummation. The issue became whether the Estate’s acts in partial performance of the 2005 Agreement were sufficient to estop Simek from asserting the statute of frauds as a defense, especially when coupled with Simek’s failure to disclaim the agreement in the face of that conduct. The Estate acted to its detriment in reliance upon the agreement by relinquishing possession of the property to Simek for several months, by allowing repeated access, and by informing the court that the civil action had been settled. Under the circumstances of the instant case, the court stated the acts of partial performance were sufficient to invoke equity to enforce the oral agreement.

Conclusion: The district court did not err in holding the final evidentiary hearing with one party and its witnesses appearing in person and the other party and its witnesses appearing by telephone. The district court also did not err in denying Simek’s motion to enforce the 2003 Agreement, which agreement was void due to its rejection by the Illinois Probate Court. Finally, the district court did not err in enforcing the parties’ oral 2005 Agreement inasmuch as the equitable doctrine of partial performance took the agreement out from the statute of frauds.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/278zupe .

[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 2010 WY 64

Summary of Decision issued May 19, 2010

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

Case Name: Garza v. State

Citation: 2010 WY 64

Docket Number: S-08-0279

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

Representing Garza: Diane Lozano, Wyoming State Public Defender; Tina Kerin, Appellate Counsel; Kirk A. Morgan, Assistant Appellate Counsel.

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

Facts/Discussion: Garza appealed from the Judgment and Sentence convicting him of two counts of second degree sexual assault and imposing a combined prison sentence of twenty-one to twenty-seven years.

Admission of tape recordings: At trial, Garza’s girlfriend KV was called by the State to testify regarding her recollection of the events on the last day that JM alleged Garza assaulted her. Immediately before KV testified, the prosecutor, defense counsel, and the district court discussed the use of certain tape recorded conversations between Garza and KV which occurred while Garza was incarcerated awaiting trial. The prosecutor indicated she would use the recordings for impeachment only if KV denied making certain statements. Garza asserted reversible error in the admission of the tape recordings. He argued that the recordings were improper impeachment material and otherwise irrelevant, inadmissible evidence. The Court agreed with the district court’s ruling that they were admissible as statements by a party opponent under W.R.E. 801(d)(2)(A). The Court also agreed that the recordings were relevant because they showed an indicia of guilt.
Motion for new trial: Garza filed a motion for a new trial based on newly discovered evidence premised on a letter purportedly written by JM in which she recanted her allegations of sexual abuse. The Court’s review of the district court’s denial of the motion revealed no abuse of discretion. Based on his familiarity with the case, the district judge was in the best position to determine the credibility of the recanting evidence. The district court afforded Garza an evidentiary hearing and an opportunity to establish the validity of the victim’s alleged recantation.
Sentencing: The Court found no merit in Garza’s contention that the tenets of Apprendi and Blakely were transgressed. Those cases involved the determination of facts that resulted in an enhancement of a criminal penalty beyond the prescribed statutory maximum. The eleven-to-fifteen-year and ten-to-twelve-year sentences were well within the prescribed statutory range.
Jury instruction: Garza condemned the district court’s decision to give, over his objection, Instruction No. 17 which stated “Corroboration of a victim’s testimony is not necessary to obtain a conviction for sexual assault.” The Court agreed the instruction was improper but that it amounted to harmless error in the instant case. The testimony of the victim was corroborated by other evidence. In addition the district court expressly instructed the jury that it must reach a verdict on the charged crimes beyond a reasonable doubt.

Conclusion: Garza was not successful in his attempt to convince the Court that reversible error occurred with respect to any of the issues raised in the appeal.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/2ewq5st .

[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 2010 WY 63

Summary of Decision issued May 18, 2010

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

Case Name: In re Estate of Johnson

Citation: 2010 WY 63

Docket Number: S-09-0040

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

Representing Kelliann Johnson: Matthew A. Bartlett of Bartlett & Webster, Riverdale, Utah.

Representing Larry Johnson: V. Anthony Vehar of Vehar Law Offices, PC, Evanston, Wyoming.

Facts/Discussion: This is an appeal from a probate court order denying the petition of a decedent’s wife (Wife) to revoke the appointment of the decedent’s father (Father) as personal representative of the decedent for the filing of a wrongful death claim.

Does Wife have standing to challenge appointment: Father declared that Wife lacked standing to bring the appeal because Wife could not prove that she would suffer any harm from Father’s appointment as personal representative. The Court has used the phrases “personal stake in the outcome” and “tangible interest” in describing standing. The Court had no trouble declaring that Wife had standing to challenge Father’s appointment.
Does probate court govern appointment of personal representative: The statutes set forth the order of preference the probate court is to follow in selecting an administrator. The Court noted that the wrongful death act lies at the heart of the dispute as well. The Court stated that the separate purposes of the statutes are entirely distinct. The purpose of an intestate succession statute is to provide for the distribution of a decedent’s estate. The purpose of the wrongful death act was to prescribe limitations and a remedy for a cause of action which did not exist at common law. The Court stated the central theme of the cases reviewed was that an intestate estate probate code administrator and a wrongful death action civil code personal representative have different functions and different duties and there is not and should not be any necessary connection between them. In Bircher, the Court stated that the only person who could bring an action for wrongful death was the personal representative of the deceased, the executor or administrator of decedent’s estate. The Court overruled Bircher prospectively to the extent that it requires a wrongful death action to be brought in probate court, and to the extent that it requires a wrongful death action to be brought in probate court, and to the extent that it requires a wrongful death personal representative to be the administrator or executor of the decedent’s estate in probate. The Court held that inasmuch as the Wyoming wrongful death act does not require the personal representative to be the probate estate’s administrator or executor, it is not up to the Court to insert that requirement. The district court determined that the appointment of a wrongful death act personal representative had nothing to do with the appointment of an executor or administrator under the probate code. Having correctly determined that the wrongful death act appointment of a personal representative was not the appointment of a probate code estate administrator, the district court should have dismissed the probate code action and should not have allowed Father’s appointment to stand.
What governs appointment of personal representative: The only test of who is appointed as personal representative, despite the lack of guidance in the wrongful death act, cannot simply be who first gets to the courthouse. Wife alleged that Father did not provide her notice of the filing of his petition. Upon remand, the district court should consider that lack of notice, and the reason for it, as another factor in making the appointment.

Conclusion: Wife had standing to contest the appointment of Father as personal representative under the wrongful death act because she has a tangible interest in and a personal stake in the outcome. A personal representative should be appointed by the district court within the wrongful death action, rather in a separate probate action. The district court should consider the functions and purposes of the wrongful death act in the light of the facts and circumstances relating to the petitioner and anyone contesting the appointment.

Reversed and remanded.

C.J. Voigt delivered the decision.

J. Hill dissenting, joined by J. Golden: The Justices argued that the majority opinion misused the applicable rules of statutory construction so as to perpetuate irrational “complexities” and to create new “ambiguities” where none exist. The action deprives the surviving spouse of her “entitlement” to serve as the personal representative in the wrongful death action. Father has had three opportunities to raise any issues with respect to Wife’s “entitlement” to serve. The Justices saw no reason why the Court should allow Father a fourth opportunity to attempt to deprive Wife of her statutory entitlement.

Link: http://tinyurl.com/39zs9cp .

[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 2010 WY 62

Summary of Decision issued May 18, 2010

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

Case Name: Alpine Lumber Co. v. Capital West Nat’l Bank

Citation: 2010 WY 62

Docket Number: S-09-0057

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

Representing Alpine Lumber: Patrick Dixon, Casper, Wyoming.

Representing Capital West: John C. Patton, Terry W. Connolly of Patton & Davison, Cheyenne, Wyoming.

Facts/Discussion: Alpine Lumber supplied materials to a residential construction project in Casper and did not receive payment. Alpine filed liens within 120 days of providing material and contends the liens were timely because Alpine was a “contractor” under Wyoming’s lien statutes. Resolution of the issue depends upon interpretation of the lien statutes. Under the Wyoming statutes, if Alpine was a contractor, it had 120 days from the last date it provided work, services, or materials to file the liens; if Alpine is a materialman, the 90 day time limitation applies.
McDonald Homes began a project of developing and constructing some thirty residential homes on properties it owned in Casper in 2006. Capital West provided the financing for the projects. Alpine entered into contracts with McDonald to provide materials for the construction of the residences on McDonald’s property. Alpine argued that since it contracted directly with the owner of the property, it fit the definition of “contractor”. In Weyerhauser, the Court held that the supplier of materials to an owner was not a contractor. The Court relied upon stare decisis in their decision to not steer away from the current interpretation of the statute.

Conclusion: Alpine was a materialman and the applicable statutes required the liens to be filed within 90 days of providing the materials.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/2wgk49l .

[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.]

WestlawNext and Lexis for Microsoft Office

If you would like to learn more about WestlawNext™ and Lexis® for Microsoft® Office, these short articles may answer some questions for you. (The CRIV Sheet is a publication of the American Association of Law Libraries, so there will be some information specifically for law librarians.)

Caren Biberman interviewed Mark Schiff, Vice President of Product Marketing at Thomson Reuters regarding the WestlawNext™ product. Some of the questions he answered included why they decided to create WestlawNext™ and how it is different from Westlaw#0174;, what the rollout schedule is for firms, corporations, law schools and public law libraries, some idea of the pricing options, and what the future of Westlaw® will be.

Amy Eaton and Marian Parker attended a demonstration and review of Lexis® for Microsoft® Office led by Darrell Huntsman, Vice President of New Products at LexisNexis. The article focuses on the product and what you can do with this "add-in application", but also includes an idea of the timeline for the first release.

Summary 2010 WY 61

Summary of Decision issued May 14, 2010

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

Case Name: Rodriguez v. State

Citation: 2010 WY 61

Docket Number: S-09-0179

Appeal from the District Court of Park County, the Honorable Steven R. Cranfill, Judge.

Representing Rodriguez: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.

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

Facts/Discussion: Rodriguez challenged the district court’s order revoking her probation and imposing the original prison sentence. She contended that her plea admitting the State’s allegations was obtained in violation of her right to counsel.
According to the plain language of the statute, the defendant may waive her rights only if she is advised of her rights, acts with a full awareness of those rights, and understand the consequences of waiving those rights. At the hearing the court did not properly advise Rodriguez of her right to counsel, took no steps to ascertain whether she understood that right, and never specifically asked her if she waived her right to counsel. The district court made no attempt to inform her of the repercussions of entering a plea, or of the disadvantages of proceeding to the sentencing phase without counsel.

Conclusion: An individual’s right to counsel is such a basic right that its denial can never be treated as harmless error. The entry of a plea is a critical stage of probation revocation proceedings. Rodriguez was not represented by counsel and did not voluntarily, knowingly, and intelligently waive her right to counsel during that proceeding.

Reversed and remanded.

J. Burke delivered the decision.

Link: http://tinyurl.com/2e4ucdt .

[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 2010 WY 60

Summary of Decision issued May 14, 2010

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

Case Name: DeLoge v. State

Citation: 2010 WY 60

Docket Number: S-09-0117

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

Representing DeLoge: Pro se.

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

Facts/Discussion: DeLoge appealed from the district court’s order dismissing his motion for return of property. The court ruled that since DeLoge’s property was in the possession of officials in another state, it did not have the authority to order its return to him. It also denied his request for damages to compensate him for the loss.

W.R.Cr.P. 41(e): As a general rule, a court does not have jurisdiction to grant a Rule 41 motion for return of property when the evidence establishes that the governmental defendant no longer has possession of the property. Applying the rationale from Stevens and Wetherbee to the circumstances presented, the Court concluded that the district court properly denied DeLoge’s motion. The undisputed evidence established that DeLoge filed his motion or return of property after the State had already transferred the property to the State of Mississippi and the property was still in possession of those authorities.
DeLoge then asked for compensation for the loss of his property. The facts showed that the property was transferred from the Cheyenne Police Department to an FBI agent who then transferred it to Mississippi authorities. The State contacted Mississippi to request an itemized list of all property in their possession. The Mississippi authorities did not cooperate and the State filed its motion to close the case. There was no indication that the State acted to dispose of DeLoge’s property after he filed his motion for return of the property. The Court agreed with the Tenth Circuit’s decision in Clymore and concluded that the concept of sovereign immunity applied to the request for an award of damages.
Exculpatory evidence: The Supreme Court stated in Osborne that states have flexibility to determine what procedures are needed in the context of post-conviction relief. The provision to preserve biological evidence was not in existence when the evidence was seized and DeLoge was convicted of his crime. In fact, it was not passed until about four years after he filed his motion for return of property. Thus he cannot claim that the State violated a statute that did not exist at the time the property was transferred.
Filing fees/ in forma pauperis status: The Court declined to consider the merits of the issue because DeLoge did not file a formal motion with the Court seeking the right to file without payment of the docket fee.

Conclusion: The evidence established that the property was no longer in possession of Wyoming so the district court no longer had jurisdiction. The provision to preserve biological evidence was not in place when the evidence in the instant case was seized and DeLoge was convicted of his crime. The Court did not consider the request for in forma pauperis status because DeLoge did not file a formal motion with the Court.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/282sv72 .

[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.]

How Medicaid and Juvenile Court Overlap & Update on PRTF/RTC Designation

The Children's Justice Project's next internet training is scheduled for Thursday, May 13 at noon. The topic is "How Medicaid and Juvenile Court Overlap & Update on PRTF/RTC Designation". The presenters are Eydie Trautwein, Interagency Coordinator, Wyoming Department of Health, Mental Health, and Substance Abuse Services and Sara Walk, Program Manager, Medicaid, PRTF.

Training participants will:

• Obtain a basic understanding of Medicaid and its resources, including how to find "medically necessary" Medicaid services;
• Know about APS HealthCare and Children's Mental Health Waiver and understand services for children with serious emotional disturbance;
• Understand the difference between a Psychiatric Residential Treatment Facility and Residential Treatment Center and admission criteria;
• Understand importance of discharge planning;
• Know Wyoming Statute about requirements for out of state placement.

CLE approval for one hour is pending.

If you are interested in listening to this training please log onto:
http://www.blogtalkradio.com/childrens-justice-project

Once at the site, click the 'play' button. Please note: This button will not show up until exactly at noon.

We recommend that you download the training material prior to the session. The material is available at our website: www.courts.state.wy.us/CJP.

If you participate, please complete the short survey afterwards at:
http://www.surveymonkey.com/s/HDD5R53

If you experience technical difficulties:

1. Make sure your speakers are on and the volume is up.
2. Refresh the internet and press play again.
3. Completely exit the internet and log on again.
4. Contract Tara at tackerman@courts.state.wy.us

Summary 2010 WY 59

Summary of Decision issued May 7, 2010

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

Case Name: Zupan v. Zupan

Citation: 2010 WY 59

Docket Number: S-09-0127

Appeal from the District Court of Hot Springs County, the Honorable Dan Spangler, Judge.

Representing Mother: Wendy Sweeny, Worland, Wyoming.

Representing Father: Michael S. Messenger and Bobbi Overfield, Messenger & Jurovich, PC, Thermopolis, Wyoming.

Facts/Discussion: Mother appealed the post-divorce order in which the district court found that with slight changes, the best interests of the parties’ children were being served by the existing shared custody and visitation plan; that no grounds to modify the prior custody arrangement existed; and that Father was not in contempt for violating the Decree.

The shared custody arrangement: Wyoming statute specifically allows the district court to arrange a shared custody plan which it finds to be in the best interests of the children. Mother fundamentally disagreed with the district court’s determination to continue with the custody arrangement that had been in place for the minor children for the previous five years subject to slight modification. A review of the district court’s findings revealed that all relevant factors were thoughtfully analyzed and carefully weighed in discerning the best interests of the children.
Father’s relationships with is other children and grandchildren: Mother pointed to Father’s past aggressiveness with his daughter from a prior relationship and his overall inability to deal with teenagers based on his relationships with his other children. The record showed that the trial court accepted the testimony on the issue presented. The district court’s findings lead to the conclusion that the evidence was obviously considered and given appropriate weight.
Travel or relocation restriction: Mother sought to have the residency restriction removed; the district court ordered it be lifted and that any future issues be addressed through future modification proceedings. As stated in Harshberger, relocation, by itself, cannot be a substantial and material change in circumstances sufficient to justify reopening a custody order. But, the precedent does not preclude the district court from considering the effects of relocation on the children so long as there is some other circumstance that would serve as a substantial and material change even in the absence of relocation.
Denial of Mother’s contempt petition: The record contained ample support for the findings of the trial court that Mother did not meet her burden of proof in showing that Father was in contempt for disobeying the Decree; Father had not repeatedly refused to allow Mother to recover lost time with the children and each party had allowed the other extra time in accordance with the best interests of the children; Father had not forbidden school personnel from communicating with Mother; neither party had willfully denied custodial nor visitation rights of the other; Father participated in mediation in good faith; and there had not been willful violations of court orders by either party.

Conclusion: The Court declined to reweigh the testimony and evidence adduced at trial because Mother had not articulated the existence of some serious procedural error, a violation of a principle of law, or a clear and grave abuse of discretion.

Affirmed.

D.J. Tyler delivered the decision.

Link: http://tinyurl.com/267g98w .

[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 2010 WY 58

Summary of Decision issued May 7, 2010

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

Case Name: Uptown Café, Inc. v. Town of Greybull

Citation: 2010 WY 58

Docket Number: S-09-0032

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

Representing Uptown Cafe: G. Mark Garrison of Garrison & Krisjansons, PC, Cody, Wyoming.

Representing Greybull: Larry B. Jones and William L. Simpson of Simpson, Kepler & Edwards, LLC, Cody, Wyoming.

Facts/Discussion: In May 2007, Uptown Café filed a complaint, pursuant to the Wyoming Governmental Claims Act (WGCA) seeking to recover damages allegedly caused by a leaking sewer line owned and operated by Greybull.
The disposition of the appeal was controlled by Beaulieu II. The failure of a complaint in a governmental claims action to allege compliance with both the constitutional signature and certification requirements and the statutory filing requirements can prevent the district court from acquiring subject matter jurisdiction over the claim.
Conclusion: Because Uptown Café’s complaint failed to allege the requisite constitutional compliance under Beaulieu II; the district court never acquired subject matter jurisdiction over the action. Accordingly, the district court’s summary judgment order was null and void. Since there was no order invoking the Court’s jurisdiction, the appeal was dismissed.

Dismissed.

J. Golden delivered the decision.

J. Kite dissenting, joined by J. Burke: The Justice dissented for the same reasons articulated in J. Burke’s dissenting opinion in McCann v. City of Cody. The allegations sufficiently allege the conditions precedent for filing a claim against Greybull to invoke the district court’s subject jurisdiction. If the complaint was insufficient, allow Uptown Café to amend it. If the rules created by the Court for pleading a governmental claim lead to the conclusion that the complaint is legally insufficient and Uptown Café is not permitted to amend, the rules should be abolished because they serve no useful purpose and create obstacles to the determination of governmental claims on their own merits.

Link: http://tinyurl.com/2ckc92n .

[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 2010 WY 57

Summary of Decision issued May 4, 2010

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

Case Name: Ohio Casualty ins. Co. v. W.N. McMurry Construction Co.; McMurry v. Ohio Casualty Ins. Co.; McMurry v. BW Ins. Agency, Inc.

Citation: 2010 WY 57

Docket Number: S-08-0163; S-08-0164; S-08-0165

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

Representing Ohio Casualty Ins. Co.: Patrick J. Murphy and Scott P. Klosterman of Williams, Porter, Day & Neville, PC, Casper, Wyoming.

Representing W.N. McMurry Construction Co.: W.W. Reeves and Anna Reeves Olson of Park Street Law Office, Casper, Wyoming.

Representing BW Insurance: Billie L.M. Addleman and Richard A. Mincer of Hirst Applegate PC, Cheyenne, Wyoming.

Facts/Discussion: The three consolidated appeals arose out of McMurry Construction’s legal action to recover for two separate incidents involving two separate insurance policies. Both policies were issued to it by Ohio Casualty Ins. BW Insurance was the procuring agent for both policies.

S-08-0163: McMurry Construction sought through reformation to enforce a contract other than that into which it entered. The numbers ultimately reported to Ohio Casualty and supplied by McMurry Construction were unintentionally lower than they should have been. A review of the process showed there was no mistake reciprocal and common to both parties with each party being under the same misconception. It was a mistake in reaching the antecedent agreement which cannot be corrected by means of reformation.
S-08-0164: McMurry Construction challenged the interest calculations of the district court in its award of damages after reformation of the builder’s risk policy. Since the Court reversed the district court order requiring reformation, the appeal was moot and therefore dismissed.
S-08-0165: This appeal is based on the district court’s grant of summary judgment in favor of BW Insurance on contract and tort claims made against it by McMurry Construction as well as the district court’s denial of McMurry Construction’s attempt to reform its business auto insurance policy to gain coverage for a driver (Nelson) Ohio Casualty had expressly excluded from the policy. McMurry Construction recognized that failure to read an insurance policy will bar claims against an agent for breach of contract and negligence. It also admits it never read the business auto policy. It argued that the duty to read a policy is mitigated if the insured does not have a reasonable opportunity to read the policy. The Court found the argument specious since the policy was delivered in January and the accident in question occurred in September. McMurry Construction sought reformation of the business auto policy. Ashba of BW Insurance informed McMurry Construction that Nelson was covered under the policy. The Court’s question was whether Ashba and thus BW Insurance were acting as an agent for Ohio Casualty when he made that statement. Ohio Casualty made it clear in the auto policy that BW Insurance had no authority to alter the terms of the policy. BW Insurance did not have actual authority from Ohio Casualty to remove the exclusion-of-named-person endorsement.

Conclusion: (S-08-0163) The remedy of reformation was not available for the purpose of making a new and different contract for the parties. Instead, it was confined to establishment of the actual agreement reached between the parties as to the material terms of the contract. McMurry Construction and Ohio Casualty never reached a mutual agreement on material terms of the insurance policy – specifically the coverage limits. The decision of the district court was reversed.
(S-08-0164 dismissed)
(S-08-0165) McMurry Construction had plenty of time to read the business auto policy. The grant of summary judgment to BW Insurance on contract and tort claims was appropriate. Although Ashba told Fairservis that Nelson was covered, Ashba did not have the actual authority to effect such a change. Ohio Casualty never agreed to cover Nelson and never removed the exclusion-of-named-person endorsement from the policy. There was no basis for the reformation of the policy the district court’s decision on both of those issues was affirmed.

Appeal S-08-0163 was reversed. Appeal S-08-0164 was dismissed. Appeal S-08-0165 was affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/23fo39o .

[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 2010 WY 56

Summary of Decision issued April 28, 2010

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

Case Name: M&M Auto Outlet v. Hill Investment Corp.

Citation: 2010 WY 56

Docket Number: S-09-0160

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

Representing Appellant M&M: Stephen R. Winship of Winship & Winship, PC, Casper, Wyoming.

Representing Appellee Hill: Richard D. Bush, David Evans and John A. Coppede of Hickey & Evans, LLP, Cheyenne, Wyoming.

Facts/Discussion: M&M and Hill, doing business as First Financial, Inc. (FFI) entered into a contract in which FFI agreed to purchase vehicle loans from M&M and perform collection activities on the loans at its expense. In the event an M&M customer became delinquent on a loan, the contract provided that M&M would pay FFI the “full recourse amount.” Alleging that M&M failed to pay the full recourse amount on delinquent loans in accordance with the contract, FFI filed a complaint for breach of contract.

Meaning of the contract: From the four corners of the agreement, it was clear the parties intended the agreement to be a full recourse agreement in which FFI would purchase from M&M the loans M&M made to its customers, M&M’s customers would then make payments on the loans directly to FFI and FFI, at its expense, was responsible for collection activities, except for repossession expenses. The disagreement concerns the lengths to which FFI was required to go in collecting payments, and that is something the agreement did not address. If M&M desired FFI’s collection efforts to include specific activities, it was free to incorporate the terms in the agreement.
Alleged Breach by FFI: M&M claimed it was excused from performing under the agreement because FFI breached the agreement when it failed to perform its collection activities in good faith. The agreement unambiguously provided that FFI was entitled to full recourse from M&M in cases where its collection activities proved unsuccessful. Because the parties’ business relationship spanned several years and both parties were experienced in the used car financing business, the Court was unwilling to infer that duties existed absent clear language in the contract or evidence indicating that was the parties’ intent at the time the agreement was executed.
Mitigation of damages: The contract clearly stated that in the event FFI was unsuccessful in collecting the amounts due, it was entitled to full recourse as expressly defined in the agreement. The agreement did not require FFI to repossess the vehicles as part of its collection activities. For the Court to conclude so would have imposed a duty on FFI that the contract did not require.
Sufficiency of the evidence to support summary judgment: W.R.C.P. 56(e) requires an affidavit be made on personal knowledge; set forth facts which are admissible in evidence; demonstrate the affiant’s competency to testify on the subject matter of the affidavit; and have attached to it the papers and documents to which it refers. Shaw, FFI’s general manager, attached a summary identifying the problem accounts, the date recourse was declared, buyback amount, accrued interest and the total due. The affidavit also included the full recourse program agreement and a list of the designated accounts he provided to M&M. W.R.E. 1006 provides that writings which cannot conveniently be examined in court may be presented in the form of a summary as long as the party makes the documents available for exam and copying by the opposing party. There was no contention that FFI did not make the actual documents available to M&M.
Prematurity of summary judgment: M&M asserted the summary judgment was premature because discovery had not been completed. On the same day as the summary judgment hearing, M&M signed a withdrawal of its motion to compel discovery stating that FFI had satisfactorily amended its discovery responses. Given that M&M stated it was satisfied with the discovery responses, the Court found no abuse of discretion in the district court’s denial of the motion for continuance.

Conclusion: M&M could have, but did not include specific collection activities in the contract with FFI. The Court declined to rewrite the agreement under the circumstances of the instant case. The agreement unambiguously provided that FFI was entitled to full recourse from M&M in cases where its collection activities proved unsuccessful. The agreement did not require FFI to repossess vehicles. The affidavit and documents provided for the motion for summary judgment were sufficient. M&M’s argument that discovery was not complete and so its motion for continuance should have been granted was not borne out by the record.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/2ao9n7l .

[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 2010 WY 55

Summary of Decision issued April 28, 2010

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

Case Name: Fuller v. State

Citation: 2010 WY 55

Docket Number: S-09-0169

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

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

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

Facts/Discussion: Fuller appealed his conviction on a charge of felony property destruction. Fuller and his wife leased a house and garage in Casper. After an argument, Fuller drove his pickup through the garage door striking his wife’s car inside. He backed up the pickup and struck the car again damaging both the car and the garage.
Fuller contended the statute was ambiguous when applied to property in which a defendant has an ownership interest. Because the lease entitled him to sole possession of the garage at the time it was damaged, Fuller asserted that the garage could be considered his property as well as “property of another.” The Court concluded the language had only one reasonable interpretation. The garage was “property”, the landlords were “another” and they had a property interest in the garage.
The Court also rejected Fuller’s suggestion that his conviction was improper because his insurance company reimbursed the landlord. Nothing in the language of the statute indicates that paying for the damages is a defense to the charged crime.

Conclusion: The Court concluded the statutory language was not ambiguous. The language of the statute did not indicate that paying for damage done was a defense to the charged crime.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/297y3hp .

[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 2010 WY 54

Summary of Decision issued April 27, 2010

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

Case Name: Neidlinger, Sr. v. State

Citation: 2010 WY 54

Docket Number: S-09-0096

Appeal from the District Court of Laramie County, the Honorable Thomas T.C. Campbell, Judge.

Representing Appellant Neidlinger, Sr.: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.

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

Facts/Discussion: Neidlinger, Sr. appealed the district court’s “Order Denying Defendants’ Motion to Withdraw No Contest Plea.” He contended that the district court abused its discretion in denying that motion.

The circumstances of the case are indistinguishable from those presented in Nixon and Brown. Neidlinger appealed his judgment and sentence on February 27, 2007. The court affirmed the conviction and sentence in all respects. His motion to withdraw the plea was filed nearly two years later which was untimely, therefore the district court did not have jurisdiction to entertain the motion. The district court only has jurisdiction to act if the case has been remanded or if a specific express exception conferring jurisdiction is created by a rule or statute.

Conclusion: The district court’s Order Denying Early Discharge from Probation and Order Revoking Probation and Imposing Sentence are affirmed in all respects. Neidlinger’s appeal of the district court’s Order Denying Defendant’s Motion to Withdraw No Contest Pleas was dismissed for lack of subject matter jurisdiction.

Dismissed.

J. Burke delivered the decision.

Link: http://tinyurl.com/26orzro .

[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 2010 WY 53

Summary of Decision issued April 27, 2010

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

Case Name: Kerbs v. Walck, Jr.

Citation: 2010 WY 53

Docket Number: S-09-0121

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

Representing Appellants Kerbs, and Kerbs Four Bar Ranch Partnership (and the partners in Kerbs Ranch): Daniel B. Frank, Frank Law Office, PC, Cheyenne, Wyoming.

Representing Appellee Eugene Walck, Jr.: William M. MacPherson and Brandon W. Snyder, MacPherson, Kelly & Thompson, LLC, Rawlins, Wyoming.

Facts/Discussion: After a bench trial, the district court entered judgment in favor of Walck ruling that the Kerbs Ranch had wrongfully interfered with Walck’s water rights. The Kerbs Ranch is located in Carbon County, a few miles west of the town of Saratoga. Walck’s ranch is west of the Kerbs Ranch. Jack Creek, a tributary of the North Platte River, winds its way in a northeasterly direction through Walck’s ranch, then through the Kerbs Ranch. Both ranches use irrigation water from Jack Creek to produce hay. In the spring of 2002, Wyoming regulated the North Platte River in response to the Federal Bureau of Reclamation’s call to fulfill its water rights for Pathfinder Reservoir. This “Pathfinder Call” allowed pre-1904 water rights to be fulfilled while post-1904 water rights generally could not. Both Walck and the Kerbs Ranch had some pre-1904 water rights which were fulfilled.
A preliminary issue raised by Kerbs Ranch was that the district court failed to specify whether Walck’s claims sounded in negligence or an intentional tort such as conversion. The Court stated that the record left no doubt that the district court and the Kerbs Ranch fully understood the nature of Walck’s claims.

North of Jack Creek: On the north side of Jack Creek there are two irrigation ditches at issue in this appeal. The headgate of the Forney No. 2 Ditch is upstream and the headgate of the D. McPhail Ditch is downstream. Water in the McPhail Ditch is split between Walck and Kerbs. The Forney No. 2 supplies water only to the Kerbs. Kerbs had not been using the McPhail Ditch for fifty years. It sent its water from the McPhail and the Forney through the Forney No. 2 Ditch. Kerbs never applied for permission to change its point of diversion as required by statute. Jack Creek was subject to the Pathfinder Call but Mr. Kerbs did not adjust the headgates to the pre-1904 levels. Later he noticed the water level was down as a result of action taken by the water commissioner. Kerbs installed a culvert and dam near where Forney No. 2 crosses over the McPhail Ditch. By taking water out of the McPhail Ditch, Kerbs effectively prevented Walck from irrigating 23 acres of his land. The district court found that Walck did not get the water he was entitled to receive.
South of Jack Creek: The water commissioner also adjusted the headgates of the Forney No. 2 Ditch Co. Ditch which is located on the south side of Jack Creek with a headgate downstream from the Forney No. 2 Ditch and upstream of the McPhail Ditch. Notices were placed along with chains and locks. Later, the headgates on the Forney Ditch Co. Ditch and the McPhail Ditch had been shut off letting no water into the two ditches shared by Walck and Kerbs Ranch, but allowing water to flow downstream to another irrigation ditch that served only the Kerbs Ranch. The district court found that both parties’ rights were of equal priority. It was unlawful for Kerbs Ranch to get ample water while Walck was getting a minimal amount. The shortfall must be shared equally.
Damages: Kerbs Ranch’s only objection to the damages calculations was that the district court used the county-wide average while Walck testified that actual production on his ranch was consistently below the county-wide average. The district court did not use the county-wide average hay production figure of 1.4 tons per acre. Part of Walck’s damages related to reduced pasturage, not reduced hay production. Mr. Walck did not appeal the district court’s damages calculations. The amount of damages is within the sound discretion of the jury or trial judge. The damages were not excessive or unreasonable as to indicate passion or prejudice.

Conclusion: Kerbs was legally required to leave the entire flow of the McPhail Ditch in that ditch. Kerbs violated that regardless of how little or how much was left to trickle down to Walck. The district court’s finding that Kerbs was not entitled to divert did not elevate Walck’s water rights over those of the Kerbs Ranch. The shortfall on the irrigation located south of Jack Creek must be shared equally by Walck and Kerbs Ranch since each party’s rights were of equal priority. The Kerbs Ranch failed to show that the district court’s damages calculations were clearly erroneous.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/26td95x .

[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 2010 WY 52

Summary of Decision issued April 26, 2010

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

Case Name: Cosco v. Lampert

Citation: 2010 WY 52

Docket Number: S-09-0106

Appeal from the District Court of Laramie County, Honorable Michael K. Davis, Judge

Representing Appellant (Plaintiff): Louis D. Cosco, Pro se.

Representing Appellee (Defendant): Bruce A. Salzburg, Wyoming Attorney General; and John W. Renneisen, Deputy Attorney General.

Facts: Appellant’s claims allege that, while he was an inmate under the supervision and control of the DOC, at the Wyoming State Penitentiary (WSP), he was wrongfully deprived of property. The district court dismissed both of Appellant’s claims with prejudice. The district court reasoned that there was no waiver of governmental immunity that would make relief available. Moreover, even if such a waiver existed, Appellant had failed to timely file a governmental claim with the proper State entity, as prescribed by the governing statutes.

Issues: Whether Appellant properly filed a governmental claim as required by the Wyoming Governmental Claims Act (WGCA). Whether the WGCA includes a waiver of immunity that makes Appellant’s claim(s) actionable. Whether the lack of a remedy under Wyoming law for Appellant’s claims violate either the Wyoming or United States constitutions.

Holdings: In Wyoming, no suit may be maintained against the State unless the legislature has authorized such a suit. Wyo. Stat. 1-39-101 through 121 (2009). The WGCA does not provide an exception to the rule of immunity for the claims pressed by Appellant. Furthermore, Appellant has failed to demonstrate that the claims he did file met the stringent requirements of the WGCA. Appellant has brought his claims against the State of Wyoming generally, the DOC, and two former and present employees of the DOC/WSP. However, he has failed to establish that the WGCA has waived immunity for any of those claims. Appellant’s claims, as articulated in his detailed pleadings, are not cognizable under any of the exceptions to the rule of immunity. Furthermore, the procedural requirements set out in the WGCA are construed very strictly and as jurisdictional requirements. None of Appellant’s claims were filed within the time periods prescribed in Wyo. Stat. 1-39-113(a). Thus, the district court was correct in granting summary judgment in favor of the State as to all of his claims. Moreover, the WGCA does not provide a waiver of immunity for the DOC’s conduct at issue here, even if the filings had otherwise met the statutory requirements.
Appellant asserts that he has been denied “due process of law” and “equal protection of the law,” and that as a general matter his “rights” of every kind and description have been trampled upon. Appellant raised these issues through the grievance process available to him under the rules and regulations which govern Wyoming’s penal institutions. The grievances Appellant filed were addressed by the warden of the WSP and/or the DOC in a timely and courteous manner. These internal procedures are the sort of rules and regulations contemplated by § 25-1-105 and the final result of an inmate grievance is not a matter that may be appealed to the courts. Appellant has aired his contentions of wrong-doing by WSP and DOC personnel in both the state and federal courts. It is clear that Appellant has been provided due process of law. Many, if not most of his issues, have been answered substantively. Those few issues that were not substantively addressed are deemed by the law to have been resolved (even though dismissed or otherwise not addressed on their merits), because Appellant had a full and complete opportunity to bring them before the courts, but he failed to adhere to mandatory procedural rules in doing so.
Appellant contends he has been denied equal protection of the law because the legislature did not include the DOC and the WSP within the waiver of the rule of immunity. To satisfy the first element of an equal protection challenge, a claimant must identify a classification of persons explicitly contained within a given piece of legislation. The WGCA does not differentiate between inmates and non-inmates. The WGCA simply enumerates certain tortious conduct for which the State waives the generally applicable rule of immunity. There is no attempt to distinguish between classes of individuals; the WGCA identifies causes of action which are actionable and those not enumerated remain in the category where immunity prevails. There is also a legitimate legislative objective since the purpose of the WGCA is to conserve public funds and yet preserve a fair and viable system of compensating persons injured by governmental actions. Further, the legislative classification is reasonably related to the achievement of the appropriate legislative purpose. Appellant’s claims arise in a setting where the sort of property loss/destruction at issue here is unpredictable, and further it is often virtually impossible to ascertain a reasonable value. For instance, here Appellant seeks tens of millions of dollars in compensation for more than a thousand separate pieces of property. Excluding such losses from the beneficent purposes of the WGCA is rational and readily withstands the equal protection provisions of both the United States and the Wyoming constitutions.
Freedom of religion is a fundamental right. However, the religious practices of inmates may be limited. The Court declined to address Appellant’s assertions that his religious liberties have been violated by the DOC and the WSP. Those assertions were supported by the barest of allegations that articles he claimed to be of religious significance to him were intentionally destroyed, misplaced, or lost by the WSP and DOC. His pleadings contain no averments that he has, because of these circumstances, been deprived of the right to otherwise freely pursue his religious beliefs, or that the destruction, misplacement, or loss of the religious articles at issue was designed to frustrate his right to freely practice his religion, within the limitations rightfully imposed by the DOC and WSP for the safety and security of DOC staff and other inmates in the charge of the DOC.
Appellant contends that the governing statutes and policies of the State deprive him of any sort of meaningful remedy and that, therefore, this Court must create a remedy for his peculiar circumstances. To the extent that this Court may have the authority to fashion a legal or equitable remedy to aid in the resolution of the circumstances set out in Appellant’s pleadings, it declined to do so.

The district court’s order which is the subject of this appeal is affirmed in all respects. In order that the contentions advanced by Appellant in these proceedings, as well as in other proceedings cited herein, be brought to finality, Appellant shall be prohibited from filing any further litigation relating to the subject matter of this case in any court of the State of Wyoming without first having obtained leave of the Court to do so.

Affirmed.

J. Hill delivered the opinion for the court.

Link: http://tinyurl.com/2e3u2ef .

[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.]