Summary 2010 WY 88

Summary of Decision issued June 28, 2010

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

Case Name: Bloomer v. State

Citation: 2010 WY 88

Docket Number: S-09-0112

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

Representing Bloomer: Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel; Wyoming Public Defender Program.

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

Facts/Discussion: A jury found Bloomer guilty of aggravated robbery and aggravated assault and battery and also found him to be a habitual criminal. Because he had three prior felony convictions, the district court imposed two life sentences.

Presumption of innocence instruction: No question existed that the district court failed to instruct the jury on the presumption of innocence. The cases cited do not establish a clear-cut rule mandating that the jury be instructed on the presumption of innocence in every criminal trial. The United States Supreme Court determined in Whorton that a criminal defendant is not automatically entitled to an instruction on the presumption of innocence and that the failure to give one does not in and of itself violate the constitution. The Court noted the better practice is to give the instruction as a matter of course. Plain error did not occur as a result of the district court’s failure to do so.
Habitual criminal sentencing enhancement: Bloomer argued that his Park County drug convictions were used improperly because they were not separately brought and tried. The State conceded that Bloomer’s life sentences were illegal and must be corrected since the drug convictions may only count as one previous conviction under the habitual criminal statute thereby limiting the range on Bloomer’s current convictions to that prescribed in § 6-10-201(b)(i). Secondly, Bloomer contended that since the underlying convictions were committed after the commission of the instant aggravated robbery and assault and battery cases, the drug convictions could not be used as a basis for the habitual criminal sentencing enhancement. The Court previously considered and rejected a similar claim in Green v. State. The Court determined that it was the sequence of convictions and not the sequence of the criminal acts that was relevant to the operation of the habitual criminal statute. Because the jury found that Bloomer’s previous convictions existed and because the record contains sufficient evidence of two prior separately brought and tried felony convictions that can be used as a basis for enhancing Bloomer’s punishment on the instant convictions, the Court found it appropriate for the district court to simply resentence Bloomer in accordance with the statute.
Ineffective assistance of counsel: Bloomer’s argument was insufficient to satisfy his burden of demonstrating that trial counsel rendered prejudicially deficient assistance. He did not establish that he was prejudiced by counsel’s alleged errors. Considering the facts of the case, the Court was unable to conclude a reasonable likelihood that but for counsel’s alleged errors, Bloomer would have enjoyed a more favorable verdict.

Conclusion: The Court affirmed Bloomer’s convictions. However, the Court held that Bloomer’s life sentences are illegal and reversed those sentences. The Court remanded to district court for resentencing in accordance with § 6-10-201(b)(i).

Conviction affirmed; sentence illegal and remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/2fd9wlg .

[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 87

Summary of Decision issued June 28, 2010

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

Case Name: Sweet v. State

Citation: 2010 WY 87

Docket Number: S-09-0021

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

Representing Sweet: Diane Lozano, Public Defender; Tina Kerin, Appellate Counsel; Wyoming Public Defender Program.

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: Sweet was convicted by a jury of one count of sexual abuse of a minor in the second degree.

Improper vouching evidence: Sweet objected to the recorded questioning of him by the Deputy Sheriff wherein the Sheriff repeatedly stated that he believed the victim’s version of the events. The State conceded the Court’s abundant authority prohibiting vouching. It maintained that no decision from the Court addressed the question of whether the introduction as evidence of a police interview in which officers employed such accepted interviewing techniques as expressing disbelief of an interviewee’s story. Both Sweet and the State recognized that in Pendleton v. State, the Court considered a factual situation somewhat similar to the instant case. In the instant case, the Court held that the Deputy Sheriff’s numerous statements in the recorded interview and his trial testimony violated in a clear and obvious way the Court’s long-standing rules prohibiting a witness to express opinions about the accused’s mendacity and guilt and about the alleged victim’s truthfulness and credibility. Such statements invade the exclusive province of the jury to determine the credibility of the witnesses and the evidence. Credibility was the pervasive issue for the jury in the instant trial. In the Court’s view, a reasonable possibility existed that in the absence of the deputy’s statements in the recorded interview and in his trial testimony which commented on the alleged victim’s truthfulness and the accused’s mendacity and guilt the verdict might have been more favorable to Sweet.
Jury instruction: The instruction read “Corroboration of an alleged victim’s testimony is not necessary to obtain a conviction for sexual assault.” The Court disapproved of a similar jury instruction in Story v. State and the Court stated that on retrial, the trial court shall not give that instruction.
Cumulative error: The specific excerpts pointed out by Sweet did not fit the Court’s definition of victim impact testimony. The testimony was otherwise relevant describing the circumstances at the time of and shortly after the incident and not how the incident had further impacted the victim or her mother. Sweet also complained of prosecutor and district court bias toward the victim when it used terms of endearment such as “My dear” and “Hon.” The testimony regarding Sweet’s actions after the incident and his subsequent arrest were admissible because a jury could have reasonably inferred that the actions constituted fleeing from the scene of a crime. Referring to Sweet’s actions as an “assault” or “sexual assault” was not error. The Court concluded that no error occurred with respect to any of Sweet’s claims and none of the trial events he challenged carried any potential to prejudice him or otherwise affect the outcome of his trial.

Conclusion: The Court held that the State’s presentation of improper vouching evidence constituted plain error and therefore, the Court reversed and remanded for a new trial. The Court addressed the remaining issues because they might recur on retrial.

Reversed and remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/2438ky6 .

[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 86

Summary of Decision issued June 25, 2010

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

Case Name: Churchill v. Campbell Cty Memorial Hospital

Citation: 2010 WY 86

Docket Number: S-09-0195

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

Representing Churchill: Nicholas H. Carter and Stephanie M. Humphrey of the Nick Carter Law Firm, PC, Gillette, Wyoming.

Representing Hospital: Billie LM Addleman of Hirst Applegate, LLP, Cheyenne, Wyoming.

Facts/Discussion: Churchill filed a complaint in 2009 pursuant to the WGCA alleging injury while awakening from a surgery performed at Campbell County Memorial Hospital. The district court granted the Hospital’s motion to dismiss. The district court ruled that the complaint should be dismissed because Churchill did not file a claim with the Medical Review Panel and that the complaint was barred by the applicable two-year statute of limitations.
The Court’s disposition was controlled by Bealieu II where the Court held that a complaint in a governmental claims action must allege compliance with the signature and certification requirements of the Wyoming Constitution. While the allegations indicated compliance with the statutory notice of claim requirements, the complaint did not allege compliance with the constitutional requirements.

Conclusion: Because Churchill’s complaint did not allege compliance with the constitutional requirements, the district court never acquired subject matter jurisdiction.

Dismissed.

J. Golden delivered the decision.

J. Kite, specially concurring, joined by J. Burke: The Justices would have affirmed on the basis that the district court properly concluded the applicable statute of limitations was § 1-3-107 and the complaint was not filed within two years of the alleged act, error, or omission as required by that statute. They disagree with the judicially created requirement that the complaint must allege compliance with Wyoming Constitution.

Link: http://tinyurl.com/28jfxp7 .

[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 85

Summary of Decision issued June 25, 2010

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

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

Citation: 2010 WY 85

Docket Number: S-09-0095

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

Representing Judd: Nancy L. Williams, Douglas, Wyoming.

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

Facts/Discussion: Judd suffered an injury to her right knee while at work. The Workers’ Compensation Division (the Division) found the injury to be compensable and awarded benefits. Judd’s knee continued to cause her pain and approximately six months later she sought preauthorization from the Division for knee replacement surgery. The Division determined that Judd’s current knee problems related solely to preexisting degenerative arthritis and denied further benefits.

Jurisdiction: Judd contended that the Division improperly referred her case to the Medical Commission. She argued that because she did not request or agree to the referral of her case, the Medical Commission lacked jurisdiction. The option of the parties to agree to have a contested case referred to the Medical Commission is only one of the methods by which the Medical commission may attain jurisdiction. The Division itself has authority to directly refer medically contested matters to the Medical Commission for hearing. Additionally, once Judd had undergone surgery without preauthorization, the issue was not moot and the Medial Commission did not lose jurisdiction.
Material aggravation of preexisting condition: Neither Judd nor her treating physician disputes the preexisting degenerative arthritis in Judd’s knee nor the severity of that preexisting condition. There was no dispute among the medical experts who examined and evaluated Judd as to the cause of the degenerative arthritis. Neither Judd nor her treating physician suggested that her fall in the workplace caused her degenerative condition. There is no dispute that Judd’s job as a physical therapy aid was physically demanding or that for the approximately three months before the fall that Judd was working full-time without restriction. There is no dispute that prior to her work accident, she experienced only minor aching in her right knee with changes in the weather and after the fall, she was in pain, could not put weight on the knee, and did not regain function in the knee until the total knee replacement surgery was performed. The point on which the experts disagreed was whether Judd’s fall in the workplace materially aggravated Judd’s preexisting arthritis in her right knee. The Medical Commission denied compensation for Judd’s total knee replacement surgery concluding it was inevitable and the “contribution of the significant preexisting condition to the total knee replacement was far more considerable than the relatively minor fall that occurred on that date.” Wyoming law requires that the work injury combine with the preexisting condition to create the present disability and need for treatment. The Court noted Slaymaker presented facts similar to the instant case. In Straube the Court held that the employer takes an employee as he finds him and it is not material that injury could have occurred at anytime. In Roggenbuck, the court stated that surgery to treat preexisting condition was compensable where work effort brought the need for surgery to a head and forced the surgery to be done at that time.

Conclusion: The evidence is undisputed that despite Judd’s preexisting degenerative condition, she was able to work full-time without restriction before her work injury and after her work injury she suffered debilitating pain that prevented her from putting weight on her knee and from working. The work injury brought Judd’s need for surgery to a head, and the Medical Commission erred in denying benefits for the surgery.

Reversed.

J. Golden delivered the decision.

Link: http://tinyurl.com/28p5pcv .

[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 84

Summary of Decision issued June 24, 2010

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

Case Name: Romero v. State

Citation: 2010 WY 84

Docket Number: S-09-0210

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

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

Representing State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; John S. Burbridge, Senior Assistant Attorney General; D. Michael Pauling, Senior Assistant Attorney General.

Facts/Discussion: Romero challenged the sentence he received after being convicted on a felony charge of a third battery against a household member.

The Court characterized Romero’s issue as a challenge to the sufficiency of the evidence. Romero was charged under § 6-2-501(b) and (f)(ii) which applies only to third or subsequent convictions of battery against a household member. Romero’s prior crimes were facts to be considered by the district court when sentencing. Exhibit 15 established that Romero was convicted of battery in 2007 and that the victim was a household member. Exhibit 16 established that Romero was convicted of battery and aggravated assault in 2000 but does not explicitly state that the victim was a household member. As a condition of probation, Romero was not allowed to live with the victim until deemed appropriate by his counselor or his probation agent. Romero was also ordered to attend the Batterer’s Re-education program. In addition, the district court relied upon the Presentence Investigation Report which demonstrated that the victim of the 2000 crime was a household member. It is the defendant’s obligation to object to any sentencing information he contends is inaccurate.

Conclusion: Romero’s prior crimes were not elements of the crime to be proved at trial but were facts to be considered at sentencing. Romero had access to established procedures that ensure the district court relied only on accurate and reliable information.

Affirmed.

J. Burke delivered the decision.

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

[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 83

Summary of Decision issued June 24, 2010

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

Case Name: In re: Kite Ranch, LLC

Citation: 2010 WY 83

Docket Number: S-09-0203

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

Representing Powell Family of Yakima, LLC: F. Scott Peasley of Peasley Law Office, Douglas, Wyoming.

Representing the Dunmires: M. Gregory Weisz of Pence and MacMillan, LLC, Laramie, Wyoming.

Representing the Hedstroms: William H. Vines of Jones, Jones, Vine & Hunkins, Wheatland, Wyoming.

Facts/Discussion: The case is an appeal from a district court order determining the ownership and management rights of the members of a limited liability company (the LLC). A secondary question was presented as to whether the district court adjudicated issues that were not raised by the pleadings.

Can a party be a member of a LLC without evidence of a contribution to capital: Whether or not a member actually made the stated capital contribution is not determinative of that member’s “membership” in the LLC. Section 17-15-121(a)(i) states that a member may or may not yet have made the capital contribution attributed to him or her in the articles of organization. Section 17-15-109(a) declares that issuance of the certificate of organization is conclusive evidence that all conditions precedent required to be performed by the members have been complied with.
Under the Wyoming LLC Act, do economic and noneconomic rights of company members vest in proportion to contribution to capital or pursuant to the articles of organization: The legislature has chosen to measure the different rights of a member of a limited liability company in different ways. In the instant case, the members clearly agreed for several years to allocate profits and losses on the basis of the initial capital contributions set forth in the Articles of Organization. It is not up to the courts to tell them they were wrong in doing so. The undisputed facts in the record clearly show the existence of an oral operating agreement.
Does Wyoming law recognize a distinction between contributions to capital as initially listed in the articles of organization of a LLC and as reflected on the company’s books and records: The Court answered this question in the affirmative using the phrase: “as initially listed in the article of organization, or as the articles of organization have been amended from time to time.” At any time there may be, and likely will be, a difference between the amount of a member’s stated capital contribution and the amount of his capital or equity account.
Did the district court commit reversible error by adjudicating claims made against the unrepresented LLC: the district court’s characterization of the members’ contributions as loans or as capital contributions was not an adjudication of claims against the LLC, but was what both parties sought – a declaration of their comparative interests in the LLC.
Were issues related to dissolution of the LLC ripe for adjudication: The Court did not read the district court’s Final Order or the decision letter as having adjudicated any issues related to dissolution. Neither in the decision letter nor in the Final Order does the district court endeavor to order dissolution of the LLC or to order any particular distribution of assets.

Conclusion: With or without an operating agreement, a person may be a member of a limited liability company so long a his or her initial capital contribution or ownership interest is adequately identified in the articles of organization filed with the secretary of state, or as a subsequent amendment to the articles of organization so indicates. The individual economic and noneconomic rights of the members of a limited liability company vest in the various manners set forth in the Act or where appropriate, as set forth in an operating agreement. In the instant case, the members’ management rights, and the allocation of profits and losses, is in proportion to their stated capital in the unamended articles of organization. Wyoming law recognizes a distinction between contributions to capital as initially listed in the articles of organization or in the articles of organization as they may have been amended, and contributions to capital that may be reflected in a member’s capital account or equity account. In the instant case, the members clearly intended that neither Powell’s additional capital contribution of $300,000 nor Dunmires’ loans in excess of $400,000 were to affect the stated capital contributions in the unamended articles of organization. The district court neither adjudicated claims against the limited liability company, nor determined the individual claims of members or other claimants in the event of dissolution.

Affirmed in part and reversed in part.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/24nxx2l .

[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 82

Summary of Decision issued June 23, 2010

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

Case Name: Comet Energy Services, LLC. V. Powder River Oil & Gas Ventures, LLC.

Citation: 2010 WY 82

Docket Number: S-09-0225

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

Representing Comet: Thomas F. Reese of Beatty, Wozniak & Reese, Casper, Wyoming.

Representing Powder River: Blake M. Pickett of Welborn Sullivan Meck & Tooley, PC, Denver, Colorado.

Facts/Discussion: In Comet I, the Court reversed the district court’s order granting summary judgment for Powder River and remanded the matter for trial concluding that the term “leasehold estate” as used in the oil and gas assignment at issue was ambiguous and a question of fact existed as to the extent of Powder River’s ownership interest in the well and/or lease it had purchased from Forcenergy Onshore, Inc. (Forcenergy).

Admissibility of the evidence: Comet contended the district court improperly considered inadmissible evidence in concluding that the 1998 assignment gave Powder River all right and title to the lease. Specifically, Comet asserted the district court allowed testimony over its objection concerning the subjective intent of Forcenergy and Powder River when they entered into the assignment. Powder River responded that the district court properly considered evidence of the circumstances surrounding the assignment, its purpose and the commercial setting at the time. The record was clear that along with his other testimony, Mr. Baiamonte testified that it was Forcenergy’s intent to give up whatever interests and associations it held associated with the well. Viewed in isolation, the statements might be construed as evidence of Forcenergy’s subjective intent. However, when considered in the context of the entire testimony, the auction brochure and Mr. Barnes’ testimony, they were not the sort of evidence the Court found improper in Omohundro.
Statute of frauds: Comet asserted the assignment did not satisfy the statute of frauds because it did not describe the land with sufficient definiteness to locate it without recourse to oral testimony and there was no other instrument referenced in the assignment containing a sufficient description. Comet argued that Wyoming law requires either the assignment itself or another writing referenced in the assignment to provide a more definite description that that contained in the 1998 Assignment or Exhibit A. The 1998 Assignment and Exhibit A clearly identified the well and its specific location. Between the parties to the 1998 Assignment, Forcenergy and Powder River, there was no misunderstanding or uncertainty about the property being assigned. In Laverents the Court stated that the statute of frauds could not be raised by those who were neither parties nor privies to the agreement. As a privy of Forcenergy, Comet had the same legally recognized interest in the well and the lease. Having taken the position that it assigned all of its ownership and interest in the well and the lease to Powder River in 1998, Forcenergy had no interest in the well or lease. Both the vendor, Forcenergy, and the purchaser, Powder River, had fully performed leaving Comet without the statute of frauds defense.

Conclusion: The district court did not abuse its discretion in considering the testimony including Mr. Baiamonte’s entire testimony, the auction brochure and Mr. Barnes’ testimony. None of the cases cited by Comet involved a situation as in the instant case in which a vendor of property entered into a written assignment to sell all of its interest in property to another and never repudiated that assignment.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/2bmpm6s .

[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 81

Summary of Decision issued June 23, 2010

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

Case Name: Masias v. State

Citation: 2010 WY 81

Docket Number: S-09-0131

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

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

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

Facts/Discussion: Manuel Masias was charged with one count of first degree sexual assault and three counts of battery. The jury found him guilty of first degree sexual assault and one count of battery.

Sufficiency of the evidence: Masias contended that a jury could not find that he caused “submission of the victim or that he caused submission by both “physical force:” and “forcible confinement.” The instruction provided alternative bases for conviction and a general verdict form was used. After reviewing the testimony the Court determined there was sufficient evidence to support a finding that Masias caused submission of the victim through application of physical force and through application of forcible confinement. Additionally, the Court previously recognized in Lewis that in determining whether forcible confinement was established, a jury may consider the dynamics of the relationship of the assailant and his victim.
Jury question: The jury requested a dictionary to look up the definition of “submission” during deliberations. The Court conferred with counsel and all agreed that the jury should not be provided a dictionary. The Court reverses a district court’s decision only if it is so plainly erroneous that the judge should have noticed and corrected the mistake even though the parties failed to raise the issue. Wyoming case law indicates that providing the jury with a dictionary is not appropriate. The Court noted Rocky Mountain Trucking Co. v. Taylor and Zanetti Bus Lines, Inc. v. Logan.

Conclusion: There was sufficient evidence to support the jury’s conclusion that Masias found he caused submission of the victim through application of physical force and through application of forcible confinement. A jury may consider the dynamics of the relationship of the assailant and his victim. A district court is not required to define a statutory term unless the term has a technical or legal meaning different than its common meaning. Masias did not establish the likelihood of a more favorable verdict had the word “submission” been defined.

Affirmed.

J. Burke delivered the decision.

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

[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 80

Summary of Decision issued June 22, 2010

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

Case Name: Freudenthal v. Cheyenne Newspapers, Inc.

Citation: 2010 WY 80

Docket Number: S-09-0183; S-09-0184

Appeal from the District Court of Laramie County, the Honorable Thomas T.C. Campbell, Judge and the Honorable Edward L. Grant, Judge, Retired.

Representing Freudenthal: Bruce A. Salzburg, Wyoming Attorney General.

Representing Cheyenne Newspapers, Inc: Bruce T. Moats of Law Office of Bruce T. Moats, PC, Cheyenne, Wyoming.

Amicus Curiae Wyoming Education Association, Equality State Policy Center and Wyoming Trial Lawyers Association: Patrick E. Hacker and Erin M. Kendall of Hacker, Hacker, & Kendall, PC, Cheyenne, Wyoming.

Facts/Discussion: Declining mineral revenue required Governor Freudenthal to request budget reduction plans from all state agencies. Claiming the budget reduction plans were public records under Wyoming’s Public Records Act (WPRA), Cheyenne Newspapers, Inc. (the Newspaper) requested copies of the plans the Department of Family Services (DFS) and the Department of Health submitted to the Governor. The Governor denied the request asserting the plans fell within a deliberative process privilege incorporated in the WPRA. The Newspaper petitioned the district court for access to the budget reduction plans. After an in camera review of the plans, the district court held they were not the sort of documents to which the privilege would apply. As to whether the WPRA incorporated the privilege, the district court opined that the better policy would be to recognize the privilege where the facts warranted it.

The deliberative process privilege, generally: The deliberative process privilege is intended to promote the flow of information within the executive branch of government. It applies to intergovernmental communications by executive officials in general. Deciding whether or not the WPRA incorporates the deliberative process privilege required consideration of Wyoming statutory law and legislative intent, the Court’s previous pronouncements concerning the WPRA, the common law, federal law interpreting FOIA and the degree to which the latter sources should influence the Court’s interpretation of state law. Given the Court’s conclusion, discussed in the next section, that the documents in the instant case would not fall within the privilege in any event, the Court declined to decide whether the WPRA incorporated the privilege.
Scope of the deliberative process privilege: Among jurisdictions that recognize the deliberative process privilege, its scope is limited generally to communications between executive officials that are both pre-decisional and deliberative. It extends to any executive branch employee participating in a particular policy decision; the communication must be intra-governmental, but can be either inter-agency or intra-agency; and the official may be elected or appointed, the privilege protects only pre-decisional materials, not final decisions. Having considered the documents the State submitted for in camera review the Court agreed the plans essentially provided factual information rather than advisory opinions or deliberative thought processes. The spread sheets show dollar amounts, recommended cuts and the potential impact of those cuts. They do not contain personal opinion or advice nor do they reveal information about how the agency decided which program budgets should be cut.

Conclusion: The Court affirmed the district court’s ruling that the budget reduction plans the State withheld must be released to the Newspaper. The plans contain factual information rather than opinions, deliberations or thought processes and are not therefore the sort of documents protected by the deliberative process privilege. The instant case does not present the appropriate occasion to decide whether the deliberative process privilege is incorporated into § 16-4-203(b)(v) of the WPRA. Therefore the Court declined to address that issue. To the extent that the district court held the WPRA incorporated the privilege, the Court reversed.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/2e7yams .

[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 79

Summary of Decision issued June 18, 2010

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

Case Name: Faubion v. State

Citation: 2010 WY 79

Docket Number: S-09-0076; S-09-0077

Appeal from the District Court of Campbell County, the Honorable John C. Brackley, Judge.

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

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

Facts/Discussion: Faubion challenged his ten convictions for third degree sexual assault. He contended he did not hold a position of authority as contemplated by the statute.

Validity of nolo contendere pleas: The plea agreement was not in writing and other requirements of the rule were not precisely followed. However, the record was clear that both parties and the presiding judge went into the nolo contedere proceeding fully aware that the issue to be preserved for appeal was whether or not a chiropractor was subject to the rigors of the applicable statutes. If Faubion was not a member of one of the categories, then he could not be found guilty of the charges lodged against him. The Court did not evaluate the issue further and exercised their discretion to address the substantive issue.
Position of authority: The Court noted that the reasoning in Scadden v. State applied to the issue in the instant case. Chiropractic is not the practice of medicine under Wyoming law but there is a fiduciary or trust relationship between a patient and her healers and transactions between them are closely scrutinized by the courts. It appeared that Wyoming’s statute is exceptionally inclusive as written and as construed in Scadden. The Court was satisfied that the challenged statute’s language encompassed the circumstances presented. Neither Faubion’s testimony nor that of the expert could serve to rebut the testimony of his victims that they were indeed victims of a chiropractor who exceeded the bounds of the statute that was applied to prosecute him for his criminal acts.
Lesser included offense: Faubion did not contend in the district court that § 6-2-313 should be considered as a lesser included offense. Because the issue was not raised in the district court, the Court was compelled to consider the issue only under the plain error doctrine. Faubion identified the issue as one which must be reviewed de novo. No authority was cited to support the contention and the Court found no support for it. The brief contained no cogent argument or pertinent authority that the failure of the district court to sua sponte consider the statute at issue as a lesser included offense constituted plain error.

Conclusion: The Court held that § 6-2-304(a)(iii) in combination with § 6-2-303(a)(vi) applied to the sexual contact that Faubion, a chiropractor, had with the victims, his patients. The district court did not err in failing to sua sponte consider § 6-2-313 as a lesser included offense.

Affirmed.

J. Hill delivered the decision.

C.J. Voigt specially concurred: The Justice wrote to emphasize the inappropriate attempted use of the conditional plea concept. The Rule is limited to the situation where a defendant reserves in writing the right to seek review of the adverse determination of any specified pretrial motion. There was no such adverse determination because there was no such pretrial motion.

Link: http://tinyurl.com/3ykt5ga .

[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 78

Summary of Decision issued June 15, 2010

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

Case Name: Sanning v. Sanning

Citation: 2010 WY 78

Docket Number: S-09-0202

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

Representing Lee Sanning: C.M. Aron of Aron & Hennig, LLP, Laramie, Wyoming.

Representing Jamison Sanning: Devon P. O’Connell of Pence and MacMillan LLC, Laramie, Wyoming.

Facts/Discussion: The district court awarded a cabin to Jamison (Wife) as part of the property distribution incorporated into the parties’ divorce decree. Lee (Husband) claimed the district court abused its discretion by relying upon sentimental value to award the cabin to Wife and the court’s factual findings regarding the cabin were not supported by the trial evidence.
Wife’s grandparents owned a cabin located on state land adjacent to Priest Lake in Idaho. When grandparents were in their eighties they decided to dispose of the cabin because it had become too expensive and difficult to maintain. The Sannings purchased it for $50,000 using money from Husband’s family. When the Sannings filed for divorce they could not agree on the distribution of the marital property. Husband claimed the district court improperly awarded the cabin based upon sentimental value. He argued that Broyles v. Broyles prohibited consideration of sentimental value in awarding property. Although Broyles states that sentimental value may not typically be used to establish damages for property wrongfully converted, it does not state that sentimental value cannot be considered in awarding property in a divorce case. In Wallop v. Wallop, the Court reviewed a property distribution that included awarding the husband a ranch that had belonged to his family for many years. Similarly, in the instant case, the district court considered the statutory factors when it awarded the cabin to Wife.

Conclusion: The district court specifically stated that it was considering the statutory factors and there was nothing in the record to indicate otherwise. Under these circumstances, the award of the cabin to Wife does not shock the conscience of the Court nor appear to be so unfair and inequitable that reasonable people cannot abide it. The district court properly exercised its discretion when it awarded the cabin to Wife, on the condition that she reimburses Husband for the money gifted by his family to purchase the cabin.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/2fdww2k .

[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 77

Summary of Decision issued June 15, 2010

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

Case Name: Sanders v. Sanders

Citation: 2010 WY 77

Docket Number: S-09-0238

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

Representing Thomas Sanders: Don W. Riske and James R. Salisbury of Riske, Salisbury & Kelly, PC, Cheyenne, Wyoming.

Representing Shirley and Daniel Sanders: John J. Maier of John Maier Law Offices, Torrington, Wyoming.

Facts/Discussion: Thomas Leroy Sanders (Leroy) was named as a joint tenant with right of survivorship on two Goshen County deeds. The other joint tenants, Shirley and Daniel Sanders brought a reformation action to have Leroy removed from the deeds. The dispositive issue is whether the district court’s order for reformation of the deeds was supported by sufficient evidence and in accordance with Wyoming law.
Shirley operates a farm and ranch enterprise in Goshen County and is the father of Leroy and Daniel. In 1995, Shirley’s mother decided to sell property (Parcel 1) to Shirley under an installment contract. When Shirley and his mother went to execute the documents, Shirley asked for Leroy’s name to be added to the deed with a right of survivorship to protect Parcel 1 from his wife from whom he was estranged. Also as part of his estate planning, Shirley wanted the property to pass to Leroy without going through probate. (Shirley’s attorney advised against adding Leroy as a joint tenant.) Leroy signed the mortgage but Shirley remained solely liable on the promissory note. In 1998, Parcel 2 became available for purchase. Shirley’s father had set aside money to finance the purchase. When the father died, Shirley’s mother gifted the funds to Shirley, Daniel, Leroy and Leroy’s wife to purchase the property. Shirley, Daniel and Leroy were named to Parcel 2 as joint tenants with right of survivorship. Shirley and Leroy farmed together until a dispute arose resulting in the First Case in 2002. Leroy asserted that he had a present possessory interest in Parcels 1 and 2. Leroy moved to dismiss the case shortly before trial. The district court dismissed with prejudice Leroy’s claims alleging present ownership interest in or rights to possession, use or control and any right or claim to partition. Leroy continued to assert that he had the right to a present possessory interest in the properties. In 2007, Shirley and Daniel filed a complaint seeking reformation by removing Leroy as a joint tenant. The district court denied Leroy’s motion for summary judgment ruling that its order in the First Case was binding in the current action and that res judicata prohibited Leroy from claiming any present interest in the property. After the bench trial, the district court ordered reformation of the deeds by removing Leroy as a grantee without any mention of a future interest.
In order for the remedy of reformation to be available, the evidence must establish that a mistake occurred in the drafting of the instrument, rather than in the reaching of the antecedent agreement. Shirley’s own testimony confirmed there was no drafting or “word processing” error. Mutual mistake is shown only if the instrument is intended to evidence a prior agreement and does not do so. The record clearly showed that the parties intended for Leroy to be included on the deeds as a joint tenant with right of survivorship. The evidence does not demonstrate that Shirley intended for the other aspects of his agreement with Leroy be included in the deeds. The evidence supports the existence of a separate oral agreement giving Shirley the right of sole possession during his lifetime. A joint tenancy typically allows each joint tenant full possession of the property at all times, however, the intent of the parties is paramount.

Conclusion: Leroy did not challenge the district court’s findings as to the terms of the oral agreement between his father and him and the Court concluded the findings were not clearly erroneous. In fact, the record contained evidence that when Shirley wanted to transfer other jointly held property, Leroy signed the transfer documents. This was not a proper case for reformation because the evidence did not establish that the parties made a mistake in drafting the deeds.

Reversed.

J. Kite delivered the decision.

Link: http://tinyurl.com/23a44o5 .

[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 76

Summary of Decision issued June 9, 2010

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

Case Name: Taylor v. State, ex. Rel., Wyo. Workers’ Safety & Comp. Div.

Citation: 2010 WY 76

Docket Number: S-09-0170

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

Representing Taylor: 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: Taylor appealed the district court’s order affirming the Medical Commission’s (Commission) determination that he failed to meet his burden of proving his 2007 chiropractic treatment was related to a 1991 work related injury.

Taylor was injured in 1991 when he was emptying water buckets while working as a housekeeper for Hillhaven Nursing Home in Rock Springs. The Division concluded the injury was compensable and allowed payment of his medical claims including chiropractic care. The Division continued to pay for Taylor’s chiropractic treatments until 1998 when it denied some claims on the ground that the treatment was not related to his 1991 injury. The OAH held a contested case hearing and concluded that it was related and until further medical evidence would warrant a change, he was entitled to receive medical benefits for continuing chiropractic care. Taylor was involved in a number of accidents in 1999 and 2002. Taylor continued to receive treatment paid by the Division until 2007 when it denied further payments. The Commission ruled that Dr. Davidson was not a credible witness because he had a poor working knowledge of the mechanism of the 1991 injury and the prior care and treatment Taylor had received in the interim years. The Commission also considered the report of an independent medical evaluation which concluded the 2007 chiropractic treatment was not related to the 1991 injury.
Taylor asserted the Commission committed an error of law when it considered any evidence that was or could have been presented at the 1998 contested case hearing. He claimed that collateral estoppel barred consideration of such evidence. The issue determined in 1998 was whether Taylor’s chiropractic treatment was related to the 1991 work injury. Since the Commission did not re-analyze the propriety of the 1998 contested case ruling, the issues were not identical and collateral estoppel did not bar the Commission from considering any of the evidence presented at the hearing. The records showed that the intervening accidents affected the same areas of the body as were being treated by Dr. Davidson.

Conclusion: Dr. Davidson was the only medical provider who provided evidence relating Taylor’s 2007 chiropractic treatment to his original injury. The Commission rejected the doctor’s opinion because he had an insufficient understanding of the original injury and the intervening events. Moreover, in direct contradiction of Davidson’s testimony that he only treated the areas of the original injury, Taylor testified that Davidson actually treated his whole spine, both shoulders and hips. Taylor does not contest any of the Commission’s findings of fact about the intervening injuries and Davidson’s credibility. Those aspects of the Commission’s decision, without reference to Taylor’s preexisting condition, are sufficient to uphold its decision.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/294ycog .

[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 75

Summary of Decision issued June 9, 2010

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

Case Name: Lake v. D & L Langley Trucking, Inc.

Citation: 2010 WY 75

Docket Number: S-09-0094

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

Representing Lake: Bernie Q. Phelan, Cheyenne, Wyoming.

Representing D&L Langley Trucking: Scott E. Ortiz of Williams, Porter, Day & Neville, PC, Casper, Wyoming.

Facts/Discussion: This was an appeal from a personal injury negligence case. Lake was involved in a car accident with Whited, employee of D&L Trucking. Lake alleged that Whited negligently attempted to pass him as he was making a left hand turn thereby causing the collision. The case was tried to a jury where the jury found Lake eighty-six percent at fault for the accident.

Sufficiency of the evidence: The Court found substantial and competent evidence supporting the jury’s findings, including that Whited never saw a turn signal on Lake’s pickup; Lake’s testimony that he was not paying attention and began his left turn without checking his mirrors; and the physical evidence that Lake turned into the tractor-trailer when the front of the tractor was already more than fifteen feet past the front of the pickup. Lake argued the accident would not have happened if Whited had not passed in an intersection and that because passing in an intersection violated state statute, the majority of fault must be Whited’s. The Court stated that although Whited passed at an intersection, it does not make him strictly liable for the accident. Lake’s culpability must also be considered. The jury calculated both party’s culpability as instructed. It then determined the fault of each party in regard to causation of the accident. The jury concluded that Lake bore more responsibility for the accident. Sufficient evidence supported the jury’s allocation of negligence.
Alleged surprise in closing argument: Lake also suggested a new trial was warranted because the comments in the closing argument of defense counsel regarding the application of § 31-5-205(a)(ii) constituted a surprise which ordinary prudence could not have guarded against. Given the strength of the evidence, the Court stated it was doubtful any different result would be obtained from a new trial.
Jury misconduct: Lake argued the misconduct was the rendering of an impermissible quotient verdict based upon an affidavit suggesting the jury agreed to average individual estimated fault. The Court agreed with the district court’s determination that it could not consider the affidavit because it violated W.R.E. 606(b). The rule is a codification of a common law rule that the testimony of a juror cannot be received to impeach the verdict in which he has concurred. Legislative history explicitly contradicts Lake’s argument that the juror affidavit in the instant case was admissible.
Lake also argued that because the jury requested a calculator and it did not award any damages, the jury could only have been using the calculator to compute an averaged percentage of fault for the respective parties. The fact the jury may have used a quotient process for determining fault does not warrant the presumption the jury ultimately rendered an impermissible quotient verdict. The validity of a quotient verdict is determined by whether the jury agreed beforehand to be bound by the result reached.

Conclusion: The district court did not abuse its discretion in denying Lake’s motion for a new trial. The evidence was sufficient to support the verdict. If there was any error on the part of defense counsel in closing argument as alleged by Lake, such error was not prejudicial under the facts and circumstances of the case. There was no evidence supporting Lake’s presumption that the jury rendered an impermissible quotient verdict.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/2c48z8g .

[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 74

Summary of Decision issued June 3, 2010

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

Case Name: Gentilini v. State

Citation: 2010 WY 74

Docket Number: S-09-0078

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

Representing Gentilini: Diane Lozano, Wyoming State Public Defender; Tina Kerin, Appellate Counsel; David E. Westling, 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; Graham Smith, Assistant Attorney General.

Facts/Discussion: Gentilini challenged his conviction of attempted first degree murder. He contended the district court erred when it denied his motion for a judgment of acquittal. He also asserted that the jury instruction specifying the elements of attempted first degree murder was erroneous. Gentilini had a loud argument with his girlfriend and Ellsworth intervened to ask them to stop. Then Ellsworth and Gentilini had a short but heated dispute. The next day, Ellsworth and Gentilini had an altercation which included Gentilini threatening with and attempting to run over Ellsworth with his car. Ellsworth called police who were talking to him when he saw Gentilini driving nearby. When the police stopped Gentilini, he had a loaded rifle in his vehicle.

Motion for judgment of acquittal: Gentilini contended that the State had not presented sufficient evidence of a “substantial step” as required by § 6-1-1301. Gentilini sought support from Reilly v. State, Guy v. State and Cohen v. State. The Court stated the cases were of limited value. It reviewed the context of the possession of the loaded rifle. Most damning to Gentilini was his statement to the police that he “lost it, went home, got his gun and came back to kill him.” That unequivocal statement of intent to kill was relevant in evaluating whether the conduct satisfied the substantial step requirement.
Jury instruction: Gentilini suggested the jury instruction should have included a statement reciting which of his actions fulfilled the elements of each crime. The Court has never required such a statement in a jury instruction and he did not request such an instruction at trial.

Conclusion: Taken as a whole, a jury could conclude that the acts that Gentilini completed before being apprehended constituted a “substantial step” toward the crime of committing first degree murder. The district court adequately informed the jury of the elements of each crime and the circumstances that had to exist in order to find Gentilini guilty of those crimes.

Affirmed.

J. Burke delivered the decision.

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

[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 73

Summary of Decision issued June 3, 2010

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

Case Name: Endris v. State

Citation: 2010 WY 73

Docket Number: S-09-0188; S-09-0189

Appeal from the District Court of Sheridan County, the Honorable John G. Fenn, Judge.

Representing Endris: 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; Leda M. Pojman, Senior Assistant Attorney General.

Facts/Discussion: Endris pleaded guilty to a charge of driving while under the influence of alcohol. Consistent with a plea agreement, the district court imposed a sentence that allowed him to be released from jail to participate in an alcohol treatment program. Endris was informed that during his release, he would be considered both on probation and in official detention. Endris was released but failed to enroll in the treatment program. His probation was revoked and in a separate case, he was convicted of escaping from official detention.
Endris was sentenced under the “split sentences” statute which provides that a court may impose a split sentence of incarceration followed by probation. If probation must follow incarceration, then a district court imposing a “split sentence” may not impose probation and detention at the same time. The sentence was illegal because it subjected Endris to probation and detention at the same time.

Conclusion: Endris’s sentence was illegal because it placed him on probation and in detention at the same time for the same crime. That illegal sentence could not serve as a proper basis for revoking his probation so the Court reversed that decision. In addition, the illegal sentence could not serve as a proper basis for convicting him of escape from official detention so the Court reversed that conviction. The Court vacated the illegal sentence in the underlying conviction of driving while under the influence of alcohol and remanded to the district court for resentencing.

Reversed and remanded.

J. Burke delivered the decision.

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

[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 72

Summary of Decision issued June 3, 2010

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

Case Name: Dwan v. Indian Springs Ranch Homeowners Assoc., Inc.

Citation: 2010 WY 72

Docket Number: S-09-0064

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

Representing Dwan: David G. Lewis, Jackson, Wyoming.

Representing Association: Edward F. Hess, Hess, Carlman & D’Amours, LLC, Jackson, Wyoming.

Facts/Discussion: Dwan contended that the Court’s previous decision in the case entitled her to summary judgment on her claims for damages and attorney’s fees.

Claim for damages: The district court correctly interpreted the Court’s previous decision in the case in which the Court ordered that Dwan’s application to build the addition on her home be approved by the Association. While restrictive covenants are contractual in nature that does not necessarily mean that a homeowner is entitled to recover contract damages against the homeowners association. Because Dwan failed to establish that her claim for damages stated a viable cause of action, the district court did not err in granting the Association’s motion for summary judgment on the issue.
Claim for attorney’s fees: Wyoming follows the American rule that each party in a lawsuit bears its own attorney’s fees in the absence of an expressed contractual or statutory provision. The Court has also recognized that restrictive covenants may provide contractual authority for the recovery of attorney’s fees. The language in the CCRs did not entitle Dwan to recover attorney’s fees from the Association. The sentences quoted by Dwan allow the Association to recover attorney’s fees when it enforces the CCRs. They do not allow a homeowner like Dwan to recover attorney’s fees against the Association.

Conclusion: Dwan failed to establish that her claim for damages stated a viable cause of action. The language in the CCRs did not entitle Dwan to recover attorney’s fees from the Association.

Affirmed.

J. Burke delivered the decision.

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

[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 71

Summary of Decision issued June 1, 2010

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

Case Name: Comeau v. Nash

Citation: 2010 WY 71

Docket Number: S-09-0075

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

Representing Comeau: Sharon M. Rose of Lavery & Rose, PC, Evanston, Wyoming.

Representing Nash: A. Anthony Vehar of Vehar Law Firm, Evanston, Wyoming.

Facts/Discussion: Comeau challenged the district court’s factual findings and legal conclusions to the effect that Comeau breached a fiduciary duty he owed to Kenneth McGrath (McGrath). McGrath is deceased and Comeau is one of his heirs.

The principal parties, Comeau and Nash, were once married to each other. Nash is McGrath’s granddaughter. Comeau and McGrath remained close after Comeau and Nash’s divorce. Eventually, McGrath came to live with Comeau and his wife as his health deteriorated. Comeau’s wife was a nurse experienced in caring for the elderly. McGrath lived modestly so his family did not know of his actual wealth (approximately $300,000 in cash and he owned property as well). By the time of McGrath’s death, Comeau had come into possession of almost all of McGrath’s assets except for land in Florida. Comeau’s possession did not reflect the testamentary intentions evinced by McGrath’s last Will and Testament.
Comeau had been appointed as McGrath’s guardian after his doctor determined he was unable to make his own determinations and sign his own authorizations and forms.
The Court has held that courts should zealously scrutinize deed transactions between people in confidential relationships. The Court made note of McGrath’s experience as a banker. Because McGrath lived with and was dependent upon the Comeaus, the district court found that they had the opportunity to “control” McGrath. The district court held that Nash’s evidence proved an opportunity to control; a condition permitting subversion; activity on the part of Comeau and a benefit to Comeau. To the extent that Comeau contended that McGrath had made a gift of his assets to him, the district court concluded that Comeau failed to bear his burden of proof.

Conclusion: The district court’s finding that McGrath was susceptible to undue influence was not clearly erroneous. The district court’s finding that Comeau exercised actual control and undue influence over McGrath was not clearly erroneous. The district court’s conclusion that Comeau breached a fiduciary duty was not clearly erroneous

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/2e6axg8 .

[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 70

Summary of Decision issued May 28, 2010

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

Case Name: Lauderman v. State of Wyoming, Department of Family Services ex rel. JEN

Citation: 2010 WY 70

Docket Number: S-09-0100

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

Representing Appellant (Respondent): Wendy Press Sweeny, Worland, Wyoming

Representing Appellee (Petitioner): Bruce A. Salzburg, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Elisabeth B. Lance, Assistant Attorney General

Representing Appellee Russell Nomura: David M. Clark, of Worrall & Greear, Worland, Wyoming

Issues: Whether the district court abused its discretion in calculating the parties’ respective incomes. Whether the district court abused its discretion in admitting certain letters illustrating respondent father’s efforts to find employment into evidence.

Holdings: Mother first objects to the district court’s finding that she was voluntarily unemployed. The evidence supports this finding. Mother had worked as a welder in 2007. After she was let go from that job, she decided to be a stay-at-home mother. Mother testified that there were welding jobs currently available in her town, which she was physically capable of performing. She wasn’t applying for them because she didn’t want to be away from her children. Given this testimony, it was well within the district court’s discretion to find Mother voluntarily unemployed.
Mother next objects to the amount of income imputed to her. In 2007, when she was working as a welder, she was earning $16.00 per hour. Mother testified that jobs were available at the time of the hearing and were paying $16.00 per hour. Mother’s own evidence supports the district court’s decision to impute to her a salary of $16.00 per hour.
Mother’s objection continues that the district court abused its discretion when it did not subtract any amount for federal income tax. The district court’s calculations show that it considered federal income tax. It determined the tax credits available to Mother exceeded the amount of federal income tax owed based on the imputed salary. In making this determination, the district court adopted figures provided by the DFS indicating the amount of earned income credit and child tax credit would be more than the federal income tax due. The district court’s reliance on the DFS calculation is reasonable under the circumstances.
Mother contends Father should be found to be voluntarily underemployed. The evidence shows that Father worked as a drywaller for 18 years. He owned and operated a drywall business in the Jackson area. When business declined in the Jackson area Father relocated to Worland. Despite his attempts to keep the business going, Father testified there was simply no work available. Father even looked for jobs in the oil field sector but was unable to find anything. Given the evidence, there is no credence in Mother’s contentions that Father isn’t looking hard enough or in a wide enough geographic scope.
Mother next takes issue with the district court’s computation of Father’s income. First, she argues the district court should have included in-kind benefits Father received from his business as income. Mother does not, however, identify any in-kind benefits received by Father.
Mother also argues the district court erred in not including certain draws Father took from his business in 2008 as income. Father’s accountant, however, explained that draws are unrelated to business income. Draws come from money already in the business that could have been earned at any time during the business’s existence. Father’s future income, therefore, would be limited to amounts earned during the current year. Under the circumstances, the district court did not abuse its discretion in not factoring the draws into Father’s income for child support purposes.
Finally, Mother argues the district court abused its discretion in using Father’s 2008 income instead of his 2007 income. The district court explained its decision in its order. It did not use Father’s 2007 income because it did not accurately reflect current economic conditions. The district court determined Father was not likely to be able to earn the same amount in the future. Given the well-documented collapse of the construction industry, as well as Father’s testimony as to how the economic downturn is affecting him personally, the district court was within its discretion in relying on Father’s 2008 actual income as more appropriately indicative of Father’s future earning capacity.
During the hearing, to support his testimony that he had been actively looking for work, Father offered multiple letters from contractors stating they had no work available for him. The district court admitted the letters into evidence over Mother’s several objections including a hearsay objection. The decision of whether or not to admit evidence lies within the discretion of the trial court. A trial court’s ruling will not be disturbed absent abuse of that discretion. As always, even if it is determined that the trial court erred in ruling on the admissibility of evidence, errors which are harmless will be disregarded. In the present action, the court need not consider whether the admission of the letters constituted error because, even if it did, Mother was not prejudiced by such introduction. The district court listened to Mother’s objections and admitted the letters over the objections stating “[t]he Court can give them the weight that it determines, so I don’t think that it’s going to be prejudicial.” There is no further indication that the district court relied on the letters, nor was it necessary for the district court to do so. Father testified extensively as to his continuing job search. The letters did nothing more than corroborate that testimony.

There was no abuse of discretion in the district court’s calculation of the parties’ respective incomes for child support purposes. The decision is reasonable under the circumstances. There was also find no harm in the introduction of letters corroborating Father’s extensive testimony on his attempts to find work.

Affirmed.

J. Golden delivered the opinion for the court.

J. Hill dissented: The proceedings that are included in the record on appeal are insufficient to disturb the status quo.

Link: http://tinyurl.com/27d4wq4 .

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