Summary 2010 WY 100

Summary of Decision issued July 16, 2010

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

Case Name: Rolle v. State

Citation: 2010 WY 100

Docket Number: S-09-0086

Appeal from the District Court of Natrona County, the Honorable W. Thomas Sullins, Judge.

Representing Rolle: Michael H. Reese, Contract Appellate Counsel, of Michael H. Reese, PC, Cheyenne, Wyoming.

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: Rolle sought to overturn his convictions for first-degree murder, felony murder, and kidnapping.

Uncharged misconduct evidence: The test that district courts must follow when determining the proper application of the rule and admissibility of uncharged misconduct evidence was adopted in Vigil, modified in Howard and later articulated in Gleason. Evidence is unfairly prejudicial if it tempts the jury to decide the case on an improper basis. Rolle specifically took exception to the testimony of D.G. who was one of his former girlfriends. The Court reviewed the evidence of Rolle’s relationships with D.G. as well as another girlfriend. The evidence included instances of threats, assaults, and destruction of property which met the admissibility requirements under 404(b). The district court addressed the relevance and probative value of the evidence by applying the Gleason/Vigil test. The district court properly balanced the probative nature of the evidence against its potential for unfair prejudice.
Limiting instruction: Rolle next argued the district court committed plain error when it failed to give a limiting instruction both at the time the uncharged misconduct evidence was admitted and at the end of trial when instructing the jury. Both the federal courts and the Wyoming court have rejected the dual-instruction requirement. In Connolly, the Court found the district court did not err in failing to give a limiting instruction following the admission of uncharged misconduct evidence where none was requested. The Tenth Circuit reviewed the rule in light of Huddleston and stated that “in the wake of Huddleston it is not error for a trial court to fail to instruct the jury…in the absence of a proper request by counsel.”
Jury question: The jury requested a definition of “maliciously” and for examples of “pre-meditated malice.” The district court referred them back to Instruction 10 and 15. In Spagner, the Court held that an Information is sufficient if it is in the words of the statute. The Information was drafted in the words of the statute therefore Rolle was fully and fairly informed of the charges. A trial court is under no obligation to define a statutory term unless the term carries a technical connotation different from its everyday meaning. Rolle made a comment there was lack of evidence to find him guilty of murder in the first degree but it was not supported by cogent argument or pertinent legal authority so the Court refused to consider the claim.
Ineffective assistance: Rolle contended his trial counsel was ineffective for: failing to request a limiting instruction regarding the State’s uncharged misconduct evidence at the time the evidence was introduced; failing to object to the content of the uncharged misconduct limiting instruction; and failing to object to the qualifications of certain witnesses who were, or could have been considered, experts. The district court was not required to give a contemporaneous limiting instruction. Before trial, defense counsel was informed by the district court that it would give a limiting instruction if requested. Defense counsel did not object to the adequacy of the limiting instruction regarding the uncharged misconduct evidence given to the jury at the end of the trial. He asserted the instruction only applied to prior acts committed against his victim and not to other individuals’ testimony. Rolle did not point to any instances of uncharged misconduct that was admitted but not covered by the limiting instruction therefore, he failed in his burden to demonstrate how he was prejudiced by his defense counsel’s failure to object to the jury instruction. Rolle argued defense counsel was ineffective because he failed to object to the qualifications of certain witnesses who were or allegedly could have been considered experts. He argued trial counsel could have challenged the credentials of the Crisis Intervention Services director and that the person who transcribed the 911 call was not qualified to give expert opinion about certain sounds heard in the call. An attorney’s refusal or failure to voir dire an expert witness is not per se ineffective performance. After the Court’s review of the qualifications of the CIS director and the relevance of her testimony, the Court found she was adequately qualified as an expert and that her testimony was such that it assisted the jury. In Kenyon, the Court recognized the type of testimony offered was proper expert testimony under similar circumstances. As to the testimony of the individual who transcribed the 911 call, the Court noted that trial counsel objected to the subjective statements made and the qualifications of the transcriptionist. Counsel’s efforts to exclude admission of the evidence were not deficient.
Cumulative error: Because the Court found no individual errors occurred, a claim for cumulative error was not possible.

Conclusion: After careful consideration of the appellant’s claims, we conclude that: (1) the district court properly followed the Gleason/Vigil test for determining the admissibility of the uncharged misconduct evidence and we cannot say that the court abused its discretion in admitting testimony concerning the appellant’s prior uncharged misconduct; (2) the appellant’s claim that a court is required, without request, to give a limiting instruction contemporaneously with the introduction of uncharged misconduct evidence is not supported by law; (3) the appellant’s claim that there was a variance between the facts alleged in the Information and those presented at trial is unsupported by the record; (4) the jury was adequately instructed on the difference between first-degree and second-degree murder, and on the meaning of the term “maliciously”; (5) the appellant failed to provide cogent argument or citation to pertinent authority regarding his claim that there was insufficient evidence to support his conviction for first-degree murder; (6) the appellant failed to show that defense counsel’s failure to request, or decision not to request, a limiting instruction contemporaneously with the admission of uncharged misconduct evidence resulted in ineffective assistance; (7) the appellant failed to demonstrate any prejudice arising out of defense counsel’s failure to object, or decision not to object, to the limiting instruction regarding the uncharged misconduct evidence; (8) the appellant’s claim that defense counsel was ineffective for failing to voir dire certain “expert” witnesses is not supported by the record; and finally, (9) because we find no individual error or abuse of discretion, we conclude that cumulative error did not occur.

Affirmed.

J. Voigt delivered the decision.

Link: http://tinyurl.com/2fnm7ja .

[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 99

Summary of Decision issued July 14, 2010

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

Case Name: Opportunity Knocks Enterprises, LLC v. Shannon Electric, Inc.

Citation: 2010 WY 99

Docket Number: S-09-0079

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

Representing Opportunity: Alan G. Harding and Galen B. Woelk of Aron & Hennig, LLP, Laramie, Wyoming.

Representing Shannon: Peggy A. Trent and Kristin S. Wilkerson of Trent & Wilkerson Law Office, LLC, Laramie, Wyoming.

Facts/Discussion: Opportunity Knocks Enterprises, LLC (Opportunity Knocks) appealed a district court’s determination that it failed to prove that Shannon Electric, Inc. (Shannon) knew at the time it filed a claim of lien, that the lien was groundless, or that the lien contained a material misstatement or false claim.

Lien groundless: The Court affirmed the district court’s determination that Opportunity Knocks' proof that Shannon Electric included amounts for profit, overhead, and markups in its lien claim does not amount to proof that the lien claim was groundless, or that it contained a material misstatement or a false claim.
Proof of intentional fraud: The Court found it unnecessary to determine whether the district court applied an intentional fraud standard, or erred in doing so, because none of the matters raised would make the lien statement groundless, or would constitute material misstatements or false claims.
Material misstatement: A petition filed pursuant to § 29-1-311(b) is not the appropriate method for testing the adequacy of a lien statement under § 29-1-301(b).

Conclusion: The District court did not err in concluding that the alleged deficiencies in the lien statement in this case did not show that Shannon Electric knew at the time of filing that its lien claim was groundless, or that it contained a material misstatement or a false claim. While the district court did err in assigning the burden of proof under § 29-1-311 to Opportunity Knocks, that erroneous assignment did not affect the correct result reached by the district court.

Affirmed.

J. Voigt delivered the decision.

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

[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 98

Summary of Decision issued July 14, 2010

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

Case Name: Geringer v. Runyan

Citation: 2010 WY 98

Docket Number: S-09-0122

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

Representing Geringer: Daniel B. Frank, Frank Law Office, PC, Cheyenne, Wyoming.

Representing Runyan: J. Mark Stewart of Davis & Cannon, LLP, Cheyenne, Wyoming.

Facts/Discussion: The Geringers filed petitions with the Wyoming State Board of Control (Board) for the involuntary abandonment of water rights held by Mark and Sharon Runyan and Robert and Jana Wilson (Appellees) on lands that were formerly in common ownership with the lands on which the Geringers hold water rights. Following a hearing, the Board denied the Geringers’ petitions, finding they lacked standing to pursue the petitions for abandonment.

The abandonment of a water right is governed by § 41-3-401 and the Court has construed it to require that in order to have standing to petition for abandonment, a water user must allege and prove: that he possesses a valid water right of equal or junior status to the water right sought to be abandoned; that the water right relied upon by the petitioner and the water right for which a declaration of abandonment is sought are from the same source of supply; and that the petitioner stands to benefit from a declaration of abandonment or to sustain injury by reactivation of the contested water right. The parties agreed that the first two elements had been met; whether the petitioner stood to benefit from a declaration of abandonment was not met. No evidence was introduced that the amount of water available for irrigation purposes was limited. The evidence was only that the flow rate of the well affects the Geringer’s ability to fully employ their right to use the water in a specific manner. Maintaining the flow rate of water necessary was not the type of benefit or detriment inuring to the Geringers as to confer legal standing to seek a declaration of abandonment of the Appellees additional supply water rights.

Conclusion: While the Court disagreed with certain factual findings of the Board, it agreed with the result. The ability of the Geringers to use their pivot irrigation system is not part of their additional supply water right. Rather, the critical factor in the analysis is the amount of water available in the aquifer. Because no limit to the water supply in the aquifer was shown, the Geringers have nothing to gain by a declaration of abandonment of the respective additional supply water rights of Appellees. The determination of the Board that the Geringers lack standing to bring the petitions for abandonment was affirmed.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/2az2npz .

[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 97

Summary of Decision issued July 12, 2010

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

Case Name: Bloomfield, Jr. v. State

Citation: 2010 WY 97

Docket Number: S-09-0033

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

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

Facts/Discussion: Bloomfield appealed his conviction for attempted second-degree murder. He contended the jury was improperly instructed on the elements of the crime. He also challenged the district court’s evidentiary ruling regarding evidence that he now contends was offered for the purpose of establishing the victim was the first aggressor in the altercation. He asserted the rejection of that evidence undermined his claim of self defense.

Jury instruction: In this case, the instructions satisfy the two-step inquiry articulated in Reilly. When viewed as a whole, the instructions required the jury to find that Bloomfield intended to take a substantial step toward second-degree murder – in other words, he intended to perform the act of stabbing the victim. The jury then had to find that Bloomfield stabbed the victim “purposely” and “maliciously.” “Intent to kill” is not an element of the underlying crime of second-degree murder. The district court did not violate a clear and unequivocal rule of law when it did not include that element in the jury instructions.
Bloomfield also challenged the jury instructions because they combined the elements of attempt and second-degree murder into one instruction. As the Court noted in Gentilini, a jury instruction is not given in error simply because it combines the elements of two crimes. The test of adequate jury instructions is whether the instructions leave no doubt as to the circumstances under which the crime can be found to have been committed. Bloomfield asserted that by giving one instruction with the elements of both second-degree murder and attempt, the district court effectively eliminated the specific intent to kill form the required elements of the crime. As noted, specific intent to kill is not an element of the crime of attempted second-degree murder.
W.R.E.404(a)(2) evidence: Bloomfield claimed the district court erred in refusing evidence offered by the defense. Bloomfield contended that the district court erred when it limited witness testimony to impeachment purposes. He asserted the testimony should have been admitted under W.R.E. 404(a)(2) as proof that the victim was the first aggressor. In Pack the Court stated the offer of proof must indicate the purpose of the testimony. Defense counsel did not apprise the court that he sought admission of the evidence under W.R.E. 404(a)(2) nor did he argue the evidence supported a theory that the victim was the first aggressor and never mentioned Bloomfield’s theory of self defense.

Conclusion: Bloomfield failed to demonstrate any likelihood that the verdict would have been more favorable had the district court allowed the evidence.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/28ljl8j .

[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 96

Summary of Decision issued July 7, 2010

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

Case Name: Rohrer v. Bureaus Investment, Group No. 7, LLC

Citation: 2010 WY 96

Docket Number: S-09-0180

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

Representing Rohrer: John M. Burman, Faculty Supervisor, U.W.Legal Services Program, and Carissa Mobley, Student Intern.

Representing Group 7: Larry W. Harrington, Casper, WY.

Facts/Discussion: Rohrer contended that the district court abused its discretion in denying her “Motion to Have Requests for Admission Deemed Denied or in the Alternative to Withdraw Admissions.” She also contended that the district court erred in granting summary judgment because Group 7 failed to present a prima facie case for summary judgment and because she came forward with evidence that created genuine issues of material fact. Group 7 purchased a debt from Chase which is attributed to Rohrer. Rohrer has denied the debt since 2004.

Admissions: Rule 36 governs requests for admissions. The Court stated that “[j]udicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.” Rohrer asserted that she responded to the requests for admissions although she had no proof of that contention. Her answers to both the initial and amended complaints with forthright denials that she owed Group 7 any money for the credit card account at issue are included in the record. The Court perceived the request for admissions as an attempt to obtain admissions to matters that Rohrer had vehemently denied multiple times since 2004.
Genuine issues of material fact: If the admissions Group 7 is dependent on are permitted to be withdrawn, then a genuine issue of material fact exists because here denial that she owed the debt at issue is at odds with Groups 7’s contention that she owes a debt owned by Group 7 via the bill of sale that does not include the Exhibit “A” referenced item.

Conclusion: The Court concluded that the district court abused its discretion by not allowing Rohrer to withdraw those admissions which go to the matters which she has denied since the matter first arose over six years ago. The Court agreed there were genuine issues of material fact once it allowed the admissions to be withdrawn.

Reversed and remanded.

J. Hill delivered the decision.

Link: http://tinyurl.com/2a3f5n2 .

[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 95

Summary of Decision issued July 2, 2010

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

Case Name: Christensen v. State

Citation: 2010 WY 95

Docket Number: S-09-0193

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

Representing Christensen: Michael H. Reese, Contract Appellate Counsel, Michael H. Reese, PC.

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: Christensen claimed that the State breached a plea agreement that would have allowed him to enter the Wyoming Substance Abuse Treatment & Recovery Centers (WySTAR) before being sentenced.

Christensen pointed to a conversation with the prosecutor where the prosecutor refused to release Christensen to allow him to enter WySTAR as being a breach of the plea agreement. A review of the record did not lead the Court to conclude that the conversation necessarily constituted a breach. Although both parties agree that the prosecutor indicated to Christensen’s attorney that he would not release Christensen to allow him to enter WySTAR, the context and substance of that conversation were not reflected in the record. The State did not object to or otherwise prevent Christensen from moving the district court to release Christensen and Christensen did not raise the treatment issue as being a breach before the district court.

Conclusion: The record reflects the incident that Christensen points to as the alleged breach; however, the record does not clearly reflect that a violation of a clear and unequivocal rule of law occurred. The most that can be said is that the prosecutor made an out-of-court statement that he would not release Christensen to WySTAR. With or without a plea agreement, the prosecutor does not have such release authority. That authority belongs to the district court, and the record shows that Christensen never complied with the district court’s instructions to “come back to court” when a bed became available at WySTAR. Furthermore, Christensen never directly raised the issue of breach with the district court.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/26rkg32 .

[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 94

Summary of Decision issued June 30, 2010

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

Case Name: Wright v. State

Citation: 2010 WY 94

Docket Number: S-10-0010

Order Affirming the Judgment and Sentence of the District Court

The matter came before the Court on its own motion following notification that Wright failed to file a pro se brief within the time allotted. The Court entered its “Order Granting Permission for Court Appointed Counsel to Withdraw” on April 27, 2010. That Order provided that the Judgment and Sentence would be affirmed unless Wright filed a brief prior to June 11, 2010.

Affirmed.

C.J. Voigt delivered the decision.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2010 WY 92

Summary of Decision issued June 29, 2010

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

Case Name: Western Municipal Construction of Wyo., Inc. v. Better Living, LLC

Citation: 2010 WY 92

Docket Number: S-09-0116

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

Representing Western Municipal Construction: Raymond W. Martin and Kristin M. Nuss of Sundahl, Powers, Kapp & Martin, LLC, Cheyenne, Wyoming.

Representing Better Living, LLC.: Anthony Todd Wendtland of Wendtland & Wendtland, Sheridan, Wyoming.

Facts/Discussion: Western Municipal Construction (Western) challenged the district court’s order granting summary judgment in favor of Better Living, LLC.
The appeal arose out of the dismissal of a complaint for declaratory judgment which sought to declare the parties’ rights under a settlement agreement resulting from a mediated dispute concerning a construction contract. A dispute arose concerning two items: the amount of liquidated damages, for which Better Living had assessed a $345,000 deduction against the $1.4M contract price and the amount due under a “Force Account” bid item.
The Court concluded that the language of the settlement agreement was unambiguous and the language of the underlying “Standard Conditions of the Construction Contract” need not, and should not be consulted in construing the language of the settlement agreement. The Court will not look behind a settlement agreement to see who would have prevailed in a dispute out of which the settlement agreement arose. If the settlement agreement itself meets contractual requirements, it will be enforced.

Conclusion: The Court concluded that the district court erred in failing to order Better Living to comply with the settlement agreement. The Court was not persuaded by Better Livings’ contentions that by cooperating in executing the closeout documents Western thereby waived its entitlement to the $250,000 settlement amount or that it thereby ratified Better Livings’ efforts to unilaterally modify the settlement agreement. Western was entitled to a payment in the amount of $250,000. If there are other disputes Better Living saw in this case, it was the one burdened with filing a claim, which it did not do. The district court’s order was reversed and the matter remanded. Western was also entitled to the fees and costs due it under W.R.A.P. 10.04.

Reversed and remanded.

J. Hill delivered the decision.

Link: http://tinyurl.com/2u5xt73 .

[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 91

Summary of Decision issued June 29, 2010

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

Case Name: Garwood v. Garwood

Citation: 2010 WY 91

Docket Number: S-09-0092

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

Representing Orlan O. Garwood and Carol A. Jones as Trustees: Scott W. Meier and Lucas E. Buckley, Hathaway & Kunz, PC, Cheyenne, Wyoming.

Representing William J. Garwood: No appearance.

Facts/Discussion: William Garwood filed a lawsuit seeking an order directing the Trustees (Orlan O. Garwood and Carol A. Jones), who are two of Mr. Garwood’s children and two of the three designated Trustees of the W.J. Garwood and Mildred E. Garwood Trust (Family Trust) to pay him a sum of money from the Family Trust sufficient to provide for his support as provided by the terms of the trust. The district court issued an order allocating trust assets and directing payments to Mr. Garwood. The Trustees appealed. The Court affirmed. (No personal representative filed notice or filed a brief for Mr. Garwood who died in 2009.)

Jurisdiction: The Trustees argued that once they filed their notice of appeal in Garwood I, the district court was without jurisdiction to rule on Mr. Garwood’s motion for removal of Trustees and recovery of attorneys’ fees expenditures by the Trustees. The question of attorneys’ fees and costs in a given civil action is a common issue that a trial court may address and it does not require the filing of a separate action or a motion to amend a judgment. The issue was properly placed before the district court by Mr. Garwood’s timely filing of a post-judgment application for fees and costs. Consistent with Rule 6.01, the Court has held that during the pendency of an appeal, the district court has the right and power to enforce its decrees and orders and to protect the parties as to any rights they acquired in the district court proceedings. The district court acted prudently in delaying its consideration of the issue until the Court had ruled on the Garwood I appeal.
Abuse of discretion: The Trustees contended that even if the district court had jurisdiction to enter its order on the Trustees’ fees and costs, the court abused its discretion in allowing the Trustees only $10,000 in fees and costs. Generally, Wyoming subscribes to the American rule regarding recovery of attorneys’ fees, making each party responsible for its own attorneys’ fees unless an award of fees is permitted by contract or statute. Wyoming has adopted the Uniform Trust Code (UTC) which authorizes an award of fees and costs in judicial proceedings involving the administration of a trust. The Court may award costs and expenses including reasonable attorneys’ fees to any party to be paid by another party or from the trust that is the subject of the controversy. The Trustees contended that a trustee involved in a legal proceeding over a trust may simply pay the costs of litigation as an ordinary expense of administering the trust. Based upon the UTC, it is for the trial court to determine whether fees and costs were properly incurred in a trustee’s official capacity and if so, what constitutes a reasonable amount for those fees and costs. The litigation at issue was a judicial proceeding involving the administration of a trust and it was for the district court to determine the amount of fees and costs. The district court found and the Court affirmed that not only did the trust not benefit Mr. and Mrs. Garwood, the litigation made necessary by the Trustees’ refusal to sell the Wheatland property likewise did little to benefit the Family Trust. The Court could not find that the district court abused its discretion in limiting the amount of fees to the percentage it did. The Trustees contended the district court should have reviewed the billing statements of the Trustees’ attorneys to ascertain what fees benefited the Trust. The Trustees had opportunity to submit an application for an award of fees and costs supported by the billing statements and did not do so. Under the circumstances in the instant case, the Court would not remand to review the billing statements. The Trustees contended they were exposed to an award of damages in their personal capacities without notice and in violation of their due process rights. The order directing the Trustees to reimburse the Family Trust was not a damages award. Referring to the district court’s findings, the Trustees acted primarily in their personal interests in the litigation. The Trustees had ample notice and opportunity to defend their decision to unilaterally withdraw funds from the Family Trust for their litigation expenses.

Conclusion: The district court had jurisdiction to address issues relating to an award of attorneys’ fees and costs. The district court did so in a proper manner, and the Court found no abuse of discretion in the court’s decision.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/2u6449l .

[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 90

Summary of Decision issued June 29, 2010

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

Case Name: Hackett v. State

Citation: 2010 WY 90

Docket Number: S-09-0163

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

Representing Hackett: Diane Lozano, 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; Amy Gleason, Student Intern, Prosecution Assistance Program.

Facts/Discussion: After a jury trial, Hackett was convicted of one count of first degree sexual assault. Hackett objected that the PSI was unfairly biased against him.
Hackett focused on two of his objections: that the PSI substituted a graphic statement of probable cause of the prior offense in 2002 instead of a brief statement of the offense and he argued that the conclusion and evaluations were very biased. The Court noted that the comments in the instant case are similar to those in Noller and Carothers where the Court admonished PSI agents that it is not their function to act as legal advocates but to be neutral participants and to provide the information specified in Rule 32(a)(2) for consideration by the sentencing court. After reviewing Hackett’s objections in context with the entire PSI, along with the court’s comments during sentencing, the Court concluded that no abuse of discretion occurred.

Conclusion: The district court did not abuse its discretion in considering the Presentence Investigation Reports in full when sentencing Hackett.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/25a9l5o .

[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 89

Summary of Decision issued June 29, 2010

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

Case Name: Harper v. Fidelity & Guaranty Life Ins. Co.

Citation: 2010 WY 89

Docket Number: S-09-0119

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

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

Representing Fidelity: Julie Nye Tiedeken of McKellar, Tiedeken & Scoggins, LLC, Cheyenne, Wyoming.

Facts/Discussion: Mr. Harper, husband of Gail Harper, bought a life insurance policy and died within two months of doing so. Fidelity refused to pay the claim because they insisted that Mr. Harper misrepresented/omitted the state of his health in the claim application.

Materiality: Mrs. Harper contested the district court’s finding that there was no issue of material fact as to whether Fidelity properly rescinded Mr. Harper’s insurance policy. Mrs. Harper argued that a representation or omission in an insurance application is material if knowledge or ignorance of it would naturally influence the judgment of the insurer in making the contract, or in estimating the character of the risk or setting the premium thus making it a question for the jury to decide. Materiality is determined by asking whether reasonably careful and intelligent persons would have regarded the omitted facts as substantially increasing the chances of the events insured against so as to cause a rejection of the application or different conditions, such as higher premiums. Mr. Harper’s omissions were material. He did not disclose several health conditions on his application. Even though there were material misrepresentations, summary judgment was appropriate because they were of such a nature that there was no dispute to the materiality. Thus, there were no genuine issues of material fact and Fidelity was entitled to summary judgment.
Duty to investigate: Mrs. Harper argued that Fidelity had a duty to further investigate Mr. Harper’s answers on his application. An insurer has no duty to investigate the truthfulness of an applicant’s responses unless it has notice that those responses might not be truthful or accurate. Mr. Harper represented in his application that the statements were complete, true and correctly recorded. Based upon the law and Mr. Harper’s assertions, Fidelity was under no duty to investigate.
Promissory estoppel: Harper was clearly not the picture of health and although he may have applied to another life insurance company there was nothing in the record apart from his wife’s assertions which suggested another company would have insured him.
Good faith and fair dealing: Fidelity rescinded the policy of insurance because it determined after obtaining an opinion from the chief underwriter that there were material misrepresentations, omissions, and incorrect statements made on the application which if they had been known at the time would have caused the application to have been rejected. There is no question of material fact that § 26-15-109 allows rescission under those circumstances.
Reasonable expectations doctrine: The Court failed to see how any claim would exist under the doctrine of reasonable expectations because Mr. Harper was advised that the information in the application would be relied upon in issuing the insurance. The policy contained a contestability clause and Mr. Harper verified the answers with his signature.

Conclusion: There is no issue of material fact as to whether Fidelity properly rescinded Mr. Harper’s insurance policy. His application contained omissions and misrepresentations and summary judgment is appropriate where the misrepresentations are of such a nature that there can be no dispute as to its materiality. An insurer is under no duty to investigate the truthfulness of an applicant’s responses unless it has notice that those responses might not be truthful or accurate. There was no basis to conclude that the equities in this instance required the insurance contract be enforced under the doctrine of promissory estoppel. The covenant of good faith and fair dealing was not breached and no claim existed under the doctrine of reasonable expectations.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/24l8lh3 .

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