Summary 2010 WY 123

Summary of Decision issued August 31, 2010

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

Case Name: Budder v. State

Citation: 2010 WY 123

Docket Number: S-09-0241

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

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

Representing State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Christyne M. Martens, Student Intern, Prosecution Assistance Clinical Program.

Facts/Discussion: Budder was convicted of burglary and wrongful taking or disposing of property. He challenged a jury instruction he argued relieved the State of proving all elements of the crimes charged beyond a reasonable doubt.

The instruction used was virtually identical to an instruction approved by the Court in Vanvorst v. State. In Vanvorst, the defendant was arrested driving a stolen vehicle. Budder accepts that the instruction reflects a correct statement of law in cases where the defendant is caught in actual possession of recently stolen property. He argued it was nonsensical when applied to his case because of his denial of possession of the recently stolen cash. Instructions to a jury are to be written with the particular facts and legal theories of each case in mind. The applicability of an instruction hinges in part on whether the instruction is supported by an appropriate evidentiary basis. The State’s evidence against Budder included the testimony of Fox (who returned some of the stolen money to the victim) and other corroborating and circumstantial evidence. The evidence presented sufficed to support the giving of the instruction to the jury.
Additionally, Budder claimed it was improper for the trial court to give the instruction because there was no rational connection between the evidence and the inference. The focus should be on the relationship between his actual possession of the stolen cash, should the jury find such possession was proven beyond a reasonable doubt, and the inference that Budder was involved in the theft of the cash.

Conclusion: The instruction was appropriate under the evidence introduced at trial by the State. The instruction permitted the jury to infer Budder was involved in the theft of cash if it first found, beyond a reasonable doubt, that Budder possessed the cash, and that other facts and circumstances also supported the inference. The instruction did not deny Budder his defense. The instructions as a whole also conformed to the mandates of W.R.E. 303 by informing the jury that the State bore the burden of proving every element of an offense beyond a reasonable doubt.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/234s3jr .

[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 122

Summary of Decision issued August 26, 2010

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

Case Name: Sinclair Oil Corp. v. Wyo. Dept of Revenue

Citation: 2010 WY 122

Docket Number: S-09-0231

W.R.A.P. 12.09(b) Certification from the District Court of Laramie County. The Honorable Thomas T.C. Campbell, Judge

Representing Appellant Sinclair: John A. Sundahl, Sundahl, Powers, Kapp & Martin, LLC, Cheyenne, Wyoming.

Representing Appellee Wyo. Dept of Revenue: Bruce A. Salzburg, Attorney General; Michael L. Hubbard, Deputy Attorney General; Karl D. Anderson, Senior Assistant Attorney General, Martin L. Hardsocg, Senior Assistant Attorney General.

Facts/Discussion: Effective July 1, 2004, the Wyoming Legislature provided a sales tax exemption for machinery used in manufacturing in Wyoming. It is undisputed that the tax exemption applied to two large pieces of machinery owned by Sinclair Oil Corporation. Sinclair claimed that the materials used to construct foundations for the machines also qualified for the tax exemption. Sinclair applied to the Dept. of Revenue for a refund of the sales tax it had paid on the foundation materials. The Department denied that application. Sinclair appealed to the State Board of Equalization, and the Board upheld the Department’s determination. Sinclair then appealed to the district court, which certified the case for direct review by the Court.
The task before the Court was to interpret the statute establishing the tax exemption, Wyo. Stat. Ann. § 39-15-105(a)(viii), along with related provisions, to determine whether the Board correctly applied the statute to the largely undisputed facts. Sinclair argued the reformer and hydrocracker are the basic units, but without foundations, neither piece of machinery could be operated safely and properly. The foundations fit the definition of an “adjunct or attachment necessary for the basic unit to accomplish its intended function.” The Department maintained that whether or not the foundations were attachments or adjuncts to the basic units, the foundations could not be considered “machinery” because they did not satisfy the initial phrase of the definition: “all tangible personal property.” The Court agreed with the Board that the statutes plainly provide that the tax exemption applies only to manufacturing machinery and unambiguously defined the term “machinery” to include only tangible personal property. The foundations are real property and not tangible personal property. The Board relied upon Hanover Compression where it had determined that the compressor facilities were real property because they were structures affixed to the land. In the instant case, the Board determined and the Court agreed that the concrete and related foundation materials were “articles” that had been “buried or embedded.”
Next, Sinclair asserted that if the foundations are real property, then it should not have paid sales tax on the foundation materials when it purchased them because sales tax applies only to tangible personal property and not to real property. The Court noted that personal property can be converted into real property. An article that is personal property can be converted to real property when it is buried or embedded as in the instant case.

Conclusion: The Board correctly concluded that the concrete and related materials were personal property when Sinclair purchased them. In Wyoming, sales or excise tax is levied on the retail price at the time of sale. Consequently, the concrete and related materials were subject to sales tax. Later, Sinclair buried and embedded the foundation materials, thereby converting them into real property. By the time the hydrocracker and reformer were bolted to the foundations, the foundations had become real property. They were therefore ineligible for the tax exemption for manufacturing machinery because they did not satisfy the definition of machinery which includes only tangible personal property.

Affirmed.

J. Burke delivered the decision.

C.J. Kite dissenting, joined by J. Voigt: In order to remain true to the legislative intent, the nature of the property should have been determined at the time of sale. At that time, the materials were tangible personal property and qualified for the exemption under § 39-15-105(a)(viii)(O). The Justices would have held that the Board erred by concluding that Sinclair was not entitled to an exemption from the excise tax for the foundation materials.

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

[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 121

Summary of Decision issued August 25, 2010

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

Case Name: Davison v. Wyo. Game and Fish Comm’n

Citation: 2010 WY 121

Docket Number: S-10-0007

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

Representing Appellants Davison; Richner & Marton Ranch, Inc.: Harriet M. Hageman and Kara Brighton, Hageman & Brighton, PC, Cheyenne, Wyoming.

Representing Appellees Wyo. Game & Fish and Wyo. Game & Fish Dept.: Bruce A. Salzburg, Attorney General; Jay A. Jerde, Deputy Attorney General; James Kaste, Senior Assistant Attorney General.

Facts/Discussion: Davison, Richner and Marton Ranch, Inc. (Landowners) sought reversal of the district court’s decision granting summary judgment in favor of the Wyoming Game and Fish Commission and the Wyoming Game and Fish Department (collectively called the Commission) in their dispute over the interpretation of an easement the Commission has over a portion of the Landowners’ properties.

Is the Lusby Easement ambiguous: The Landowners and Commission agree that the Easement unambiguously provides that the landward boundary of the walking easement is a line located one hundred feet from the high water line of the river. It is only the streamside boundary that was in dispute. The Landowners contend that the Easement clearly and unambiguously states that the streamside boundary of the Easement is the high water line of the river. The Commission asserts that the Easement established the middle of the river as the streamside boundary of the walking easement. All parties agreed that the single “easement line” described in the Plat and Survey was intended to be the landward boundary of the walking easement. Nowhere in the Lusby Easement is there any explicit designation of the streamside boundary. The Court concluded the Lusby Easement was ambiguous. First, the language could be read to establish an easement for the purpose of fishing and migratory waterfowl hunting, with its streamside boundary at the middle of the river. From another point of view, the language could be read to establish a walking easement 100 feet in width with the streamside boundary at the high water line. Giving effect to both readings is impossible. The Court agreed with the district court that the “inconsistency between the seemingly restricted walk way for fisherman and hunters on one hand, and, on the other hand, the expressed intent within the easement to allow fishing and migratory bird hunting…creates an ambiguity within the easement.”
Interpreting the Lusby Easement using extrinsic evidence: Because the Lusby Easement deed was ambiguous, the merger doctrine did not preclude the Court from considering the extrinsic sales contract as an aid in interpreting the deed language. The Court found the sales contract and the Commission’s certifications firmly established that the Lusby Easement was meant to extend to the middle of the river. The Landowners presented no evidence on that point but relied on their position that the language of the Easement was plain and unambiguous.
Prescriptive easement: Because the Court affirmed the district court’s grant of summary judgment in favor of the Commission, there was no reason for the Commission to pursue a claim of prescriptive easement, and no need for the Court to consider the Landowners’ contention that the Commission could not claim a prescriptive easement under Wyoming law.
Location of the boat launching ramp: All parties agreed that the Lusby Easement’s description of the boat launching ramp was clear and unambiguous. Also, it was undisputed that the ramp was initially constructed in the specified location and later moved to a different spot at the request of Davison. In their brief, the Landowners assert the Davisons disagreed with the Commission’s rendition of what occurred in relation to the decision to move the boat ramp but did not provide their version. They did not provide a single citation to the record providing any factual support for their disagreement with the Commission’s rendition of what occurred. Therefore, the district court was correct in ruling that there were no genuine issues of material fact with regard to the relocation of the boat ramp.

Conclusion: The Court concluded the Lusby Easement was ambiguous. Since it was, the merger doctrine did not preclude the Court from considering the extrinsic sales contract. As to the remaining arguments, the Court cannot provide meaningful review when a party fails to provide pertinent authority, cogent argument or factual support.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/28d54cq .

[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 120

Summary of Decision issued August 24, 2010

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

Case Name: Dorr v. Smith, Keller & Assoc.

Citation: 2010 WY 120

Docket Number: S-09-0249

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

Representing Dorr: Greg L. Goddard of Goddard, Wages & Vogel, Buffalo, Wyoming.

Representing Smith, Keller & Assoc.: W. Perry Dray and Timothy L. Woznick of Dray, Thomson & Dyekman, PC, Cheyenne, Wyoming.

Facts/Discussion: Dorr appealed from the district court’s denial of his motion to declare Smith, Keller & Associates’ (SKA) judgment against him satisfied. He challenged the district court’s rulings that posting a supersedeas bond did not stop interest from accruing on the judgment and he was not entitled to credit against the judgment for settlements made by third parties in related actions.

Accrual of interest on judgment after posting supersedeas bond: Dorr posted a supersedeas bond to prevent SKA from executing on the judgment while the case was on appeal. He claimed that when he posted the bond, interest stopped accruing on the judgment and release of the bond to SKA satisfied the judgment. In V-1 Oil Co. v. People, the Court confirmed that posting a supersedeas bond does not constitute accomplished payment until an unqualified right to the proceeds accrues after the judgment is affirmed on appeal. If the legislature intended for the filing of a supersedeas bond to stop interest from accruing on the judgment, it would have specified that and not simply stated that interest accrues until the judgment is “paid.” If interest did not continue to accrue after a supersedeas bond was posted, the judgment creditor would not be fully compensated and the purpose of the statutory interest requirement would not be served. In Parker v. Artery, the Court ruled that payment of the entire judgment into the court absolved the defendant from further accrual of interest.
The fact that the bond should be set in an amount sufficient to cover all aspects of the judgment creditor’s damages does not mean that the judgment creditor will be limited to recovery of the amount of the bond. The purpose of a supersedeas bond is to protect nonappealing parties by maintaining the status quo during the appeal and insuring that those who have obtained the judgment under review will not be prejudiced by a stay of the judgment pending the final determination of the appeal. To hold that the release of the bond to SKA satisfied judgment would undermine the purpose of post-judgment interest and would deprive the judgment creditor of the value of the money he is owed.
Credit for third party settlements: In a separate action, SKA alleged that Dorr and his associates fraudulently conveyed property in which it had an interest to Dorr’s father and First Interstate Bank, among others. Dorr argued that the district court erred by refusing to credit the settlement amounts against SKA’s monetary judgment. A judgment debtor is entitled to credit against a judgment for a settlement that pertains to claims included in the judgment. The district court has discretion in determining whether to allow a set off. An evidentiary hearing was held on the set off matter. The district court’s decision letter noted that the arbitration award rendered against Dorr & Assoc. contained two components: $105,163.78 for unpaid compensation for 1988 and the portion of 1989 before dissolution and for violation of the dissolution provisions of the partnership agreement; and it directed Dorr & Assoc. to return the proceeds of a particular bank account, all accounts receivable existing as well as sums paid on those accounts and all computer software. Dorr asserted that SKA’s fraudulent conveyance complaints and subsequent amendments showed that it believed that its fraudulent conveyance claims were inseparable from the claims which led to the monetary award. The Court noted the documents seemed to include broad, general allegations about the arbitration award. The judgment at issue covered the monetary portion of the arbitration order awarding damages to SKA for unpaid compensation and violation of the dissolution provisions of the partnership agreement. Dorr did not direct the Court to evidence showing the fraudulent conveyance action was specifically directed at recovering for the claims covered by the monetary judgment.

Conclusion: The district court properly concluded that filing a supersedeas bond did not toll the accrual of interest on a judgment and the judgment creditor’s recovery is not limited to the bond amount. Dorr did not provide a transcript of the evidentiary hearing. Taking the district court’s factual findings as true, the Court agreed that Dorr did not satisfy his burden of proving that the settlements were related to the monetary judgment. The district court did not abuse its discretion by refusing to credit the Bill Dorr and First Interstate Bank settlements against SKA’s judgment.

Affirmed.

C.J. Kite delivered the decision.

Link: http://tinyurl.com/2bxxxl4 .

[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 119

Summary of Decision issued August 19, 2010

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

Case Name: Schouboe v. Wyo. Dept. of Trans.

Citation: 2010 WY 119

Docket Number: S-09-0190

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

Representing Schouboe: Gerard R. Bosch and Mark J. Longfield, of Law Offices of Jerry Bosch, LLC, Wilson, Wyoming.

Representing State DOT: Bruce A. Salzburg, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; and Kenneth J. Miller, Assistant Attorney General.

Facts/Discussion: Schouboe appealed a hearing examiner’s order upholding his implied consent suspension. Schouboe contended that WYDOT did not prove he was in actual physical control of his vehicle. Schouboe was found asleep in his truck, with the keys on his console, stopped in the middle of a county road. He was arrested for DUI and after transport to Sublette County Detention Center, refused chemical testing.
Schouboe’s argument could be narrowed down to whether the hearing examiner’s conclusion that Schouboe was in actual physical control of his vehicle was based on substantial evidence. Schouboe contended it was improper for WYDOT to rely solely upon the certified administrative record to sustain its burden. The Court stated that using the certified record to prosecute administrative suspensions is a valid method still used by agencies and approved by the Court in Drake v. State. Unlike Arkansas, the Court has not adopted a bright-line rule that actual physical control begins when the keys are located in the ignition.

Conclusion: The facts were that Schouboe was parked in the middle of a county road, seated in the driver’s seat, and slumped over the steering wheel with the keys on the console. The Court concluded the hearing examiner had substantial evidence to conclude that Schouboe was in actual physical control of his vehicle.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/252uzb2 .

[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 118

Summary of Decision issued August 18, 2010

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

Case Name: Lykins v. Habitat for Humanity, The Heart of Wyoming, Inc.

Citation: 2010 WY 118

Docket Number: S-10-0045

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

Representing Lykins and Sellars: Jim Lykins and Jill Sellars, pro se.

Representing Habitat for Humanity: Jerry A. Yaap, Bishop, Bishop & Yaap, Casper, Wyoming.

Facts/Discussion: In litigation disputing the ownership of a residential property in Casper, a default judgment was entered against Lykins and Sellars. The district court denied Lykins’ and Sellars’ motion to set aside the default judgment.
The Court’s review was restricted by the lack of a record. The hearing on the motion to set aside the default judgment was not reported. Lykins and Sellars did not offer an alternative statement of the evidence that could have been settled by the district court. The sole ground asserted was failure of service of a summons along with the complaint and other documents served upon Lykins and Sellars. Habitat for Humanity provided evidence as well as testimony from the process server.

Conclusion: Because Lykins and Sellars failed to prove they were not properly served and did not demonstrate any other reason justifying relief, the district court properly denied the motion to set aside the default judgment.

Affirmed.

J. Burke delivered the decision.

J. Voigt, special concurrence: The Justice concurred in the result but would have summarily affirmed because no transcript or settled statement of the evidence was provided in the record, so there was nothing available for the Court to evaluate the determinations of the district court.

Link: http://tinyurl.com/2ewutm5 .

[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 117

Summary of Decision issued August 18, 2010

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

Case Name: Erwin v. State, DFS

Citation: 2010 WY 117

Docket Number: S-09-0250

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

Representing Erwin: Duane A. Erwin, pro se.

Representing State: Bruce A. Salzburg, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Elizabeth Bartels Lance, Assistant Attorney General.

Facts/Discussion: Erwin challenged the district court’s order denying his petition to set aside a Montana divorce decree. The Montana decree was filed in Minnesota and Erwin contested the order. A hearing was held and an order entered denying Erwin’s motion.
The Wyoming district court did not explicitly address whether Erwin’s challenge to the validity of the Montana decree was barred as a result of the Minnesota litigation. The Court may affirm a district court’s decision on any proper legal grounds supported by the record. The issue decided by the Minnesota district court was identical to the issue presented to the Wyoming district court. Erwin was a party at both proceedings and had full opportunity to contest the validity of the Montana decree. Erwin was precluded from relitigating the validity of the decree.

Conclusion: The Court agreed that Erwin could not challenge the validity of the decree because the collateral estoppel requirements were satisfied.

Affirmed.

J. Burke delivered the decision.

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

[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 116

Summary of Decision issued August 17, 2010

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

Case Name: Dougherty v. State

Citation: 2010 WY 116

Docket Number: S-10-0017

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

Representing Dougherty: 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; Graham M. Smith, Special Assistant Attorney General.

Facts/Discussion: Dougherty was convicted by a jury of abusing a vulnerable adult. He walked into the victim’s room, masturbated in front of her, and then left. Dougherty argued the State failed to provide sufficient evidence to demonstrate that the act of masturbating in front of the victim resulted in a violation of the charged offense of intentional abuse of a vulnerable adult because the act did not constitute “punishment.”

Conclusion: Dougherty’s act of masturbating in front of the victim was not committed in a disciplinary context and therefore could not be considered punishment as used in § 35-20-102(a)(ii)(C). Accordingly, because Dougherty’s conduct did not fit within the definition of “punishment”, the Court found there was insufficient evidence of “abuse” and therefore the conviction could not stand.

Reversed.

J. Voigt delivered the decision.

Link: http://tinyurl.com/29f4sck .

[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 115

Summary of Decision issued August 10, 2010

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

Case Name: Roemmich v. Roemmich

Citation: 2010 WY 115

Docket Number: S-10-0008

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

Representing Kari Roemmich: Stacy E. Casper of Casper Law Office, LLC, Casper, Wyoming.

Representing Shane Roemmich: Nick Edward Beduhn of Goppert, Smith & Beduhn, Cody, Wyoming.

Facts/Discussion: When shared physical custody of their child failed, Kari Roemmich (Mother) filed a petition for custody modification seeking primary physical custody of the child with reasonable visitation for Shane Roemmich (Father). After a hearing on the petition, the district court awarded Father primary physical custody with reasonable visitation by Mother and ordered Mother to pay child support.

Requirements for modifying joint custody: In Harshberger the Court reiterated the rule in Wyoming that when both parents inform the court that a joint physical custody arrangement is not working, a sufficient change in circumstances justifying the reopening of the custody order has been presented to the district court. The district court was required pursuant to § 20-2-204(c) to determine what custody arrangement was in the child’s best interest.
Witness and exhibit designations: Father did not provide witnesses and exhibits to Mother within the thirty day limit set by W.R.C.P. 37. The district court determined that it was in the child’s best interest to allow Father to present his evidence while acknowledging that allowing it would be somewhat prejudicial to Mother.
Stalking protection order: Beyond summarizing the testimony from Father and Mother about the incidents leading to the protection order filed by Mother, the district court made no finding on the issue of spousal abuse and did not appear to have weighed it as a factor in determining the child’s best interest. While there was no question that Father harassed Mother by cell phone and that the parties fought on two occasions in the presence of the child, the Court concluded the district court reasonably could have determined from the totality of the evidence that the admitted harassment and alleged abuse was not sufficient to override the other factors it was required to consider in determining custody.
Findings contrary to the evidence: The district court’s decision letter confirmed Mother’s contention that it incorrectly assumed she would continue working nights. However, the letter reflected that the assumption was not the only or even a primary factor in its determination to award primary custody to Father. The incorrect assumption was not sufficient to establish that the district court abused its discretion in awarding primary custody to Father.
Visitation: The district court’s order did not address holiday and summer visitation. The parties agreed concerning holiday and summer visitation so it was appropriate to remand to the district court for entry of a revised order providing for visitation by Mother.
Child support: For reasons that do not appear in the record, the district court did not calculate child support using the net income imputed to Mother in the divorce decree. On remand, the district court will need to recalculate Mother’s child support obligation based on the parties’ respective incomes as incorporated in the divorce decree, or request the parties to submit financial affidavits.

Conclusion: The district court’s modification order awarding primary physical custody to Father was affirmed. The case was remanded to the district court for a revised order setting out holiday and summer visitation and calculating child support.

Affirmed custody and remanded visitation and child support.

C.J. Kite delivered the decision.

Link: http://tinyurl.com/22jnuew .

[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 114

Summary of Decision issued August 10, 2010

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

Case Name: JS v. MB

Citation: 2010 WY 114

Docket Number: S-09-0200

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

Representing JS: Donna Sheen, Cheyenne, Wyoming.

Representing MB: Richard L. Harden, Casper, Wyoming.

Facts/Discussion: JS (Father) challenged the district court’s order requiring the parties to exchange child visitation on a weekly basis when the child reaches age 5 in 2013.
Father argued that the district court abused its discretion by ordering what amounts to shared custody, although each party sought primary custody.
In this case, as per the court order, the sharing is of visitation, not of custody, the parties must operate in terms of visitation as they might if the court had ordered shared custody. When the district court’s exercise of discretion in custody matters involves splitting custody of children between parents, it must provide an explanation of its reasoning and place its findings on the record. The Court noted the district court’s order explained the reasoning and analysis in full. The Court stated the primary concern in the instant case was the extent to which the parents are able to communicate and work together to promote the child’s best interest.

Conclusion: The district court did not abuse its discretion in ordering the parties to alternate weeks with the child beginning at age five. In ordering as it did, the court simply modified the current visitation arrangement to accommodate the growing child, which is routinely done in long-term custody and visitation plans.

Affirmed.

J. Hill delivered the decision.

C.J. Kite specially concurring: The Chief Justice concurred but wrote separately to point out that the jurisprudence provides that divided custody is not favored and should not be imposed simply because both parents are equally qualified to be awarded custody. Although the Justice concurred, she stated she did not believe the case should be relied upon as indicating a deviation from the Court’s long line of cases disfavoring divided custody and requiring exceptional circumstances.

Link: http://tinyurl.com/2bwh7e7 .

[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 113

Summary of Decision issued August 6, 2010

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

Case Name: Dawes v. State

Citation: 2010 WY 113

Docket Number: S-09-0211

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

Representing Dawes: Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; and 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; Jenny L. Craig, Assistant Attorney General.

Facts/Discussion: Dawes appealed from the judgment and sentence entered by the district court after a jury found him guilty of larceny by bailee for converting to his own use funds his employer had placed in a Wyoming checking account. Dawes challenged the district court’s authority to try him in Wyoming because he had never been in the state until he was extradited to face the charge in this case. He also argued that his conviction was improper because he was listed as a joint owner on the account and could not be convicted for converting money that belonged to him. Dawes also claimed the district court committed plain error in its response to the jury’s question about the definition of the “owner” of the money.

Subject matter jurisdiction: The evidence established that Dawes wrote the unauthorized checks on a Wyoming bank account, effectively converting money located in Wyoming and depriving a Wyoming victim of her money. Similar to Hopkinson, Dawes’ actions outside the state resulted in a crime within the state. Under common law principles, the district court was entitled to exercise jurisdiction because the criminal conduct and its result took place in Wyoming.
Variance between charging documents and trial proof/sufficiency of the evidence: The information and jury instructions were substantively identical. The evidence established that Dawes wrote unauthorized checks in California which removed money from an account located in Wyoming. Under those circumstances, there was sufficient evidence for the jury to conclude that the conversion occurred in Wyoming. Dawes apparently maintained that the State was also required to prove he formed his intent to commit the crime in Wyoming and that was impossible since he had never been to the state before the charges were brought. Consistent with § 6-3-402(b), the district court instructed the jury to determine whether Dawes had the intent to steal or deprive the victim of the money. Given that the evidence established that the conversion actually took place in Wyoming, neither § 6-3-402(b) nor common law jurisdictional concepts required that the State prove where Dawes formed his criminal intent. The evidence was sufficient to establish the location of the crime.
Effect of joint ownership of account: Dawes claimed the district court erred by refusing to dismiss the charge because a joint owner of an account cannot be a bailee and accordingly, cannot be charged with larceny by bailee for removing money from an account. Whether Dawes was an owner of the account was a question of fact. The district court correctly denied Dawes’ motion to dismiss and allowed the jury to determine what the parties intended by setting up the joint account.
Jury question: “If the money is owned by more than one person, does the phrase ‘the owner of the money’ apply to each individual owner?” The jury did not ask for the dictionary definition of “owner” and there was no indication that it did not understand the general meaning of that term. Instead the jury was asking for its specific meaning within § 6-3-402(b). The district court did not violate a clear and unequivocal rule of law when it did not provide the dictionary definition of the term “owner” or when it instructed the jury to determine the issue as a factual matter.

Conclusion: The Court concluded that Dawes was properly charged and tried in Wyoming because he converted funds located in the state. In addition, the district court correctly allowed the jury to determine whether the funds in the account belonged to Dawes or his employer. The district court did not err when it responded to the jurors’ question by telling them that the determination of who owned the money was a factual issue for them to decide.

Affirmed.

C.J. Kite delivered the decision.

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

[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 112

Summary of Decision issued August 5, 2010

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

Case Name: McClure, Jr. v. State

Citation: 2010 WY 112

Docket Number: S-09-0243

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

Representing McClure: Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; and 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; Craig C. Cook, Student Intern for the Prosecution Assistance Program

Facts/Discussion: McClure appealed from the district court’s order denying his motion for new trial based on newly discovered evidence. McClure contended he was denied both his right to be present and his right to confront witnesses against him when the district court held the hearing on his motion for new trial without his physical presence. He also claimed his right of confrontation was abridged when two witnesses were permitted to testify telephonically at the hearing.
The constitutional provisions requiring a defendant’s presence pertain only to proceedings that are a part of, and are critical to the outcome of, the criminal prosecution. McClure did not direct the Court to any authority that the constitutional right extended to a hearing on a post-trial motion for a new trial. Similarly, McClure did not demonstrate that the procedures employed by the district court – requiring him to appear by telephone and allowing two witnesses to testify telephonically – abridged his right to confrontation under the Sixth Amendment. The decisions of the United States Supreme Court establish that the right to confrontation is a “trial” right.

Conclusion: The Court was unable to conclude that a clear and unequivocal rule of law was transgressed.

Affirmed.

J. Golden delivered the decision.

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

[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 111

Summary of Decision issued August 5, 2010

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

Case Name: Zumberge v. State

Citation: 2010 WY 111

Docket Number: S-09-0255

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

Representing Zumberge: Michael Reese, Contract Appellate Counsel, of Michael Henry Reese, PC; Diane Lozano, Wyoming Public Defender; 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; Leda M. Pojman, Senior Assistant Attorney General.

Facts/Discussion: Zumberge appealed his conviction for felony driving while under the influence, alleging that his constitutional rights to due process of law and to confront witnesses were violated by the district court’s failure to reasonably accommodate his hearing impairment at trial. Under the Wyoming and federal constitutions, a clear and unequivocal rule of law exists requiring a court to make reasonable accommodations to ensure that a hearing impaired individual can hear and properly participate in the proceedings. It was not until sentencing that Zumberge notified the district court that he had had significant trouble hearing during voir dire and during his trial, and that the means adopted by the district court to prevent that problem were inadequate. The Court noted in their review of the record that the district court had informed Zumberge several times that if he had trouble hearing, he needed to make the court aware of it. The record showed the accommodations made by the district court were reasonable and adequate.

Conclusion: The district court did not abuse its discretion when evaluating Zumberge’s hearing impairment and making accommodations to ensure that he could hear the proceedings.

Affirmed.

J. Voigt delivered the decision.

Link: http://tinyurl.com/2c7gs72 .

[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 110

Summary of Decision issued August 5, 2010

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

Case Name: Terris v. Kimmel

Citation: 2010 WY 110

Docket Number: S-10-0028

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

Representing Terris: Katherine D. Peters and Thomas S. Peters of Peters Associates, LLC, Teton Village, Wyoming.

Representing Kimmel: Peter F. Moyer of Jackson, Wyoming.

Facts/Discussion: The Terrises appealed the district court’s Judgment, arising from a dispute relating to a lease agreement with Edwal Enterprises, Inc. and Edward Kimmel as principal (Kimmel.) The Terrises rented a storage unit from Kimmel in 1998 and continued doing so until the summer of 2006. The Terrises were over seven months behind in rental payments when Kimmel and his employees smelled gas fumes coming from the unit. They removed three propane tanks and two gas containers from the unit. Storage of flammable items was prohibited by the lease agreement.

Breach of lease agreement: The lease agreement provided for monthly payment of the rent. The manager of the storage facility was not authorized to amend the written lease agreement. Kimmel testified that he never authorized a modification of the contract and that he sent late payment notices three months prior to entering the storage unit. The Terrises prepared several lists of items they claimed were missing from the storage unit. However, they failed to persuade the district court that the items of personal property they listed as missing had existed or that Kimmel had disposed of them. The Court found nothing in the record to suggest otherwise.
Conversion: The Terrises argued that Kimmel violated the implied covenant of good faith and fair dealing and committed a conversion of their property when he failed to follow the lease agreement which required Kimmel to store or sell their property instead of disposing it at the dump. The claims rely on proof that Kimmel removed and disposed of the property which the Terrises failed to prove.
Attorney’s fees and costs: The Terrises argued that the district court erred by awarding attorney’s fees and costs to Kimmel because at the time of the breach, Kimmel had not yet incurred any fees or costs relating to the breach. The attorney’s fees provision of the lease agreement does not limit the availability of fees and costs only to those arising out of claims initiated by the landlord.

Conclusion: The Terrises failed to prove by clear and convincing evidence that the written lease agreement was modified. Consequently, the district court did not err in finding the Terrises in breach of the lease agreement for failure to make timely rental payments. The Terrises also failed to prove that Kimmel removed or disposed any of the Terrises’ personal property. As a result, the district court did not err in finding that Kimmel had not breached the lease agreement, committed a conversion, acted willfully in violation of the lease agreement, or violated the covenant of good faith and fair dealing. Nor did the district court abuse its discretion in awarding attorney’s fees and costs to Kimmel pursuant to the lease agreement, as those fees and costs were a direct result of the Terrises’ default under the lease agreement.

Affirmed.

J. Voigt delivered the decision.

Link: http://tinyurl.com/2cc2fn8 .

[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 109

Summary of Decision issued August 4, 2010

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

Case Name: Rice v. Collins Communication, Inc.

Citation: 2010 WY 109

Docket Number: S-09-0007

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

Representing Appellant Rice: Jeffrey A. Tennyson of Jeffrey A. Tennyson, PC; and Heather Noble, Jackson, Wyoming.

Representing Appellees: Stuart R. Day and Ryan J. Schwartz of Williams, Porter, Day & Neville, PC, Casper, Wyoming for Collins Communication, Inc.; Roger E. Shumate and James C. Worthen of Murane & Bostwick, LLC, Casper, Wyoming for Communication Technologies, Inc.; Judith Studer of Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming for Campbell County Board of County Commissioners, Campbell County Sheriff and Campbell County Emergency Management Coordinator; and Tom. C. Toner of Yonkee & Toner, LLP, Sheridan, Wyoming for Gillette Wright/Campbell County Fire Protection Joint Powers Board.

Facts/Discussion: Rice’s commercial building caught fire in Campbell County. Because of a failure in the communications/paging system used by the county, almost half an hour passed before there was any formal response to the fire. Rice’s building and its contents were almost totally destroyed. Rice filed suit against several county entities as well as two communications companies alleging negligence.

Collins/ComTech duty of care: Rice claimed that Collins and ComTech owed him a duty of care based upon the Restatement (Second) of Torts. The Court has adopted the Restatement view of voluntary undertakings in the “Good Samaritan” context. Under Rice’s argument, a private corporation doing business with a government entity would owe a duty to a private citizen. The Restatement does not contemplate that sort of expansion. Both Collins and ComTech were supplying services at the request of the county. The Court reviewed the district court’s utilization of the eight factor test to determine the existence of a duty and agreed with its conclusions. The Court addressed in further detail factors one and two.
Governmental immunity – scope of duties: As in Sponsel, the Court applied the same statutory construction rule in the instant case. Although Sponsel recognized that the enumerated utilities in the statute is not an “exclusive” list, the Court could not extend the list to the fire page system at issue in part because of the Court’s holding in Huitt which says that firefighting is not similar to or of the same genre as “gas, electricity, water, solid or liquid waste collection or disposal, heating and ground transportation.” Although the fire page system is not firefighting, the Court rejected Rice’s argument that it qualifies as a public utility. Section 1-39-108 cannot be construed to make a public service of all things that are a “public responsibility.”
Governmental immunity – tortuous conduct of peace officers: Rice claimed that Sheriff Pownall assumed a duty to provide and maintain the communication system, to alert law enforcement and firefighters in the event of an emergency, and to provide a reliable and dependable means for his agency and may other agencies within Campbell County to have interoperable communications in times of emergency. According to Rice, when the Sheriff failed to heed the advice and warnings of private companies that maintained and upgraded the system, he was negligent. Decisions by an elected official regarding expenditures on equipment, type of equipment and replacement parts are within the purview of an elected official’s discretion. The testimony by the Sheriff assured the Court that he knew the system was out of date, and that he was taking steps, in good faith, to replace it.
Governmental immunity – negligent operation of building: Rice also claimed that the County Defendants were not entitled to immunity from liability under §1-39-106. The district court found the section inapplicable, stating the facts do not indicate a building was involved in this instance. The failure of a “repeater” did not implicate negligence in the operation of a building in which it was housed. Rice argued the buildings were various tower sites that house the actual repeaters, transmitters and other communication equipment. Assuming a problem occurred with communication equipment, that equipment does not qualify as a “building” as contemplated by the statute. That communication equipment does not operate as part of the building structure and accordingly its failure does not extend the waiver to any negligence associated with the operation of that communication equipment within the building.

Conclusion: The district court was affirmed on all issues. First, Collins and ComTech owed no duty of care to Rice in operating and maintaining an emergency communications system for Campbell County, when the failure of that system delayed the fire department’s response to the fire that led to the destruction of Rice’s building and property. As to the three governmental immunity claims Rice brought on appeal, there is no waiver of governmental immunity in any of those claims. For purposes of this appeal, the fire page system cannot be considered a public utility under the statute; Sheriff Pownall acted in good faith and within the scope of his duties, and did not exhibit tortuous conduct, and the communication equipment at issue cannot be classified as a “building” for purposes of the statute. Finding no duty, Rice’s fifth and final argument regarding proximate cause was not addressed.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/2dsec7u .

[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 108

Summary of Decision issued August 3, 2010

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

Case Name: Gomez v. State

Citation: 2010 WY 108

Docket Number: S-09-0162

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

Representing Gomez: Diane Lozano, State Public Defender; and Tina N. Kerin, Appellate Counsel, Wyoming Public Defender Program.

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

Facts/Discussion: Gomez challenged the district court’s decision to deny his motion to transfer matters that underlay the appeal to the juvenile court. Gomez was convicted of felony interference with a police officer as well as three misdemeanors; youthful driver with detectable alcohol, reckless driving, and failure to stop vehicle where accident involved death or personal injuries. Gomez was convicted of all the charged crimes. Gomez also challenged the constitutionality of the statute which established the jurisdiction of the juvenile court; claims the evidence was insufficient to sustain the conviction for felony interference with a police officer; asserts that the district court abused its discretion in disallowing evidence from Gomez’s expert witness; and that the district court failed to instruct the jury as to the effect of Gomez’s intoxication at the time the crime was committed.

Constitutionality of juvenile court statutes: Gomez conceded the issue was not raised in the district court. It has been argued that juvenile court procedures used to prosecute children as adults violate Apprendi because adult prosecution results in an increased sentence based upon facts not submitted to a jury or proved beyond a reasonable doubt. The Court concluded the error asserted was not considered in the district court and was not reflected at all by the record on appeal. Further, it did not transgress a clear and unequivocal rule of law.
Refusal of motion to transfer to juvenile court an abuse of discretion: The prosecuting attorney as well as the district court must consider the factors set out in § 14-6-237(a) and (b) as part of the decision-making process. The factors included: the seriousness of the alleged offense to the community (a violent attack on a uniformed police officer); whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner (as alleged by the State, it was all of those); whether alleged offense was against person or property (violent attack on police officer); number four did not apply to the instant case; the sophistication or maturity of the juvenile, his home and school environment, previous history and contacts with law enforcement (long and detailed criminal history); prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (the reasonable likelihood of rehabilitation of a juvenile is just as likely in felony adult court as in juvenile court); and the defendant would be 18 when the case went to trial. The Court reviewed the record and concluded the district court did not abuse its discretion.
Sufficiency of the evidence – attempt to cause bodily harm: Gomez contended the caption of the instruction contained the word “attempt” although the elements portion of the instruction did not which made the crime at issue a “specific intent” crime. He also argued that the evidence failed to prove that his specific intent was to cause bodily harm to the officer. The Court deemed the variance between the caption and the instruction was an error that was harmless beyond a reasonable doubt under the circumstances of the case. The specific enumeration of the elements in the body of the instruction informed the jury of the evidence the State was required to produce in order to justify a conviction.
Trial court’s limitation of expert witness testimony: The expert’s theory was that Gomez’s view of the officer was obscured by trees, darkness, and the snowy/rainy weather. The Court saw no indication in the record that the district court frustrated the expert witness’s ability to fully explain his take on the accident scene.
Instruction on voluntary intoxication: Gomez’s defense was that his view was so obstructed that he could not see the officer or his car – not that he was too intoxicated to form specific intent. If he had defended on the basis that he was too intoxicated to form specific intent then he would have been entitled to such an instruction.

Conclusion: Although the Court’s review of most of the issues was limited by the plain error rule, the Court held there was not a clear and unequivocal rule of law that would persuade it to decide that the Wyoming juvenile court statute runs afoul of the rule articulated by the United States Supreme Court in Apprendi. The district court did not abuse its discretion in denying Gomez’s motion to transfer his case to juvenile court. The State’s evidence was sufficient to sustain the conviction of Gomez for intentionally causing bodily harm to a peace office in the performance of his duties. The testimony of Gomez’s expert witness was not curtailed in a way that constituted either an abuse of discretion by the district court, or a violation of Gomez’s right to compulsory process. Finally, the district court did not commit error in failing to sua sponte instruct the jury with respect to voluntary intoxication.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/2u9a24h .

[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 107

Summary of Decision issued July 30, 2010

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

Case Name: Frazier v. State

Citation: 2010 WY 107

Docket Number: S-09-0205

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

Representing Frazier: Dion J. Custis, Dion J. Custis, PC, Cheyenne, Wyoming.

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

Facts/Discussion: Frazier entered a conditional plea of guilty to one count of possessing marijuana with the intent to deliver. He reserved the right to appeal the district court’s denial of his motion to suppress. Frazier maintains that evidence obtained in the search of the vehicle should have been suppressed because no reasonable suspicion existed to detain him for a dog sniff of his vehicle following the conclusion of a traffic stop.

Initial stop: During the initial stop for the offending license plate bracket, while writing the warning ticket, the Trooper asked Frazier about his travel plans. The few questions relating to travel plans were not unreasonable.
Consent to additional questioning: After Frazier exited the patrol car with the warning, the Trooper initiated additional questioning to which Frazier contends he did not voluntarily consent. The Trooper asked if he could ask a few more questions, Frazier responded affirmatively and the Trooper commented that he didn’t have to answer any more questions if he didn’t want to. Frazier did not identify the presence of other coercive factors that might have affected his decision to answer more questions. Under these circumstances, a reasonable person would feel free to decline the Trooper’s requests.
Detention until canine unit arrived: Once the Trooper asked for permission to search the car and Frazier declined, the detention was no longer consensual and required reasonable suspicion. The Trooper noted four factors he relied upon that led to his suspicion that Frazier was transporting illegal drugs: his inconsistent travel plans, odor suppressing agents, the map open to California, and the persistent and extreme nervousness. Each of the factors might be innocent but under the totality of the circumstances test, individually innocuous factors can combine to arouse a reasonable suspicion for the experienced officer.
Length of detention: The Trooper called for the canine unit immediately after Frazier was informed he was detained. There was a 53 minute wait for the canine unit to arrive. The Court found previously that similar waiting times did not violate the Fourth Amendment.

Conclusion: The district court’s decision on the motion to suppress was not clearly erroneous.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/25tp5tb .

[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 106

Summary of Decision issued July 30, 2010

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

Case Name: Oakley, Fremont County Assessor v. Fremont County Cmty. Coll. Dist.

Citation: 2010 WY 106

Docket Number: S-09-0261

Appeal from the District Court of Fremont County, the Honorable Norma E. Young, Judge.

Representing Oakley: Jodi A. Darrough, Fremont County Attorney’s Office, Lander, Wyoming.

Representing Fremont County Community College District: Frank B. Watkins of Watkins, PC, Riverton, Wyoming.

Facts/Discussion: The Fremont County Assessor (the Assessor) appealed from a decision of the district court exempting from taxation certain property in Riverton owned by Central Wyoming College (CWC). The parties agreed the sole issue was whether certain lots within CWC’s business park were exempt from taxation based on their current use.
The parties agreed that the CWC property was tax exempt if used primarily for a governmental purpose. CWC asserted that the business park property was intended to enhance the educational purpose of the college and the leased property generated revenue that was used for the college’s support and maintenance. The Assessor contended the lessee’s use of the property was clearly non-governmental and therefore was taxable.
Article 15, § 12 of the Wyoming Constitution was amended to provide an exemption for governmental property only when used primarily for a governmental purpose. The Court has acknowledged that property use is the critical issue in determining tax-exempt status. The mere ownership of property by a governmental entity does not exempt the property. The property at issue is part of a business park. The tenants that have leased property are all private, for-profit businesses. The businesses are lessees only and are not managed by, controlled by, or affiliated with CWC. The lessees do not appear to be reasonably necessary or essential to the operation of CWC. If there was some tangential use of the property by CWC faculty, staff, or students, it has not been demonstrated that such use was primarily governmental. The district court correctly pointed out that we want to avoid a tax spiral where the government is taxing itself to pay itself. In this case, the for-profit tenants will likely have the tax assessment passed on to them. This will avoid the tax spiral and result in the tenants being placed on equal footing with the competitor businesses who don’t lease from government entities.

Conclusion: The for-profit tenants’ use of CWC’s business park property was clearly non-governmental and not necessary or essential to facilitate the efficient operation and maintenance of the college. Therefore the property is not tax exempt pursuant to Article 15, § 12 of the Wyoming Constitution. The decisions of the Fremont County Assessor and Board of Equalization are affirmed and the district court was reversed.

Reversed.

Dist.J. Brooks delivered the decision.

Link: http://tinyurl.com/2eeq927 .

[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 105

Summary of Decision issued July 30, 2010

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

Case Name: Scherer, II v. Laramie Regional Airport Board

Citation: 2010 WY 105

Docket Number: S-09-0196

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

Representing Scherer: Theodore C. Preston of Prehoda, Leonard & Edwards, LLC, Laramie, Wyoming.

Representing Laramie Regional Airport Board: Matthew F.G. Castano of Brown & Hiser LLC, Laramie, Wyoming.

Facts/Discussion: Scherer appealed the judgment of the district court, entered after an unreported bench trial, that awarded Laramie Regional Airport Board (Board) $88,112.97 on its complaint that Scherer had breached paragraph 19 of the parties’ lease agreement which required Scherer to “keep the leased premises and adjacent area clean, orderly, and free of accumulated trash at his own expense.”
Scherer purchased a Quonset hut from the Board in the mid-1980’s. The parties executed a 20-year lease of the land underlying the hut located on Brees Field Airport near Laramie. Scherer used the hut as storage after operating an air freight business on the property. The lease expired in 2005 and according to the lease Scherer was to remove the hut at his own expense within 60 days of the expiration of the lease. He did not do so and neither did the Board until 2007. The Board filed a complaint against Scherer for the cost of restoring the leased property.
Scherer contended the district court’s interpretation created a conflict between paragraph 10 and 19. Scherer argued that he bore the expense of removal under only two scenarios: if he removed the hut within 60 days after the lease expired or if the Board removed the hut within 60 days after he failed to remove the hut. Because neither he nor the Board removed the hut within those specific timeframes, he must not bear the expense. Secondly, Scherer argued that the district court’s judgment was based on a factual error that restoration of the leased premises to its pre-lease condition required demolition of the hut. It was undisputed that the hut was present on the lease premises before the lease was executed. He argued that logically the hut’s demolition would not restore the leased premises to its pre-lease condition.
The district court stated that Scherer could do as he pleased with the hut during the lease. The lease contemplated potential transfer of the hut to the Board at the expiration of the lease, therefore the provision requiring him to keep the hut clean, orderly, and free of accumulated trash was reasonable and prudent. The lease provided protection to the Board against Scherer trashing the hut and then handing ownership of it to the Board by failing to remove it within the 60 day time period.

Conclusion: As the Court construed the lease, paragraphs 10 and 19 were unambiguous and clearly not in conflict. The Court’s construction of the lease between the Board and Scherer achieves, as did the district court’s construction, the objective of finding a reasonable construction which does not render meaningless any provision of the lease. The lease terms are unambiguous and paragraphs 10 and 19 are reconcilable as each provision serves a distinct purpose. The construction considered the lease as a whole keeping in mind the parties’ situation when the lease was executed, its subject matter, and the purposes of its execution.

Affirmed.

J. Golden delivered the decision.

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

[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 104

Summary of Decision issued July 29, 2010

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

Case Name: Jost, M.D. v. Goss

Citation: 2010 WY 104

Docket Number: S-10-0149

Order Granting Petition for Writ of Review

The matter came before the Court upon a “Petition for Writ of Review.” The Court found it appropriate to rule without further briefing. The court found the petition should be granted and that the “Order Denying Motion to Dismiss” filed by Jost and Memorial Hospital should be reversed in part.
The Court found two problems with the district court’s ruling. First, in the first quoted paragraph, the district court appears to be using the date of discovery of the act, error, or omission as the date of the act, error, or omission. The district court did not determine (even for the limited purpose of a motion to dismiss) the date of the act, error, or omission. That date must be determined before it can be concluded that the Respondents timely filed their governmental claim within the two year period.
In the second paragraph, the Court disagreed with the district court’s statement that the date of discovery of the employment relationship “may be of little consequence.”

Petition for Writ of Review granted; “Order Denying Motion to Dismiss Filed Herein by Defendants Jost and Memorial Hospital” partially reversed and remanded to the district court.

C.J. Kite delivered the decision.

Link: http://tinyurl.com/2fc7ney .

[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 103

Summary of Decision issued July 28, 2010

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

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

Citation: 2010 WY 103

Docket Number: S-09-0191

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

Representing Herrera: 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; Kristen J. Hanna, Senior Assistant Attorney General.

Facts/Discussion: After sustaining a work-related injury ultimately requiring amputation of his right index finger, Herrera began taking an anti-depressant medication. The Wyoming Workers’ Safety and Compensation Division (Division) paid for the medication for two years and then denied further payment. Herrera objected and, after a contested case hearing, the OAH awarded him benefits. The Division sought review in district court and the district court reversed the award.
Herrera contended the OAH’s determination that he was entitled to benefits was supported by substantial evidence and must be affirmed. He pointed to his testimony that his physician prescribed Lexapro for pain, numbness and depression. He noted that when he stopped taking the drug, his pain increased, which caused his blood pressure to rise and when he resumed taking it, those physical symptoms subsided. The Division contended the evidence showed Lexapro was prescribed to treat Herrera’s agitation, stress, anxiety and depression. The Division contended that Herrera had the burden of proving that Lexapro was for treatment of physical injuries in the absence of a mental health diagnosis. Previous cases have not required the Court to consider the question of whether substantial evidence supported the OAH’s findings and conclusions that medication prescribed for a mental injury was also prescribed to treat a claimant’s physical injury, making § 27-14-102(a)(xi)(J) inapplicable. The Court agreed with a recent Louisiana decision which held that the statute applied only when the claimant was alleged to be disabled as the result of a mental injury or illness.
The Division asserted the district court properly reversed the ruling because the OAH relied almost exclusively on Herrera’s testimony. The Court stated again that the testimony of an injured worker alone is sufficient to prove an accident if there is nothing to impeach or discredit the worker’s testimony, and the worker’s statements are corroborated by surrounding circumstances. Here, the Division presented no evidence to impeach or discredit Herrera’s testimony and his testimony was corroborated by medical records showing that he was treated with Lexapro for pain and numbness, as well as for depression.

Conclusion: There was no dispute concerning the incident that caused Herrera’s injury; therefore medical testimony was not required to establish that causal connection. The only question was whether Lexapro was prescribed solely to treat mental injuries or whether it was intended to treat Herrera’s physical injury, specifically the pain and high blood pressure caused by the pain. Through his own testimony, Herrera sufficiently established that the Lexapro treated his physical injuries.

Reversed and remanded for reinstatement of the OAH’s order awarding benefits.

C.J. Kite delivered the decision.

Link: http://tinyurl.com/24ezj4d .

[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 102

Summary of Decision issued July 28, 2010

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

Case Name: Rivers v. Moore, Myers & Garland, LLC

Citation: 2010 WY 102

Docket Number: S-09-0048

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

Representing Rivers: Eldon E. Silverman of Preeo, Silverman, Green & Egle, PC, Denver, Colorado.

Representing Moore, Myers & Garland, LLC.: W.W. Reeves and Anna Reeves Olson of Park Street Law Office, Casper, Wyoming.

Facts/Discussion: Rivers filed a complaint against the law firm of Moore, Myers & Garland, LLC, (the Firm) alleging legal malpractice in the Firm’s representation of him in his purchase of property on which he planned to construct a medical office building. Among the damages Rivers alleged were “expectancy” damages, the difference between the value of the larger building Rivers planned to build and the smaller building he was ultimately permitted to build under the property’s restrictive covenants. Rivers appealed the district court’s entry of summary judgment against him on his claim that the Firm’s breach of duty to competently represent him was the proximate cause of the alleged expectancy damages.

Summary judgment grounds: The elements of a legal malpractice claim are: the existence of a duty arising from the attorney/client relationship; the accepted standard of legal care; and the departure by the attorney from the standard of care which causes harm to the client. Rivers’ claim for expectancy damages was premised on the contention that if the Firm had fulfilled its duty to adequately represent Rivers, and had done so without delay, Rivers would have been able to build a 10,000 square foot building on Lot 7. As the district court concluded, that premise found no support in the record. The record was devoid of any indication that the Firm’s conduct was a substantial factor in Rivers’ inability to build his desired 10,000 square foot building. Rivers argued that the Firm failed to present affidavits showing that Smith’s would not have agreed to a 10,000 square foot building if the Firm had acted expeditiously. Rivers contended that a genuine issue of material fact existed as to the question of causation and the entry of summary judgment was contrary to W.R.C.P. 56. Both Rule 56 and the Court’s definition of materiality permit consideration of the pleadings with or without affidavits, to determine whether summary judgment is proper. Rivers alleged that had he been adequately advised of the limitations imposed by the restrictive covenants, he would not have purchased Smith’s property. He did not make a claim in the pleadings that but for the Firm’s actions, Smith’s would have agreed to the larger building. Rivers’ late coming allegations were insufficient to stave off summary judgment. A party cannot avoid it by demanding affidavits, or any other evidence, against an allegation that was never pled.
Secondly, Rivers argued that the record contained evidence that the Firm’s conduct caused Rivers’ expectancy damages. Rivers’ expert attempted to impermissibly shift Rivers’ business loss to the Firm without showing that the loss suffered was in fact caused by the Firm’s alleged malpractice. The district court correctly rejected the evidence and concluded that Rivers’ claim for expectancy damages failed as a matter of law.
Loss-of-chance doctrine: Rivers asserted that summary judgment was improper because there were genuine issues of material fact as to whether Rivers may recover those damages under the loss-of-chance doctrine. The district court rejected the argument on the ground that the doctrine applies only where a plaintiff can show a physical injury to person or property. The Court noted that the loss-of-chance doctrine typically arises when a plaintiff seeks to recover damages against a medical provider who had reduced the plaintiff’s chances of survival. To prevail, the plaintiff must show: that the patient has been deprived of the chance for successful treatment; and that the decreased chance for successful treatment more likely than not resulted from the provider’s negligence. The Court stated the instant case did not present circumstances in which the odds must be calculated to determine whether an opportunity was lost. Even if it did, Rivers had not designated an expert to testify as to the basis for quantifying the percentage chance that may have been lost by the Firm’s alleged malpractice. The Court noted that this decision did not declare that there can never be a circumstance under which the loss-of-chance doctrine may apply to a legal malpractice claim.

Conclusion: The record contained no evidence or pleadings in support of Rivers’ claim for expectancy damages, and the case does not present circumstances that would compel extension of the loss-of-chance doctrine to legal malpractice claims. The district court thus properly granted the Firm’s motion for partial summary judgment.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/2a9z9tt .

[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 101

Summary of Decision issued July 20, 2010

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

Case Name: Sorensen v. State Farm Auto. Ins. Co.

Citation: 2010 WY 101

Docket Number: S-09-0174

Original Proceeding, Petition for Writ of Review, District Court of Natrona County, the Honorable David B. Park, Judge

Representing Sorensen: R. Todd Ingram of Clapp, Ingram & Olheiser, PC, Casper, Wyoming.

Representing State Farm: Billie Ruth Edwards of Edwards & Johnson, LLC, Cheyenne, Wyoming.

Facts/Discussion: Sorensen co-owned a vehicle with Jean Larramendy III. Larramendy Jr. was driving it when he collided with another vehicle being driven by State Farm’s insured. The Sorensen/Larramendy vehicle was uninsured at the time. State Farm filed a complaint against Larramendy III, Larramendy Jr. and Sorensen. State Farm alleged that Sorensen violated Wyoming law by failing to maintain insurance on her vehicle, its insureds sustained damages as a result and it was subrogated to its insureds’ right to recover the damages from Sorensen. The Court was asked to decide whether a party who alleges that he sustained damages in a collision caused by the driver of an uninsured vehicle has, in addition to his cause of action against the negligent driver, a cause of action in tort against the vehicle’s owner for negligently failing to maintain liability insurance.
The duty alleged to have been owed was that of Ms. Sorensen to members of the general public to maintain liability insurance on her vehicle. In order to withstand dismissal of its complaint, State Farm had to establish that: Sorensen was under a duty of care to protect its insureds from being unable to obtain compensation for their damages caused in the collision through an insurance policy covering her vehicle; she breached the duty by failing to maintain liability insurance; State Farm’s insureds suffered the damages alleged and Sorensen’s breach of duty to maintain liability insurance proximately caused the insureds’ damages. Giving the words in the statute their plain and ordinary meaning, § 31-4-103 requires vehicle owners to maintain liability insurance on their vehicles. Nothing in the plain language suggests that in enacting the provision the legislature intended to impose a new tort duty owed by vehicle owners to the general public to maintain insurance.
Before a statute can be said to establish a standard of care, there must be a duty to which the statutory standard of care can be applied. The Court considered whether such a relationship exists between members of the public and a vehicle owner that the law will impose a duty actionable in negligence on the latter to maintain insurance for the protection of the former. The Court considered the Gates factors to determine whether the parties’ relationship in the present case was such that the law ought to impose a duty on Sorensen for the benefit of State Farm’s insureds. The Court concluded it was not foreseeable that Sorensen’s failure to maintain liability insurance would result in State Farm’s insured’s being struck by a negligent driver and being unable to obtain compensation for their damages from him. Next, the Court considered the closeness of any connection between the damage State Farm alleged its insureds sustained and Sorensen’s failure to maintain liability insurance. The property damages to the insured’s vehicle were closely connected with the driver’s failure to exercise reasonable care in operating Sorensen’s vehicle and not with her failure to maintain insurance. The parties do not dispute that the insureds sustained damages to their car in the collision with Sorensen’s vehicle. Serious misconduct may increase the scope of the persons who are entitled to protection afforded by the imposition of a duty. The prevalence of uninsured motorist coverage reduces the chances of damages that may result from lack of insurance. Criminal sanctions are more likely to prevent future harm than a tort duty to maintain liability insurance. Although there may positive consequences from recognizing a tort duty to maintain insurance actionable in negligence, the Court was not convinced they outweighed the negative consequences of imposing tort liability on one individual for the more direct negligence of another. There is insurance available to cover the risk involved. Absent a duty, there is no actionable negligence claim.

Conclusion: The Court’s determination that § 31-4-103 does not give rise to a cause of action in negligence for failure to maintain liability insurance is based primarily on the conclusion that neither the statute nor the common law impose a tort duty on vehicle owners owed to the general public. Because there is no duty, there is no actionable claim for negligence, and a discussion of the issue of proximate cause is not required. Wyoming follows the economic loss rule which bars recovery in tort when a plaintiff claims purely economic damages unaccompanied by physical injury to persons or property. Therefore, as in Hundemer, to the extent the injury State Farm alleged was its insureds’ inability to recover under an insurance policy issued to Sorensen, the injury is purely economic and is prohibited under the economic loss rule.

Reversed.

C.J. Kite delivered the decision.

Link: http://tinyurl.com/2d998zn .

[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.]