2010 WY 132

Summary of Decision issued September 30, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Daskalakis v. Resor

Citation: 2010 WY 132

Docket Number: S-10-0094

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

Representing Appellant (Plaintiff): Basile S. Daskalakis, Pro se


Representing Appellee (Defendant): Matthew E. Turner of Mullikin, Larson & Swift, Jackson, Wyoming

Date of Decision: September 30, 2010

Facts: Appellant appeals the district court’s order granting summary judgment to Appellees in an action which Appellant asserted various claims against Appellees, including claims for personal injury, excess utility charges, wrongful termination of employment, and wrongful eviction.

Holdings: Although Appellees have responded to the substance of the appeal, to the extent they can make some sense of it, they raise a preliminary question concerning Appellant’s failure to comply with the requirement of Rule 7.01(e)(2) of the Wyoming Rules of Appellate Procedure, that his brief contain a statement of the facts relevant to the issues presented for review with appropriate references to documents in the index of the transmitted record. Appellees’ question is well-taken. There are other instances of non-compliance with the appellate procedural rules in Appellant’s brief, namely, his brief does not contain a table of cases alphabetically arranged and other authorities cited with references to the pages in the brief where they appear, W.R.A.P. 7.01(c); his brief does not contain any cogent argument and does not contain a concise statement of the applicable standard of review for each issue. W.R.A.P. 7.01(f)(1) and (2). The failure of Appellant to comply with these rule requirements is ground for such action as the Court deems appropriate, including affirmance of the district court’s judgment. Exercising discretion under W.R.A.P. 1.03, the district court’s summary judgment order in favor of Appellees is summarily affirmed.

J. Golden delivered the opinion for the court.

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

Summary 2010 WY 128

Summary of Decision issued September 22, 2010

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

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

Citation: 2010 WY 128

Docket Number: S-09-0165

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

Representing Ball: George Santini of Ross, Ross & Santini, LLC, Cheyenne, Wyoming.

Representing State: Bruce A. Salzburg, Attorney General; John W. Renneisen, Deputy Attorney General; James M. Causey, Senior Assistant Attorney General; Cara Boyle Chambers, Assistant Attorney General.

Facts/Discussion: Ball appealed the district court decision reversing an OAH order awarding benefits for medical treatments Ball received for a hernia. Ball suffered the hernia when a spinal cord stimulator, implanted to treat chronic back pain form an earlier compensable work-related injury, malfunctioned and shocked him causing him to stand rapidly and then fall.

Second compensable injury rule: The Division contended the second compensable injury rule is a common law remedy that conflicts with the hernia statute and thus cannot be applied to a hernia injury. The Court disagreed. Under the second compensable injury rule, a subsequent injury or condition is compensable if it is causally linked to the initial compensable injury. It is a causation analysis and not a court-created benefit or remedy.
Hernia statute: The hernia statute unambiguously requires an employee’s injury to satisfy all criteria in the statute to be compensable. The statute does not create any exceptions to its application, and the Court would have to read terms into the statute to create an exception for hernias that are second compensable injuries. The present dispute is centered on the meaning of the phrase: “in the course of employment” as it is used in the third element of the hernia statute. Ball contended that the phrase meant a hernia is compensable if it is found to be causally related to the employee’s original work injury, assuming all of the other elements of the statute are met. The Division contended that the phrase meant the hernia must have been the original injury and must have occurred in the workplace to be compensable. The Court found Ball’s position to be the more persuasive as it is in keeping with the plain language and context of the hernia statute as well as the legislative intent. The Division’s proposed bright line rule, that a hernia must occur in the workplace and be the original work injury, disregarded the merits of an actual causal relationship between a hernia injury and the employee’s work and thus achieved a result opposite of that intended by the legislature.
Quasi-employment doctrine: The hearing examiner did not rely on the quasi-employment doctrine in finding a causal connection between Ball’s original work injury and his hernia. There was therefore, no error related to that doctrine.

Conclusion: The hearing examiner’s finding that the authorized medical treatment for Ball’s original work injury caused his subsequent hernia is uncontested, and the district court erred in holding that benefits were barred on the ground that the second compensable injury rule could not be applied.

Reversed and remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/2ft9mf2 .

[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 127

Summary of Decision issued September 21, 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 127

Docket Number: S-10-0016

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

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

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

Facts/Discussion: Dougherty challenged his conviction for child endangerment. He claimed § 6-4-403(b)(iii) which makes it a crime to knowingly commit any indecent or obscene act in the presence of a child, is constitutionally vague. He also asserted the district court improperly instructed the jury.

Facial Challenge: The Court was asked to decide whether the statute provided a standard of conduct. In analyzing the constitutionality of § 6-4-403(b)(iii) the Court looked to cases with similar statutory language. It noted that while the statutory terms “indecent” and “obscene” were somewhat imprecise, they are generally regarded as synonymous and “indecent” has been defined in prior cases, thereby providing the ordinary citizen with notice of the types of conduct that are prohibited. Further, the statute only criminalizes indecent or obscene acts when in the presence of a child (defined as a person under the age of sixteen.) given the statute cannot be said to provide “no standard at all,” it is not unconstitutional on its face.
“As applied” challenge: The standard of review requires the Court to accept the State’s view of the facts. Utilizing that standard, the Court accepted that Dougherty was masturbating in the presence of a little girl. Moreover, the Court has recognized that masturbation in the presence of a child is “indecent” under the indecent liberties statute.
Variance/constructive amendment: Dougherty claimed there was a fatal variance between the information and the jury instructions and/or a constructive amendment to the charge at trial. A constructive amendment occurs when the evidence presented at trial, together with the jury instructions, alter the charge so much that the defendant is convicted of a different crime than was charged. The information contained the details of the charged crime while the jury instruction did not. The State’s theory of the case remained consistent giving Dougherty sufficient notice of the charges and the facts which would be presented a trial. Dougherty claimed that by failing to provide the particulars to the jury in the instructions, the charge was constructively amended. United States v. Bishop was not applicable to the instant case because unlike it, the evidence presented at Dougherty’s trial did not differ from that included in the information. Here, the jury was instructed to determine whether his conduct was indecent or obscene. There was no possible alternative offense at issue in the trial and therefore, no possibility that he was convicted of an offense not included in the charging document.
Jury instructions: Dougherty did not establish that under the circumstances of the instant case, the district court violated a clear and unequivocal rule of law by treating the terms “obscene or indecent” as a single element and not providing a special verdict form to force the jury to choose between the alternatives. Even if a special verdict form should have been used, the Court can still uphold a conviction if there is sufficient evidence of each alternative.

Conclusion: The Court concluded the statute was sufficiently definite and the jury instructions were not erroneous.

Affirmed.

C.J. Kite delivered the decision.

J. Voigt, specially concurring, joined by J. Hill: The Court has previously found statutory language such as this to be constitutional, so the Justice concurred. He wrote separately to voice his continued difficulty with a criminal statute that is so broadly drawn. It is not up to juries to be pointing out, after the fact, what conduct is criminal; that is a legislative task.

Link: http://tinyurl.com/2bjqaz8 .

[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 126

Summary of Decision issued September 14, 2010

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

Case Name: Dollarhide v. Bancroft

Citation: 2010 WY 126

Docket Number: S-10-0023

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

Representing Dollarhide: Weston W. Reeves and Anna M. Reeves Olson of Park Street Law Office, Casper, Wyoming.

Representing Bancroft, Shattuck and Johnson: Richard A. Mincer of Hirst Applegate, LLP, Cheyenne, Wyoming; John A. Sundahl of Sundahl, Powers, Kapp & Martin, LLC, Cheyenne, Wyoming; L. Kathleen Chaney of Lambdin & Chaney, LLC, Denver, Colorado.

Facts/Discussion: In 2001, while employed as a carpenter by Bancroft Construction, Inc., in Teton County, Wyoming, Dollarhide was injured when the raised wooden platform upon which he was standing crashed to the ground. Dollarhide obtained benefits from the Wyoming Worker’s Compensation fund, but also filed a co-employee liability action against Bancroft, the owner of the company, and Shattuck, the company’s general construction superintendent. That action subsequently was consolidated with a similar action by Dollarhide against Johnson, the company’s project superintendent.

Abuse of discretion in granting Bancroft’s motion for mistrial and assessing costs against Dollarhide: The gravamen of the mistrial motion, as well as the district court’s rationale for granting the motion, was that Dollarhide’s counsel had irrevocably tainted the jury by telling it, in effect, that Judge Guthrie had found Dollarhide to have a valid case against the defendants. It is the law that granting a mistrial is an extreme and drastic remedy and at the same time, it is the law that the trial court is in the best position to assess the prejudicial impact of such an error. Comments such as those made in the instant case can have a marked tendency to influence a jury in its analysis. Similar to the Court’s reasoning in State Farm Mutual Auto Ins. Co. v. Resnick, the Court found that the harm engendered by the comment was sufficiently pervasive and prejudicial to negate any curative value the judge’s subsequent instructions might have had.
The Court reviews the award or denial of costs and sanctions after a mistrial for an abuse of discretion. The district court ordered Dollarhide to pay for the jury costs attributable to the mistrial but denied the defendants’ requests for costs and attorney’s fees attributable to the mistrial. The decision as to costs is a matter for the trial court’s discretion. The Court saw no abuse of that discretion.
Abuse of discretion in denying Dollarhide’s motion for entry of default: A dramatic change to Johnson’s testimony occurred which caused his deposition to be re-opened. He admitted that he knew that wooden platforms were being used to work from by Bancroft employees. His previous testimony denied such activity as did those of the other defendants, Shattuck and Bancroft. Dollarhide argued that monetary sanctions were insufficient in the face of perjury, especially where that perjury lies at the heart of a “fraud on the court.” Whether a court chooses to impose a sanction as severe as dismissal or default is a matter left to that court’s discretion. The Court noted that Johnson recanted prior to trial and was re-deposed, cross-examined and impeached; the complicity of Bancroft and Shattuck was surmised by the district court but not found by the jury because the jury found in favor of the defendants. Additionally, the district court did not ignore the alleged misconduct imposing a sanction of $29,044.31.

Conclusion: The district court did not abuse its discretion in granting the motion for a mistrial, in denying the motion to enter a default, or in its costs and sanctions orders.

Affirmed.

J. Voigt delivered the decision.

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

[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 125

Summary of Decision issued September 8, 2010

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

Case Name: Ramos v. State

Citation: 2010 WY 125

Docket Number: S-10-0106

Order Affirming the Judgment and Sentence of the District Court

The matter came before the Court upon its own motion following notification that Ramos failed to file a pro se brief within the time allotted. On July 13, 2010, the Court entered its Order Granting Permission for Court Appointed Counsel to Withdraw. That Order provided that the District Court’s Judgment and Sentence would be affirmed unless Ramos filed a brief prior to August 27, 2010 which persuaded the Court that the appeal was not frivolous. Since Ramos failed to file a brief or other pleading within the time allotted, the Court affirmed the district court’s Judgment and Sentence.

C.J. Kite delivered the Order.

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

[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 124

Summary of Decision issued September 3, 2010

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

Case Name: Hall v. Park County

Citation: 2010 WY 124

Docket Number: S-10-0015

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

Representing Hall: M. Jalie Meinecke of Meinecke & Sitz, LLC, Cody, Wyoming.

Representing Park County: Larry B. Jones and William L. Simpson of Simpson, Kepler & Edwards, LLC, The Cody Wyoming division of Burg Simpson Eldredge Hersh and Jardine, PC.

Facts/Discussion: This is an appeal from a district court order dismissing Hall’s complaint for lack of subject matter jurisdiction. Hall’s minivan was struck by a County road grader. She presented a claim in 2008 seeking compensation for personal injury and property damages. In 2009, Hall filed a complaint against the County based on that claim. The County responded with a motion to dismiss asserting the district court lacked subject matter jurisdiction because the complaint did not allege compliance with the requirements of Article 16, § 7 of the Wyoming Constitution. It was dismissed with prejudice because the one-year period of limitations for bringing an action under the WGCA had passed.
Hall did not appeal the dismissal of her complaint. Instead she filed a new complaint in a separate civil action with the same averments as the first complaint but with additional language alleging compliance with the state constitution and with a copy of her governmental claim attached.
The Court noted that, there having been no appeal from the dismissal of the first complaint, and the second dismissal not having been based upon the substance of the second complaint, the question of whether or not either complaint complied with statutory or constitutional requirements was not before the Court. The determination that the savings statute did not apply to the period of limitations found in the WGCA foreclosed any need to consider whether a dismissal with prejudice was an adjudication on the merits under the savings statute.
It is uncontroverted that, under the WGCA, immunity is the rule, and liability the exception. The Court has not previously considered the issue, but other courts have held that, absent specific statutory provisions to the contrary, the doctrine of immunity precludes application of the savings statute in cases involving governmental claims. The language of § 1-39-114 is clear: actions against governmental entities are “forever barred” unless commenced within one year after presentment of the claim. There was no appeal of the dismissal of the first district court case filed by Hall and the second district court case filed by her was filed outside the statutory period of limitations. The “closed ended” WGCA does not provide for liability beyond its specific provisions and there is no provision within the WGCA for application of the savings statute, which is not part of the Act, to causes of action thereunder.

Conclusion: The savings statute does not apply to actions filed under the WGCA. Consequently, the district court correctly determined that it did not have subject matter jurisdiction over Hall’s second civil action, and correctly dismissed it.

Dismissed.

J. Voigt delivered the decision.

C. J. Kite dissented, joined by J. Burke: The Justices disagreed that the savings statute did not apply to cases brought under the WGCA. Hall commenced her action in due time within the meaning of § 1-3-118 and Rule 3(b). W.R.C.P. 41(b) makes it clear that a dismissal for lack of jurisdiction is not an adjudication on the merits. Under the savings statute, therefore, Hall was entitled to commence a new action within one year after the July 2009 order of dismissal. Her new action, filed July 27, 2009 was timely and the district court’s order dismissing it for lack of subject matter jurisdiction should be reversed. C. J. Kite would have concluded that if the legislature had intended the savings statute not to apply, it would have said so.

Link: http://tinyurl.com/2ce2z24 .

[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.]