Law Library Letter: February 2011

Friday, February 25, 2011

Summary 2011 WY 35

Summary of Decision February 25, 2011

[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: Brown v. City of Casper

Citation: 2011 WY 35

Docket Number: S-09-0263

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461785

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

Representing Appellant: Thomas A. Valdez and Tamara K. Schroeder of Chapman Valdez, Casper, Wyoming.

Representing Appellee City of Casper: Patrick J. Murphy of Williams, Porter, Day & Neville, Casper, Wyoming.

Representing Appellee Eric E. Walters: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; and Thomas W. Rumpke, Senior Assistant Attorney General.

Date of Decision: February 25, 2011

Facts: Appellant was injured when the vehicle he was driving was struck by a vehicle driven by Appellee Walters. Appellant presented a notice of claim to the Appellee City and subsequently filed a complaint in district court. The district court dismissed the complaint, finding that it lacked subject matter jurisdiction because Appellant failed to allege that he complied with the constitutional requirements for maintaining an action against a governmental entity.

Issues: Whether the District Court abused its discretion in refusing to allow Appellant to amend his complaint to correct a deficiency in an allegation and to conform to the undisputed facts of the case. Whether the District Court erred in ruling that the allegations contained in the Complaint, when viewed in the light most favorable to Appellant did not sufficiently allege the prerequisites for the District Court’s subject matter jurisdiction. Whether the judicially created rules for pleading a governmental claim lead to injustice and are against public policy and should be abolished.

Holdings: While there is no question that presentation of a notice of claim is constitutionally and statutorily required before an action can be brought against a government entity, the rule the understandably but mistakenly attributed to a statement made in Board of Trustees of UW v. Bell, 662 P.2d 410 (Wyo. 1983) that district court jurisdiction is not invoked unless the complaint alleges compliance with the constitution and statute is inconsistent with prior precedent as well as statutory and constitutional provisions granting jurisdiction over these cases to the district courts. The Court resolves the inconsistency with prior precedent and holds that subject matter jurisdiction is invoked upon the filing of a complaint alleging a claim against a governmental entity. The Court will continue to require that complaints alleging claims against governmental entities must allege compliance with the statutory and constitutional provisions governing notices of claim. See Wyo. Stat. 1-39-113(d) (2010). However, in cases where a notice of claim has been properly presented but the complaint fails to allege that fact, district courts have the discretion to allow amendment of the complaint to cure the failure.

A litigant’s failure to allege compliance with the constitutional and statutory requirements does not and cannot affect a court’s subject matter jurisdiction to act. Pursuant to the constitution and the statute, the district courts have jurisdiction to hear and decide actions brought against governmental entities, whether or not compliance is alleged, if a notice of claim complying with the constitutional and statutory requirements has been presented. District courts also have jurisdiction to allow the amendment of a complaint to allege presentation of a notice of claim complying with the statute and constitution when such a notice was in fact timely presented. To the extent that Bell and its progeny held otherwise, those decisions are overruled.

In the instant case, the district court obtained subject matter jurisdiction of this action when Appellant filed his complaint alleging that he had complied with the requirements of the WGCA by presenting a notice of claim pursuant to Wyo. Stat. 1-39-113 to the Appellee City. Jurisdiction having been invoked by the filing of a complaint alleging a cause of action against a governmental entity, and thus a case within the general class over which the court’s authority extends, the district court had the power to hear and decide the case and enter judgment. To avoid dismissal of his complaint, it was incumbent upon Appellant to show that he had satisfied the condition precedent to maintaining an action against the City. Specifically, he had to show that within two years of the collision giving rise to his injuries he presented to the City an itemized statement in writing certified under penalty of perjury. When, in response to the Appellee City’s motion to dismiss, Appellant moved to amend his complaint to allege compliance with Wyo. Stat. 1-39-113 and Art. 16, § 7, and attached a copy of the notice of claim, which did comply with those provisions, the district court had the authority to exercise its discretion and allow the amendment. In accordance with W.R.C.P. 15(c), the amendment related back to the date Appellant filed his original complaint.

The district court had subject matter jurisdiction over this matter to determine whether Appellant complied with the requirements of Wyo. Stat. 1-39-114 and Art. 16, § 7. Upon presentation of proof that Appellant had complied with those provisions, the district court also had subject matter jurisdiction to allow him to amend his complaint to so allege. To the extent the Court’s holdings beginning with Bell have been contrary to this ruling, they are overruled. The action is reversed and remand for further proceedings consistent with this opinion.

J. Kite delivered the opinion for the court.

J. Golden filed a concurring opinion. Cases like the present one under the Wyoming Governmental Claims Act often present straightforward issues of pleading which should be resolved under our rules of civil procedure. Prior cases requiring the specific pleading averment that the administrative claim was signed and certified under penalty of perjury pursuant to Article 16, Section 7, of the Wyoming Constitution, were in error because that requirement is contrary to the purposes set forth in our rules of pleading: a short and plain statement of the court’s jurisdictional grounds; each averment of a pleading shall be simple, concise, and direct and no technical forms of pleading are required; all pleadings shall be so construed as to do substantial justice; and it is sufficient to aver generally that all conditions precedent have been performed. If the defendant governmental entity believes that the plaintiff has failed to perform the condition precedent – filing a full itemized written statement certified under penalty of perjury – then W.R.C.P. 9(c) requires that defendant to make the denial of performance of that condition precedent “specifically and with particularity.” Presented with that denial, the district court is then able to make any necessary findings of fact on that issue. In other words, whether the claim meets the constitutional requirement is a simple matter of proof before the district court.

J. Voigt filed a dissenting opinion. Because the district courts can only adjudicate claims against governmental entities under the narrow confines of the WGCA, subject matter jurisdiction cannot be invoked upon the mere filing of a complaint alleging a claim against a governmental entity. Such would not even meet the requirements of W.R.C.P. 8(a), no less the WGCA and article 16, section 7 of the Wyoming Constitution. Even where the general power over matters of the kind involved in a particular case exists the proceeding must be initiated in some particular manner. The nature of the WGCA, with immunity being the rule and liability the exception, convinces me that, in Wyo. Stat. 1-39-117 (2009), the legislature did not grant the district courts jurisdiction over all cases alleging a claim against a governmental entity, but only over those cases alleging claims made “under the act.” For that reason, making one’s claim under the act is jurisdictional.

Summary 2011 WY 34

Summary 2011 WY 33

Thursday, February 24, 2011

Summary 2011 WY 32

Summary 2011 WY 31

Summary of Decision February 24, 2011

[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: Guier v. Teton County Hospital District

Citation: 2011 WY 31

Docket Number: S-09-0259

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461777

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

Representing Appellant (Petitioner): Anna M. Reeves Olson and Weston W. Reeves, Park Street Law Offices, Casper, Wyoming.

Representing Appellee (Respondent): Mark A. Kadzielski, Fulbright & Jaworski, Los Angeles, California; Janet Lewis, Janet Lewis, Jackson, Wyoming; Thomas E. Lubnau, II, Lubnau Law Office, Gillette, Wyoming

Date of Decision: February 24, 2011

Facts: Appellant appeals from an order of the district court affirming a decision by Appellee to revoke his medical staff privileges.

Issues: Whether the burden of proof was applied appropriately in Appellant’s hearing? Whether there was substantial evidence to support the Board’s final decision. Whether Appellee provided Appellant procedural due process. Whether Appellee acted arbitrarily and capriciously.

Holdings: A hospital board may prescribe reasonable rules and regulations to be followed by physicians using the hospital facilities. However, a physician may not be excluded by rules, regulations, or acts of the hospital’s governing authorities which are unreasonable, arbitrary, capricious, or discriminatory.

Appellant asserts that the burden of proof in his contested case hearing is controlled by the Wyoming Administrative Procedure Act, and that the hearing examiner erred by applying the burden of proof identified in the Medical Staff Bylaws. The language of the WAPA does not expressly provide a standard of proof in contested case hearings. The Court has previously recognized that the standard applicable to an adjudicatory hearing before an agency, unless otherwise stated, is the “preponderance of the evidence” standard customarily used in civil cases. A “preponderance of the evidence” is defined as “proof which leads the trier of fact to find that the existence of the contested fact is more probable than its non-existence.” However, the Court has also recognized that the preponderance of the evidence standard generally does not adequately protect the property interest one has in a professional license, and have instead required a licensing board to prove its disciplinary cases by clear and convincing evidence. However, the present case involves the revocation of medical staff privileges, not the revocation of a medical license.

Although medical staff privileges may be “in the nature of” a license, there is a clear and important distinction between hospital privileges and a medical license. Medical staff privileges allow a physician to use hospital facilities and be assisted by hospital staff. As Appellant points out, this includes the authority to admit and treat patients. A medical license, however, confers a general right to practice medicine within the boundaries of a particular jurisdiction. The distinction between a medical license and staff privileges is acknowledged in Wyoming, as indicated by the fact that licensing and privileging decisions are granted to different administrative bodies.

Pursuant to statute, the Wyoming Board of Medicine, not the Judicial Review Committee or the Boards of Trustees of individual hospitals, oversees physician licensing matters. Medical staff privileges, on the other hand, are addressed in the Wyoming Public Health and Safety statutes relating to hospitals and other care facilities. The statute governing hospital privileges expressly entrusts matters of staff admissions and privileges to hospital administration. Staff privileges, in contrast to medical licenses, are specific to individual hospitals, and decisions regarding staff privileges are within the discretion of hospital management. In this case, Appellant faced the revocation of his medical staff privileges. The Hospital, pursuant to its prerogative, decided that privileging decisions would be subject to a burden of proof expressly identified in the Bylaws, and the burden of proof set forth in those Bylaws was applied at the contested case hearing. Appellant agreed to be bound by the Bylaws when he initially sought hospital privileges and in his subsequent application for reappointment. The Bylaws do not require a clear and convincing burden of proof and do not require the burden of proof to be carried by the Hospital.

Appellant also asserts that his loss of privileges is similar to the loss of his medical license because it has impacted his ability to earn a living by practicing medicine. He stated that the termination of his privileges was reported to the National Practitioner Database as required by federal law. As a result of the reporting and subsequent notification to other hospitals, Appellant stated that he had lost privileges at a nearby hospital, and was called to hearings before the Wyoming and Montana Boards of Medicine. Appellant did not provide details of those hearings and did not testify that revocation of his hospital privileges resulted in revocation of his license to practice medicine in Montana or Wyoming. The fact that there may be additional consequences to a physician who loses staff privileges, however, does not impair the ability of a hospital to establish reasonable bylaws and requirements for physicians seeking hospital privileges at its facility, and does not transform a privilege to practice at a particular hospital into a medical license.

The WAPA does not mandate a clear and convincing burden of proof for suspension of hospital privileges. Wyo. Stat. 35-2-113 provides broad discretion to a hospital in determining requirements for the ability to practice at a particular hospital. A hospital is entitled to great deference in the management of its facility and he Court will afford great deference to the hospital’s determination of standards relating to hospital privileges. In sum, the Hospital was entitled to establish the burden of proof to be applied. While it is not the level of proof that every hospital might adopt, the standard applied in the present action is not unreasonable or does not conflict with the WAPA.

Appellant also argues that, even if a clear and convincing standard of proof does not apply, the bylaws are not reasonable because they place the burden on the physician facing charges to show that the adverse recommendation should be rejected or modified. Pursuant to the Bylaws in question, the Medical Executive Committee (MEC) has the burden of producing evidence supporting its recommendation. Once that evidence is produced, the burden shifts to the medical staff appointee to persuade the review committee that the action should not be taken. Appellant asserts that the burden-shifting under the Bylaws logically requires him to carry both the burden of production and the burden of persuasion, and that the practical effect of requiring the MEC to produce “some evidence” supporting its decision does not in any way assuage his burden. However, since the Hospital has discretion to enact reasonable and uniform rules and regulations, based on an express statutory grant of that power, the Hospital’s decision to place the burden of proof on the medical staff appointee, and to require that the burden be met by a preponderance of the evidence, is not unreasonable.

The Appellant’s Medical Staff Bylaws require a medical staff member to “agree to work harmoniously with others;” to “work[] cooperatively with members, nurses, Hospital Administration and others so as to promote high quality patient care;” and to adhere to a professional code of conduct, which includes “the ability to relate to others in a civil, collegial, and courteous manner.” The record contains ample evidence of Appellant’s inability to work cooperatively with others, to relate to others in a civil, collegial, and courteous manner, and to refrain from disruptive conduct. The review committee as the trier of fact, was in the best position to determine the credibility of the witnesses and to weigh the evidence. Upon weighing the evidence, the review found that “Appellant failed to meet his burden of proving, by a preponderance of the evidence, that the decision of the Medical Executive Committee to permanently suspend his privileges should be reversed or modified.” The review committee found that the documentary and testimonial evidence demonstrated that Appellant engaged in unacceptable personal conduct. Given the extensive testimony regarding Appellant’s conduct in the operating room, and the ample documentation produced by the investigations of the ad hoc committee and the Hospital’s CEO, it cannot be concluded the review committee erred in determining that Appellant had not met his burden of proof.

The Appellant’s Medical Staff Bylaws require a medical staff member to “agree to work harmoniously with others;” to “work[] cooperatively with members, nurses, Hospital Administration and others so as to promote high quality patient care;” and to adhere to a professional code of conduct, which includes “the ability to relate to others in a civil, collegial, and courteous manner.” The record contains ample evidence of Appellant’s inability to work cooperatively with others, to relate to others in a civil, collegial, and courteous manner, and to refrain from disruptive conduct. The review committee as the trier of fact, was in the best position to determine the credibility of the witnesses and to weigh the evidence. Upon weighing the evidence, the review found that “Appellant failed to meet his burden of proving, by a preponderance of the evidence, that the decision of the Medical Executive Committee to permanently suspend his privileges should be reversed or modified.” The review committee found that the documentary and testimonial evidence demonstrated that Appellant engaged in unacceptable personal conduct. Given the extensive testimony regarding Appellant’s conduct in the operating room, and the ample documentation produced by the investigations of the ad hoc committee and the Hospital’s CEO, it cannot be concluded the review committee erred in determining that Appellant had not met his burden of proof.

The arbitrary and capricious standard remains as a “safety net” to catch agency action that prejudices a party’s substantial rights or that may be contrary to the other WAPA review standards yet is not easily categorized or fit to any one particular standard. In determining whether the action of an agency is arbitrary, capricious, or an abuse of discretion, it must be ascertained whether the agency has abided by the rules it has promulgated. The failure of an agency to abide by its rules is per se arbitrary and capricious.

Appellant contends that the Board’s decision was per se arbitrary and capricious because the Medical Executive Committee did not follow the notice procedures provided for in the Reappointment Agreement or the Hospital’s internal Disruptive Practitioner Policy. The Disruptive Practitioner Policy provides that if disruptive behavior is reported, the Chief-of-Staff and CEO shall meet with the practitioner, discuss the incident, and document all meetings and conversations concerning the behavior. However, the of the policy also provides that at any time an issue pertaining to a practitioner’s disruptive conduct may be referred to the Medical Executive Committee. Such referral may lead to a formal investigation and corrective action as set forth in the Medical Staff bylaws. Nothing in this policy shall be interpreted to prevent the Medical Executive Committee from exercising its prerogatives in these matters. This policy presents an informal approach to dealing with a disruptive practitioner, which does not replace the right of the Medical Executive Committee to exercise its powers as set forth in the Medical Staff bylaws. The MEC chose to bypass the Hospital’s Disruptive Practitioner Policy, and opted to address the disruptive conduct under the Bylaws, which was its right under the policy and its decision to do so was not arbitrary or capricious. The Medical Executive Committee was required to follow the formal procedures provided for in its Bylaws, which were promulgated pursuant to statute. The record reflects that it did that.

Although he does not expressly argue that the Medical Executive Committee violated his due process rights, Appellant makes much of the fact that the MEC did not notify him immediately of each incident of inappropriate behavior. However, Appellant received notice of the charges against him, a hearing before an impartial tribunal, representation by counsel, the opportunity to cross-examine witnesses and to present evidence, and the opportunity to inspect documentary evidence against him. In light of the ample process that was provided to contest the decision of the MEC, the Board’s decision was not arbitrary or capricious. While it may have been possible to resolve informally under the methods of conflict resolution identified in the Disruptive Practitioner Policy, the fact that the MEC did not follow its recommended procedures does not violate Appellant’s due process rights.

Affirmed.

J. Burke delivered the opinion for the court.

Wednesday, February 23, 2011

Summary 2011 WY 30

Summary of Decision February 23, 2011

[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: Olsen v. Olsen

Citation: 2011 WY 30

Docket Number: S-10-0121

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461775

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

Representing Appellant (Plaintiff): Carl S. Olsen, pro se.

Representing Appellee (Defendant): Candy M. Olsen, pro se.

Date of Decision: February 23, 2011

Facts: In this divorce action, the district court granted custody of the parties’ children to Appellee divided the parties’ property, ordered their real property be sold to pay a debt to Appellee’s mother and granted a judgment in favor of Appellee’s mother for any deficiency remaining after the proceeds of the sale were applied to the debt.

Issues: Whether the court rushed to conclusions or decisions based upon assumptions of which there are not sufficient facts or evidence to support; whether the judge did not recuse himself for bias. Whether the court allowed an incomplete Financial Affidavit by one party, but complained of the other party’s Financial Affidavit; whether it was contrary to law for a court to assign who will claim minor children as dependants on federal income taxes without a waiver of release; whether it was contrary to the law to dismiss admissions and other documents merely because they were filed pro se; whether the court considered improper testimony: both testimony that was not given under oath and testimony that was hearsay; whether any and all debts incurred by the Appellee, without the explicit consent and/or agreement of the Appellant, are her liability alone and the Appellant should not be held liable for such debts, as per Wyoming Statute; whether the
adequately considered the applicable factors in deciding who should have physical custody of the children.

Holdings: On the questions relating to the propriety of the district court’s factual and evidentiary determinations, the problem with Appellant’s argument is that he did not provide a transcript of the trial or a statement of the evidence in accordance with W.R.A.P. 3.03. Because Appellant of this failure, the Court must accept that the district court’s findings were supported by sufficient evidence and its evidentiary rulings were not erroneous. Consequently, the district court’s rulings on those issues are summarily affirmed.

Federal law does not preempt Wyoming courts from allocating the dependent tax credit in the same manner they allocate other marital assets in divorce proceedings. As such, the district court was within its authority when it ruled that Wife was entitled to the credit. In order to avoid a contempt finding, Appellant is required to execute the forms required by the Internal Revenue Service.
The district court has the authority and responsibility to dispose of the parties’ assets and liabilities. As part of that task, the district court can order sale of the real property to facilitate the division of assets and payment of debt. Because there is an inadequate record on appeal, there is no basis for the Court to review the district court’s rulings that the parties owed a debt to Appellee’s mother, the parties are each responsible for one half of the debt, and the property should be sold to pay the debt.

However, The district court’s ruling that Appellee’s mother was entitled to a judgment against each party for any deficiency remaining after the proceeds of the sale are applied to the debt is another matter. The district court granted a judgment to a nonparty. The authority of the court in a divorce action to divide property is simply ancillary to its authority to dissolve the marriage. The primary subject of a divorce action is the dissolution of the marriage, and the only proper parties to such an action are the spouses seeking to be divorced. Thus, Appellee’s mother was not an appropriate party in the divorce action; consequently, the district court committed an error of law by granting a judgment in her favor. On remand, the district court should revise its order to delete the judgment in favor of Appellee’s mother.

Affirmed in part and reversed and remanded in part.

C.J. Kite delivered the opinion for the court.

Friday, February 18, 2011

Summary 2011 WY 29

Summary 2011 WY 28

Summary 2011 WY 27

Summary of Decision February 18, 2011

[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: Knight v. TCB Construction and Design, LLC

Citation: 2011 WY 27

Docket Number: S-10-0173

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461772

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

Representing Appellant (Plaintiff): Jason M. Tangeman of Nicholas & Tangeman, , Laramie, Wyoming.

Representing Appellee (Defendants): Megan L. Hayes and Allen Gardzelewski of Corthell and King, Laramie, Wyoming.

Date of Decision: February 18, 2011

Appellant appeals a district court’s damages award and findings relating to liability arising out of a construction contract.

Issues: Whether the district court erred as a matter of law when it determined that a second contract superseded the first and relieved the individual Appellee of personal liability. Whether the district court erred as a matter of law in the method it used to calculate damages.

Holdings: Generally, contracts―even fully executed ones―can be cancelled or rescinded by the mutual consent of the parties. Rescission generally must be exercised in toto and is applied to the contract in its entirety with the result that what has been done is wholly undone and no contract provisions remain in force to bind either of the parties. The intent to rescind a contract does not need to be express or in writing, but can be inferred from the conduct of the parties and the surrounding circumstances. In the present action, the parties’ conduct, including organizing TCB Construction, LLC, materially changing the terms of the contract, and changing the parties, demonstrates that the parties intended to rescind the Agreement, thus leaving the subsequent Addendum to control. Consequently, because the Agreement was rescinded, and the individual Appellee was not a party to the Addendum, he is not personally liable for any damages resulting from the breach of the Addendum and the district court did not err in finding the same.

It is a common and necessary practice for contracts to refer to and obtain meaning from other documents. A contract may refer elsewhere for full understanding of its terms, just as it may adopt another document by reference. The Addendum did incorporate by reference the provisions pertaining to the construction of the house that were listed in the original Agreement. However, it was not the parties’ intent to incorporate the entire Agreement by reference, because they materially changed some of the terms, including the contract price. Incorporating by reference some of the provisions of the Agreement does not change the fact that the parties had rescinded the Agreement when they entered into the Addendum. Incorporating by reference some of the provisions from that Agreement was done as a matter of convenience, but that act alone did not make the Agreement, as a whole, operative again.

Appellant also argues that the district court was bound by a pre-trial summary judgment ruling in which the district court refused to grant the individual Appellee a summary judgment on the issue of his liability. He relies on the law of the case doctrine to support his argument that the district court was bound by its summary judgment ruling. The law of the case doctrine provides that a court’s decision on an issue of law made at one stage of a case becomes a binding precedent to be followed in successive stages of the same litigation. However, the district court never made a final determination at the summary judgment stage as to personal liability. What the district court was considering at the summary judgment stage was whether factual issues existed that could give rise to personal liability, without considering the effect of the Addendum. The district court ultimately made a determination of liability at the end of the trial after it had considered evidence relating to the subsequent Addendum. Accordingly, the law of the case doctrine does not apply in this situation and the district court was not bound by the initial summary judgment ruling. The district court did not err in finding that the Addendum controlled and that only TCB Construction, LLC was liable for damages for breach of contract.

Legal remedy for a breach of contract is the award of damages designed to place the plaintiff in the same position in which he would have been had the contract been fully performed, less proper deductions. The plaintiff has the burden of producing sufficient evidence to prove his damages. Damages must be proven with a reasonable degree of certainty, and a court may not resort to speculation or conjecture in determining the proper amount to award. Appellant concedes in his brief that the district court’s damages calculation “may be a proper methodology for calculating damages in a breach of contract/unfinished construction case.” Nevertheless, he takes exception with the district court’s damages calculation and implies that this is a novel damages case which the district court failed to identify appropriately and that the measure of damages should be whatever money was left in TCB Construction, LLC’s bank account rather than a calculation of the actual damages proved to have been suffered by Knight. There is no authority for application of this novel damages calculation. The methodology employed by the district court to calculate damages comported with the above-stated law and accurately reflected Appellant’s provable damages.

The district court correctly held that the Addendum superseded the Agreement, because the record supports the conclusion that the parties intended to rescind the Agreement. Consequently, the individual appellee and his successor estate were relieved of personal liability arising out of the breach of the Addendum. The district court used the appropriate method to calculate damages, and it did not abuse its discretion in the amount of damages awarded as the damages award accurately reflected Appellant’s proven damages.

Affirmed.

J. Voigt delivered the opinion for the court.

Thursday, February 17, 2011

Summary 2011 WY 26

Summary of Decision February 17, 2011

[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: Thorkildsen v. Belden

Citation: 2011 WY 26

Docket Number: S-10-0154

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461765

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

Representing Appellant (Defendant): David G. Lewis, Jackson, Wyoming.

Representing Appellee (Plaintiff): Richard J. Mulligan of Mulligan Law Office, Jackson, Wyoming; Heather Noble, Jackson, Wyoming.

Date of Decision: February 17, 2011

Facts: After the Supreme Court affirmed judgment in his favor in an action filed against him for payment on a loan, Appellant filed a motion for attorney fees. The district court ultimately denied the motion and Appellant appealed.

Issues: Whether the district court erred when it denied Appellant’s motion for attorney fees under the terms of an LLC operating agreement as the prevailing party in a legal action.

Holdings: Generally, Wyoming subscribes to the American rule regarding recovery of attorney fees, making each party responsible for its own attorney fees, unless an award of fees is permitted by contract or statute. In the present case, there is a contract permitting the award of attorney fees. Despite the clear language of the operating agreement authorizing reimbursement to the prevailing party in an action to enforce or prevent breach of the agreement, Appellees argued Appellant was not entitled to such reimbursement since many of the claims did not arise out of or involve the operating agreement but turned on side agreements or other legal theories independent of the operating agreement.

The rule in Wyoming is that segregation of fees between multiple clients and/or multiple claims is required when it is possible. To avoid application of this rule, the party seeking a fee award must clearly establish that the claims arose out of the same transaction or were so interrelated that segregation of the resulting attorney fees is not possible. In the present case, despite the last minute efforts by Appellees to broaden the scope of their claims in order to take them outside the parameters of the operating agreement, it is clear that the LLC operating agreement was the basis of the case from the beginning. Four of the five claims alleged in the complaint arose directly out of the LLC operating agreement. The only claim arguably not based upon the operating agreement was a claim for money owed to the Appellees on a note the LLC assumed at the time the company was formed. Once Appellant filed his answer, alleging that he had no personal liability for the debt, and his counterclaim, alleging the efforts to collect the debt from him breached the operating agreement, the claim for money owed became inextricably intertwined with the operating agreement. His liability for the debt could not be determined without reference to the operating agreement provisions precluding the imposition of personal liability on members or managers for LLC debts. Segregation of his counsel’s fees for time spent defending against the claims brought by Appellees was not required.

Appellant’s attorney fee request included the affidavit of counsel, which contained six pages itemizing the time he spent in representing his client between May of 2002, when the dispute arose, and June of 2008, when he appeared before the Supreme Court. It does not include the time spent preparing for and appearing at the two subsequent district court hearings, one in which the court awarded costs and no fees, and a second in which the district court denied the motion for fees. It also does not include the time counsel spent preparing and appearing for argument in the Supreme Court in two subsequent appeals. Although Appellees complain the fee is unreasonable because it includes travel time charged at counsel’s usual hourly rate for the first two appeals and more time for research and brief writing than their counsel spent on those activities, any excess is more than balanced out by the time spent on later proceedings that is not included in the billing statement. It should also be noted that Appellees supported their claim that the fees were unreasonable not with the affidavit of an uninvolved third party but only with their own attorney’s self-serving affidavit.

Litigation must come to an end. After four district court proceedings, the retirement of the district judge who presided over the proceedings and four appeals, it is time for this matter to come to an end. While it is true that when the Court reverses a ruling on an issue of law, it is typically remanded for a factual determination by the district court. W.R.Civ.P. 1 provides that the rules of civil procedure, which govern procedure in all courts of record in Wyoming, “shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.” There may be no more important provision in the rules of procedure than the provision in Rule 1 for a just and speedy determination of every action. Contrary to the rule, this case has been unnecessarily protracted, causing Appellant’s counsel to expend numerous hours attempting to obtain for his client the fees to which he was entitled as the prevailing party. Under these particular circumstances, his request for attorney fees is fair and reasonable and another remand is unnecessary.

The matter is reversed and remanded to the district court for entry of an order awarding Appellant attorney fees in the amount of $77,475.00 as requested in his January 2009 motion.

C.J. Kite delivered the opinion for the court.

Summary 2011 WY 25

Summary of Decision

[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: Cash v. Granite Springs Retreat Ass’n., Inc.

Citation: 2011 WY 25

Docket Number: S-10-0117

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461764

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

Representing Appellants (Plaintiffs): Daniel B. Frank of Frank Law Office, P.C., Cheyenne, Wyoming.

Representing Appellees (Defendants) Granite Springs Retreat Association, Inc.; John and Sylvia Passehl; Marty and Gail Gill; Cheryl and Doug Brown; Craig Folsom and April Walton; Mike Trenam; Ben Hilsen and Susan Jennelly; Michael Duskin; Tim and Lynn Babbitt; Michael Emerson; Scott Smith and Deb Baumer; Richard W. Magill, Jr. and Tracy Farrell; Ted and Jan Lydigsen; CJ and David Di Pietra; Joe and Cindy Marek; Bob Lick and Joanne Steane; Darrell and Dorothy Ban; Don and Barbara Sullivan; Rob and Nicole Farnham; Gary and Jo Ellen Mass; Davie Bilski; Pete and Nancy Fillion; Dave and Melissa Brumbaugh; John and Lesley Zimmerman; Jerry and Kristen Peterson; and Mike and Chris Caltagirone:
Kate M. Fox and Amanda K. Ferguson of Davis & Cannon, LLP, Cheyenne, Wyoming. Argument by Ms. Fox.

Representing Appellees J.T. and Aimee Walsh: William L. Hiser of Brown & Hiser, LLC, Laramie, Wyoming.

Representing Appellees Lynn Williams-Haas, Ted and Emma Esquibel, Jacque Cash, and Mary Maturi: Pro se. No appearance
Date of Decision: February 17, 2011

Facts: The district court ruled subdivision covenants recorded before the developer acquired legal title to the property were enforceable as equitable servitudes. Plaintiffs own property in the subdivision and claim the district court erred in reaching that decision.

Issues: 1) Whether the district court erred when it held that Subdivider held an equitable interest in land through an oral agreement such that when he recorded a Declaration of Protective Covenants (DPC) on a subdivision he owned at the time, the DPC was also effective and encumbered the land that was the subject of the oral agreement to which Subdivider had no legal title and had not been platted as a subdivision; 2) Whether the DPC applied to the lands of the subdivision second filing, when the land was not platted as a subdivision at the time the DPC was recorded and there is no indication in any document that the DPC encumbered these unplatted lands before or after platting; and 3) Whether the Plaintiffs had notice that the DPC encumbered their land at the time of purchasing their respective tracts.

Holdings: All of the elements for imposition of equitable servitudes upon the subdivision second filing properties were met in this case. The district court, relying on this Court’s decision in Streets v. J.M. Land Developing Co., properly ruled that Mr. Miller had equitable title to the property when he recorded the declaration of protective covenants, he intended to burden the entire development with the covenants, and the plaintiffs purchased their lots with notice of the covenants. The district court’s order granting summary judgment in favor of GSRA and the other defendants was affirmed.

Chief Justice Kite delivered the opinion for the court.

Monday, February 14, 2011

Summary 2011 WY 24

Summary of Decision February 14, 2011

[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: Union Pacific Railroad Company v. Caballo Coal Company

Citation: 2011 WY 24

Docket Numbers: S-10-0112, S-10-0113

URL: http://tinyurl.com/6kfzlx8

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

Representing Union Pacific Railroad Co.: Howard P. Olsen, Jr. and Steven W. Olsen of Simmons Olsen Law Firm, P.C., Scottsbluff, Nebraska.

Representing Caballo Coal Co.: Richard A. Mincer and Billie LM Addleman of Hirst Applegate, LLP, Cheyenne, Wyoming.

Date of Decision: February 14, 2011

Facts: Union Pacific Railroad Company (UP) appeals from the district court’s order granting summary judgment in favor of Caballo Coal Company (CCC) on UP’s claim that it was entitled to be indemnified for payments it made to one of its employees who was injured on CCC property. In a cross appeal, CCC claims the district court erred by granting summary judgment in favor of UP on CCC’s counterclaim for attorney fees.

Issues: Whether the court erred in granting Caballo’s motion for summary judgment on the ground that Caballo had no duty to UP’s employee. Whether the district court should have granted UP’s motion for partial summary judgment on the reasonableness of its settlement with Mr. Riecke.

Holdings: General contract interpretation principles apply to indemnity agreements. The language of the parties expressed in their contract must be given effect in accordance with the meaning which the language would convey to reasonable persons at the time and place of its use. Where there is an express indemnity provision, its parameters are derived from the specific language of [the] contract. Under the terms of their agreement, CCC was obligated to indemnify UP for any loss, damages, etc. arising from the operation of the trains over the tracks to the extent that they result from any negligence or wrongful act or omission of CCC’s officers, employees or agents. This type of provision, which grounds the right to indemnification upon the indemnitor’s negligence, is common. By contrast, there are indemnification agreements where the indemnitor agrees to indemnify the indemnitee for all losses, regardless of fault. Provisions of this sort that exculpate the indemnitee from the consequences of his own negligence are disfavored by the courts and strictly construed. UP’s and CCC’s agreement did not include an all-inclusive right to indemnification and allowed for indemnification only when the indemnitor’s negligence, wrongful act or omission resulted in the indemnitee’s loss. It is not, therefore, the sort of indemnification provision to which the rule of strict construction applies. Under the plain language of the indemnification provision, UP had to establish that CCC’s negligence, wrongful act or omission resulted in that loss. In that respect, an allegation of CCC’s negligence was a condition precedent to its liability under the indemnification agreement.

The district court properly granted summary judgment to CCC because UP did not make any showing that CCC’s negligence caused its employee’s injury. However, the district court erred by granting summary judgment in favor of UP on CCC’s claim for attorney fees because no motion had been filed and CCC was not given notice or an opportunity to be heard on the matter. Affirmed in part and reversed and remanded in part.

Chief Justice Kite delivered the opinion for the court.

Thursday, February 10, 2011

Summary 2011 WY 23

Summary of Decision February 10, 2011

[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: State of Wyoming, Department of Transportation v. Robbins

Citation: 2011 WY 23

Docket Number: S-10-0048

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461743

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

Representing Appellant (Defendant): Bruce A. Salzburg, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Michael T. Kahler.

Representing Appellee (Complainant): Mike Cornia, Evanston, Wyoming.

Date of Decision: February 10, 2011

Issues: Whether the district court erred in finding that “clear and convincing evidence” rather than a “preponderance of the evidence,” is required to uphold a commercial driver’s license disqualification in a contested case proceeding and in finding that Appellee’s constitutional right to due process was violated.

Holdings: The Wyoming statutes make clear that driving is not a fundamental right, but a privilege. A license revocation hearing is civil in nature and the probable cause must only be proven by a preponderance of the evidence. It does not rise to the level necessitating a clear and convincing evidence burden of proof.

Because the district court’s decision that due process requires a clear and convincing evidence standard in proceedings to disqualify a commercial driver is reversed, the district court was also erroneous in determining that the statute, as applied, denied Appellant his due process rights to the clear and convincing evidence standard.

Reversed.

J. Hill delivered the opinion for the court.

Summary 2011 WY 22

Summary of Order February 10, 2011

[SPECIAL NOTE: This Order uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the Order, with a P.3d parallel citation. If you need assistance in putting together a citation from this, or any future Order 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: Board of Professional Responsibility v. Eliot

Citation: 2011 WY 22

Docket Number: D-10-0002

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461742

Date of Order: February 10, 2011

Order Lifting Suspension and Order Reinstating Attorney to the Practice of Law

The Board of Professional Responsibility’s Report and Recommendation for Lifting of Suspension and Reinstatement was approved, confirmed and adopted by this Court.

Since Respondent’s 1989 admission to practice law in Wyoming, she has maintained her license in good standing, and has committed no ethical violations. Other than the criminal conviction that lead to her suspension (which related to conduct on her part that occurred more than thirty years ago, and long before she attended law school and began practicing law), Respondent has not engaged in any conduct which would cast doubt upon her fitness to practice law in Wyoming. Additionally, Respondent fully complied with all the terms of her suspension. The information set forth in Respondent’s affidavit and in the testimonial letters with stipulated motion establish in a clear and convincing manner that respondent is fit to practice law in Wyoming.

Wednesday, February 09, 2011

Summary 2011 WY 21

Order issued by the Court on February 9, 2011

[SPECIAL NOTE: This order uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the order, with a P.3d parallel citation. If you need assistance in putting together a citation from this, or any future order 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: Freeman v. State

Citation: 2011 WY 21

Docket Number: S-11-0033

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461741

Date of Order: February 9, 2011

ORDER DISMISSING APPEAL

This matter came before the Court upon its own motion following a review of recently docketed appeals. In his notice of appeal, Appellant indicates he is appealing from two district court orders: (1) an “Order Granting, In Part, and Denying, In Part, Motion to Correct Illegal Sentence,” which was entered on November 18, 2010, and (2) an “Order Denying Motion for Reconsideration,” which was entered on December 16, 2010. Appellant filed his notice of appeal on January 14, 2011.

With respect to the “Order Granting, In Part, and Denying, In Part, Motion to Correct Illegal Sentence,” the notice of appeal is clearly untimely as to that order. W.R.A.P. 2.01(a). An appeal from a trial court to an appellate court shall be taken by filing the notice of appeal with the clerk of the trial court within 30 days from entry of the appealable order.

The question becomes whether Appellant’s Motion for Reconsideration tolled the time for filing the notice of appeal. In a criminal case, pursuant to W.R.A.P. 2.03 there are certain post-judgment motions that toll the time for filing a notice of appeal. However, a Motion for Reconsideration is clearly not listed as the sort of motion that tolls the time for filing a notice of appeal in a criminal case.

The notice of appeal for the “Order Denying Motion for Reconsideration,” is timely as to that order. However, there is still the question of whether the motion could serve as an independent action. The Motion for Reconsideration did not create an independent action. The Court will not look at the substance of the motion for reconsideration but will declare it a nullity based upon its denomination. The obvious consequence of categorizing the motion for reconsideration as a nullity is that all judgments or final orders from said motion are a nullity. Thus, the Court lacks jurisdiction to consider an appeal from the ‘Order Granting, In Part, and Denying, In Part, Motion to Correct Illegal Sentence. Therefore, there being no final appealable order to review, the appeal must be dismissed.

Summary 2011 WY 20

Summary of Decision February 9, 2011

[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: Hwang v. State (Department of Transportation)

Citation: 2011 WY 20

Docket Number: S-10-0120

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461740

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

Representing Appellant (Plaintiff): R. Michael Vang, Fleener & Vang, Laramie, Wyoming.

Representing Appellee (Defendant): Bruce A. Salzburg, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; John S. Shumway.

Date of Decision: February 9, 2011

Facts: Appellant challenges an order of the district court, affirming an order from the Office of Administrative Hearings (OAH) upholding the suspension of his driver’s license. He contends that the police officer who administered his breath test failed to comply with the fifteen-minute observation period required under the Wyoming Department of Health, Rules and Regulations for Chemical Analysis for Alcohol Testing, ch. III, § 1(a)(i) (2004).

Issues: Whether the arresting officer presented sufficient facts to find that the Appellant violated the elements of Wyoming’s Implied Consent law, specifically that the officer presented sufficient “admissible” evidence to support that he complied with the 15 minute observation period for admission of a chemical test pursuant to Wyoming Statute § 31-6-105(a).

Holdings: The hearing examiner’s decision is supported by substantial evidence. The Operational Checklist, which was prepared contemporaneously with the breath test, showed that Appellant was observed for the eighteen-minute period that elapsed between 12:33 a.m., when the officer checked his mouth, and 12:51 a.m., when his first breath sample was taken. This evidence was corroborated by the Intoximeter printout, and by the officer’s offense report and testimony. Further, the hearing examiner’s finding that the officer’s testimony was more credible than Appellant’s testimony and proffered cell phone records is reasonable in light of Appellant’s level of intoxication during the observation period. There is relevant evidence which a reasonable mind might accept in support of the agency’s conclusions. Thus, the record contains substantial evidence to support the hearing examiner’s conclusion that the officer observed Appellant for fifteen minutes prior to taking a breath sample.

Appellant also argues that he should be allowed to supplement the record with certified copies of his phone records and the live testimony of his employer or, alternatively, that the case should be remanded so that he can provide this evidence to the OAH. However, there is no merit in this argument. Appellant has not applied to this Court for leave to present additional evidence pursuant to W.R.A.P. 12.08. In addition, Appellant has failed to show good cause why he did not present the evidence in his contested case hearing. Appellant had the opportunity to present his evidence when the case was before the hearing examiner, and his failure to do so does not warrant the consideration of additional evidence on appeal.

Affirmed.

J. Burke delivered the opinion for the court.

Summary 2011 WY 19

Summary of Decision February 9, 2011

[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: Parks v. State

Citation: 2011 WY 19

Docket Number: S-10-0136

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461739

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

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; David E. Westling, Senior Assistant Appellant Counsel.

Representing Appellee (Plaintiff): 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.

Date of Decision: February 9, 2011

Facts: Appellant was charged with a third offense for possession of a controlled substance, a felony under Wyo. Stat. Ann. § 35-7-1031(c)(i). He entered a conditional guilty plea and reserved the right to appeal the district court’s decision denying his motion to suppress.

Issues: Whether he district court erred in finding that there was probable cause to stop Appellant’s vehicle for an improper display of a license plate under Wyo. Stat. 31-2-205.

Holdings: Wyo. Stat. 31-2-205 provides that a license plate be plainly visible and clearly legible. This language is unambiguous. “Visible” means “capable of being seen,” “perceptible by vision,” “easily seen,” “conspicuous.” “Plainly” means “with clarity of perception or comprehension,” “clearly,” “in unmistakable terms.” “Legible” means “capable of being read or deciphered,” “distinct to the eye,” “plain.” The requirements that a license plate be “plainly visible” and “clearly legible” indicate that a license plate must not be obstructed in any manner. This interpretation is in accord with the purpose of the statute. License plates need to be easily read in order to facilitate law enforcement and ordinary citizens in reporting and investigating hit-and-run accidents, traffic violations, gas-pump drive offs, and other criminal activity. The plain language and the purpose of the statute indicate that a trailer ball mounted in a place that causes it to partially obstruct a license plate from view, such as on Appellant’s vehicle, is a violation of Wyo. Stat. 31-2-205. Thus, the traffic stop in this case was justified based on an observed violation of Wyo. Stat. 31-2-205.

Affirmed.

J. Burke delivered the opinion for the court.

Monday, February 07, 2011

Summary 2011 WY 18

Summary of Decision February 7, 2011

[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: Taylor v. State

Citation: 2011 WY 18

Docket Number: S-10-0118

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461727

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

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Andrew J. Kuhlmann, Assistant Attorney General.

Date of Decision: February 7, 2011

Facts: On October 30, 2008, police searched an apartment leased by the appellant’s girlfriend and found marijuana, cocaine, heroin, and methamphetamine. The appellant’s girlfriend told police that the drugs belonged to appellant, and he was charged with three counts of possession with intent to deliver a controlled substance. At trial, after the State presented its case in chief, the appellant moved for a judgment of acquittal claiming that the evidence presented by the State was insufficient to show that he had constructive possession of the drugs. This motion was denied and the appellant was convicted on all three counts

Issues: Whether the district court erred when it found that the State had presented sufficient evidence to establish the elements of constructive possession and denied the appellant’s motion for judgment of acquittal.

Holdings: Possession of a controlled substance is proved when the evidence establishes that the accused either individually or jointly with another exercised dominion and control over the substance, had knowledge of its presence, and knowledge that the substance was a controlled substance. Direct evidence of the defendant’s actual possession of the substance is not required. Rather, constructive possession is all that is necessary and such may be proved by circumstantial evidence linking together a series of facts allowing a reasonable inference that the defendant had the requisite knowledge and control of the substance. When determining whether sufficient evidence was presented demonstrating constructive possession, the Court must consider the totality of the circumstances.

Regarding the appellant’s “dominion and control” over the drugs, a witness testified that the drugs belonged to the appellant, and that the appellant placed them in the apartment. She also testified that the appellant frequently asked her to give packages of the drugs to people the appellant sent to the apartment. Further, the evidence also showed that the appellant had a key to the apartment where the drugs were found and many of the appellant’s personal items were discovered in the apartment, including clothes, shoes, hats, and his wallet. If a defendant is sufficiently associated with the persons having physical custody so that he is able, without difficulty to cause the drug to be produced for a customer, he can also be found by a jury to have dominion and control over the drug and, therefore, possession.

Constructive possession also requires knowledge of the presence of the drugs. Appellant’s friend testified that on the night after the search, the appellant told him that there was methamphetamine, cocaine, heroin, and marijuana in the apartment. He also testified that, a few days later, the appellant told him there was methamphetamine in the apartment “in the pantry on the top shelf to the right.” When the police searched the apartment, they found methamphetamine in that very spot. This evidence sufficiently demonstrates that the appellant was aware of the type and location of the drugs in the apartment.

Finally there must be sufficient evidence presented to show that the appellant knew the substances in question were illegal controlled substances. The fact that the drugs were concealed in bags and placed in hiding places, such as between the mattress in the bedroom and on the top shelf of the pantry, indicates that the appellant knew he was bringing illegal controlled substances into the apartment and needed to conceal them. Also, the appellant’s girlfriend’s testimony that the appellant directed her to give packages of the controlled substances to people the appellant sent to the apartment in exchange for money also indicates the appellant’s knowledge of the illicit nature of the substances. Finally, the fact that the girlfriend was told to exchange the packages for money only at the apartment, and not in a more public location or at the appellant’s residence, also creates an inference that the appellant knew that the substances in question were illegal controlled substances.

Finally, the appellant argues that even if he had constructive possession, the evidence does not support a finding that the elements of such were met on October 30, 2008 – the date the Felony Information alleges that the crime occurred and also the date listed as an element of the crimes in the jury instructions. The evidence clearly is sufficient to show that the appellant had constructive possession of the drugs on October 30, 2008. The appellant’s girlfriend testified that she had given the appellant a key to the apartment in 2007, and that since then the appellant always had unfettered access to the apartment. Another of appellant’s friends testified that the appellant sent him the key to the apartment after October 30, 2008, so that he could access the apartment. Furthermore, the friend’s testimony regarding the appellant’s behavior shortly after the search, and the appellant’s specific knowledge regarding the variety and location of the drugs, provide sufficient evidence that on October 30, 2008, the appellant knew of the location and illicit nature of the drugs.

J. Voigt delivered the opinion for the court.

Friday, February 04, 2011

Summary 2011 WY 17

Summary of Decision February 4, 2011

[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: Wyoming Department of Transportation v. Potvin

Citation: 2011 WY 17

Docket Number: S-10-0125

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461726

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

Representing Appellant (Reposndent): Bruce A. Salzburg, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Michael T. Kahler, Assistant Attorney General; and Jackson M. Engels, Assistant Attorney General.

Representing Appellee (Petitioner): Gerard R. Bosch and Mark J. Longfield, Law Offices of Jerry Bosch, Wilson, Wyoming.

Date of Decision: February 4, 2011

Facts: The Appellant challenges a district court order which reversed an order of an independent hearing examiner to the effect that Appellee was required to surrender his driver’s license because he refused to submit to a chemical test for the purpose of ascertaining if his blood alcohol/controlled substance content exceeds the statutory limit. The district court reversed the hearing examiner’s decision on the basis that WYDOT failed to present substantial evidence at the hearing to establish that the police officers had probable cause to believe that Appellee had been driving, or was in actual physical control, of a motor vehicle upon a public street or highway while under the influence of alcohol.

Issues: Whether there substantial evidence to support the hearing examiner’s finding that there was probable cause to arrest Appellee for driving while under the influence of alcohol.

Holdings: Given the entirety of the facts and circumstances called to the hearing examiner’s attention, there was substantial evidence to support his ultimate finding that the police had probable cause to contact Appellee and to question him about a hit and run accident and eventually to request that he voluntarily submit to a chemical breath or blood test, which he refused. Likewise, the record contains substantial evidence to support the hearing examiner’s findings that Appellee and his roommate were not credible witnesses. The hearing examiner’s conclusions were not arbitrary and capricious in light of the evidence presented.

The order of the district court must be reversed and determination made by the hearing examiner will be sustained. The matter is remanded to the district court with directions to the district court to further remand to the hearing examiner to accomplish this result.

J. Hill delivered the opinion for the court.

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