Summary 2011 WY 85

Summary of Decision May 26, 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: Garnica v. State

Citation: 2011 WY 85

Docket Number: S-10-0233

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462305

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

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; and 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; Meri Geringer, Senior Assistant Attorney General; and Justin A. Daraie, Assistant Attorney General.

Date of Decision: May 26, 2011

Facts: After two episodes of domestic violence against his ex-wife, Appellant was charged with two counts of unlawfully touching a household member for a third or subsequent time in the past ten years, in violation of Wyo. Stat. 6-2-501 (b) and (f)(ii) (2007). After a jury trial, the jury found Appellant guilty of both counts. Before sentencing, however, the court allowed the State to amend its Information by correcting the statutory citation. The court sentenced Appellant under the enhanced sentencing provisions.

Issues: Whether the trial court committed reversible error by allowing amendment of the Information after the jury had entered into deliberations, withdrawing a jury instruction from the jury and replacing it with a new instruction, despite the objection of Appellant that the late amendment prejudiced his case by affecting the way he prepared for trial. Whether the trial court imposed an illegal sentence and thereby committed reversible error.

Holdings: In accordance with W.R.Cr.P. 3(e), the reasonableness of a motion to amend an information depends upon two factors: (1) whether the amendment resulted in the charging of an additional or different offense, and (2) whether permitting the amendment prejudiced Appellant’s substantial rights. Technical alterations to an information do not necessarily have the effect of charging a different crime for purposes of W.R.Cr.P. 3(e), and common sense must prevail over technicalities when evaluating an information and amendments thereto. In the present action, the State did not charge Appellant with a different crime by amending the Information – the State was simply correcting a mechanical error. The State’s amendment did not alter the substantive language of the information, and it did not change the elements of the crime. Thus, common sense dictates that the State merely corrected a clerical error, and as a result, Appellant was not prejudiced by the Amended Information because in it, he was not charged with a new crime.

An offense committed under Wyo. Stat. 6-2-501(f) provides for the enhancement of penalties up to a felony, if a household member commits multiple batteries. However, battery does not equate to unlawful contact for the purposes of sentence enhancement. Both of those terms are used purposefully in the statute and each is categorically defined, apart from the other. To qualify for a felony, a person must be found guilty of a third or subsequent offense under (f)(ii). Subsection (f) clearly states that only a person who commits a second or subsequent “battery” is subject to the enhancements enumerated in subsections (i) and (ii), and it does not include a person convicted of “unlawful contact.” Accordingly, the sentence imposed by the trial court was an improper interpretation of the statute and, thus, is an illegal sentence. Unlawful touching, as it is used in § 6-2-501(g), can only be a misdemeanor and subject to the penalties in § 6-2-501(h): “An unlawful contact under subsection (g) of this section is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00) or both.”

The trial court did not abuse its discretion in allowing amendment of the Information after the case was submitted to the jury, and Appellant suffered no prejudice. However, the trial court imposed an illegal sentence regarding Count II. Therefore, the case is remanded to the trial court for resentencing in accordance with this opinion.



Affirmed in part, reversed in part, and remanded.



J. Hill delivered the opinion for the court.

Summary 2011 WY 84

Summary of Decision May 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: VISION 2007, LLC v. LEXSTAR DVELOPMENT AND CONSTRUCTION COMPANY, INC.

Citation: 2011 WY 84

Docket Number: S-10-0020

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462298

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

Representing Appellant (Petitioner): Douglas Fowler of Fowler Associates, Cheyenne, Wyoming; Stephen H. Kline of Kline Law Office, P.C., Cheyenne, Wyoming; and John W. Burke of Thomas Braun Bernard & Burke, LLP, Rapid City, South Dakota. Argument by Mr. Burke.

Representing Appellee (Respondent): Ryan Schwartz of Williams, Porter, Day & Neville, P.C., Casper, Wyoming

Date of Decision: May 25, 2011

Facts: Appellant entered into a contract with Appellee for the construction of a hotel. After seventeen months of work on the project, Appellant terminated the contract with Lexstar, and Lexstar subsequently filed a lien against the hotel property for amounts it claimed remained owing. Appellant filed a petition to strike the lien pursuant to Wyo. Stat. Ann. § 29-1-311(b), which the district court denied on the ground that Appellant failed to prove Lexstar knew, when it filed its claim of lien, that the lien was groundless or contained a material misstatement or false claim. Appellant claims the district court improperly placed the burden of proof on them and that the district court’s factual findings were clearly erroneous.

Issues: Whether the district court erred in refusing to strike the corrected lien statement filed after the 120-day statutory limit. Whether the district court erred in refusing to strike the lien statement and corrected lien statement which did not include an itemized list setting forth and describing materials delivered or work performed, as required by Wyo. Stat. Ann. § 29-1-301. Whether the district court erred in refusing to strike [the] lien statement which was untimely on its face. Whether the district court erred in placing the burden of proof under Wyo. Stat. Ann. § 29-1-311 upon the Appellant.

Holdings: Appellee did not knowingly specify March 10 as opposed to March 19 as the last date on which work was performed, and it thus did not knowingly file a groundless lien statement. Questions as to the accuracy or adequacy of the information included in a lien statement are properly resolved in a lien foreclosure proceeding, not in the expedited and limited proceeding authorized by § 29-1-311(b). Therefore, if issues of fact remain as to the last date on which work or materials were provided in this matter, those issues are questions for the lien foreclosure proceeding.

The Court did not hold that the question whether the date error may be corrected, through evidence at the foreclosure proceeding or through the “Corrected Lien Statement,” was resolved. Whether the date error was misleading or prejudicial is a question for the lien foreclosure proceeding, not for a subsection 311(b) proceeding.

Appellant argues as an additional basis for striking both the original and corrected lien statements that neither contained a sufficiently detailed itemization of the amounts allegedly owed to Appellee. The district court did not expressly address this ground other than to generally deny the relief requested and defer the issues raised by Appellant to a future lien foreclosure proceeding. We agree that the issue of itemization is properly addressed in the foreclosure proceeding, and that adequacy of itemization is not a basis for a subsection 311(b) petition.

Under Wyo. Stat. Ann. § 29-1-311(b) the burden of proof is on the lien claimant, not on the project owner. The Court found the district court’s ruling was properly based on the evidence presented by the lien claimant, Appellee, and on the failure of Appellant to allege proper grounds for relief under Wyo. Stat. Ann. § 29-1-311(b). Affirmed.

Justice Golden delivered the opinion for the court.

Summary 2011 WY 83

Summary of Decision May 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: Belden v. Lampert

Citation: 2011 WY 83

Docket Number: S-10-0237

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462291

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

Representing Appellant (Plaintiff): Gary Lee Belden, pro se

Representing Appellee (Defendant): Bruce A. Salzburg, Attorney General; John W. Renneisen, Deputy Attorney General; Misha Westby, Senior Assistant Attorney General.

Date of Decision: May 24, 2011

Facts: Appellant filed an action under 42 U.S.C. § 1983 contending he was denied his constitutional right of access to the courts because he did not have adequate access to Wyoming legal research materials in a Nevada state correctional facility. Appellant challenges the district court’s dismissal of his suit based on a failure to state a claim.

Issues: Whether Appellant’s Complaint set forth facts sufficient to support the allegation that inadequate access to legal research materials at a Nevada prison law library caused an actual injury. Whether Appellant’s transfer to a different corrections facility five days prior to the hearing on Appellee’s Motion to Dismiss prejudiced Appellant’s ability to represent himself at the hearing.

Holdings: The fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law. An inmate alleging a denial of the right of access to the courts must demonstrate an actual injury. In the present action, Appellant’s Complaint states that the alleged inadequacies of the Nevada prison library impeded his ability to assert a claim within “time barriers in state court.” Construing the Complaint liberally, Appellant asserts that the alleged inadequacies of the Nevada prison library prevented him from filing a petition for post-conviction relief within the applicable statute of limitations. Although it is clear that the statute of limitations for post-conviction relief has long since expired, Appellant’s Complaint gives absolutely no indication that Appellant had a claim for post-conviction relief at any time. Appellant did not allege any basis upon which a petition for post-conviction relief could have been filed, and he did not allege any facts to indicate the existence of a viable claim for post-conviction relief. Wyo. Stat. 7-14-103(a) bars claims that could have been raised in a direct appeal, as well as claims that were decided on the merits or on procedural grounds “in any previous proceeding which has become final.” Without any facts to indicate that Appellant could have filed a viable petition for post-conviction relief, it cannot be determined that Appellant has been injured by the expiration of the applicable statute of limitations. Accordingly, the facts set forth in Appellant’s Complaint, when viewed in the light most favorable to him, do not allege an actual injury. Furthermore, Appellant was able to file at least five petitions seeking relief from his conviction while he was an inmate at the Nevada state prison, and he was represented by court-appointed counsel in at least one of those actions. Those petitions were reviewed at length and were denied on the merits. Appellant’s ability to conduct this volume of legal activity provides further indication that he retained meaningful access to the courts.

Appellant’s second issue concerns his transfer to a different corrections facility shortly before the hearing on the Motion to Dismiss. Because this issue was raised for the first time on appeal, it was not addressed.

Affirmed.



J. Burke delivered the opinion for the court.

Summary 2011 WY 82

Summary of Decision May 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: Strong Construction, Inc. v. City of Torrington,

Citation: 2011 WY 82

Docket Number: S-10-0171

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462280

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

Representing Appellant (Defendant): Douglas W. Weaver, Wheatland, Wyoming.

Representing Appellee (Plaintiff): James A. Eddington, Jones & Eddington Law Offices, Torrington, Wyoming.

Date of Decision: May 23, 2011

Facts: Appellee filed suit against Appellant alleging breach of contract based on Appellant’s failure to supply and install water pump motors that conformed to contract specifications. After a bench trial, the district court entered judgment in favor of the Appellee. Strong challenges the district court’s decision.

Issues: Whether the court erred when it held Appellant breached the agreement with the Appellee and awarded Appellee damages and attorney fees. Whether Appellee’s claim was barred by the one year warranty period, pursuant to the Standard General Conditions of the construction contract. Whether Appellant is obligated to pay any portion of the judgment attributed to Appellee’s City Engineers’ negligence.

Holdings: Before the district court’s conclusion that Appellant breached the Agreement with the City can be addressed, it must be determined if the City engineer received the specifications for review as required by the contract. Based on a review of the record, there is ample evidence to support the district court’s decision that the specifications were provided to the City Engineer prior to approval of the project submittals and that the engineer relied on the information it contained in approving the project submittals.

Where a building contract refers to the plans and specifications and makes them a part of itself, the contract is to be construed as to its terms and scope together with the plans and specifications. Where the plans and specifications are by express terms made a part of the contract, the terms of the plans and specifications will control with the same force as if they were physically incorporated in the very contract itself. The specification criteria in the parties’ Agreement required Appellant to furnish complete details of the pump and motor it intended to supply and to provide those submittals to the City Engineer for approval prior to acceptance of the pump and motor for installation. The information about the motors in question in the Guidelines provided constitute a “Shop Drawing” as that term is defined in the General Conditions provision of the contract and, as a result, they were incorporated into the Agreement upon City Engineer’s approval of that document. Therefore, the district court did not err in determining that Appellant breached the Agreement with the City by failing to provide motors that conformed to the specifications in the parties’ Agreement.

The Appellee’s breach of contract claim is not barred by the provision of the contract that sets forth a warranty that the contractor will repair defects for a specified period of time. The Appellee did not allege that the work was defective. Rather, the claim was that Appellant breached the contract by failing to provide motors that conformed to agreed-upon specifications.

Appellant contends the damages awarded by the district court should be apportioned according to the respective degrees of fault of the parties under a negligence theory of liability. After concluding that Appellant breached the Agreement with the Appellee, it was found that several of the parties in the process were negligent. The court, however, did not apportion the damages. Since the breach of contract claim involves Appellant’s failure to supply the motor identified in the guidelines that were approved by the city engineer, the provision in the contract that would hold the Appellee responsible for the negligence of the City Engineer for the “specification of a specific means, method, technique, sequence, or procedure of construction” does not relieve Appellant of its liability.

Appellant urges the adoption of the principles of comparative fault in the context of a claim for breach of contract. However, with no cogent argument or pertinent authority suggesting that the tort concept of fault has a counterpart in a breach of contract action, or that contractual damages should be similarly apportioned was presented. In order to recover for breach of contract, the nonbreaching party must prove that it has substantially performed the conditions of the breaching party’s performance (or that performance was excused). If it fails to do so, it obtains no recovery. If it does establish this predicate, it is entitled to recover all damages foreseeably caused by the other party’s breach. Contract damages normally are awarded on an all-or-nothing basis. While the breaching party is liable only for damages foreseeably caused by its breach, there is no apportionment of that amount even if less than perfect performance of the conditions by the nonbreaching party contributed in some measure to the loss. Parties to a contract have the power to specifically delineate the scope of their liability at the time the contract is formed. Thus, there is nothing unfair in defining a contracting party’s liability by the scope of its promise as reflected by the agreement of the parties. Indeed, this is required by the very nature of contract law, where potential liability is determined in advance by the parties.

Although Wyo. Stat. 1-1-109 dealing with comparative fault has been extended to strict tort liability and products liability actions, the statute does not provide any indication that comparative fault is applicable to a breach of contract action. The comparative fault statute applies to tort claims where a party seeks personal injury or property damages caused by the fault of another. The Appellee, however, did not pursue a claim for personal injury or property damage in this case. The comparative fault statute is not applicable to this breach of contract action.

Affirmed.

J. Burke delivered the opinion for the court.

Summary 2011 WY 81

Summary of Decision May 13, 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: Mountain Cement Co. v. The South of Laramie Water & Sewer Dist.

Citation: 2011 WY 81

Docket Number: S-10-0199, S-10-0238

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462190

Docket No. S-10-0199: Appeal from the District Court of Albany County, The Honorable Jeffrey A. Donnell, Judge

Docket No. S-10-0238: W.R.A.P. 12.09(b) Certified Question from the District Court of Albany County. The Honorable Jeffrey A. Donnell, Judge

Representing Appellant (Plaintiff/Petitioner): Philip A. Nicholas & Mitchell H. Edwards of Nicholas & Tangeman, LLC, Laramie, Wyoming. Argument by Mr. Nicholas.

Representing Appellee (Defendant/Respondent): Kermit C. Brown and Elisa M. Butler of Brown & Hiser LLC, Laramie, Wyoming. Argument by Mr. Brown.

Date of Decision: May 13, 2011

Facts: The Appellee Water and Sewer District (the District) was established by a Board of County Commissioners (the Board) in 1992. The persons attempting to organize the District represented that the District would not levy property taxes, but would fund itself solely through user fees. Both the Petition submitted to the Board and the District’s Amended Rules and Regulations provided that the District intended to fund its systems with user fees, and not to levy taxes. Since its inception, the District has obtained water pursuant to an agreement for the city to furnish municipal water to the District.

Appellant owns land south of the city, with a portion of said land exceeding 20 acres in size lying within the District. It is undisputed that, in 1992, Appellant’s plant manager signed a petition favoring organization of the District, but that no one with actual authority ever consented in writing to Appellant’s inclusion in the District. It is also undisputed that Appellant obtains no water or other services from the District.

In 2008, Appellant learned from the County Assessor that the District intended to levy a tax against property lying within the District. Subsequently, Appellant filed in the district court the Complaint that underlies the Court’s case no. S-10-0199. A day after the Complaint was filed in the district court, Appellant filed with the Board the Petition which underlies this Court’s case no. S-10-0238. The Petition contained the same allegations found in the Complaint, but sought relief under Wyo. Stat. Ann. § 41-10-120 (LexisNexis 2007) and Wyo. Stat. Ann. § 22-29-307 (LexisNexis 2007).

In these consolidated appeals, Appellant challenged the district court’s conclusions that Appellant’s property was properly included in the District, that the District lawfully issued certain general obligation bonds, and also challenged the refusal of the Board to exclude Appellant’s property from the District.

Issues in S-10-0199: 1) Whether the District had the authority to include Appellant’s property within the District’s boundaries without Appellant’s written consent; 2) Whether the District’s proposed general obligation bond issue for the purpose of improving and expanding the District’s existing water system is in violation of law; and 3) Whether the District’s proposed general obligation bond issue for the purpose of improving and expanding the District’s existing water system violates the District’s statutory indebtedness limitation.

Issues in S-10-0238: 1) Does a Wyoming board of county commissioners have the power and authority to remove real property from a water and sewer district?; 2) If the answer to the first question is “yes,” under what circumstances may a board of county commissioners remove property from a water and sewer district?; and 3) Does the Petition for Exclusion of Appellant Company from the South of Laramie Water and Sewer District (the Petition), taking the facts alleged in the Petition as true and the allegations viewed in the light most favorable to Appellant, state a claim upon which relief can be granted?

Holdings: The Court affirmed the district court in S-10-0199, finding that Appellant is barred from challenging the inclusion of its property in the District. The allegation is barred not only by the strict thirty day period of limitation found in § 41-10-107(g), but also by the quo warranto requirement of the same statutory section. The Court did not consider the issue of whether the period of limitations found in § 1-3-109 was also exceeded.

The Court also affirmed the district court in finding that the District’s proposed general obligation bond issue was not unlawful. The Court concluded that, when read in pari materia with the other provisions of the Water and Sewer District Law, the unambiguous intent of § 41-10-128 is to allow, but not to require, the use of revenue bonds to fund its proposed well water project.

The Court also affirmed the district court’s determination that the District’s proposed general obligation bond issue did not violate the District’s statutory indebtedness limitation under the provisions of § 41-10-127. The Court concluded that, within the Water and Sewer District Law, the legislature did not intend to distinguish between the act of creating a system for the purpose of supplying water and the act of supplying water, and could see no logical reason for exempting from the debt limitation part, but not all, of the process of obtaining and providing water to a district.

In regards to the certified questions of S-10-023, The Court answered as follows and affirmed the decision of the Board not to exclude Appellant’s property from the district:

1. Does a Wyoming board of county commissioners have the power and authority to remove real property from a water and sewer district? Yes.

2. If the answer to the first question is “yes,” under what circumstances may a board of county commissioners remove property from a water and sewer district? The legislature has not defined the circumstances under which a board of county commissioners may remove property from a water and sewer district, leaving such boards unable to act upon a petition for exclusion.

3. Does the Petition for Exclusion of Appellant from the District, taking the facts alleged in the Petition as true and the allegations viewed in the light most favorable to Appellant, state a claim upon which relief can be granted? No.

J. Voigt delivered the opinion for the court.

Summary 2011 WY 80

Summary of Decision May 13, 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: Lindsey v. Harriet

Citation: 2011 WY 80

Docket Number: S-10-0046

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462188

Appeal from the District Court of Natrona County, Honorable Dan Spangler (Retired), Judge

Representing Appellant (Defendant): Ann M. Rochelle of Rochelle Law Offices, Casper, Wyoming

Representing Appellee (Plaintiff): Timothy J. Kirven of Kirven and Kirven, P.C., Buffalo, Wyoming

Date of Decision: May 13, 2011

Facts: Appellant, owner of sixty-seven shares of corporate stock appeals the district court’s summary judgment that imposed a constructive trust upon those sixty-seven shares for the benefit of several of her relatives, including Appellees, in accordance with the provisions of a document entitled Agreement for Disposition of Rental and/or Royalty Income signed by Appellant’s mother and grandmother.

Issues: Whether the claim of Appellees for a constructive trust barred because they failed to file a creditor’s claim in the Appellant’s mother. Whether the transfer of the 67 shares of stock by Appellant’s grandmother to her mother was a completed gift. Whether the transfer of the 67 shares of stock by Appellant’s mother to Appellant was a completed gift. Whether the Agreement for Disposition of Rental and/or Royalty Income constituted a promise by which Appellant’s mother induced her grandmother to transfer the 67 shares to her and by which transfer she was unjustly enriched so as to support a constructive trust. If the the Agreement was a promise to induce Appellant’s grandmother to transfer the 67 shares of BLC stock to her mother, what were the terms of that promise.

Holdings: A constructive trust is an equitable remedy imposed to compel a person who unfairly possesses a property interest to hold that property interest in trust for the person for whom, in equity and in good conscience, it should be held. The elements of a constructive trust are: (1) a promise, either express or implied; (2) a transfer made in reliance upon that promise; and (3) unjust enrichment. According to the district court’s decision letter, the governing document is the unambiguous 1989 Agreement between the Appellant’s grandmother and mother. The district court read that agreement to mean that Appellant’s grandmother transferred her ownership of her sixty-seven shares of stock to Appellant’s mother with the agreement that she would distribute the dividends to various people, including the Appellees and that that agreement gave them legally protected interests as third-party beneficiaries in a constructive trust. The problem with this reasoning that is that Appellant’s grandmother did not transfer her sixty-seven shares to Appellant’s mother in this 1989 Agreement. She had actually transferred those shares to her almost eighteen months earlier with no conditions or obligations attached. There is no genuine issue of material fact on that important point. There is no evidence that at that time Appellant’s mother promised Appellant’s grandmother that she would distribute dividends to their several relatives. There is no evidence that Appellant’s grandmother transferred her shares on that date in reliance of such a promise. For these reasons, the district court’s summary judgment in Appellees’ favor cannot stand.

Reversed and remanded.

J. Golden delivered the opinion for the court.

Summary 2011 WY 79

Summary of Decision May 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: Kelly v. McNeel

Citation: 2011 WY 79

Docket Number: S-10-0179, S-10-0190

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462137

Appeal from the District Court of Sublette County, Honorable Norman E. Young, Judge

Representing Appellants in Case No. S-10-0179 (Plaintiffs) : Chris Edwards of Simpson, Kepler & Edwards, the Cody, Wyoming Division of Burg Simpson Eldredge Hersh & Jardine, Cody, Wyoming.

Representing Appellee in Case No. S-10-0179 (Defendants): Henry F. Bailey, Jr. and Lance T. Harmon of Bailey, Stock & Harmon.

Date of Decision: May 9, 2011

Facts: Following a bench trial, the district court concluded that Appellants had exercised undue influence over her father in the creation of his will and trust. Accordingly, the district court invalidated the trust and will in which his daughter was named as one of two beneficiaries in place of his son, the Appellee. In a separate proceeding, the district court granted Appellee’s motion to remove Appellant daughter as guardian and conservator, and appointed Appellee to replace her.

Issues: Whether the district court’s finding of undue influence and removal of a guardian and conservator were clearly erroneous.

Holdings: In order to establish undue influence, it must be shown that: 1) there was an opportunity for the party in question to control the testamentary act; 2) that the testator’s condition was such as to permit subversion of his freedom of will; 3) there was activity on the part of the for the party in question; and 4) that the party in question unduly profited as beneficiaries under the will and trust. The party contesting a will bears the burden of proving undue influence by presenting evidence clearly demonstrating that the testator’s free agency was destroyed and his volition was substituted for that of another. The record shows that Appellee presented evidence demonstrating each of the elements of undue influence.

Undue influence is seldom susceptible of direct proof and may be established by proof of facts from which it may be fairly and reasonably inferred. The fact that a testamentary act is unnatural, unreasonable or unjust is a circumstance to be considered along with other evidence bearing on the question whether it is the result of undue influence. In the present action, prior to developing dementia the testator and Appellee had been inseparable. A fair inference could be drawn that his act of disinheriting him after the Appellants moved in was an unnatural circumstance to be considered along with the other evidence.

The record fully supports the district court’s findings and, thus, its order invalidating the trust amendment and will was appropriate.

Pursuant to Wyo. Stat. 3-3-1101(a)(iv) (2009), the district court has the authority to remove a trustee upon determining the trustee was not acting in the trust beneficiary’s best interest. In its order removing Appellant daughter, the district court expressly found that she was not acting in her father’s best interest. The court incorporated by reference the findings and conclusions contained in its order and judgment after trial of the undue influence claim. Neither the findings, nor the evidence supporting them, were known when the district court approved Appellant’s expenditures. Once they came to light in the context of the undue influence trial, the district court properly considered them and relied upon them in removing Appellant and appointing Appellee as guardian and conservator.

The district court’s judgment and orders are affirmed.







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

Summary 2011 WY 78

Summary of Decision May 5, 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: IN THE MATTER OF THE ADOPTION OF RMS, Minor child: EOS, v. JLS and RS

Citation: 2011 WY 60

Docket Number: S 10 0209

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462136

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

Representing Appellant (Plaintiff/Defendant): Tamara K. Schroeder of Chapman Valdez, Casper, Wyoming.

Representing Appellee (Plaintiff/Defendant): Stacy E. Casper of Casper Law Office, LLC, Casper, Wyoming.

Date of Decision: May 5, 2011

Facts: EOS, biological mother (Mother), appeals from the order allowing JLS’s and RS’s (Father and Stepmother) petition to adopt minor child, RMS, to proceed without Mother’s consent because she did not pay child support for a year before the petition was filed. Appellant claims there was insufficient proof that her failure to pay child support was willful.

Issues: Whether the District Court abused its discretion by allowing the petition for adoption to proceed without the consent of the Appellant. Whether the evidence was insufficient to support a finding that the Appellant had willfully failed to pay child support.

Holdings: A district court’s determination that a parent’s consent for an adoption is not required effectively terminates that parent’s parental rights. The right to associate with one’s family is fundamental; consequently, courts strictly scrutinize petitions to terminate a parent’s rights to his or her children. The petitioners have the obligation to establish by clear and convincing evidence that termination and adoption is appropriate. Mother claims that her failure to pay child support was not willful because she was unemployed and did not have the ability to pay.

In the instant case, the evidence established that Mother worked at a daycare until shortly after the child support order was entered, at which time she voluntarily ended her employment, and hence voluntarily terminated her means of providing support. Although she testified that she applied for jobs after that, without success, she did not take other steps to improve her prospects of becoming employed such as registering with an employment service or finishing the GED program to enhance her education. In addition, when Mother secured a job babysitting for her cousin and was paid for those efforts, she did not pay any of that money toward her child support obligation, despite the fact that her parents were paying for her living expenses. Although she testified that she did not voluntarily remain unemployed to avoid her child support obligation, the district court weighed the evidence and concluded she acted willfully.

The district court’s conclusion that Mother acted “intentionally, knowingly, purposely, voluntarily, consciously, deliberately, and without justifiable excuse, as distinguished from carelessly, inadvertently, accidentally, negligently, heedlessly or thoughtlessly’” when she did not pay child support was supported by the evidence. Contrary to her assertion, the record does not establish that she was being punished simply for being poor and uneducated. The evidence shows that Mother did not take the reasonable or logical steps necessary to become employed and support her child. In other words, she failed to demonstrate that, through whatever financial means were available to her; she had not forgotten her legal obligation to support her child. The district court did not abuse its discretion by concluding there was clear and convincing evidence that Mother willfully failed to support her child. Affirmed.

Chief Justice Kite delivered the opinion for the court.

Summary 2011 WY 77

Summary of Decision May 5, 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: Sanchez v. State



Citation: 2011 WY 77



Docket Number: S-09-0113, S-10-0044



URL: http://www.blogger.com/goog_1360459507



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



Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; Kirk A. Morgan, Assistant Appellate Counsel; Wyoming Public Defender Program; Timothy C. Kingston of the Law Office of Tim Kingston, Cheyenne, Wyoming.



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



Date of Decision: May 5, 2011



Facts: A jury found Appellant guilty of attempted second degree murder, aggravated assault and battery, felony possession of a controlled substance, and interference with an emergency call. Appellant later sought a new trial, which the district court denied. He appealed both the judgment and sentence and the denial of his new trial motion, and the appeals were consolidated.



Issues: Whether the district court erred when it denied Appellant’s motion for judgment of acquittal, for lack of sufficient evidence, on the possession of a controlled substance charge. Whether the district court erred when it allowed in prejudicial hearsay testimony under W.R.E. 803(2). Whether the district court violated Appellant’s constitutional right to be presumed innocent and invade the province of the jury by referring to the complaining witness as “the victim.” Whethers Appellant was denied his constitutional right to a fair trial before an impartial jury when one of the jury members had knowledge that Appellant had previously been incarcerated at the Wyoming State Penitentiary, and failed to divulge this fact when asked on voir dire if he knew Appellant. Whether the Appellant received effective assistance of counsel from his attorneys in their representation of him in the court below.





Holdings: After the district court denied the motion for judgment of aquittal, Appellant introduced evidence in defense of the possession charge. The law is well established that a defendant’s introduction of evidence following the denial of a motion for judgment of acquittal at the end of the State’s case constitutes a waiver of that motion, thereby precluding appellate review of that denial. Thus, Appellant waived the right to challenge the district court’s ruling on appeal.



Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay is not admissible unless it falls within a well-delineated exception. An exception is found for an excited utterance, which is defined as a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Five factors are to be considered in determining the admissibility of evidence under the excited utterance exception: (1) the nature of the startling event; (2) the declarant’s physical manifestation of excitement; (3) the declarant’s age; (4) the lapse of time between the event and the hearsay statement; and (5) whether the statement was made in response to an inquiry. The ultimate inquiry is whether the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive rather than the product of reflection and deliberation. In the present action, a review of the statements in question show that the factors have been met and that the challenged statements were properly admitted as excited utterances under W.R.E. 803(2).



Viewing the challenged statement referring to the witness as “the victim” in proper context, it is clear the district court was simply describing the alleged roles of the major identified players in the case in an effort to ascertain if any of the potential jurors had knowledge of the case, or had any ties to it or the parties which might prevent them from being impartial or fair. The district court did not tell the panel that, as a matter of law, it had to consider the witness to be a victim, much less Appellant’s victim. Moreover, the district court’s statement did not materially prejudice Appellant. The district court’s description of the wtiness as the victim was a single, isolated incident that occurred at the beginning of a four-day trial. The jury was instructed that it was the sole judge of the facts of the case and that it was to disregard any comment the court made regarding the facts in assessing Appellant’s guilt or innocence on the charged offenses. Additionally, it was uncontested at trial that the witness was the victim of a vicious beating. The only real dispute concerned whether Appellant was her assailant and, if so, whether he was the first aggressor or acted in self-defense. Additionally, the evidence of Appellant’s guilt was substantial. After careful consideration of the record, there was no reasonable possibility that the jury’s verdict would have been more favorable to Appellant in the absence of that isolated statement.



For Appellant to prevail on a claim of ineffective assistance of counsel claim, he must first establish that trial counsel’s performance was deficient. This requires a showing that counsel failed to render such assistance as would have been offered by a reasonably competent attorney. Appellant then must demonstrate that counsel’s deficient performance prejudiced his defense. Under the prejudice prong, Appellant must demonstrate a reasonable probability exists that, but for counsel’s deficient performance, the outcome of his trial would have been different. The failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffectiveness claim. Appellant did not satisfy his burden on either prong of the ineffectiveness standard. First, Appellant’s ineffectiveness argument is devoid of any analysis establishing that counsel’s performance was legally deficient. More importantly, Appellant has made absolutely no showing of actual prejudice arising from counsel’s alleged deficient performance. That is, he does not explain, within the context of the facts of this case, how counsel’s alleged errors adversely affected the outcome of his trial.



Appellant also presented a motion requesting a partial remand in order for the district court to conduct an evidentiary hearing on the issue of whether his trial counsel provided legally effective assistance. The motion was denied. Appellant challenges that denial in his appellate brief and asks for a reconsideration. There are generally two types of ineffective assistance of counsel claims, those that are apparent in the trial record and those that are outside the record. An evidentiary hearing is necessary only on the latter type of claim, if an appellant can make a showing that his ineffectiveness claim has merit. Such remand shall be available only if the motion is accompanied by affidavits containing non-speculative allegations of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel’s representation was deficient and prejudiced the appellant. Appellant does not show how any of the claims of ineffectiveness being made prejudiced him or would have altered the outcome of his trial.



There are no reversible errors with respect to any of the issues raised in this appeal.



Affirmed.



J. Golden delivered the opinion for the court.

Summary 2011 WY 76

Summary of Decision May 3, 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: Maverick Motorsports Group, LLC V. Department of Revenue

Citation: 2011 WY 76

Docket Number: S-10-0220

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462107

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

Representing Appellant (Petitioner): John M. Kuker and James M. Peterson of Romsa & Kuker, Cheyenne, Wyoming.

Representing Appellee (Respondent): Bruce A. Salzburg, Wyoming Attorney General; Michael L. Hubbard, Deputy Attorney General; Martin L. Hardsocg, Senior Assistant Attorney General; and William F. Russell, Senior Assistant Attorney General

Date of Decision: May 3, 2011

Facts: Appellant challenges a decision of the State Board of Equalization that certain sales to nonresident buyers were subject to Wyoming sales tax. The vehicles were transferred in three ways: most were picked up by the purchaser at one of the stores, some were delivered by a common carrier selected by the purchaser, and some were delivered by Appellant. Appellant would mail any documents necessary to title or register the vehicle to the buyer a few weeks after the sale. The SBOE agreed that Appellant had provided adequate proof and ruled that most of the sales where Appellant actually delivered the vehicles were “destination sales” where transfer of title or possession took place outside Wyoming and no sales tax was due. However, the majority of the sales involved customers who came to one of the stores, picked up the vehicle and then returned to their home state with the purchase. The SBOE found that possession of these vehicles, as well as those involving delivery by use of a common carrier selected by the buyer, were transferred to the buyer in Wyoming and therefore, Wyoming sales tax was due.

Issues: Whether sales of recreational vehicles were taxable in Wyoming because possession was transferred in Wyoming. Whether enforcement and collection of Wyoming sales taxes violate the Commerce Clause, Art. 1, § 8, of the United States Constitution.

Holdings: Prior to January 1, 2008, and during the time at issue here, Wyo. Stat. 39-15-101(a)(vii) (2005) defined a “sale” as “any transfer of title or possession in this state for consideration.” Pursuant to Wyo. Stat. 39-15-103(a)(i)(A) sales tax is imposed on the sales price of every retail sale of tangible personal property within the state. Wyo. Stat. 39-15-107(a)(i) and (b)(viii) requires sellers to collect and remit to the state the taxes imposed on sales of motorcycles and off-road vehicles. The Wyoming Sales and Use Tax Regulations in effect at the relevant time, provided that the point at which title or possession of tangible personal property passes to the purchaser would determine the location of the sale.

Appellant argues that the sales in question were nontaxable destination sales because neither title nor possession was transferred in Wyoming. Appellant contends that the sale documents show that the parties intended for change of possession to happen in the buyer’s home state and the buyer had only constructive possession until the vehicle actually arrived at the buyer’s residence.

The general rule is that title passes at the point of shipment controls unless the circumstances clearly demonstrate a contrary intent. The SBOE relied upon Wyo. Stat. Ann. § 34.1-2-401 (the U.C.C.) to determine that title passed to the buyer when the vehicle was physically delivered to the buyer or the buyer’s agent. Appellant argues that it was improper for the SBOE to rely on the Wyoming U.C.C. statute because the comment to this section precludes reliance on the U.C.C. for regulatory purposes However, it was appropriate for the SBOE to rely on the U.C.C. as an objective test to determine when title passed. There is no reason why, when a question arises under regulations as to contract interpretation, a court should not employ the U.C.C. as its frame of reference.

Appellant then asserts that even if the SBOE could use the U.C.C., the SBOE decision was still wrong because the parties had an express agreement that title would pass when the vehicle reached the buyer’s home state. The SBOE found that the sale documents did not determine the point of transfer. The statement on the invoices, “delivered out of state,” is not sufficient to overcome the fact that actual possession was transferred in Wyoming at the time of pick-up. The parties could have but did not use other language in the invoice to suggest that the transfer of possession would occur in another location, such as clauses dealing with risk of loss or responsibility for selection of carriers; this wording was missing from the invoices. An objective analysis indicates that transfer of possession occurred in Wyoming.

Additionally, Appellant contends that title was transferred to the buyer when the certificate of title or the manufacturer’s statement of origin (MSO) was mailed to the buyer or the buyer’s lender some weeks after the sale. Appellant uses the term “title” to mean the written documents that prove ownership. However, Wyoming has long recognized that “title” has a broader definition. The statutory use of the term “title” means “‘the union of all elements (as ownership, possession, and custody) constituting the legal right to control and dispose of property.” “Title” to a vehicle may be transferred, or passed, even though there is a failure to comply with code provisions concerning the certificate of title. The question is not when the buyer received his paperwork, but when he became the owner of the vehicle.

Appellant also argues that those customers who picked up their vehicles were acting as their own agent and only had constructive possession for delivery purposes; therefore, possession did not transfer from the seller to the buyer until the buyer arrived home. Appellant forwards the interesting argument that a person can be his own agent and have only constructive possession of an item that he controls. The contention that a person can act as his own agent presents several practical problems and is contrary to established law. A relationship of agency is established when two parties agree that one, the agent, shall act on behalf of and subject to the control of the other, the principal. Agency is the fiduciary relationship that arises when one person manifests assent to another person that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act. This contemplates different entities for agent and principal. Furthermore, there is no logic to the assertion that a person in actual control of an object has only “constructive possession.”

The remaining transactions are those where delivery was made by a third-party carrier. The evidence was that Appellant might recommend a carrier; however, the customer ultimately chooses the carrier, and the contract is between the carrier and the customer. Under these facts, the carrier would be the agent of the buyer; and when possession was transferred to the carrier in Wyoming, sales tax was due.

Appellant argues that collection of a sales tax on these vehicle transactions also violates the Commerce Clause, Art. 1, § 8, of the United States Constitution. First, Appellant asserts that a Wyoming tax discriminates against or unduly burdens interstate commerce; and, second, unless Appellant is allowed a credit for sales or use taxes paid in other states, there is an unconstitutional multiple taxation of a single transaction. Appellant falls short with its argument since he fails to recognize that this is not an issue of an imposition of a tax; rather, the issue is a question of whether a sales tax, properly imposed, may be enforced and collected. Appellant had the obligation to collect the tax at the time of the sale. Tax credit provisions create a national system under which the first state of purchase imposes the tax. Wyoming is the first state of purchase, so it is entitled to impose the tax, and other states should allow a credit for the Wyoming tax. Appellant had a statutory obligation to collect the sales tax; and if it had done so, there would be a strong argument that the buyer’s home state would be required to grant a credit for the sales tax.

Substantial evidence supports the SBOE’s finding that transfer of possession and title of these vehicles occurred in Wyoming, and the levy of a sales tax on these transactions is appropriate. The actions of the SBOE in determining that the purchase of the various recreational vehicles at issue in this case constitutes a taxable event in Wyoming is affirmed. Additionally, the collection of sales taxes on these vehicles does not violate the U.S. Constitution, Art. 1, § 8, (the Commerce Clause).

D.J. Park delivered the opinion for the court.

Summary 2011 WY 75

Summary of Decision May 3, 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: Lefferdink v. State

Citation: 2011 WY 75

Docket Number: S-10-0201

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462106

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

Representing Appellant (Defendant): David McCarthy, Laramie, WY

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Senior Assistant Attorney General. Argument by Ms. Pojman.

Date of Decision: May 3, 2011

Facts: During an undercover operation, Appellant’s computer IP address showed that it was downloading child pornography. The sheriff’s department began to monitor that address. A search warrant was obtained from the communications company to identify the user of the IP address. Subsequently, Appellant was charged with two counts of sexual exploitation of children.

Appellant filed a motion to suppress evidence, based upon the contention that the sheriff’s deputy lied in his affidavits. Appellant also filed a motion requesting that the court issue a subpoena duces tecum to the Division of Criminal Investigation requiring the production of all notes, documents, and reports created during its forensic investigation of Appellant’s computers. The district court granted the motion requesting the subpoena duces tecum. However, a motion to quash was filed, because the subpoena directed the information to be produced to Appellant, and not the court. The court granted the motion to quash because the subpoena was not in compliance, but encouraged the issuance of another subpoena in compliance with the law. However, another subpoena was never issued.

Both parties stipulated that the deputy did misstate the time and date in both affidavits of when he first saw Appellant’s IP address. The court still denied the motion to suppress, however, and found that the misstated time and date was at most a simple mistake. The court ruled that even if the time and date were omitted from the affidavits, they still contained enough information to support the search warrants.

Appellant entered a conditional plea with the understanding of both parties that his intent was to appeal the denial of the motion to suppress. He was sentenced on both counts. The sentence was suspended, and he was placed on supervised probation and received credit for time served. This appeal followed.

Issues: 1. Whether the misstatement of fact in the affidavit for a search warrant should be stricken as knowingly and intentionally made or in reckless disregard for the truth. 2. Whether Appellant’s right to confrontation and due process were violated for a failure to disclose exculpatory evidence. 3. Whether, if stricken, probable cause for the search of a computer IP address or residence exists within the four corners of the affidavit.

Holdings: During the motion hearing, the deputy testified that in drafting the first affidavit for a search warrant, he included references to multiple computer files containing child pornography and the dates and times during which he observed them being viewed or shared through Appellant’s IP address. However, before presenting the affidavit to the circuit court, a county attorney suggested to the officer that he include “the worst of the worst” files in the affidavit in order to simplify the search. In doing so, remaining dates and times of observations were deleted. The affidavits supported the deputy’s testimony. The deputy stated on direct examination that misstating the date and time was not intentional, but a "cut and paste" error. The Court agreed with the district court, that although the date and time was wrong as it was listed in the affidavits, the misinformation was simply a mistake made by the deputy and was not deliberate. Given that the trial court had an opportunity at the evidentiary hearing to assess the credibility of the witnesses, weigh the evidence, and make the necessary inferences, deductions, and conclusions, the Court would not interfere with its decision to deny the motion to suppress.

The Court did not find deficiencies in the affidavits. The Court agreed with the State that the remaining content was sufficient to cause a reasonably cautious person to believe that the crime of sexual exploitation of children had been or was being committed by the user of the IP address listed in the affidavits. The affidavits sufficiently indicated that the IP user’s identifying information was available from the communications company, and that evidence of a crime could be found on the computers located in that user’s residence. Under an objective test, there was adequate information to justify the assertions made by the affiant and relied upon by the judge in issuing the warrant.

The order of the district court denying Appellant’s motion to suppress was affirmed.

On the issue that the State failed to disclose material and favorable evidence, the Court found that Appellant’s conditional plea did not preserve any Brady issue. The Court therefore declined to consider that issue on appeal.

The Judgment and Sentence of the district court was affirmed.

J. Hill delivered the opinion for the court.

Summary 2011 WY 74

Summary of Decision May 2, 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: Joe’s Concrete and Lumber, Inc. v. Concrete Works of Colorado, Inc.

Citation: 2011 WY 74

Docket Number: S-10-0036

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462090

Appeal from the District Court of Sublette County, Honorable Marvin L. Tyler, Judge

Representing Appellants (Plaintiffs): Andrea L. Richard of The Richard Law Firm, Jackson, Wyoming.

Representing Appellee (Defendants): William H. Twichell, Pinedale, Wyoming.

Date of Decision: May 2, 2011

Facts: After a jury found that Appellees breached its contract with them, Appellants presented evidence documenting its claim for attorney fees. The district court declined to consider the documentation on the ground that it was not presented at trial, concluded the evidence presented at trial did not support an attorney fees award and denied the attorney fees claim in its entirety. On appeal, Appellants contend the district court erred in failing to consider the evidence.

Issues: Whether the district court properly denied attorney fees.

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 this case, the jury found the invoices Appellant presented to Appellee with each truckload of concrete constituted contracts and that Appellee breached the contracts when it failed to pay the invoice amounts in full. The contracts provided that in the event Appellant was forced to take action to collect on the accounts, Appellee would be charged for the costs and attorney fees incurred in the collection efforts. Appellant did, in fact, take action to collect on the accounts and a jury awarded it in damages. In accordance with the terms of the contracts, Appellee was obligated to pay costs and attorney fees.

The issue of attorney fees may be addressed as an element of damages, or it may be addressed through the filing of a post-judgment motion as described in W.R.C.P. Rule 54. Pursuant to the language in Rule 54(A), claims for attorney fees are to be made by motion unless the substantive law governing the action provides for their recovery as an element of damages to be proved at trial. Where the parties’ contract provides that legal costs were part of the damages available in the event of its breach, the attorney fees fall within the substantive claim exception to F.R.C.P. 54 and are to be proven at trial, not by post-trial motion. In contrast, where the contract provides for the recovery of fees by the prevailing party, such fees are not an element of damages to be proved at trial but are collateral to the merits of the case requiring a Rule 54(d)(2) motion.

The contracts at issue in the present case did not provide that attorney fees were an element of damages to be proved at trial nor did they expressly provide that the prevailing party was entitled to fees. The contracts provided only that in the event Appellant was forced to take action to collect on the accounts, Appellee would be charged for the attorney fees incurred in the collection efforts. However, it is logical to conclude the parties intended that Appellee, as the buyer, would only be obligated to pay attorney fees if Appellant successfully proved Appellee actually owed the amounts claimed to be due under the contracts. In essence, these contracts were prevailing party contracts. As contemplated by the contract language, Appellant was forced to take action to collect amounts due on the accounts. Appellant filed a breach of contract action in which it prevailed. It was, therefore, entitled to recover its fees. Under these circumstances, the attorney fees were not an element of damages to be proved at trial but were collateral to the merits of the case.

The case is reversed and remanded with instructions that Appellant is contractually entitled to attorney fees. The district court must consider all attorney fees evidence currently contained in the record and determine whether: 1) the fee charged represents the product of reasonable hours times a reasonable rate; and 2) other factors of discretionary application should be considered to adjust the fee either upward or downward.

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