Summary 2011 WY 102

Summary of Decision June 30, 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: Magin v. Solitude Homeowner’s Inc.

Citation: 2011 WY 102

Docket Number: S-10-0166, S-10-0177

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=463609

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

Representing Appellant in case S-10-0166 (Defendant): Gerard R. Bosch and Mark J. Longfield of Law Offices of Jerry Bosch, Wilson, Wyoming.

Representing Appellee in case S-10-0166 (Plaintiff): Glenn M. Ford of Garland Ford & Potter, Jackson, Wyoming.

Date of Decision: June 30, 2011

Facts: The district court granted Appellee summary judgment on its claims that Appellant had violated the subdivision’s protective covenants by erecting screens, brush, log piles, and fencing. The district court also awarded Appellee attorney fees. On appeal, Appellant challenges the district court’s refusal to disqualify Appellee’s counsel for having a conflict of interest and its refusal to allow her additional time to respond to Appellee’s summary judgment motion. She also claims the district court erred by granting summary judgment to Appellee on the covenant violations and awarding Appellee attorney fees.

Issues: Whether the district court abused its discretion when it denied Appellant’s Motion to Disqualify Appellee’s attorney under Rule 1.9 of the Wyoming Rules of Professional Conduct for Attorneys at Law and for a hearing on the matter. Whether the district court abused its discretion by denying Appellant’s motion to continue the summary judgment hearing and/or motion for extension of time to respond to Appellee’s motion for summary judgment. Whether the district court erred by granting summary judgment in favor of Appellee on the basis that Appellant had violated the covenants. Whether the district court abused its discretion by awarding Appellee attorney fees

Holdings: Although the attorney representing Appellee did not formerly represent Appellant, another member of his firm did. Rule of Professional Conduct for Attorneys at Law 1.10(a) imputes a conflict of interest to all members of a law firm the representation of the client by the remaining lawyers in the firm. Four elements need to be proven to establish a Rule 1.9 violation: 1. there must have been a valid attorney-client relationship between the attorney and the former client; 2. the interests of the present and former clients must be materially adverse; 3. the former client must not have consented, in an informed manner, to the new representation; and 4. the current matter and the former matter must be the same or substantially related. Appellee concedes that all of the elements of the test are met in this case, with the exception of the last element.

Matters are “substantially related” for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter. A former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services.

In the present action, the materials submitted by Appellant establish that the genesis of the first dispute was a claim by Appellee and her neighbors that certain structures and fences constructed on her property by her predecessor violated the covenants. Appellant’s submissions showed that Appellee’s attorney advised her with regard to interpretation of some of the same covenants at issue here and negotiated with Appellee with regard to the covenant violations. However, Appellant surrendered her right to disqualify Appellee’s attorney because she did not file a motion to disqualify within a reasonable time after she discovered the conflict. Appellant did not file her motion for disqualification until over a year after representation began. During that time, the parties performed significant work on the case, including conducting discovery, locating expert witnesses and filing dispositive motions. An order by the district court requiring withdrawal at that late date would have wasted judicial resources and prejudiced Appellee by requiring it to find new counsel costing additional time and money and unnecessarily delaying resolution of the matter. Therefore, the district court did not abuse its discretion by denying the motion or refusing to reconsider its denial.

A district court has broad discretion to grant or deny a motion for continuance and absent a manifest abuse of discretion, its ruling will not be disturbed. In the present action, Appellee filed its motion for summary judgment in August 2009. Appellant filed motions for extension of time to respond to the summary judgment motion in August and September 2009, citing Appellee’s failure to comply with her discovery requests. At a hearing on September 29, 2009, the district court ordered Appellee to produce the documents requested by Appellant and make its board members and experts available for depositions. Appellee produced documents to Appellant in October 2009. The record contains no evidence that Appellant made any effort to depose the Appellee board members and experts following the district court’s ruling that she was entitled to do so. If she did and was refused by Appellee, Appellant filed no motion to compel. Additionally, after Appellee produced the documents in October 2009, the record contains no evidence that Appellant requested additional information or used the documents produced to prepare a response to Appellee’s motion for summary judgment.

On February 22, 2010, the district court sua sponte set a hearing on all pending motions for April 1, 2010. Appellant still took no action to prepare a response to the summary judgment motion and on March 26, 2010, filed a motion to continue the hearing on Appellee’s summary judgment motion. The district court denied the motion to continue on March 30, 2010. On the day of the hearing, Appellant filed a memorandum requesting additional time to respond to Appellee’s summary judgment motion under W.R.C.P. 56(f), citing among other reasons, the need to depose several witnesses. The district court denied the request and granted summary judgment on the merits in favor of Appellee.

The fact that a district court has not set deadlines for discovery or filing responses to dispositive motions does not mean the parties can allow a matter to languish. Wyoming Rule of Civil Procedure 6(b) and (c) set forth the time for responding to motions when the district court has not set other deadlines and a means for seeking an order from the district court establishing different deadlines. If Appellant wanted different deadlines set, she should have filed a motion asking for them. In addition, nearly six weeks passed between the February 22, 2010, order setting the summary judgment hearing and the actual hearing on April 1, 2010, during which Appellant could have prepared a response to Appellee’s summary judgment motion.

Appellant also claimed she was entitled to additional time to conduct discovery under W.R.C.P. 56(f). However, a litigant cannot use Rule 56(f) to excuse his failure to move forward with discovery, etc. and forestall summary judgment when he has had ample time to conduct discovery and respond to a summary judgment motion. Appellant did not establish that she had insufficient time to obtain the necessary discovery or that she had a valid reason for being unable to present facts essential to her position. She had over six months from the time the district court granted her discovery requests until the summary judgment hearing was held. Even after the denial of her motion for disqualification, she had four months to prepare. Appellant simply ignored her obligations to move forward with discovery and present a response to Appellee’s summary judgment motion. Thus, the district court acted well within its discretion and consistent with the letter and spirit of the rules and did not abuse its discretion by denying the motion for a continuance or refusing Appellant additional time to respond to the summary judgment motion under Rule 56(f).

The party requesting a summary judgment bears the initial burden of establishing a prima facie case for summary judgment. If he carries his burden, “the party who is opposing the motion for summary judgment must present specific facts to demonstrate that a genuine issue of material fact exists. In the present action. Appellee’s submissions established a prima facie case that the conditions on Appellant’s property violated the covenants. Appellant filed no substantive response to Appellee’s motion for summary judgment, and, thus, failed to raise any genuine issue of material fact regarding the violations of the covenants. The district court properly granted Appellee’s motion for summary judgment under Rule 56 and ruled that Appellant must bring her property into compliance with the covenants.

Wyoming follows the American rule regarding recovery of attorney fees, meaning that each party is generally responsible for its own attorney fees. Nevertheless, a prevailing party may be reimbursed for its attorney fees under a contractual or statutory provision which allows for fee shifting. The award in this case was based upon an amendment to the subdivision covenants which provides for payment of the Appellee’s attorney fees in actions it takes to enforce the covenants. The district court properly ruled as a matter of law that Appellee was entitled to recover its attorney fees for enforcing the covenants.

However, the attorney fees provision only allows Appellee to recover fees for enforcing the covenants. The attorney fees associated with clearing the conflict of interest were not “incurred in enforcing” the covenants. Segregation of fees allowed by the contract from those that are not is required, if possible. A party must show segregation is impossible before he may recover for claims for which there is no authorization for fee shifting. When segregation is possible but is not done, the entire fee award is subject to reversal. In the present circumstances, segregation was obviously possible and, yet, was not done.

There are also equitable reasons to deny Appellee’s request that Appellant reimburse it for Mr. Ford’s attorney fees. Wyo. Stat. 1-14-126(b) (2009) states that the court may award attorney fees “in its discretion.” Forfeiture of attorney fees is recognized as one of the remedies for violating Rule 1.9’s prohibition against conflicts of interest. It is hard to imagine a circumstance where this principle would apply with greater force than here. Appellee requested that Appellant pay the fees generated by an attorney who had an obvious conflict of interest. It would certainly be inequitable to require her to pay his fees under these circumstances.

The same rationale does not, however, apply to the award of fees for the work done by the first law firm that represented Appellee. The district court did not abuse its discretion by awarding Appellee fees for the first firm, and that portion of the award is affirmed. The remainder of the award is reversed.

Appellee’s counsel had a conflict of interest; however, the district court did not err by refusing to disqualify the firm because Appellant’s motion to disqualify was untimely. The district court also did not abuse its discretion by refusing to allow Appellant additional time to respond to Appellee’s summary judgment motion and properly granted summary judgment in favor of Appellee and ordered Appellant to bring her property into compliance with the covenants. However, the district court abused its discretion by ordering Appellant to pay the attorney fees generated by her former firm because it failed to segregate the non-recoverable fees associated with clearing the conflict.

Affirmed in part and reversed in part.


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

Summary 2011 WY 101

Summary of Decision June 29, 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 David Robinson v. State of Wyoming

Citation:  2011 WY 101

Docket Number: S-10-0234

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=463589

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

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; and Eric M. Alden, Senior Assistant Appellate Counsel.  Argument by Mr. Alden.

Representing Appellee (Plaintiff): Gregory A. Phillips, 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: June 29, 2011

Facts: Appellant was convicted of three misdemeanors and one felony.  All of these crimes arose in a domestic violence context.  Appellant challenged one of those misdemeanor convictions, a violation of a protection order charged under Wyo. Stat. Ann. § 6-4-404.  The gravamen of the crime was that he mailed a letter from his jail cell in Oregon (where he was being held on a warrant for his other Wyoming crimes) to the victim who had obtained the protection order.  The posting and the eventual receipt of that letter by the victim was the basis for the violation of the protection order issued by the circuit court of Crook County.  Among other things, Appellant claimed that there was insufficient evidence to sustain a conviction for the crime charged. 

Issues: Whether the district court had subject matter jurisdiction to prosecute a violation of Wyo. Stat. Ann. § 7-3-510(c) under § 6-4-404.  Whether venue was proper where Appellant’s act occurred outside the county of prosecution.  Whether there was sufficient evidence presented to prove an act of violation of the protection order within Crook County. Whether the trial court abused its discretion by allowing the testimony of the “domestic violence” expert.

Holdings: If all had gone as it should, Appellant would have been charged under § 7-3-510(c).  However, given that the protection order was actually issued under Title 6, Appellant could have been prosecuted under § 6-2-506(d).  However, there appeared to be no basis to have charged and convicted Appellant under § 6-4-404(b), and there was no evidence in the record on appeal that relates to such a crime.  Because of this error, the Court was compelled to reverse that conviction.  Although it had the superficial appearance of being a harmless error as contemplated by W.R.A.P. 9.04 (in that all three of the punishment provisions are virtually identical), the Court concluded that the lack of evidence to support the conviction, as charged, mandated reversal.  Because of this disposition, the Court did not need to address the other issues raised.  The judgment of the district court was reversed as to the conviction entered pursuant to § 6-4-404, and the remainder of the judgment was affirmed.  The sentence imposed for the § 6-4-404 conviction was vacated, and the matter was remanded to the district court for adjustment of the sentence accordingly.

Although the decision was based upon grounds somewhat different from those raised in the briefs, the Court reversed that conviction and remanded the matter to the district court with directions that the conviction at issue be vacated and that Appellant be resentenced accordingly.

Justice Hill delivered the opinion for the court.

Summary 2011 Wy 100

Summary of Decision June 27, 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: Vasco v. The State of Wyoming, Department of Transportation

Citation: 2011 WY 100

Docket Number: S-10-0235

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=463498

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

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

Representing Appellee (Respondent): Bruce A. Salzburg, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General.

Date of Decision: June 27, 2011

Facts: Appellant was arrested for interference with a police officer and for driving under the influence of alcohol. He refused to submit to chemical testing, and the Wyoming Department of Transportation (WYDOT) advised him that it was suspending his driver’s license for six months. He requested a hearing, at the conclusion of which the Office of Administrative Hearings (OAH) upheld the suspension. Appellant sought review in the district court, which affirmed the OAH order. Appellant appealed to this Court, claiming the arresting officer lacked probable cause to arrest him.

Issues: Whether probable cause existed to arrest Appellant for interference, such that the evidence that he had been driving under the influence of alcohol obtained thereafter was admissible and sufficient to support suspending his driver’s license.

Holdings: Appellant contends his arrest for interference with a police officer was unlawful because the officer lacked probable cause for the arrest. He argues further that because the interference arrest was unlawful, all of the evidence obtained thereafter was tainted and should have been suppressed. Because the suspension of his driver’s license depended upon a lawful arrest for DUI and the evidence giving rise to his DUI arrest resulted from an unlawful interference arrest, Appellant submits, the fruit of the poisonous tree doctrine barred the evidence of either arrest and the suspension of this license must be rescinded.

Probable cause for a warrantless arrest exists when, under the totality of the circumstances, a prudent, reasonable, and cautious peace officer would be led to believe that a crime has been or is being committed and the individual arrested is the perpetrator. Appellant was arrested for violating Laramie Municipal Ordinance § 9.04.030, which provides in pertinent part that “No person shall resist any police officer . . . in the discharge of his duties or in any way interfere with or hinder or prevent him from discharging his duty . . . or endeavor to do so.” The State had the burden of proving probable cause existed to arrest Appellant for interference.

From the totality of the circumstances, a prudent, reasonable and cautious peace officer would have been led to believe that Appellant was resisting, interfering, hampering or preventing the discharge of his duties. When asked for identification, Appellant gave a false name and attempted to walk past the officer. When the officer told him to stop, informed him that he was investigating a hit and run accident and asked again to see some identification, he hindered the officer’s efforts by opening, closing and putting his wallet back in his pocket several times without letting the officer see his driver’s license. He also disregarded the officer’s order to stay where he was and answer questions by attempting to go inside his apartment. After the officer warned him that he would be arrested for interference if he did not produce his driver’s license, Appellant nudged past him and headed for his apartment. By these acts, Appellant gave the officer probable cause to believe that he was hindering him from discharging his duty to investigate the hit-and-run accident. There was probable cause to arrest Appellant for interference with a police officer.

The officer also had probable cause to believe Appellant had been driving under the influence of alcohol. At the time the officer stopped and questioned Appellant, he knew the Nissan truck involved in the hit-and-run accident was registered to him and the driver had left the scene on foot. Additionally, he had seen Appellant who he knew from previous contact, walking from the direction of the accident toward his apartment. Upon stopping and questioning him, the officer smelled alcohol on Appellant’s breath and noticed his eyes were red and he was swaying. After arresting him for interference, the officer searched Appellant and found a set of keys with a Nissan remote control. The officer subsequently confirmed that the keys belonged to the Nissan involved in the accident. Additionally, he learned that another officer had found a beer bottle on the ground outside the passenger door of the Nissan and that the beer bottle fell out when the person whose vehicle the Nissan hit went looking for the driver and opened the passenger door. With that information, there was probable cause to believe that Appellant had been driving the Nissan while under the influence of alcohol and was required to advise Appellant, who was then lawfully under arrest, in accordance with the Wyoming implied consent statutes.

Affirmed.



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

Summary of Decision June 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: Bruyette v. State

Citation: 2011 WY 99

Docket Number: S-10-0250

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=463433

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

Representing Appellant (Defendant): Diane Lozano, State Public Defender, PDP; Tina Olson, Appellate Counsel; Eric M. Alden, 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; Katrina J. Brown, Student Intern.

Date of Decision: June 24, 2011

Facts: Appellant was charged with felony possession of marijuana. At trial, he sought to introduce evidence that he obtained the marijuana in California with a prescription for medical marijuana. The district court granted the State’s in limine motion to exclude evidence relating to a medical marijuana defense and instructed the jury that possession of medical marijuana was not a defense to the crime charged. The jury convicted Appellant of felony possession of marijuana. Appellant appeals, claiming the district court denied him his constitutional right to present his defense.

Issues: Whether Appellant was denied his right to present a defense to the jury guaranteed by Art. 1, § 10 of the Wyoming Constitution and the United States Constitution.

Holdings: A criminal defendant has the right to present evidence in his own defense. That right, however, is not unlimited. The Wyoming Rules of Evidence provide that for evidence to be admissible, it must be relevant. Relevant evidence is evidence having a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Even relevant evidence may be excluded, however, “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

Here, the district court concluded a California physician’s recommendation to use marijuana for medical purposes (if such a recommendation existed) was not a valid prescription or medical practitioner’s order within the meaning of Wyo. Stat. 35-7-1031(c) and was not, therefore, a valid defense to a charge in Wyoming for possessing marijuana. A defendant charged with possession of marijuana under § 35-7-1031(c) is not exempt from criminal liability in Wyoming even if he legitimately obtained a medical marijuana prescription or physician’s order under another state’s law. The possession of marijuana, even for medical purposes, is illegal; therefore, it would be illegal under Wyoming law for a physician to prescribe or order, in any sense, the possession of marijuana. It is, likewise, illegal under Wyoming law for a patient, or anyone else, to possess marijuana even if he obtained it on the basis of a physician prescription or recommendation. The question of whether or not Appellant had a medical marijuana card from a California physician was irrelevant. Because it was irrelevant, the district court properly excluded it.

Affirmed.

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

Summary 2011 WY 98

Summary of Decision June 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:  Van Patten v. Gipson

Citation:  2011 WY 98                      

Docket Number: S-10-0202   

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=463288

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

Representing Appellant (Plaintiff):  S. Joseph Darrah and Christopher M. Brown of Darrah, Darrah & Brown, P.C., Powell, Wyoming.  Argument by Mr. Darrah.

Representing Appellee (Defendant):  Jason A. Neville and Keith J. Dodson of Williams, Porter, Day & Neville, P.C., Casper, Wyoming.  Argument by Mr. Dodson.

Date of Decision: June 23, 2011

Facts:  Appellant worked as an entry level floorman.  The co-employees worked as driller and direct supervisor of the rig crew, as assistant driller and as derrickman.  All were working on a rig in Sublette County, Wyoming.  On the day of the incident, the rig manager directed the driller/supervisor and his crew to pressure wash the derrick during their shift.  The crew went to the driller’s cabin where they discussed the operation and filled out a job safety analysis and personnel hoisting pre-job checklist for washing the derrick.   Appellant was told to put on the manrider, a harness worn around the torso with a board attached to it to sit on.  The manrider was hooked to the tugger line, which ran from a hydraulic hoist located on the rig floor up through the derrickboard to the top of the derrick and back down.  At some point after Appellant was in the manrider but still on the rig floor, the crew realized the tugger line would need to be freed or else Appellant could not reach parts of the derrick with the pressure washer.  It was decided to raise Appellant in the manrider up under the derrickboard to open the storm gate and release the tugger line.  At the time, no one filled out a job safety analysis or personnel hoisting pre-job checklist for using the manrider to open the storm gate and free the tugger line. 

The derrickman operated the hoist to lift Appellant up beneath the derrickboard.  The derrickman lost sight of Appellant and asked the assistant driller to spot for him.  As Appellant was attempting to open the storm gate to release the cable, the assistant driller thought he saw him give the signal to be raised up.  The assistant driller signaled to the derrickman to hoist Appellant up.  As this was done, Appellant was pulled into the derrickboard and sustained a compression fracture in his thoracic spine.

The company investigated the accident and concluded the crew, and specifically the driller/supervisor, violated company procedure by allowing Appellant to be lifted to the derrickboard to open the storm gate and free the tugger line without filling out a personnel hoisting pre-job checklist.  The company docked the driller’s pay.  No action was taken against any other employees involved in the incident.  

Appellant filed a complaint alleging his co-employees acted recklessly, willfully and wantonly in various ways, including failing to perform a job safety analysis or obtain a permit before hoisting him in the manrider to release the tugger line, failing to instruct him on proper procedure for opening the storm gate, using the manrider instead of the ladder to ascend the derrick and open the storm gate, and operating the hydraulic hoist when he was under the derrickboard.  The co-employees answered the complaint and the parties proceeded with discovery.  The co-employees then filed a motion for summary judgment alleging there were no genuine issues of material fact supporting the claim that they acted willfully and wantonly and they were entitled to judgment as a matter of law.  The district court convened a hearing and, after considering the parties’ respective positions, granted the co-employees’ motion.  Appellant timely appealed.               

Issues: 1) Whether the district court correctly held the co-employees' conduct did not constitute willful and wanton misconduct; 2) Whether the district court correctly found their violations of the company’s policies did not amount to willful and wanton misconduct; and 3) Whether the district court correctly held that their individual acts could not be combined to establish willful and wanton misconduct on the part of each of them.   

Holdings: 

The Court affirmed the order granting summary judgment to the co-employees.      

The Court found there was no evidence in the present case that Appellant said he would not use the manrider to free the tugger line, pointed out the danger of doing so or expressed concern for his safety.  Furthermore, evidence was presented in this case that other workers had used the manrider to unlock the storm gate.  And while there seems to be no question that the company’s written policies authorized use of the manrider only when there was no alternative, evidence was presented that it was fairly common practice to use it to open the storm gate.  Moreover, the co-employees here had no warning about the danger by the:  (1) injury of another employee; (2) refusal of other employees to work in the area; and, (3) expressions of concern to supervisors by still other employees.  The court noted that Appellant relied heavily on the company’s written policies and after the fact statements by upper level employees who were not present on the rig or involved in using a manrider.  In light of the testimony of those who were involved, these policies and statements did not establish a genuine issue of material fact on the question of whether the co-employees knew the operation was dangerous and intentionally disregarded the danger.  Affirmed.

  

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

Summary 2011 WY 97

Summary of Decision June 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: Hunter v. Reece

Citation:  2011 WY 97

Docket Number: S-10-0195

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=463286

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

Representing Appellant (Defendant): Jeffrey J. Gonda and Amanda K. Roberts, Lonabaugh & Riggs, LLP, Sheridan, Wyoming.  Argument by Ms. Roberts.

Representing Appellee (Plaintiff): Vincent Schutte, Kinnaird Law Office, PC, Sheridan, Wyoming.

Date of Decision: June 23, 2011

Facts: Appellants owned and operated a construction business in Sheridan County, Wyoming.  In the fall of 2006, Appellee was doing renovation work at the home of Appellants.  He noticed Appellant watching a television program about “flipping” houses.  According to trial testimony from both parties, flipping a house generally involves purchasing a house that needs improvements, making those improvements, and selling the house, usually in a relatively short period of time, and preferably for a profit.  Appellee and Appellant both commented that they would be interested in flipping a house.

After further discussions among the Appellees and Appellants, the two couples agreed to flip a house located in Sheridan.  Later, they all met to put their agreement in writing, with Appellants typing up the document.  The contract was signed by the parties, and dated October 28, 2006.  Work on the project began in November of 2006.  At the end of January 2007, an arsonist set fire to the house, causing substantial damage. The parties then entered into a new “Fire Contract” in which they agreed to use the insurance proceeds to restore the house to the condition it was in before the fire. The parties further agreed that once the house was restored, they would revert back to their original agreement.   In August of 2007, the parties agreed that the house had been restored, and that the original agreement was again in effect. In October of 2007, the Appellants became dissatisfied with the slow progress on the project, and with what they perceived as the poor quality of some of Appellee’s work.  They confronted Appellee about their dissatisfactions, an argument ensued, and the Appellants eventually told Appellees to stop working on the project. 

On April 8, 2008, the Appellees filed suit against the Appellants.  The two-page complaint sought a declaratory judgment that the contract quoted above “is a valid and enforceable agreement,” and alleged that the Appellees were entitled to “receive 50% or ½ of net profit after payment of cost of renovation and purchase price.”  The Appellants answered, admitting the existence and validity of the contract, but generally denying the other allegations.  The Appellants also pleaded counterclaims, including breach of contract by the Appellees.

The parties engaged in discovery and other trial preparations until, on August 27, 2009, the Appellees moved the district court to order mediation of the dispute.  Mediation was ordered, but was apparently unsuccessful, because on September 29, 2009, the district court set a trial date in the matter.  Prior to trial, the parties stipulated to the existence and validity of their contract, although each asserted a different interpretation of that contract.  The Appellees contended that they were entitled to payment for their labor on the project, in addition to one half of the profits.  The Appellants contended that the Appellees were entitled only to one half of the profits, because the agreement did not provide that Appelles would be paid for labor. 

A two-day bench trial commenced on March 3, 2010.  At the close of trial, the district court announced judgment that the parties’ contract was not valid because there had been no meeting of the minds regarding an essential term of the agreement, that being whether Appellees were to be paid for their work on the project in addition to receiving one half of the profits.  The district court then invoked the theory of unjust enrichment to award all of the profits to Appellees, an amount the district court calculated as $21,989.07.  A written judgment embodying the district court’s decision was entered on March 26, 2010.

On April 8, 2010, the Appellants filed a motion for new trial or, in the alternative, to amend the judgment, asserting generally that the parties had stipulated to the validity of their contract, that it was improper to apply a theory of unjust enrichment when a valid contract existed, and that unjust enrichment had never been pleaded by the Appellees.  A hearing was held, and the district court entered an order denying the motion on July 2, 2010.  The Appellants appealed both the judgment and the district court’s denial of their motion for new trial or amended judgment.

Issues:  The Appellants present three issues: Whether the district court erred by disregarding the parties’ stipulation that a valid and enforceable contract existed and by raising a claim of unjust enrichment sua sponte.  Whether the district court erred in finding that Appellees proved the elements of unjust enrichment. Whether the district court erred in denying Appellants’ Rule 59 motion for new trial and alternative motion to amend the judgment.

Holdings: “Whether a contract has been entered into depends on the intent of the parties and is a question of fact.”  Throughout the litigation, the parties disagreed about the interpretation of their contract, but consistently agreed that they had entered into a contract.  The district court never reached a decision on the claim that the Appellees had breached the agreement, instead finding that no contract existed and awarding damages to the Appellees on an unjust enrichment theory.  It is up to the district court, in the first instance, to consider the conflicting evidence and decide whether the Appellees breached the contract, and if so, what damages were caused by the breach.  The Court returned this case to the district court to determine damages. Reversed and remanded for such additional proceedings as may be needed in accordance with this decision.

Justice Burke delivered the opinion for the court. 

Summary 2011 WY 96

Summary of Order June 22, 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. You will also note when you look at the order 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 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: Dennis v. Jack Dennis Sports, Inc

Citation: 2011 WY 96

Docket Number: S-11-0140

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=463164

Order Dismissing Appeal

Facts: This is an appeal from two district court orders, (1) an “Order Regarding Motions Related to Arbitration” and (2) a “Decision and Order Over-Ruling and Denying Any Requested Relief Regarding Defendants’ Objections to Order Regarding Motions Related to Arbitration.” In the first order, the district court granted Appellee’s motion to compel arbitration and stayed district court proceedings. In the second order, the district court overruled objections to the first order.

Issue: Whether a order compelling arbitration is a final, appealable order.

Holding: The trial court's order did not in effect determine the action or discontinue it. The matter has merely been referred to arbitration and the appellant can obtain review of the arbitration decision and raise the very question presented here, whether the trial court was right in referring the case to arbitration. If an appeal from every order referring a case to arbitration were permitted, the policy favoring arbitration would be frustrated. Under Rule 1.05(b), an order compelling arbitration may affect a substantial right. However, this case does not involve a special proceeding. This is a typical civil action, a contract dispute. Thus, the order compelling arbitration is not an appealable order under W.R.A.P. 1.05.

Under Wyoming’s Uniform Arbitration Act (Wyo.Stat. 1-36-119) an appeal may be taken from: (i) An order denying the application to compel arbitration; (ii) An order granting an application to stay arbitration; (iii) An order confirming or denying confirmation of an award; (iv) An order modifying or correcting an award; (v) An order vacating an award without directing a rehearing; or (vi) A final judgment or decree entered by the court. Absent from this statute is a provision authorizing an appeal from an order compelling arbitration. Without such an authorization, the order compelling arbitration is not appealable.

Thus, the district court’s “Order Regarding Motions Related to Arbitration” is not an appealable order, nor is the “Decision and Order Over-Ruling and Denying Any Requested Relief Regarding Defendants’ Objections to Order Regarding Motions Related to Arbitration.” It is, therefore, ordered that the appeal be dismissed.

Summary 2011 WY 95

Summary of Decision June 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: Marquess v, State

Citation: 2011 WY 95

Docket Number: S-10-0172

URL:  http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462934

Appeal from the District Court of Campbell County, Honorable Michael N. Deegan, Judge

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan, 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; Leda M. Pojman, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Prosecution Assistance Program; Jessica Y. Frint, Student Director, Prosecution Assistance Program.

Date of Decision: June 17, 2011

Facts: The appellant was tried and convicted by a jury of aggravated assault and battery, battery, kidnapping, and being a habitual criminal. The appellant appeals from the Judgment and Sentence, arguing that the district court abused its discretion when it admitted evidence of uncharged misconduct and prior consistent statements by the victim.

Issues: Whether the district court abused its discretion when it admitted evidence of the events that occurred on the day before the charged offenses. Whether the district court abused its discretion when it admitted into evidence a 911 recording under W.R.E. 801(d)(1)(B). Whether the 911 recording admissible under W.R.E. 802(2) as an excited utterance.

Holdings: Appellant argues that testimony that he, his brother and an acquaintance allegedly held the victim at knife point on the night before the charged offenses was uncharged misconduct evidence governed by W.R.E. 404(b) and that the State failed to provide adequate notice of its intent to use such evidence and that the district court failed to order the required hearing relating to the evidence. However, the incident in question was one of many pieces of direct evidence of the conspiracy with which the appellant was charged – conspiracy to commit the aggravated assault and battery. The conspirators (the appellant and his brother) were present at both incidents and the threats of serious violence, distrust in the victim, and interest in the victim stealing the guns were common themes in both incidents. The incident in question was undertaken in furtherance of the charged conspiracy and was evidence of an overt act showing an agreement between the conspirators to carry out some illegal act (assault and battery) if the victim did not do as he was instructed. As such, the evidence was not of uncharged misconduct evidence, but instead was admissible as an inseparable part of the whole deed.

Four requirements must be satisfied before a prior consistent statement will be properly admissible: (1) The declarant testifies at trial; (2) the declarant is subject to cross-examination concerning the prior statement; (3) the prior statement is consistent with the declarant’s trial testimony; and (4) the prior statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. In the present action, the appellant concedes that the State met its burden with regard to the first three requirements. Therefore, the only issue is whether the fourth requirement—the prior statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive—was met.

The charge of fabrication or improper motive need not come only as a specific allegation during cross-examination but may be derived from the “thrust” of the defenses and testimony presented. Additionally , it is not necessarily error that the prior consistent statement was received in evidence before the allegation of fabrication or improper motive. The proferred prior consistent statement in this case was a recorded 911 call made by the victim almost immediately after he jumped out of the window of the hotel room where he was beaten and held hostage. At trial and on appeal, the State asserted that the 911 call statements were admissible because there had been an implication by the appellant that the victim was fabricating his story, or that he could not remember the events accurately because he was using drugs and alcohol at the time. The appellant counters that he never alleged recent fabrication, but merely cross-examined the victim and tested his recollection of the events. A review of the record, especially the trial transcripts, shows that the appellant’s characterization more accurately reflects the parties’ respective positions. While the appellant did attack the victim’s credibility generally, and also submitted evidence of his prior criminal convictions involving lying, the appellant did not, either explicitly or implicitly, allege that the victim’s testimony was the result of a recent fabrication or improper motive or influence. The focus of W.R.E. 801(d)(1)(B) is the use of a prior consistent statement as rehabilitation of a witness whose credibility has been impeached in the particular manner described in the rule. A general attack on a witness’s credibility, without a claim of motive, influence or recent fabrication, does not warrant admission of 801(d)(1)(B) evidence. In this case, the appellant did not explicitly or implicitly claim that the victim’s in-court testimony was a recent fabrication or the result of some improper motive or influence. Without such a claim, the prior consistent statement in the 911call did not fall within the purview of 801(d)(1)(B), and was therefore inadmissible hearsay.

Although the 911 call should not have been admitted as a prior consistent statement, it was admissible under the “excited utterance” exception to the hearsay rule. This exception, found in W.R.E. 803(2), provides that statements are not excluded by the hearsay rule if they relate “to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” There are five factors 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 case, each of the factors weighs in favor of admissibility. After being severely beaten, the witness jumped out of a hotel room window, ran to the hotel office, and yelled to the front desk employee to call 911. The front desk employee, whose testimony was admitted without objection, gave a similar account of the events of that night.

Affirmed.

J. Voigt delivered the opinion for the court.

Summary 2011 WY 94

Summary of Decision June 16, 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: Allen v. Anderson

Citation: 2011 WY 94

Docket Number: S-10-0215

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462903

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

Representing Appellant (Defendant): Matthew D. Winslow of Keegan & Winslow, Cody, Wyoming

Representing Appellee (Plaintiff): Alex H. Sitz III of Meinecke & Sitz, Cody, Wyoming

Date of Decision: June 16, 2011

Facts: Appellee and Appellant were involved in a long-term, non-marital relationship. Upon separation, the parties agreed that each should have ownership of personal property in their respective possession. Appellant alleges that Appellee wrongly took some of his personal property into her possession. The district court determined that Appellent failed to claim the personal property at issue in a timely fashion and thus effectively abandoned his claim to it.

Issues: Whether the District Court erred in applying the incorrect legal standard when it held that Appellant abandoned the subject personal property. Whether the District Court’s factual findings were clearly erroneous when it held that Appellant abandoned the subject personal property.

Holdings: The solution to this appeal actually lies entirely in the terms of the parties’ settlement agreement. A settlement agreement is a contract and, therefore, subject to the same legal principles that apply to any contract. The settlement agreement unambiguously awards ownership of these items to Appellee. Under the terms of the settlement agreement, Appellee was awarded the real property on which the loafing shed housing the personal property is situated. All items of personal property on the land, including the items in the loafing shed, came into Appellee’s possession as incident to the ownership of the real property. Since the settlement agreement also grants Appellee ownership of all items of personal property in her possession, the items in the loafing shed became her property.

The fact that the personal property at issue was not itemized does not make the settlement agreement silent on the issue. The settlement agreement clearly states its purpose is to settle the matter of ownership of all items of personal property. The parties were granted all personal property in their respective possession. No personal property falling within this category was itemized. Instead, the parties itemized items that were in the other’s possession or in joint possession that they wanted. As Appellant recognized in refusing to allow Appellee to have items of personal property in his possession that she had forgotten to itemize, he is not entitled to any items in Appellee’s possession that he forgot to itemize.

All personal property on the land therefore was in Appellee’s possession and granted to her under the terms of the settlement agreement. Affirmed.

J. Golden delivered the opinion for the court.

Summary 2011 WY 93

Summary of Decision June 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: IN THE MATTER OF THE WORKER’S COMPENSATION CLAIM OF WILL TORRES, AN EMPLOYEE OF HOME DEPOT USA: WILL TORRES, v. STATE OF WYOMING ex rel. WYOMING WORKERS’ SAFETY AND COMPENSATION DIVISION

Citation: 2011 WY 93

Docket Number: S-10-0123

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462737

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

Representing Appellant (Defendant): Sean W. Scoggin of McKellar, Tiedeken & Scoggin, LLC, Cheyenne, Wyoming

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General

Date of Decision: June 13, 2011

Facts: Appellant sought worker’s compensation benefits relating to an August 2007 back surgery that he claimed was the product of a work-related injury he suffered in December 2006. Appellees denied benefits. The Division’s denial was upheld by the Office of Administrative Hearings (OAH) and, later, by the district court.

Issues: Whether the Office of Administrative Hearing’s Decision that Appellant was not entitled to worker’s compensation benefits for his August 15, 2007, surgery and for worker’s compensation benefits thereafter was arbitrary and capricious and not supported by the standing case law.

Holdings: The law governing a claimant’s burden of proof is well established. It is undisputed that the Appellant suffered from a preexisting degenerative condition in his low back. It is also undisputed that Appellant suffered a work injury on December 28, 2006. The issue was whether the hearing examiner properly determined that Appellant had not met his burden of proving the back surgery was causally related to his 2006 work injury.

The review shows that the only evidence presented by Appellant on the issue of causation was his own testimony and the medical opinion of Dr. Beer. Appellant asserted that he did not injure his back until he slipped on the ice in the Home Depot parking lot. However, the medical evidence was not entirely consistent with his claims in that regard. Noting these inconsistencies, the hearing examiner concluded that Appellant was not entirely credible.

The hearing examiner also was not persuaded by the opinion of Dr. Beer and afforded it little weight. The hearing examiner noted that Dr. Beer had based his opinion on an incomplete medical history, was not aware that Appellant had complained of back pain and sought medical attention prior to the 2006 injury, and had been diagnosed with lumbar spine degenerative disease. Dr. Beer’s opinion was based, in part, on the belief that Appellant had not suffered low back pain and radiating leg pain until the 2006 incident. However, Appellant’s medical records indicated complaints of severe low back pain radiating into his left leg in July 2004. The hearing officer also noted that Dr. Beer did not address how Appellant’s preexisting degenerative condition might have affected his need for the fusion surgery, nor provide a detailed explanation as to why he reached the conclusion that Appellant’s back condition was caused by the 2006 work injury.

It was the hearing examiner’s responsibility to determine relevancy, assign probative value and ascribe the relevant weight to be given Dr. Beer’s opinion. The hearing examiner was not bound by Dr. Beer’s opinion and was entitled to disregard it if he found the opinion “unreasonable, not adequately supported by the facts upon which the opinion is based, or based upon an incomplete and inaccurate medical history provided by the claimant.” Upon reviewing the record the Court found substantial evidence existed to support the hearing examiner’s conclusion regarding the credibility and weight given to Dr. Beer’s opinion.

The Court found that the hearing examiner’s determination that Appellant had failed to prove a causal relationship between the fusion surgery and the 2006 work incident was not against the overwhelming weight of the evidence in this case. Affirmed.

Justice Golden delivered the opinion for the court.

Summary 2011 WY 92

Summary of Decision June 8, 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: Willoughby v. State of Wyoming

Citation: 2011 WY 92

Docket Number: S-10-0161

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462638

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

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender, and Tina N. Olson, Appellate Counsel, Wyoming Public Defender Program. Argument by Ms. Olson.

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. Argument by Ms. Pojman.

Date of Decision: June 8, 2011

Facts: The appellant was convicted of a 1984 murder in January, 2010. At some point during a party in 1984, the appellant sold drugs to the victim. The victim left the party, saying she would get the payment from her vehicle, and the appellant followed. The victim left in her car, and the appellant chased after the victim in his car. The appellant’s wife and a companion were also present. The appellant eventually caught up with the victim, pulled over in a turnout. The appellant dragged the victim from her vehicle, punched her in the face, and shot her twice. Later, the companion in the appellant’s vehicle made an anonymous call to law enforcement saying the appellant had killed the victim. At the time of the murder, however, insufficient evidence was developed with which to charge the appellant.

During the trial, several witnesses implicated the appellant in the victim’s murder. Much of the factual scenario came from the testimony of Appellant’s wife and companion, the eye witnesses, and from a fellow inmate with whom the appellant had discussed many aspects of the crime. In addition, another witness testified that during a hunting trip in 1984, the appellant had described how the victim was murdered, and that the appellant’s account scared the witness to the point that he eventually reported it to authorities.

The appellant’s trial defense was that of alibi. He claimed to have been at work at the time of the murder. The State presented expert testimony, corroborated by the hunting trip witness, that indicated forgery on the appellant’s work log. Beyond that, the appellant’s defense focused upon inconsistencies in the details of the testimony of the State’s witnesses. The jury found the defendant guilty of first-degree murder, and the appellant’s post-trial motion for a new trial was deemed denied when it was not determined by the district court within the time constraints of W.R.Cr.P. 33. The appellant appealed his conviction and the denial without a hearing of his motion for a new trial.

Issues: 1) Whether the district court abused its discretion by failing to grant the appellant’s motion for a new trial. 2) Whether the prosecutor committed misconduct by violating discovery orders, by violating a pre-trial order regarding uncharged misconduct evidence, and by eliciting testimony from a law enforcement officer that the officer believed a witness had lied during an interview?

Holdings: The judgment and sentence of the district court was affirmed.

In his motion for a new trial, the appellant raised eight issues. The first issue was whether the State had violated two court orders—one regarding uncharged misconduct evidence and one requiring the State to set forth the proposed testimony of witnesses—by eliciting testimony from the hunting trip witness that had not been revealed to defense counsel, specifically, that the appellant threatened to kill the witness if he ever talked again to the police. The Court found that in the context of the overwhelming evidence of the appellant’s guilt, and the district court’s detailed curative instruction, the appellant had not met his burden of showing that he was prejudiced in respect to the stricken testimony.

The second and third issues related to the testimony of two investigating officers, one from the sheriff’s office who had asked questions of the appellant’s companion regarding his anonymous telephone call to the police, and the other officer from the Wyoming Division of Criminal Investigation, who had spoken with the sheriff’s investigator about the call and later also questioned the companion about the call. The Court found that even if defense counsel was unaware before trial that the investigators had asked the companion about the telephone call, defense counsel knew about the alleged anonymous telephone call, who had placed the call, and that it had implicated the appellant. The Court could not conclude that such affected the outcome of the trial.

Appellant also challenged the pathologist’s testimony. The pathologist who performed the autopsy in 1984 was no longer physically able to testify. In his stead, the State called a forensic pathologist who had reviewed the original autopsy report and related materials. On appeal, Appellant objected to several aspects of the pathologist’s testimony, repeating his objections at trial: (1) the relative lateness of the report and the amended report; (2) the report’s contradiction of the original autopsy report; (3) The pathologist’s testimony as to the order of the wounds, which defense counsel characterized as “crime scene reconstruction”; and (4) that the testimony exceeded the scope of the pathologist’s expert designation. The appellant contends that this was a prejudicial discovery violation that left him without notice of what the pathologist’s testimony would be. The Court found that the district court had made extensive inquiry into the discovery process as it related to the pathologist’s report, amended report, and testimony. Eventually, while it did not grant the appellant’s motion to strike the expert’s testimony, the district court did limit the State to asking one additional question after the objection was interposed—that question being whether the chest wound or the head wound was the last wound. The appellant had not shown that he was unfairly prejudiced by the district court’s rulings.

The appellant further objected to the testimony of one of the detectives assigned to the re-opened investigation. Specifically, Appellant contended (1) that an officer of the law lied; and (2) that the State elicited the lie. The Court found nothing of such nature having occurred in regard to the detective’s testimony in this case, and further noted there was not one iota of evidence that the prosecutor committed any act of misconduct in this regard. The Court observed that defense counsel was allowed repeatedly to bring to the jury’s attention the appellant’s theory that the appellant’s companion had lied to obtain immunity.

Appellant also alleged the State’s failure to preserve two “sketches” apparently drawn during interviews of appellant’s wife and companion, both in 2008. The Court concluded that the State may have been negligent in not retaining the sketches, but that was not sufficient to show that the State acted in bad faith. The appellant had not shown that his right to the due process of law was violated, or supported the accusations made in his new trial motion.

During the trial, a transcriptionist discovered an audiotape of an interview with Appellant’s wife on the disk of a videotape interview of the wife. Upon learning of the existence of the audiotape, the prosecutors immediately provided a copy to defense counsel. The appellant motioned that the wife not be allowed to testify, as a sanction for the late disclosure. The district court took the motion under advisement, and later denied. In denying the motion, the district court noted that nothing appeared different on the audiotape from the videotape, but allowed the appellant to utilize it for cross-examination. Here the Court found that appellant failed, either before the district court, or in his appellate brief, to substantiate his allegations of a Brady violation.

Delineated as a separate issue, the appellant also contended that the State’s failure to comply with a discovery order in regards to the above issues might generally be recognized as prosecutorial misconduct. The Court found it had not been shown that the appellant was prejudiced by any of the prosecutor’s conduct described above, no less prejudiced to the substantial extent that would require reversal.

On the issue of whether the prosecutor committed misconduct by violating a pre-trial order regarding uncharged misconduct evidence, the Court found the witness’ comment at issue to be very general and relatively innocuous and not so unfairly prejudicial as to require a new trial. The Court observed that the district court granted defense counsel’s objection and struck the answer, and that the issue did not require further analysis.

On the issue as to whether the prosecutor committed misconduct by eliciting testimony from a law enforcement officer that the officer believed a witness was lying during an interview, the Court stated that no objection was interposed at trial, and so review was limited to review for plain error. In reviewing the factors for plain error, the Court noted that while there a clear and unequivocal rule of law forbids one witness to testify as to the credibility of another witness, here the violation of the rule when placed in context, was not so clear. The Court found this not to be a situation where the witness invaded the province of the jury by opining that another witness was lying, rather the witness merely commented upon something that the other witness had already admitted. The Court found it was not misconduct for the prosecutor to ask the witness about the other witness interview, as set forth above.

Affirmed. The appellant failed to show that the district court abused its discretion by failing to grant the appellant’s new trial motion, or that the prosecutor committed reversible misconduct.

J. Voigt delivered the opinion for the court.

Summary 2011 WY 91

Summary of Decision June 6, 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: Hageman v. Goshen County School District No. 1

Citation: 2011 WY 91

Docket Numbers: S-10-0009

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462428

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

Representing Appellants: Kara Brighton and Harriet M. Hageman, Hageman & Brighton, PC, Cheyenne, Wyoming. Argument by Ms. Hageman.

Representing Appellees: Tracy J. Copenhaver, Copenhaver, Kath, Kitchen & Kolpitcke, LLC, Powell, Wyoming.

Date of Decision: June 6, 2011

Facts: In an effort to address a perceived drug and alcohol problem among its students, Goshen County School District No. 1 adopted a policy requiring all students who participate in extracurricular activities to consent to random testing for alcohol and drugs. Appellants initiated litigation, claiming that the Policy is unconstitutional. The district court granted summary judgment in favor of the School District. Appellants challenge that decision in this appeal.

Issues: These issues were raised by the Appellants and adopted by the Appellees: Whether the district court erred in refusing to declare that the District’s “Mandatory Drug Testing for Students Involved in Extracurricular Activities” violates [the prohibition against unreasonable searches and seizures of] Article 1, § 4 of the Wyoming Constitution. Whether the district court erred in refusing to declare that the District’s Drug Testing Policy violates Article 1, §§ 2 and 3 of the Wyoming Constitution, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Whether the district court erred in refusing to declare that the District’s Drug Testing Policy violates Article 1, § 6 of the Wyoming Constitution, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Whether the district court erred in refusing to enjoin the District from implementing the Drug Testing Policy. Whether the district court erred in granting the District’s Motion for Summary Judgment.

Holdings: The Court acknowledged that Article 1, § 4 of the Wyoming Constitution protects public school students from unreasonable searches and seizures. In considering whether the testing mandated by the School District’s Policy is reasonable under all of the circumstances, the Court recognized that students, particularly those who participate in extracurricular activities, are already subject to more stringent rules and regulations than adults, and so have limited expectations of privacy in the school setting. The Court found that the School District’s Policy adequately preserves the students’ personal privacy rights, and appropriately limits the degree of invasion into those rights. The Court concluded that the School District has a compelling interest in providing for the safety and welfare of its students, and that it therefore has a legitimate interest in deterring drug and alcohol use among students. On the closest question of all, the Court determined that the School District showed that its Policy requiring random, suspicionless drug and alcohol testing for all students who participate in extracurricular activities is rationally related to furthering its interest in deterring drug and alcohol use among students.

The Court further concluded that the Coalition did not demonstrate that the School District’s Policy subjects students to searches that are unreasonable under all of the circumstances. Accordingly, the Court held that the School District’s Policy does not violate Article 1, § 4 of the Wyoming Constitution.

The equal protection argument, as presented by the Coalition, can succeed only if the Coalition also succeeds on its search and seizure claim. The Court’s conclusion that the School District’s Policy does not subject students to unreasonable searches and seizures is, therefore, determinative of the Coalition’s equal protection claim as well.

The Court did not need to agree or disagree with the district court’s conclusion, because they found a more fundamental flaw in the Coalition’s due process claim. As stated above, a party claiming an infringement of his due process rights must demonstrate both a protected interest and an impermissible infringement on that interest. The Coalition has not demonstrated any infringement because it did not show, or even allege, that any of its members had sought and been denied judicial review of any decision made by the Superintendent pursuant to the Policy. The Coalition’s speculation that judicial review might be denied in the future is insufficient to support a due process claim now. Until this Court is presented with a case in which judicial review has been denied, it is premature to consider the Coalition’s claim that the Policy violates due process. The district court did not err in granting summary judgment against the Coalition on this claim.

Because the Coalition has failed to prove that the School District’s Policy is unconstitutional, there is no basis for their claim that they are entitled to a permanent injunction against implementation of the Policy, or for their claim that the district court erred in granting the School District’s motion for summary judgment. In conclusion, the Court agreed with the observation of Justice Breyer of the United States Supreme Court: “I cannot know whether the school’s drug testing program will work. But, in my view, the Constitution does not prohibit the effort.” The Court affirmed the grant of summary judgment in the School District’s favor.

Justice Burke delivered the opinion for the court.

Summary 2011 WY 90

Summary of Decision June 6, 2011


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Case Name: Christiansen v. Christiansen

Citation: 2011 WY 90

Docket Number: S-10-0252

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462423

Appeal from the District Court of Niobrara County, Honorable Keith Kautz, Judge

Representing Appellant (Plaintiff): Tracy L. Zubrod of Zubrod Law Office, Cheyenne, Wyoming; Mary Elizabeth Galvan of Galvan & Fritzen, Laramie, Wyoming

Representing Appellee (Defendant): No brief filed.

Date of Decision: June 6, 2011

Facts: Appellant and Appellee Christiansen are both residents of Wyoming. They were legally married in Canada in 2008. Appellant filed an action for divorce in Wyoming in February 2010. The district court determined it did not have subject-matter jurisdiction to entertain an action to dissolve a same-sex marriage. Accordingly, the district court dismissed the action.

Issues:  Whether a WYoming district court has subject-matter jurisdiction to entertian a divorce action to dissolve a same-sex marriage lawfully performed in Canada.
Holdings: District courts are endowed with broad subject-matter jurisdiction. District courts in Wyoming are courts of superior and general jurisdiction. They derive their judicial powers from the Wyoming Constitution art. 5, § 1 which states “The judicial power of the state shall be vested in the senate, sitting as a court of impeachment, in a supreme court, district courts, and such subordinate courts as the legislature may, by general law, establish and ordain from time to time.” Wyo. Stat. 20-2-104 (2009) expressly places subject-matter jurisdiction to entertain divorce proceedings with the district courts. The pivotal question is whether the fact that this is a same-sex couple strips the district court of the subject-matter jurisdiction it would otherwise enjoy to entertain a divorce proceeding.

The district court found dispositive Wyo. Stat. 20-1-101, defining marriage as a contract between a man and a woman. Since a same-sex couple is incapable of entering into a marriage as defined by § 20-1-101, the district court reasoned there was no marriage to dissolve. However, Wyo. Stat. 20-1-111 (2009) provides that “[a]ll marriage contracts which are valid by the laws of the country in which contracted are valid in this state.” The district court’s ruling thus creates a conflict between Wyo. Stat, 20-1-101 and 20-1-111.

Such a conflict does not exist in the context of a divorce proceeding. Wyo. Stat. 20-1-101 and 20-1-111, both relating to the creation of marriage, can coexist in harmony in the context of the instant divorce proceeding. Section 20-1-101 prevents a same-sex couple from entering into a marital contract in Wyoming. It does not speak to recognition of a same-sex marriage validly entered into in Canada. Section 20-1-111, on the other hand, expressly allows for the recognition of a valid Canadian marriage in Wyoming. On their face, the two sections treat different situations and as such do not conflict.

It is recognized that the rule set out in § 20-1-111 is not absolute. Under common law, this rule of validation is subject to certain recognized exceptions, namely, marriages which are deemed contrary to the law of nature as generally recognized in Christian countries, such as polygamous and incestuous marriages, and those which the legislature of the state has declared shall not be allowed any validity, because contrary to the policy of its laws. However, the policy exception is necessarily narrow, lest it swallow the rule. It is not enough that a marriage would not be valid if solemnized in Wyoming. Common law marriages provide a good example. Common law marriages entered into in this state are invalid. Yet, the validity of common law marriages entered into in foreign jurisdictions has been recognized for limited purposes. Likewise, recognizing a valid foreign same-sex marriage for the limited purpose of entertaining a divorce proceeding does not lessen the law or policy in Wyoming against allowing the creation of same-sex marriages. A divorce proceeding does not involve recognition of a marriage as an ongoing relationship. Indeed, accepting that a valid marriage exists plays no role except as a condition precedent to granting a divorce. After the condition precedent is met, the laws regarding divorce apply. Laws regarding marriage play no role.

Specifically, the parties are not seeking to live in Wyoming as a married couple. They are not seeking to enforce any right incident to the status of being married. In fact, it is quite the opposite. They are seeking to dissolve a legal relationship entered into under the laws of Canada. Respecting the law of Canada, as allowed by § 20-1-111, for the limited purpose of accepting the existence of a condition precedent to granting a divorce, is not tantamount to state recognition of an ongoing same-sex marriage. Thus, the policy of this state against the creation of same-sex marriages is not violated.

Two Wyoming residents are seeking a legal remedy to dissolve a legal relationship created under the laws of Canada. Nothing in Wyoming statutes or policy closes the doors of the district courts to them. The district court has subject-matter jurisdiction to entertain their petition for divorce.

Reversed and remanded for further proceedings consistent with this opinion.

The court made it clear that its analysis was expressly limited to the issue before it. Nothing in this opinion should be taken as applying to the recognition of same-sex marriages legally solemnized in a foreign jurisdiction in any context other than divorce. The question of recognition of such same-sex marriages for any other reason, being not properly before the court, is left for another day

J. Golden delivered the opinion for the court.