Summary 2011 WY 113

Summary of Decision July 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: Michael Darren Downing v. The State of Wyoming

Citation:  2011 WY 113

Docket Number: S-10-0128

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464102

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

Representing Appellant (Petitioner): Donald L. Fuller and Ian K. Sandefer of Krampner, Fuller & Associates, L.L.C., Casper, Wyoming.  Argument by Mr. Sandefer.

Representing Appellee (Respondent): 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: July 25, 2011

Facts: On November 12, 2008, a confidential informant (the CI) working with the Wyoming Division of Criminal Investigation (DCI), made a recorded telephone call to the appellant to arrange the illegal purchase of morphine pills.  The CI was then given $1,800 in “buy money” and driven to JC’s house, where the CI allegedly gave the buy money to the appellant in exchange for 18 morphine pills.  Present at the house in addition to the appellant were JC and SM.  The CI was “wired” during the transaction, but background noise diminished the quality of the recording.  The buy money was not recovered because a search warrant was not immediately executed. After a jury trial, the appellant was convicted of one count of unlawful delivery of a controlled substance, morphine.  He appealed that conviction, challenging several district court rulings and the competence of defense counsel, and alleging prosecutorial misconduct, as well as cumulative error. 

Issues: The appellant presented ten issues for review, but the Court addressed only the single issue found to be dispositive: Whether the district court abused its discretion in prohibiting the appellant from producing evidence attacking the credibility of a confidential informant in support of the appellant’s theory of the case.

Holdings: The appellant alleged that the district court abused its discretion by denying his pretrial motion seeking discovery of “other buys” in which the CI participated, and by excluding at trial evidence of other such buys.  The appellant contended that these rulings prevented the jury from hearing relevant evidence of his theory of defense that the CI was “conning” DCI, prevented the jury from hearing evidence that affected the CI’s credibility, and violated this Court’s prior rulings, discussed below, wherein we held that W.R.E. 403 and 404 were not to be used to prevent a criminal defendant from presenting a defense.  Stated succinctly: the Court reversed in Edwards because the district court applied W.R.E. 403 balancing to exclude evidence relevant to the theory of defense; the Court reversed in Hensley because of undisclosed impeachment evidence concerning a CI; and the Court reversed in Dysthe, at least in part, because the district court prohibited the defendant from cross-examining a State witness where the State’s case relied heavily on that witness’s credibility.  The Court cannot distinguish those cases from the present case.  If the Court assumes that the “damaging potential” of the proposed cross-examination was realized; that is, if the Court assumes that cross-examination of the CI would have tended to prove that he was “conning” DCI, the Court cannot say that prohibiting the cross-examination was harmless error beyond a reasonable doubt.  The jury may well have drawn negative inferences from such cross-examination, leading to a different verdict.  As stated in Hannon v. State, “[c]ounsel should be allowed to ‘expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.’”  2004 WY 8, ¶ 22, 84 P.3d 320, 331-32 (Wyo. 2004) (quoting United States v. DeSoto, 950 F.2d 626, 629 (10th Cir. 1991)).  Reversed and remanded for a new trial.

Summary 2011 WY 112

Summary of Decision July 21, 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:  J & T Properties v. Gallagher

Citation:  2011 WY 112        

Docket Number:  S-10-0213

URL:  http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464101

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

Representing Appellant (Respondent):  R. Todd Ingram of Clapp, Ingram & Olheiser, P.C., Casper, Wyoming

Representing Appellee (Petitioner):  Keith R. Nachbar of Keith R. Nachbar, P.C., Casper, Wyoming.

Date of Decision:  July 21, 2011

Facts:  When Appellee purchased his property, he believed that a series of easements across properties to the east provided access to a nearby public road.  However, Appellee soon learned that he did not have an easement across Appellant’s property.  Consequently, Appellee petitioned the Board of County Commissioners for a private road across Appellant’s property.  The county commissioners concluded that Appellee had no legally enforceable access and certified the case to the district court.  

The viewers and appraisers appointed by the district court recommended condemning a private road along an existing roadway on Appellant’s property.  The private road began at Appellee’s property line and continued east to the eastern boundary of Appellant’s property, where it connected with a series of private easements crossing the adjoining properties to a nearby public service road.    

The viewers and appraisers set the value of the damage to Appellant’s property from the private road at $1,000, without any evidentiary basis for that amount.  Appellant engaged a professional appraiser who performed a before-and-after analysis of the impact of the private road and concluded that the value of Appellant’s property was reduced by $8,200 as a result of the private road.  

After a hearing, the district court accepted the viewers and appraisers’ recommendation as to the location of the road, but rejected their damages valuation and accepted Appellant’s.  Although the district court awarded Appellant the higher damage amount, it refused to award other expenses requested by Appellant, including the cost of the appraisal.  Appellant appealed.   

Issues: 1) Whether the private roadway statute, Wyo. Stat. § 24-9-101, required joining neighboring landowners in the proceeding where the applicant already held legal and record access to a public road across those neighboring lands; and 2) Whether the District Court below committed reversible error by declining to order the applicant to pay for the private commercial appraiser hired by the landowner.

Holdings:  Affirmed.  The Court found that by interpreting the private road statutes to allow an applicant to use other means of legal access together with a private road to cure his access problem, the policies of reason, convenience and economic affordability are fullfilled.  Moreover, such solution avoids the unsatisfactory result that would arise if an applicant who had gone to the time and expense of securing private easements along part of his way then had to bring those same people into the private road condemnation action.  The Court found that the district court correctly interpreted § 24-9-101 as allowing the condemnation of a private road even though it did not connect directly with a public road and properly refused to require Appellee to join the owners of land over which he already had easements.      

In terms of the costs issue, the Court agreed with the district court that the private road statutes did not authorize assessment of the appraisal costs to Appellee. The Court observed that the plain language of § 24-9-101(f) addresses the costs that county commissioners, or in this case the district court, may assess for “acting on the application,” but does not logically include the expenses incurred by either party for the preparation of their respective case, including the retention of experts.  Further, on its face, § 24-9-103(d) also does not authorize an award of appraisal costs.  The Court found the statute is very specific and only imposes upon the applicant the responsibility to pay for engineering and construction costs.   The Court observed that while this situation may seem inequitable, they are limited by the statutory language.

Furthermore, although Appellant did request the district court award it the appraisal fee, Appellant did not specifically argue to the district court that it was entitled to recover the costs of the appraisal pursuant to Rule 54(d) and U.R.D.C. 501.  Even on appeal, Appellant provided no authority or cogent argument to establish that it was the prevailing party or that an appraisal fee qualifies as an “expense of preparing exhibits received in evidence” under Rules 54(d) and 501(a)(3)(F).  The argument was not properly presented to the district court or this Court, and the Court refused to consider it further. 

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

Summary 2011 WY 111

Summary of Decision July 15, 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: DAWN M. SCHOSSOW, v. STATE OF WYOMING, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION

Citation: 2011 WY 111

Docket Number: S-10-0183

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464098

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

Representing Appellant (Defendant): Hampton M. Young, Jr., Law Office of Hampton M. Young, Jr., PC, Casper, Wyoming.

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

Date of Decision: July 15, 2011

Facts: The appellant injured her back while working as a nurse.  Upon returning to work, the appellant requested Permanent Partial Disability (PPD) benefits, pursuant to Wyo. Stat. Ann. § 27-14-405(h) (LexisNexis 2011), which request was denied.  The Office of Administrative Hearings (OAH) upheld the denial of benefits and the district court affirmed the OAH’s decision.  In this appeal, the appellant claims that the OAH hearing examiner erred as a matter of law in interpreting Wyo. Stat. Ann. § 27-14-405(h)(i), and that the hearing examiner’s decision was not supported by substantial evidence.  We will affirm.

Issues: Whether the hearing examiner’s interpretation of Wyo. Stat. Ann. § 27-14-405(h)(i) was contrary to law.  Whether the hearing examiner’s finding that the appellant failed to meet her burden of proving that she had suffered a loss of earning capacity was supported by substantial evidence.

Holdings: Based on the evidence presented, the hearing examiner concluded that the appellant failed to meet her burden of proof to show, by a preponderance of the evidence, that because of her injury she was unable to return to work at a wage that was at least 95% of her pre-injury monthly gross income.  After reviewing the record before us, the Court concluded that this determination was supported by substantial evidence.  The OAH did not err when it interpreted Wyo. Stat. Ann. § 27-14-405(h)(i) as allowing it to consider more than just the appellant’s wage immediately upon returning to the workforce following her injury.  Also, the OAH’s determination that the appellant was capable of earning 95% of her pre-injury wage, and thus not eligible for PPD benefits, was supported by substantial evidence.  Affirmed.

Justice Voigt delivered the opinion for the court.

Summary 2011 WY 110

Summary of Decision July 14, 2011


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

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

Case Name: State v. Juarez

Citation: 2011 WY 110

Docket Number: S-10-0260

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464084

Original Proceeding Petition for Writ of Review from the District Court of Carbon County, Honorable Wade E. Waldrip, Judge

Representing Appellant (Petitioner): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Justin A. Daraie, Assistant Attorney General.

Representing Appellee (Respondent): Robert T. Moxley of Robert T. Moxley,, Cheyenne, WY.

Date of Decision: July 14, 2011

Facts: The State of Wyoming challenges the district court’s order granting Appellee’s motion to suppress for an illegal traffic stop. The State contends that the district court erred in ruling that Juarez was not required to signal his merge from an entrance ramp onto an interstate highway.

Issues: Whether the district court erred in holding that Wyo. Stat. 31-5-217 is ambiguous and does not require motorists to signal when merging onto an interstate roadway; a ruling which led the court to find a traffic stop was illegal and to suppress the evidence subsequently discovered.

Holdings: There is no reason to believe the Wyoming Legislature necessarily intended the use of a turn signal when entering the interstate from a designated on-ramp. As with most traffic-related statutes, Wyo. Stat. 31-5-217 is intended to promote safety and there is no basis to conclude that a motorist is absolutely required to signal to enter the interstate in every instance. The intended course of such vehicles is known and obvious to other motorists; such drivers have no other choice but to enter the interstate. Their course does not require a lane change or a turn, or even necessarily right to left “movement.”

There was no error in the district court’s order granting Appellee’s motion to suppress for an illegal traffic stop.

Affirmed.



J. Hill delivered the opinion for the court.

Summary 2011 WY 109

Summary of Decision July 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:  Smith v. Lewis Auto Body

Citation:  2011 WY 109

Docket Number:  S-10-0267

URL:  http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464053

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

Representing Appellant (Plaintiff):  Brian J. Hunter, William M. McKellar, and Julie Tiedeken, McKellar, Tiedeken and Scoggin, LLC, Cheyenne, Wyoming.

Representing Appellee (Defendant):  Mitchell E. Osborn, Cheyenne, Wyoming.

 Date of Decision: July 13, 2011

Facts:  Appellant was involved in a single-car accident that caused extensive damage to his car.  The vehicle was taken to Appellant, an auto body shop, for repairs.  After providing an initial estimate for repairs, ordering replacement parts, and tearing down the vehicle, Appellee found additional damage that caused it to believe the car was a total loss.  Appellant’s insurer paid for the ordered parts, conducted several further inspections, and finally agreed that the car was a total loss. 

Forty-five days later, the insurer requested that Appellee release the vehicle. In response, Appellant sent an invoice to the insurer requesting payment for parts, labor, administrative tasks, and storage fees in the amount of $30,816.32.  The insurer responded with a letter to Appellee confirming its prior demand for release of the vehicle and contesting certain charges contained in the invoice.  The insurer indicated its willingness to pay “reasonable storage fees for the insured vehicle” from the date it deemed the vehicle a total loss until the date it demanded release of the vehicle.  Appellee did not release the vehicle after the demand was made, and two days after receiving the subsequent letter from the insurer, asserted a lien against the vehicle in the amount of its invoice, and attempted to foreclose the lien by sending notice to Appellant and by publishing a notice of lien sale in the newspaper. Appellee then conducted a lien sale and obtained title to the car. 

Appellant filed a Complaint for Replevin seeking to recover possession of the vehicle, and upon discovering that Appellee had conducted the lien sale, amended the Complaint to add a claim for conversion.  Subsequently, the district court granted summary judgment to Appellant, finding that Appellee did not file a valid lien and did not provide proper notice of the sale. The following day, Appellee re-asserted its lien, an intent to sell the vehicle at public auction, and filed a Complaint for Money Judgment against Appellant, this time in the amount of $36,816.32. Appellant filed an Emergency Petition to Prohibit the Sale or Other Disposition of the vehicle and the district court consolidated the actions.  

Upon a bench trial, the district court awarded damages to Appellee in the amount of $20,516.00, which included $15,240.00 in storage fees calculated at $60.00 per day for 254 days.  The district court determined that Appellee was entitled to storage fees beginning when insurer totaled the vehicle, and ending when the insurer posted a bond with the court to cover damages in the event that judgment was entered against Appellant.  Appellant timely filed this appeal, challenging the district court’s award of storage fees.

Issues: Whether it was proper for the district court to award damages to Appellee for storage of the automobile after the date that a demand was made for the return of the automobile. 

Holdings:  The Court concluded that even if Appellee had timely asserted a valid lien in this case, Appellee was not entitled to accumulate storage fees after a demand for release of the vehicle was made because, during that period, Appellee was storing the vehicle for its own benefit.  The Court held that under Wyo. Stat. Ann. § 29-7-102(a), Appellee would have been entitled to retain possession pursuant to a valid lien until it received payment for its services, however, Appellee was not also entitled to accumulate storage charges during that period.  The Court reversed and remanded for entry of an order consistent with the opinion.

J. Burke delivered the opinion for the court.

Summary 2011 WY 108

Summary of Decision July 12, 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: K.C. v. State

Citation: 2011 WY 108

Docket Number: S-10-0247

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=463978

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

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

Representing Appellee (Petitioner): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Jessica Y. Frint, Student Director, and Kevin Walton, Student Intern, of the Prosecution Assistance Program.

Date of Decision: July 12, 2011

Facts: Appellant, a juvenile, was adjudged delinquent. As part of her disposition, she was allowed to remain in a home environment and placed on supervised probation for three to six months. Appellant violated various terms of her probation. In response, her probation was revoked and her disposition changed to placement at the Wyoming Girls’ School for an indefinite period. Appellant appeals from the disposition.

Issues: Whether the trial court abused its discretion by acting in an arbitrary and capricious manner when it ignored Wyoming Statutes and case law concerning juvenile placements. Whether the trial court’s conduct of the probation revocation hearing denied Appellant due process of law.

Holdings: A juvenile court enjoys broad discretion in formulating a disposition for a juvenile adjudged delinquent, but that discretion is not unbounded. A juvenile court cannot enter a disposition that runs counter to law. Wyoming’s Juvenile Justice Act, Wyo. Stat. 14-6-201 to -252 (2011), delineates certain sanctions that may be imposed on a juvenile adjudged delinquent. The sanctions are divided into sanctions recommended for certain levels of delinquent behavior and a catch-all provision providing certain sanctions that are available for all sanction levels. The sanctions delineated are merely guidelines and a juvenile court is free to impose any sanction it deems appropriate to meet the specific needs of the juvenile before the court. The only qualification is that if a juvenile court deviates from statutorily delineated sanctions it must provide a written explanation on the record for the deviation. Section 14-6-247(a)(viii) provides that a juvenile court may order a juvenile to attend school as necessary for treatment. The Wyoming Girls’ School is a residential program offering rehabilitation treatment as well as education. Placement at the Wyoming Girls’ School falls within the statutorily allowable sanctions applicable to Appellant. The juvenile court, thus, was not required to provide a written justification for the placement.

Appellant argues the juvenile court violated her right against self-incrimination as found in the Fifth Amendment to the United States Constitution. She refers specifically to her statement at the immediately preceding a multi-disciplinary team meeting (MDT) that she would not follow the rules of the a local residential treatment home. She argues there is no evidence she was informed of her right against self-incrimination before she made that statement in the MDT meeting and thus the juvenile court should not be allowed to use the statement in determining the appropriate disposition for her. The fallacy in Appellant’s argument is that the right against self-incrimination does not apply at the dispositional phase of delinquency proceedings. The privilege unquestionably applies to the adjudicatory phase of a delinquency proceeding. The dispositional phase occurs after an adjudication of delinquency. The sole issue before the juvenile court during the dispositional phase is the proper corrective action to be imposed. Any statement considered in the dispositional phase serves to assist the juvenile court in formulating the most appropriate individualized disposition. In other words, any statement considered is not used to incriminate a juvenile but rather to help the juvenile receive the most appropriate, individualized disposition.

Appellant next argues the juvenile court violated her due process rights by not properly advising her of the maximum penalty she might face if she admitted violating the terms of her probation. She cites to W.R.Cr.P. 11(b)(1) for the proposition that the juvenile court should have advised her she might face placement at the Wyoming Girls’ School if she admitted to getting bad grades and having unexcused absences from school. The Wyoming Rules of Criminal Procedure do apply to delinquency proceedings unless inconsistent with the Juvenile Justice Act. W.R.Cr.P. 1(a). The plain language of W.R.Cr.P. 11 reveals the rule does fall within the exception. Rule 11 is inconsistent with the Juvenile Justice Act in several ways. Most importantly, one of the purposes of a delinquency proceeding is “[t]o remove, where appropriate, the taint of criminality from children committing certain unlawful acts.” Wyo. Stat. 14-6-201(c)(ii)(B) (2011). The question for adjudication is whether the allegations contained in the petition alleging delinquency are true. A finding that the allegations are true “is not deemed a conviction of guilt, but is a determination that judicial intervention is necessary for the best interest and welfare of the child and the public.” Wyo. Stat. 14-6-225(b) (2011). Thus, a rule relating to criminal guilty or nolo contendere pleas is inapplicable in the juvenile delinquency setting.

It also is unworkable in a juvenile delinquency proceeding to comply with the advisement requirements of Rule 11, specifically as to minimum or maximum sentences. A juvenile delinquency proceeding entails no set minimum or maximum penalties. Rather, a juvenile delinquency proceeding envisions an individualized disposition taking into account the therapeutic needs of the juvenile based on the juvenile’s circumstances. A juvenile court faces minimal restrictions in formulating an individualized disposition. With the wide range of options available to the juvenile court in making a disposition, no advisement as contemplated by Rule 11 is practical. Consequently, the advisement provisions of Rule 11 are inconsistent with, and therefore inapplicable to, juvenile delinquency proceedings.

The district court’s placement of Appellant at the Wyoming Girls’ School is affirmed.

J. Golden delivered the opinion for the court.

Summary 2011 WY 107

Summary of Order July 12, 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: Freeman v. State

Citation: 2911 WY 107

Docket Number: S-11-0056

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=463976

Date of Order: July 12, 2011

In 2008, Petitioner pled guilty to one count of felony domestic battery. The district court imposed a sentence of two to four years, which was suspended in favor of three years of supervised probation. As a condition of probation, Petitioner was required to complete a residential treatment program at a community corrections facility. Petitioner reported to the facility on September 2, 2008, and was discharged on February 6, 2009. After that 158 days, he was discharged to complete his probation. Petitioner’s probation was revoked in May of 2010. The district court imposed the underlying sentence, but Petitioner was not credited with the 158 days he spent in the community corrections facility. The present action began in November of 2010, when Petitioner filed a motion to correct illegal sentence. Among other things, Petitioner sought credit for the 158 days he spent in the community corrections facility. On November 18, 2010, the district court entered its “Order Granting, In Part, and Denying, In Part, Motion to Correct Illegal Sentence.” In that order, the district court denied Petitioner’s request for credit for 158 days spent in the community corrections facility.

The State of Wyoming has filed a “Brief of Respondent Recognizing Error.” The State recognizes that Petitioner is entitled to credit for time served in the community corrections facility. After a review of the parties’ briefs and the relevant case law, the Court agrees with the State that Petitioner is entitled to credit. It is “well-established that a person residing in a community correctional program is in official detention, and that time spent in a community corrections facility must be counted against a sentence that is imposed upon violation of the terms of probation. While the State concedes that Petitioner is entitled to 157 days of credit, the Court calculates the number at 158 days.

It is ordered that the district court’s November 18, 2010 “Order Granting, In Part, and Denying, In Part, Motion to Correct Illegal Sentence,” be, and hereby is, reversed in part; and it is further ordered that this matter is remanded to the district court for that court to award Petitioner 158 days of credit for time served.

Summary 2011 WY 106

Summary of Decision July 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: Elk Ridge Lodge, Inc. v. Sonnett

Citation: 2011 WY 106

Docket Number: S-10-0191, S-10-0192

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=463902

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

Representing Elk Ridge Lodge (Plaintiff/ Third-Party Defendant): Larry B. Jones and William L. Simpson, Burg, Simpson, Eldredge, Hersh & Jardine, Cody, Wyoming.

Representing The Sonnetts (Defendants/Third-Party Plaintiffs): Wendy Z. Burgers-Sonnett and George M. Sonnett, Jr., Washington, Virginia

Date of Decision: July 8, 2011

Facts: The Sonnetts purchased approximately twenty acres of land and improvements in Sublette County, Wyoming, from Elk Ridge Lodge, Inc. To finance part of the purchase price, the Sonnetts gave Elk Ridge a promissory note secured by a mortgage on the property. They later defaulted on the note, and Elk Ridge filed suit against the Sonnetts seeking judgment and foreclosure on the property. The Sonnetts responded with counterclaims against Elk Ridge claiming breach of the implied covenant against emcumbrances. Both parties filed competing motions for summary judgment. The district court granted summary judgment in favor of Elk Ridge on its foreclosure claim, and against the Sonnetts on their counterclaims. In Docket No. S-10-0192, the Sonnetts appeal that decision. The district court also denied Elk Ridge’s request for attorneys’ fees and costs pursuant to the terms of the promissory note and mortgage. In Docket No. S-10-0191, Elk Ridge appeals that decision.

Issues: Issues S-10-0192: Whether the district court erred in granting summary judgment to Elk Ridge, and in denying summary judgment to the Sonnetts, on the Sonnetts’ counterclaim of breach of warranty (breach of the implied covenant against encumbrances), ruling, as a matter of law, that language contained in the deed of conveyance excluded a recorded encumbrance from Elk Ridge’s warranty. Whether the district court erred in granting summary judgment on Elk Ridge’s claim for a money judgment and request for a decree of foreclosure where the Sonnetts’ counterclaim may diminish or defeat Elk Ridge’s claim. Whether the district court erred by granting summary judgment to Elk Ridge on its request for the equitable relief of foreclosure where the Sonnetts invoked equity in defense and where the court made no findings as to the equities.

Issue S-10-0191: Whether the decision of the trial court, in denying Elk Ridge Lodge, Inc.’s motion for attorneys’ fees and costs, was an abuse of discretion.

Holdings: The party moving for summary judgment bears the initial burden of establishing a prima facie case with admissible evidence. The necessary elements of a foreclosure claim are (a) the agreement; (b) a default; (c) a notice of default and declarations thereof; and, (d) the amount due. A review of the record confirms the district court’s ruling that Elk Ridge established its prima facie case for summary judgment on its foreclosure claim. The Sonnetts do not dispute these facts, and indeed, admitted nearly all of them in their answer to Elk Ridge’s foreclosure complaint. The Sonnetts assert, however, that summary judgment in favor of Elk Ridge was precluded by their counterclaim against Elk Ridge for breach of the covenants of the Warranty Deed conveying the property from Elk Ridge to the Sonnetts.

It is undisputed that Elk Ridge conveyed the property to the Sonnetts by Warranty Deed. A Warranty Deed includes the covenant that the property conveyed is free from all incumbrances. Consequently, any encumbrance on the seller’s title needs to be specifically listed and excluded from the warranty. Otherwise, the seller will be in breach of the warranty. Elk Ridge’s Warranty Deed did not specifically list and exclude the Master Plan. The Sonnetts contend that the Master Plan is an encumbrance, and therefore, that Elk Ridge breached its warranty. While Elk Ridge’s Warranty Deed does not specifically list and exclude the Master Plan, it more generally states that the deed is “SUBJECT TO reservations and restrictions contained in the United States patents or other matters of public record, to easements and rights-of-way of record or in use and to prior mineral reservations of record. It is undisputed that the Master Plan, having been recorded and indexed in the Sublette County property records, is “of public record.” Therefore, the district court’s conclusion that the Sonnetts’ breach of warranty claim is not viable, and that Elk Ridge was entitled to summary judgment on that claim is upheld. The district court did not err in granting summary judgment to Elk Ridge, and in denying summary judgment to the Sonnetts, on the Sonnetts’ counterclaim of breach of warranty.

As presented by the Sonnetts, their second issue arises only if we reverse the district court’s grant of summary judgment in favor of Elk Ridge. Because that decision has been upheld, there is no need reach the Sonnetts’ second issue.

In their third issue, the Sonnetts point out that foreclosure is equitable relief, and that they “invoked equity in defense” of Elk Ridge’s foreclosure claim. The Sonnetts contend that it was error for the district court to grant foreclosure to Elk Ridge without making specific findings as to the equities. The Sonnetts are correct that the district court did not make a separate ruling on their equitable defenses to foreclosure. However, it is apparent that the district court’s grant of summary judgment in favor of Elk Ridge implicitly ruled against the Sonnetts on these defenses. The Sonnetts’ equitable defenses were variations on their counterclaim that Elk Ridge wrongfully failed to disclose the existence of the Master Plan. As Elk Ridge’s nondisclosure did not violate the covenants of the Warranty Deed, the record does not support the applicability of the Sonnetts’ equitable defenses.

Segregation of fees between multiple clients and/or multiple claims is required when it is possible. Implicit in this directive is the requirement that a party must show segregation is impossible before he may recover for claims for which there is no authorization of fee shifting. Applying these legal concepts, the district court then made specific findings to support its decision. First, it found that Elk Ridge’s defense of the Sonnetts’ counterclaims were inextricably intertwined and impossible to segregate from Elk Ridge’s prosecution of the foreclosure action. In contrast, it found that the Sonnetts’ third party claims against the two shareholders of Elk Ridge were separable, and all fees and costs related to such must be segregated. It found that Elk Ridge had not adequately and appropriately segregated the hours worked, rate charged, and expenses incurred in defending issues against Elk Ridge and the individual Third-Party Defendants, Terry Reach and Daniel Fox, for piercing the corporate veil, intentional misrepresentation, fraud, and willful and wanton misconduct. The district court applied the rule that once a party is given an opportunity to present sufficient evidence of attorneys’ fees and fails to do so, the party will not be given another chance. While noting the “harsh result,” the district court denied Elk Ridge’s request for attorneys’ fees in its entirety. A careful review the district court’s ruling shows no error in its careful adherence to Wyoming precedent regarding the award of attorneys’ fees. Under the applicable standard of review, the ultimate question is whether the district court could reasonably conclude as it did. In this case, the district court presided over this litigation for nearly a year and a half before reaching its decision to deny Elk Ridge’s motion for attorneys’ fees. It had held numerous hearings and decided many different motions. Under the circumstances, the district court was in a better position than we are to decide whether the Sonnetts’ third party claims against Mr. Reach and Mr. Fox were inextricably intertwined with Elk Ridge’s foreclosure claim. The district court’s decision was not beyond the bounds of reason.

The district court’s decisions in both Docket No. S-10-0191 and Docket No. S-10-0192 are affirmed.





J. Burke delivered the opinion for the court.

Summary 2011 WY 105

Summary of Decision July 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: Eugene Dale Swaney v. State of Wyoming, Department of Family Services, Child Support Enforcement

Citation: 2011 WY 105

Docket Numbers: S-10-0261

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=463917

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

Representing Appellant: Julie Hernandez and Rick Martinez of Legal Aid of Wyoming, Inc., Cheyenne, Wyoming; Wendy S. Ross of Parsons and Cameron, P.C., Cheyenne, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Christina F. McCabe, Assistant Attorney General.

Date of Decision: July 8, 2011

Facts:  Mother and Father, though unmarried, had three children together.  After the parties separated, Mother filed a Petition to Establish Paternity, Custody and Child Support.  Mother obtained custody of the children and Father was ordered to pay child support.  Father later became disabled, which eventually led to the issue presently before this Court: what credit, if any, should Father receive for disability benefit payments received after the disability was determined, against child support arrearages owed before he became disabled.

Issues: Whether the district court may credit Social Security disability benefits paid to dependent children against child support arrearages owed before the obligor became disabled.

Holdings: The Court has dealt previously with the issue of how Social Security disability benefit payments fit into the calculation of a child support obligation.  In short, benefit payments received directly by children are counted as part of the obligor’s income, but are also then credited against the resultant child support obligation.  The district court denied Father’s sought-after credit against pre-disability arrearages, but it did so by following the minority rule.  Under that minority rule, the district court considers the equities of the situation, and exercises its discretion in either granting or denying the petition for credit.  The Court believes that procedure runs contrary to the well-established principle that disability benefits paid to dependent children are the property of those children and runs contrary to the statutory language that allows an “offset” only for the period after benefit payments are being sent to the children’s custodian.

The district court may not credit Social Security disability benefits paid to dependent children against child support arrearages owed before the obligor became disabled.  Such benefits belong to the children, not to the obligor, and therefore are not available to be applied as a credit or offset to amounts owed by the obligor.  The Court affirmed the district court upon the grounds set forth above.

Justice Voigt delivered the opinion for the court. 

Summary 2011 WY 104

Summary of Decision July 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: Maycock v. State

Citation: 2011 WY 104

Docket Number: S-10-0208

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=463760

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

Representing Appellant (Defendant): Kevin K. Kessner of Yonkee & Toner, Sheridan, Wyoming.

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

Date of Decision: July 6, 2011

Facts: Appellant challenges her conviction for obtaining property by false pretenses as a result of listing herself as married on an insurance enrollment form and obtaining insurance for her partner when in fact they were not married.

Issues: Whether the State failed to prove beyond a reasonable doubt that the Appellant’s employer had been defrauded of insurance premiums when the unrebutted testimony it was willing to pay the insurance premiums for the families of unmarried couples with children. Whether the trial court violated the best evidence rule when it allowed testimony about the contents of an insurance policy without requiring that the policy be entered into evidence.

Holdings: Indispensible to the establishment of the offense of obtaining property by false pretenses is proof that the victim relied on the alleged false pretense; that is, proof the alleged false pretense was the controlling factor which induced the victim to part with his property. In this case, there is no question that sufficient proof was adduced at trial to permit a reasonable juror to find beyond a reasonable doubt that Appellant acted to deceive by falsely representing her marital status on the insurance enrollment form. The question presented is whether there is sufficient proof of reliance on that misrepresentation.

The only evidence adduced at trial on this issue came from the testimony of three defense witnesses who were board members of Appellant’s employer during the time period the crime allegedly occurred. Viewed collectively, their testimony shows: (1) the employer intended to finance insurance for both employees and their families; (2) the employer broadly defined “family” to include anyone living in the same household as the employee; (3) the Appellant’s marital status was of no consequence to the employer because Appellant’s partner fit within the employer’s broad definition of family for purposes of insurance coverage; and (4) the employer would have insured Appellant’s partner even if it had known they were not legally married. No witness testified that there was reliance on Appellant’s misrepresentation or that the employer would not have paid the insurance premiums for Appellant’s partner but for that misrepresentation. In sum, there is simply no evidence that Appellant’s misrepresentation was the determining factor in the employer’s decision to pay the cost of insuring Appellant’s partner. Absent proof that Appellant obtained the cost of insurance coverage by her misrepresentation, her conviction cannot stand and must be reversed.

There is insufficient evidence to sustain Appellant’s conviction for the crime of obtaining property by false pretenses. The matter is remanded to the district court with directions that the judgment and sentence be vacated and that the amended information be dismissed with prejudice.

J. Golden delivered the opinion for the court.

Summary 2011 WY 103

Summary of Decision July 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: Dunham v. Fullerton

Citation: 2011 WY 103

Docket Number: S-10-0242

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=463759

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

Representing Appellant (Plaintiff): Todd Hambrick, Casper, Wyoming.

Representing Appellee (Defendant): James D. Bramer, Windsor, Colorado.

Date of Decision: July 6, 2011

Facts: Appellant filed a lawsuit against Appellee for injuries stemming from an automobile wreck. Appellee filed his answer to the complaint but passed away later the same year. Despite Appellee’s death, the parties’ counsel continued to negotiate a settlement. Appellee’s counsel made a Rule 68 offer of settlement of $36,000.00 to Appellant. Appellee’s counsel also filed a motion to dismiss, which alleged a failure to substitute party pursuant to W.R.C.P. 25(a)(i).

In response, Appellant filed a new civil action, this time against Appellee’s estate, but based upon the same accident. On the same date, Appellant also filed her Plaintiff’s Notice of Acceptance Pursuant to Rule 68, with language attempting to reserve the right to litigate the “estate case.” Appellee’s counsel filed the acceptance along with the offer of settlement.

Subsequently, the district court held a hearing on the motion to dismiss, and then entered an Order of Dismissal. As part of the Order of Dismissal, the court ruled that appellant’s acceptance was invalid, observing that one cannot agree to a full settlement and at the same time reserve the right to litigate issues that were “settled.” Appellant challenged the district court’s Order of Dismissal and argued that the court erred in refusing to enter judgment upon her acceptance of a W.R.C.P. 68 offer of settlement,

Issues: 1) Whether the lower court committed plain error in failing to enter Judgment against Appellee pursuant to a W.R.C.P. 68 Offer of Settlement and Acceptance of Offer of Settlement.

Holdings: The purpose of Rule 68 is to encourage settlement. Rule 68 accomplishes its objective of encouraging settlement by providing an expeditious process that forces the parties to weigh the costs and benefits of further litigation. Appellant argued that her formal written acceptance of Appellee’s Rule 68 Offer of Settlement was an unmodified mirror of the offer, but the Court disagreed. The Court found that the modifications changed the original offer, which was in direct opposition to the language of the rule. The Court observed that the district court recognized the legal requirement that a Rule 68 acceptance must mirror the offer.

The Court concluded that because Appellant’s acceptance was not unconditional, and that because it did not mirror the offer of settlement, she did not validly accept the Rule 68 offer of settlement. Furthermore, the court found the dismissal without prejudice was proper. The district court’s order was affirmed.

J. Hill delivered the opinion for the court.