Law Library Letter: September 2011

Thursday, September 29, 2011

Summary 2011 WY 138

Summary of Decision September 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: Stastny v. State of Wyo.

Citation: 2011 WY 138

Docket Number: S-10-0206

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464523

Appeal from the District Court of County, Honorable , Judge

Representing Appellant (Defendant): Gregory J. Blenkinsop, Senior Assistant Public Defender; Elisabeth M. W. Trefonas, Assistant Public Defender. Argument by Ms. Trefonas.

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

Facts: The appellant was convicted of one count of sexual abuse of a minor and one count of attempted sexual abuse of a minor. As to details of the encounter, when allegations of the appellant’s alleged misconduct with the 12-year old victim were made known, the appellant was forcefully ejected from the house and beaten by several men who were present. Police officers responded to reports of the beating, and the appellant spoke briefly with them before he was taken to the hospital.

The officers continued to investigate the matter and at some point during that same day, they obtained a search warrant for the purpose of obtaining a “sexual assault kit” body search of the appellant. They picked up the appellant later that evening and took him to the local hospital for that purpose, where the requisite evidence was collected by a nurse.

A couple days later, the appellant was formally interviewed by the police just before going to a bond hearing. During that interview, he told the police essentially the same version of events to which he would testify at trial, namely that he had been drinking heavily and had passed out in the victim’s room, and that he twice briefly became conscious, noticing someone, the victim, seemingly sexually assaulting him.

The appellant filed a pretrial motion seeking disclosure by the State of any evidence it intended to introduce under W.R.E. 404(b) or under W.R.E. 609. The State’s response indicated the State’s intent to introduce evidence that the appellant had a prior conviction in Iowa for “lascivious acts with a child.” The district court heard the motion during a pretrial conference but never ruled upon the matter, and it does not appear from the record that the appellant ever sought such a ruling. The State rested its case with no mention of the prior conviction. During direct examination by his own counsel, the conviction was raised. The State also mentioned the conviction on cross-examination. The Iowa conviction was not again mentioned in the record until a discussion was had in chambers after a conference concerning jury instructions. Defense counsel did not use the opportunity to place on the record any objection to admission of evidence of the prior conviction, and did not ask for an instruction limiting its use to its intended purposes under W.R.E. 609. The State did not mention the prior conviction in its initial closing argument, nor in its rebuttal closing.

Also at trial, the State proved that DNA consistent with that of the appellant was found on the boy. At trial, Appellant testified to the same version of events that he had told police. The prosecutor, during his closing statement, referenced the appellant’s self-serving explanation for the DNA results.

The appellant challenged the district court’s admission of evidence of a prior conviction, and he accused the prosecutor of committing misconduct during closing argument by alleging that Appellant fabricated his version of the events only after he learned of the DNA results. Finally, Appellant relied upon the cumulative error doctrine.

Issues: 1) Whether the doctrine of invited error bared the appellant from raising in this appeal issues concerning the admission of evidence of his prior conviction. 2) Whether plain error occurred as a result of prosecutorial misconduct during closing argument. 3) Whether the doctrine of cumulative error required reversal of the appellant’s convictions.

Holdings: The Court found no error and affirmed. As to the first issue, the Court found that whether or not it was error for the evidence to be admitted, its admission was not just invited by defense counsel, it was accomplished by defense counsel.

As to the issue of prosecutorial misconduct, the Court found that the questioned statement by the prosecutor was not such a clear violation of a rule of law that the second element of plain error analysis was met. The Court observed that the evidence was not just that the appellant had learned of the results of the “sexual assault kit” but the evidence also was that the appellant was aware from the start that the “sexual assault kit” was obtained for testing. In other words, his need to explain away any results from those tests arose when the samples were collected, not just when the test results were reported. Beyond that, and in the contest of the entire trial, the Court could not say that the appellant was unfairly prejudiced by the language at issue.

Finally, the Court concluded that there being no error, there was no cumulative error.

Because the admission of evidence of the appellant’s prior felony conviction, if error at all, was invited error, and prosecutorial misconduct did not occur during closing argument, the Court affirmed.

J. VOIGT delivered the opinion for the court.

Wednesday, September 28, 2011

Summary 2011 WY 137

Summary of Decision September 28, 2011

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

Case Name: Winstead v. State of Wyo.

Citation: 2011 WY 137

Docket Number: S-11-0069

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464520

Appeal from the District Court of Big Horn County, the Honorable John C. Brackley, Judge

Representing Appellant (Defendant): Craig Winstead, pro se.

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

Date of Decision: September 28, 2011

Facts: Appellant entered a plea agreement in which he agreed to plead guilty to three counts alleging third degree sexual assault and the prosecutor agreed to dismiss three counts alleging incest. The district court convened a change of plea hearing followed by a sentencing hearing. The district court sentenced Appellant to serve sentences of ten to fifteen years on each count with the sentence on the first count to be served first and the sentences on the second and third counts to be served consecutively to the first sentence and concurrently with each other. Appellant subsequently filed a motion to correct an illegal sentence pursuant to W.R.Cr.P. 35(a), claiming his sentences should have merged and asking the court to order that he serve his sentences concurrently. The district court denied the motion. Appellant filed a timely notice of appeal; subsequently, however, he moved for dismissal of the appeal. This Court granted the motion.

A few months later, the prosecutor filed a motion to amend the judgment and sentence. The prosecutor asserted the original judgment and sentence did not contain a finding of the period of pre-sentence confinement as required by W.R.Cr.P. 32(c)(2)(E) and (F) and sought clarification of whether Appellant was to serve count IV first and counts V and VI concurrently to each other but consecutively to count IV. The record contains an affidavit from the detention center stating Appellant served 396 days pre-sentence confinement for which he should be credited. The district court took no action on the motion.

A few months after, Appellant also filed a motion for sentence reduction based on compliant behavior during his confinement. The district court ordered the penitentiary to submit a progress report within thirty days. The record contained nothing further concerning the motion or the court’s order.

Subsequently, Appellant filed a motion asking the district court to enter a judgment and sentence nunc pro tunc reflecting that he was entitled to credit for 396 days presentence confinement. He attached the same affidavit referenced above. The district court granted the motion and amended the judgment and sentence nunc pro tunc to require that Appellant receive credit for the presentence confinement.

A few months later, Appellant filed a motion to correct illegal sentence under W.R.Cr.P. 35(a) and asking for appointment of counsel. He asserted that his sentence was illegal under the double jeopardy clause of the Fifth Amendment and the sentences should have merged. He asked the district court to correct the sentence by ordering that the three sentences be served concurrently. After a hearing, the district court entered an order denying the motion, finding that the offenses involved three different victims and the sentences were not illegal. Appellant appealed.

Issue: Whether Appellant’s claim was barred from review by the doctrine of res judicata. If not, whether the district court abused its discretion when it denied his motion for correction of an illegal sentence.

Holdings: The court affirmed the judgment and sentence, finding the appeal barred by res judicata. The Court found that Appellant had several opportunities to assert his claim that his sentence was illegal, but that he failed to do so and likewise failed to show that he had good cause for not bringing the issue to the courts’ attention.

In an effort to show that he had good cause for not raising the issue, Appellant had asserted that in some instances he was not represented by counsel and was not schooled in the law and, in the instances in which he had representation, his attorney controlled the issues raised and he was not aware his sentence was illegal. He argued that he became aware of the merger issue only after he was incarcerated and had access to legal research. The court noted that failing to recognize the factual or legal basis for a claim or failing to raise a claim despite recognizing it does not constitute good cause for not bringing an issue to the court’s attention

Although holding Appellant’s appeal barred and determinative of his claim, the Court briefly addressed Appellant’s assertion that his sentences merged. The Court observed that Appellant pled guilty to and was sentenced for sexually assaulting three different victims. The facts showed that his acts in assaulting victim A could have been accomplished without assaulting victims B or C. The assault against each of the three victims involved a distinct offense. The Court stated that the concept of merger simply has no application when crimes are perpetrated against different victims. Hannah v. U.S., 666 A.2d 845, 855 (D.C. Cir. 1995).

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

J. Voigt in special concurrence, agreed with the result reached via the majority opinion, but wrote separately to repeat the concerns about the doctrine of sentencing merger that are set forth in Najera v. State, 2009 WY 105, ¶ 17, 214 P.3d 990, 995 (Wyo. 2009).

Summary 2011 WY 136

Summary of Decision September 28, 2011

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

Case Name: Dickey v. State of Wyo.

Citation: 2011 WY 136

Docket Number: S-11-0036

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464519

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

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina N. Olson, Appellant Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel, Wyoming Public Defender Program

Date of Decision: September 28, 2011

Facts: Sheriff’s deputies stopped a pickup truck driven by Appellant after observing it cross the center line on three occasions. After gathering the appropriate documents from Appellant and her passenger, the deputies returned to their patrol car. Shortly thereafter, dispatch reported that Appellant and her passenger had no outstanding warrants, although both had a history of contacts with law enforcement regarding controlled substances. At that point, knowing that the sheriff’s department did not have a canine unit on duty, the deputies called the local police department and requested that a drug dog be brought to the scene.

The deputy began writing a warning citation for Appellant’s failure to maintain a single lane of travel. Before he issued the citation, the police officer arrived with his drug dog and conducted an exterior sniff of the truck. Approximately thirteen and one-half minutes into the stop, the dog alerted to the presence of controlled substances. The police officer searched the truck’s interior and discovered a purse underneath the passenger seat, which contained a syringe loaded with methamphetamine and a copy of Appellant’s birth certificate. Appellant was taken into custody and charged with possession of a controlled substance, her third or subsequent such offense, in violation of Wyo. Stat. Ann. § 35-7-1031(c)(i)(C) (LexisNexis 2011).

Appellant filed a motion to suppress the methamphetamine found in her purse, claiming it was the product of an unlawful detention. Appellant and the State later agreed that an evidentiary hearing would not be necessary to resolve the suppression motion and filed a stipulation to that effect. They also stipulated that the district court could rely on the relevant pleadings, a video of the traffic stop, and an audio recording of Appellant’s preliminary hearing in deciding the merits of her motion. After considering that information, the district court denied the motion.

Appellant entered a conditional guilty plea to the possession charge, reserving the right to appeal the district court’s suppression ruling. The district court sentenced her to eighteen to thirty-six months, which it suspended in favor of four years of supervised probation. This appeal followed.

Issue: Whether the district court erred when it failed to suppress evidence obtained in violation of Appellants Fourth Amendment rights after law enforcement extended a traffic stop beyond the time reasonably required to complete the issuance of the citations, without reasonable suspicion of criminal activity.

Holdings: The Court affirmed the district court’s suppression ruling. After examining the entire record and considering the length of the detention in conjunction with the investigative methods employed therein, the Court concluded that Appellant’s detention lasted no longer than necessary to effectuate the purpose of the stop, and that its duration was reasonable. The dog sniff occurred while Appellant was being lawfully detained and, as Appellant acknowledged, the use of the drug dog during her lawful detention did not violate any constitutionally protected right. After the drug dog alerted to the presence of controlled substances, the officer and deputies had probable cause to search the vehicle. Consequently, the district court did not err by denying Appellant’s motion to suppress the methamphetamine evidence. Affirmed.

J. Golden delivered the opinion for the court.

Wednesday, September 21, 2011

Summary 2011 WY 135

Summary of Decision September 21, 2011

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

Case Name: Glenn v. State of Wyoming

Citation: 2011 WY 135

Docket Number: S-11-0132

URL:

Order Affirming the Judgment and Sentence of the District Court

Date of Order: September 21, 2011

Facts: Appellant pled “no contest” to three charges: (1) criminal entry, a misdemeanor; (2) possession of marijuana, a third offense felony; and (3) felony interference with a peace officer. The district court imposed concurrent sentences of 2 to 4 years on the felonies, with those sentences to be served concurrently to the misdemeanor sentence. This is Appellant’s direct appeal from those convictions. Appellant’s court-appointed appellate counsel filed a “Motion to Withdraw as Counsel.” Following a careful review of the record and the “Anders brief” submitted by counsel, this Court entered its “Order Granting Permission for Court Appointed Counsel to Withdraw.” That Order notified Appellant that the District Court’s “Judgment and Sentence” would be affirmed unless, on or before September 12, 2011, Appellant filed a brief that persuaded the Court that the captioned appeal was not wholly frivolous.

Holdings: Because Appellant had not filed a brief or other pleading within the time allotted, the Court found that the district court’s “Judgment and Sentence” should be affirmed.

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

Summary 2011 WY 134

Summary of Decision September 21, 2011

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

Case Name: Grynberg v. L&R Exploration

Citation: 2011 WY 134

Docket Number: S-11-0037

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464422

Appeal from the District Court of Sweetwater County, The Honorable Jere A. Ryckman, Judge

Representing Appellant (Plaintiff): William L. Hiser, Brown & Hiser, LLC, Laramie, Wyoming; Jon Aimone, Lemich Law Center, Rock Springs, Wyoming. Argument by Mr. Hiser.

Representing Appellee (Defendants): Paula A. Fleck, Holland & Hart LLP, Jackson, Wyoming; Steve Andersen, Holland & Hart LLP, Boise, Idaho; Christina F. Gomez, Holland & Hart LLP, Denver, Colorado. Argument by Mr. Andersen.

Date of Decision: September 21, 2011

Facts: Appellant and her husband are co-owners of a petroleum company registered in the State of Utah that has been involved in acquiring, exploring, developing, and producing oil and natural gas fields. In 1960, Appellant’s husband and several individuals entered into a joint venture agreement for the purpose of developing oil and natural gas fields primarily in Wyoming. Originally, Appellant’s husband had a 41.5% interest in the gas field and Appellee owned the remaining 58.5% interest. In the 1990s, Appellant’s husband assigned 99% of his interest in the gas field to Appellant.

Over the years, Appellant and Appellee entered into agreements authorizing Appellant’s company to recover damages for Appellee’s interests in the gas field by filing suit against various entities. In exchange for pursuing Appellee’s claims and advancing the costs and fees of litigation, Appellant was to receive a percentage of any amounts recovered. In 2000, an accountant for Appellee raised questions concerning Appellant’s husband’s accountings and payments to the joint venture participants. When Appellant’s husband learned that he was being questioned, he and Appellant filed suit against Appellee in their home state of Colorado. In response to the Colorado action, Appellee filed a petition in New York seeking a court order compelling the Appellant and her husband to arbitrate the dispute in accordance with the arbitration provisions contained in the joint venture agreement.

The New York court granted the motion to the extent that it dismissed Appellant from the proceeding, denied the motion as to Appellant’s husband, granted Appellee’s arbitration petition and ordered Appellant’s husband “and all others acting on his behalf” to refrain from initiating any court proceedings in Colorado. Appellant’s husband appealed up to NewYork’s highest court, but both courts rejected the appeal and affirmed the order.

Less than two months later, Appellant filed a complaint in Colorado state district court identical to the earlier Colorado complaint except that Appellant’s husband was not named as a plaintiff. Finding that the two complaints involved “identical claims and facts,” the Colorado court consolidated the cases and entered an order staying them until resolution of the New York proceedings. The Colorado court also found Appellant’s actions frivolous and awarded attorney’s fees and costs.

After seven years, the arbitration panel unanimously concluded that Appellant’s husband had violated his fiduciary and accounting responsibilities and awarded Appellee substantial damages plus interest. Appellant’s husband paid only part of the judgment, to Appellant, specifically the amount owing to her as assignee of his interest in Appellee. Appellant’s husband failed to pay the balance and Appellee subsequently filed an action in Colorado to collect the unpaid portion. Appellant’s husband objected to the judgment. The Colorado district court rejected the objection. Appellant’s husband appealed, and The Colorado Court of Appeals affirmed its district court’s decision.

Meanwhile, Appellant filed a complaint in Wyoming for declaratory relief, breach of contract, unjust enrichment, and conversion against Appellee and numerous individuals and entities having an interest in the Appellee joint venture, claiming that the Appellee owed her compensation for services provided, and that she is entitled to payment of those amounts. Appellee moved to dismiss the complaint under Wyoming Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment under Rule 56. The district court granted summary judgment for Appellee and dismissed the complaint on the basis of res judicata, finding that Appellant was in privity with parties involved in prior litigation in Colorado and New York, and that her complaint involved the same subject matter and issues resolved in those proceedings. Appellant appealed, claiming the district court erred in holding that her claims were barred. After she had filed her appellate brief, the New York Supreme Court issued a decision finding Appellant’s husband in contempt for colluding with Appellant to bring this action in Wyoming in violation of its order to refrain from further litigation involving Appellee and the issues before the arbitration panel.

Issues: 1) Whether the district court properly entered summary judgment for Appellee when Appellee failed to file a separate statement of material facts demonstrating the absence of a genuine issue for trial as required by W.R.C.P. 56.1; and 2) Whether the district court correctly concluded that Appellant’s claims are barred by the doctrine of res judicata. Appellee re-stated the issues and asked the Court to award it attorney fees and costs in defending this appeal.

Holdings: The Court affirmed and awarded attorneys fees and costs.

As to the first issue, the Court held that Rule 56.1 is clear that upon filing any motion for summary judgment under Rule 56, a separate statement of material facts with pinpoint citations supporting the motion is required. However, while the Court did not condone Appellee’s failure to comply with Rule 56.1, the Court concluded that the district court properly exercised its authority in determining that Appellant waived her objection to its consideration of Appellee’s motion and supporting materials when Appellant did not raise it until after the court had considered the materials and issued a ruling.

As to the issue of res judicata, the Court found the issues and subject matter here identical to that raised in the New York and Colorado courts and resolved in New York after a seven day evidentiary hearing and numerous appeals. The Court found that those issues had been fully and finally resolved. The Court held that Appellant, as the assignee of her husband’s interest in the joint venture, had received payment of her proportionate share, and pursuant to the New York judgment, as co-owner of the petroleum company, she was not entitled to payment of anything from Appellee. Appellant was in privity with her husband as the assignee of his interest and, as co-owner of the petroleum company, is bound by the prior rulings.

The Court also held that, in light of the lengthy New York proceedings, the orders staying and prohibiting other proceedings, and the contempt order, Appellant had no reasonable cause for this appeal and Appellee was entitled to attorney fees and costs.

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

Tuesday, September 20, 2011

Summary 2011 WY 133

Summary of Decision September 20, 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 ex rel. Workers’ Safety and Compensation Division v. Cave

Citation: 2011 WY 133

Docket Number: S-10-0126

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464401

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

Representing Appellant (Respondent/Objector): Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General

Representing Appellee (Petitioner/Employee): Donna D. Domonkos, Cheyenne, Wyoming

Date of Decision: September 20, 2011

Facts: Appellee Shannon Cave suffered a work-related injury and was awarded temporary total disability (TTD) benefits during her recovery. She received an offer of temporary light duty work from her employer, which she rejected. As a result of her refusal to accept what the Wyoming Workers’ Safety and Compensation Division (Division) deemed a bona fide offer of light duty work, the Division reduced her TTD benefits in accordance with Wyo. Stat. 27-14-404(j) (2011) to one-third of the previously authorized amount. The Office of Administrative Hearings (OAH) upheld the reduction of TTD benefits. On review, the district court reversed the OAH decision, and the Division appealed to this Court.

Issues: Whether the Hearing Examiner’s determination that Appellee had rejected a bona fide light duty offer and, therefore, had to receive a reduction in her temporary total disability benefits was supported by substantial evidence.

Holdings: Wyo. Stat. 27-14-404(j) (2011) statute does not define what a bona fide offer is other than to list certain terms that must be included in the written offer, such as wage and start date. It is the meaning of the term “bona fide offer” that is the primary point of contention in this appeal.

Appellee has taken the position that the evidence concerning the actions and statements by her supervisor and her fear of retribution by him should have compelled the hearing examiner to conclude that the offer of light duty work was not bona fide. Appellee acknowledges that, on the surface, the light duty job offer appears to be bona fide in that it took into consideration every physical limitation she had and accommodated those limitations. However, she claims the offer was based on incomplete information regarding her supervisor’s prior threats and actions, as well as his criminal activity, and, therefore, the offer was fundamentally unfair and not bona fide. On the other hand, the Division has taken the position that the non-medical factors cited by Appellee are irrelevant and that the hearing examiner properly determined, given the evidence, that the offer tendered was bona fide.

After careful review of the record, it cannot be said that the hearing examiner’s legal conclusions were erroneous as a matter of law. Nor can it be said that the hearing examiner’s determination was contrary to the overwhelming weight of the evidence. Therefore, it can be concluded that the hearing examiner properly determined that the offer of light duty employment tendered to Appellee was bona fide.

As a final matter, Appellee contends, as the district court found, that the OAH’s decision is not in accordance with the law because the hearing examiner failed to consider the principles of contract law, specifically the doctrine of “anticipatory repudiation.” However, Appellee’s reliance on that doctrine in this case is misplaced. Anticipatory repudiation concerns a renouncement of a contractual obligation or duty, which necessarily requires the existence of a contract. Here, Appellee did not accept her employer’s offer of light duty employment and, consequently, no contract or contractual obligation was created which could be repudiated. Appellee’s contention of error in this regard is simply without merit.

The district court improperly substituted its judgment for that of the hearing examiner when it reversed the OAH decision reducing Appellee’s TTD benefits. The OAH decision was supported by substantial evidence and was not otherwise arbitrary, capricious or contrary to law. Consequently, the matter is reversed and remanded to the district court with directions the case be returned to the OAH for reinstatement of the order reducing Appellee’s TTD benefits.

J. Golden delivered the opinion for the court.

Summary 2011 WY 132

Summary of Decision September 20, 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: Washington v. State

Citation: 2011 WY 132

Docket Number: S-11-0041

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464400

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

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

Representing Appellee (Plaintiff): Gregory A. Phillips, 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: September 20, 2011

Facts: The appellant, while working as a confidential informant for the Wyoming Division of Criminal Investigation (DCI), was arrested after drugs were discovered in his vehicle. In this appeal, he challenges the district court’s denial of discovery of the confidential informant agreement (CI agreement) between him and DCI, as well as DCI’s policy manual regarding procedures to be followed with confidential informants (CI policy manual). The district court’s Judgment and Sentence incorrectly stated that the appellant pled guilty to the charged offenses. The parties entered a stipulated motion to modify the Judgment and Sentence to correct that inaccuracy to read that the appellant had been found guilty. The parties, however, failed to notice that the Modified Judgment and Sentence did not comply with certain provisions of W.R.Cr.P. 32. Thus, the appellant further argues that the matter should be reversed and remanded inasmuch as the Modified Judgment and Sentence does not fully comply with W.R.Cr.P. 32.

Issues: Whether the district court improperly denied discovery of the CI agreement and the CI policy manual. What is the effect of the noncompliance with W.R.Cr.P. 32 in the Modified Judgment and Sentence.

Holdings: Nothing in the record indicates that the appellant was actually denied access to the CI agreement. The Motion to Compel Discovery did not specifically request access to the CI agreement and it appears that appellant always had access to the document, even prior to the hearing on the Motion to Compel Discovery, let alone prior to the trial itself. The prosecutor informed the appellant before the trial that he intended to rely upon the agreement at trial. The CI agreement was introduced by the State and available as an exhibit. The appellant’s attorney clearly relied on her own copy of the agreement at trial; at one point in the trial testimony she makes reference to “my copy” of the agreement. She also cross-examined one of the State’s witnesses from her copy of the agreement and made reference to its content in her closing argument. The evidence indicates that not only did the appellant have access to the agreement prior to trial, but he also was well prepared regarding the content of the agreement. The record simply does not support the appellant’s contention that he was denied access to the CI agreement

Although there is no constitutional right to discovery, a defendant has a constitutionally protected right to present a defense. A defendant may request discovery of certain items from the state, but the state is only required to provide such information as indicated by statute, rule or case law. At the hearing on the Motion to Compel Discovery, the appellant pointed to W.R.Cr.P. 16 as grounds for his claim that the State was required to provide the CI policy manual. The appellant’s defense rested on the assertion that he was confused as to the point and circumstances at which he had the authorization of DCI to buy drugs. Much of what is contained in the CI policy manual is also present in the CI agreement, which was available to the appellant at trial. Both the CI policy manual and the CI agreement specifically preclude a confidential informant from handling illicit drugs unless authorized to do so by DCI. Nothing in the CI policy manual, explicitly or implicitly, gives DCI agents the power to permit confidential informants unilaterally to procure drugs, as the appellant suggests. What is material to the appellant’s defense is the information actually conveyed to him by DCI, either in the form of the CI agreement that he signed or in the agents’ oral explanation of the terms of the agreement and their expectations for his participation in the controlled buy. The record indicates that the agents adequately and clearly explained each item in the CI agreement and the appellant acknowledged his understanding of each item. The appellant presents no evidence to indicate that he was authorized or instructed to go off on his own and procure illegal drugs from as many drug dealers as possible. One cannot simply infer from the fact that the appellant did not follow the instructions given to him that the instructions were necessarily inadequate or vague or that the appellant was misled. The district court reasonably denied discovery of the CI policy manual as that document was not material to the appellant’s defense.

Both parties agree that the Modified Judgment and Sentence did not fully comply with W.R.Cr.P. 32(b). Where an error or omission occurs in a lower court’s order, it must be determined whether it was a clerical or judicial mistake. Clerical errors are all errors, mistakes, or omissions which are not the result of the exercise of the judicial function. Judicial error, on the other hand, is the deliberate result of judicial reasoning and determination. Where the error is clerical, W.R.Cr.P. 36 is designed to correct such mistakes. In the present action, the failure to satisfy all the requirements of W.R.Cr.P. 32 is a clerical error. There is no indication in the record that the omission was anything other than a mere accident. Such errors may be corrected at any time. The parties do not dispute the content of the terms nor do the parties dispute whether the terms ought to be included in the Modified Judgment and Sentence. As such, there is no need to reverse, but rather it would be appropriate to remand to the district court to amend the Modified Judgment and Sentence so that it will meet the requirements of W.R.Cr.P. 32 and the expectations of the parties and the trial judge.

No reversible error was committed by the trial court. The appellant had access to the CI agreement prior to trial and referred to this document at trial. Denial of the appellant’s Motion to Compel Discovery of DCI’s policy manual was not an abuse of discretion. The omissions in the Modified Judgment and Sentence were simply clerical errors and will be corrected on remand to the district court. The conviction is affirmed.

J. Voigt delivered the opinion for the court.

Summary 2011 WY 131

Summary of Decision September 20, 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: Shaffer v. WINhealth Partners

Citation: 2011 WY 131

Docket Number: S-11-0005

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464399

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

Representing Appellant (Plaintiff): Blair J. Trautwein of Wick & Trautwein, Fort Collins, CO.

Representing Appellee (Defendant): Michael Rosenthal and Lucas Buckley of Hathaway & Kunz, Cheyenne, WY.

Date of Decision: September 20, 2011

Facts: Appellant challenges an order of the district court granting summary judgment in favor of the Appellee. Appellant contends that there are ambiguities in the insurance contract which the district court interpreted incorrectly as a matter of law, and that there are genuine issues of material fact with respect to terminology used in the insurance contract that governs in this case.

Issues: Whether the Exclusions and Limitations provision of the insurance contract is ambiguous as to whether it applies only to cosmetic breast reduction surgeries or all breast reduction surgeries. Whether the term “reduction mammoplasty” has a single plain meaning or two plain meanings. Whether the trial court erred in considering parol evidence in determining the meaning of the contract. Whether the trial court erred in finding the parol evidence affidavit was not disputed by competent evidence. Whether the trial court erred in failing to consider other parts of the contract when determining that reduction mammoplasty was an exclusion applying to all breast reduction surgeries rather than a limitation applying only to cosmetic surgeries. Whether the trial court erred in finding the Exclusions and Limitations provision dealing with complications of operations excluded by the policy applies and denies coverage for Appellant’s penicillin-resistant infection. Whether the court erred in failing to consider the differences in language between two other subparts of the contract when interpreting a third subpart. Whether the contract provided a basis to deny a medically necessary surgery.

Holdings: It is undisputed that Appellant’s breast reduction surgery was medically necessary and was not performed for cosmetic purposes. It is likewise clear that the infection was a complication of her breast reduction surgery. The contract excludes from coverage complications and side effects resulting from surgeries not covered by the policy. The parties disagree as to whether Appellant’s non-cosmetic breast reduction surgery falls within the definition of reduction mammoplasty referred to in the contract.

Reduction mammaplasty is occasionally performed for purely cosmetic purposes. More often, women seek surgical relief from the discomfort caused by massive, heavy, pendulous breasts. The female breast can become large enough to restrict physical activity, interfere with breathing, prevent sleep, and cause constant pain. Operations to relieve such distress are certainly not purely cosmetic surgery. This description of reduction mammoplasty confirms that the term is synonymous with breast reduction surgery and applies whether the procedure is performed for cosmetic or non-cosmetic purposes. Thus, applying the ordinary and common meaning of the words used in the insurance contract Appellant’s breast reduction surgery fell within the definition of “reduction mammoplasty.” Consequently, if the contract simply stated that mammoplasty reduction was “excluded,” all breast reductions are excluded from coverage under the policy. However, the contractual language states that reduction mammoplasty is either “not covered or subject to limitations,” without specifying which of those alternatives applies. The district court did not consider the effect of the “subject to limitations” language. Rules of contract interpretation require effect be given to each word if possible because each provision is presumed to have a purpose. Thus, the contractual language that states that coverage for reduction mammoplasty may be subject to limitations, as opposed to excluded altogether. The only interpretation which gives effect all the various provisions of the contract is that coverage for reduction mammoplasty is not wholly excluded but, rather, coverage is limited to non-cosmetic breast reduction surgeries.

The district court erred in granting summary judgment to Appellee. Appellant is entitled to summary judgment on her claims for the treatment of her infection. This ruling is dispositive and the parties’ other arguments need not be addressed.

The district court’s summary judgment order is reversed, and the district court is directed to enter summary judgment in favor of Appellant on her claims for treatment of her infection. In addition, the matter is remanded to the district court for further proceedings to dispose of all other remaining issues/claims.

J. Hill delivered the opinion for the court.

J. Golden, joined by J. Voigt dissented. In the provision detailing covered services the contract states that all benefits are subject to plan limitations and exclusions and that services that are not specifically identified are not a covered benefit. Thus, medical services for complications arising from medically necessary reduction mammoplasty must be specifically identified in order to be a covered service. One does not find “medical services for complications arising from medically necessary reduction mammoplasty” in the identified covered services. Accordingly, the decision of the district court should be affirmed.

J. Voigt joined by J. Golden dissented. The majority attempts to create insurance coverage for the appellant where none exists. Where the intent of an insurance policy is clear within its four corners, ambiguity is not created by a subsequent disagreement between the parties as to its meaning. Furthermore, one party’s subjective intent or interpretation of a contract is not controlling; instead the objective intent of the language used must be examined. The policy in this case is not ambiguous. The exclusions are not ambiguous. There is nothing to construe or interpret. The action should be affirmed.

Monday, September 19, 2011

Summary 2011 WY 130

Summary of Decision September 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: Graham v. State

Citation: 2011 WY 130

Docket Number: S-11-0053

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464368

Appeal from the District Court of Sweetwater County, Honorable Jere A. Ryckman, Judge

Representing Appellant (Defendant): James Phillip Graham, pro se.

Representing Appellee (Plaintiff): Gregory A. Phillips, Attorney General; Terry L. Armitage, Deputy Attorney General; Susan G. O’Brien, Senior Assistant Attorney General; D. Michael Pauling, Senior Assistant Attorney General.

Date of Decision: September 16, 2011

Facts: Appellant was charged with ten counts of obtaining property by false pretenses, in violation of Wyo. Stat. 6-3-407(a)(i) (1999). Pursuant to a plea agreement, he pleaded no contest to four of the counts, and the State dismissed the remaining six. After accepting Appellant’s plea, the district court sentenced him to 30 to 36 months imprisonment on Count III, to be served concurrently with a federal sentence that Appellant was also about to begin serving. The district court sentenced him to five to seven years on each of Counts IV, V, and VI, these sentences to be served concurrently with each other, but consecutive to the sentence for Count III. The district court then suspended the sentences on Counts IV, V, and VI, and instead ordered ten years probation, also to be served consecutive to the sentence for Count III. In accordance with the plea agreement, Appellant was ordered to pay restitution to nine victims of the crimes originally charged. Although Appellant had agreed to pay restitution, he reserved the right to contest the amount of restitution, and he appealed the district court’s order as imposing excessive restitution on two of the counts. The district court’s order was affirmed in part, reversed in part, and remanded with directions in part in Graham v. State, 2001 WY 5 (Wyo. 2001). On remand, the district court entered a stipulated order reducing the amount of restitution in accordance with our directions.

Appellant served his sentence on Count III concurrently with his federal sentence. He was released from federal prison in 2002, and immediately began serving his probation on Counts IV, V, and VI. When his probation was revoked in 2007, the district court reinstated the probation with certain additional conditions. When Appellant’s probation was revoked again in 2008, the district court ordered him to serve three and a half to seven years imprisonment on each of the three counts, the sentences to be served concurrently. In 2010, Appellant filed a motion in district court to correct an illegal sentence. After a hearing, the district court ruled that Appellant’s sentence was not illegal, and denied the motion.

Issues: Whether the court imposed an illegal sentence where there is no authority under the law to include a consecutive sentence of probation, after the court had sentenced appellant to prison; whether the court imposed an illegal sentence where the sentence of probation, in violation of law, began three years after appellant was sentenced to incarceration; Whether the court imposed an illegal sentence where the sentence of probation was three years beyond the maximum sentence that could have been imposed by the court; Whether the court imposed an illegal sentence by sentencing appellant to restitution for crimes for which he was never tried and convicted; Whether the court, having imposed an illegal sentence, was without jurisdiction to revoke appellant’s probation where jurisdiction under the law lies solely in the board of parole after incarceration in prison.

Holdings: W.R.Cr.P. 35(a) provides that a court may correct an illegal sentence “at any time.” But while there is no time limit on motions to correct an illegal sentence, other limitations still apply. Precedent makes it clear that res judicata is one applicable limitation. The doctrine of res judicata is not limited to only those issues which were actually decided in an earlier proceeding. Issues which could have been raised in an earlier proceeding may also be foreclosed from subsequent consideration. In the present action, Appellant could have raised his first four issues in his initial appeal, and he has not suggested any good cause for failing to do so. In his fifth issue, he challenges the revocation of his probation in 2008. It may be true that he could not have raised this issue before, as his probation had not yet been revoked at the time of his initial appeal. However, his argument that the district court lacked authority to revoke his probation is founded on the assertion that the underlying sentence of probation was illegal. Because res judicata bars his claims that the underlying sentence was illegal, there is no foundation for his challenge to the subsequent revocation of his probation.

He incorrectly asserts that his sentence was longer than the maximum allowed by statute. He points out that the statute under which he was convicted, Wyo. Stat. 6-3-407(a)(i), provides for a maximum sentence of ten years. He argues that he was sentenced to three years in prison followed by ten years of probation, for a total of thirteen years. However, he completely overlooks the fact that he was convicted on four separate counts of obtaining property by false pretenses. The district court could have imposed ten years imprisonment on each count, for a total of forty years. Appellant’s thirteen year sentence was, therefore, well within the maximum allowed by statute.

Appellant also argues that the district court lacked authority to sentence him to both imprisonment and probation. Although a sentence is illegal if it places a defendant on probation and in detention at the same time for the same crime, Appellant ignores the fact that he was convicted on four separate counts. He was sentenced to imprisonment on Count III, and consecutive to that, to probation on Counts IV, V, and VI. He was not sentenced to imprisonment and probation at the same time, nor for the same crime.

He further argues that the district court violated the requirement that a sentence must be imposed within one calendar year from the date guilt is established because it ordered the probation on Counts IV, V, and VI to begin after his three years of imprisonment on Count III. In Appellant’s case, the district court did not wait more than a year to impose sentence. It imposed prison sentences on all four counts, and did so on the very same day that it found Appellant guilty. It suspended the prison sentences on Counts IV, V, and VI in favor of probation, and ordered that the probation would be consecutive to the prison sentence on Count III. That was well within the district court’s sentencing discretion, and does not alter the basic fact that Appellant’s sentences were all imposed within one year of establishing his guilt.

Next, Appellant complains that the district court ordered him to pay restitution for crimes he was not convicted of committing. Appellant was ordered to pay restitution to nine of the victims. The rule is that a court has no authority “to order restitution where there was no admission of the crimes or agreement to pay restitution as part of the plea agreement.” During Appellant’s change of plea hearing, the district court questioned him about the plea agreement: “Now, you’ve also agreed to make restitution to alleged victims [in] the charges [that] are going to be dismissed. You’re agreeable to make restitution to those people also?” Appellant unequivocally responded “Yes, sir.”

Finally, Appellant claims that his sentence was illegal, and so the district court lacked authority to revoke his probation. Because the underlying sentence was not illegal, this claim is baseless.

Affirmed.

J. Burke delivered the opinion for the court.

Summary 2011 WY 129

Summary of Decision September 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: Harrell v. State

Citation: 2011 WY 129

Docket Number: S-11-0035

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464369

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

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; and Kirk A. Morgan, Senior Assistant Appellate Counsel.

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.

Date of Decision: September 16, 2011

Facts: After being convicted of rape, kidnapping, and assault, Appellant argues on appeal that the district court abused its discretion when it did not allow him to introduce evidence regarding a previous battery charge

Issues: Whether the district court erred when it denied Appellant’s request to admit evidence pertaining to a prior arrest, after the State’s witness opened the door by mentioning the arrest, in violation of the court’s previous order.

Holdings: Before trial, the district court granted the State permission to elicit testimony that law enforcement went to the victim’s house that day because they had been informed that Appellant’s truck was parked there, and they knew about the protection order. Appellant was arrested for violating that order. Also, testimony was allowed that the victim, that same day, had requested dismissal of the protection order. In regard to the protection order evidence being admitted, defense counsel requested that Appellant be allowed to discuss the basis of that protection order. Counsel assumed that the order stemmed from a prior incident that led to a felony battery charge for which Appellant had just been acquitted. In response to defense counsel’s request, the State objected because it was introducing evidence of the protection order only to explain the basis for Appellant’s arrest. The court ruled it would not permit any testimony about Appellant’s earlier battery charge and acquittal, finding both unrelated to the instant case.

After the arresting officer completed his testimony and was released from his subpoena, defense counsel complained that his testimony let the jury “know everything” about the prior arrest for battery, except that Appellant had been acquitted. The State disagreed, noting that it had introduced no evidence whatsoever that Appellant had been charged with battery, and that defense counsel could have cross-examined the officer to clarify his direct testimony. Furthermore, the State assured the district court that it had instructed its witnesses not to comment on the earlier arrest, and that it “jumped in there and moved on with the testimony” to the best of its ability. The district court determined that the State did “its best,” and “nothing intentional happened here.” Eventually, the district court ruled that Appellant’s acquittal of the battery was inadmissible and pointed out that Appellant did not contemporaneously object to the officer’s testimony, that the officer was unsure of what exactly prompted the February arrest, and that it would entertain a cautionary instruction regarding the officer’s testimony if drafted by defense counsel. Indeed, a curative instruction was developed, and the jury was subsequently instructed to disregard the testimony about the earlier arrest in its entirely in reaching its verdicts.

Appellant argues that his sixth amendment right to compulsory process was violated because he was deprived of testimony that was vital, material, and relevant to his defense. He argues that the evidence of his acquittal was relevant in this case for two reasons: First, he contends that “[d]emonstrating that the officer was mistaken,” with respect to his belief that Appellant was arrested for violating a protection order rather than a battery, “demonstrates that he was not as careful in his recollection of the event as he purported,” and thus Appellant could have used the evidence to impeach the officer’s testimony; and second, the district court’s denial left the jury with “negative,” and to some extent, “inaccurate” information about him. Had he been able to introduce the battery evidence, “it would have alleviated the problem associated with the admissibility of this previously ruled prejudicial and irrelevant 404(b) evidence.”

Appellant’s arguments were not persuasive. The evidence would not have been proper impeachment evidence because the officer was only relaying what the victim had told him. The officer was not himself unclear or unsure – he was only repeating the victim’s statement. Also, regarding the impressions left with the jury, the State points out that neither party sought to introduce under W.R.E. 404(b), evidence of the arrest for violating a protection order because no such arrest occurred. Inasmuch as Appellant’s arguments were not persuasive, there was not a showing of prejudice in this case.

The district court did not abuse its discretion when it denied Appellant the opportunity to introduce evidence that he had been previously acquitted of battery, and Appellant suffered no prejudice.

Affirmed.

J. Hill delivered the opinion for the court.

Summary 2011 WY 128

Summary of Decision September 14, 2011

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

Case Name: RH v. Wyo. Dep’t of Family Servs.

Citation: 2011 WY 128

Docket Number: S-11-0017

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464370

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

Representing Appellant (Respondent): John M. Burman, Faculty Supervisor, U.W. Legal Services Program; Tracy Racicot, Student Director; and Liz Minnerop, Student Intern. Argument by Ms. Minnerop.

Representing Appellee (Petitioner): Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; and Susan K. Stipe, Senior Assistant Attorney General. Argument by Ms. Stipe.

Date of Decision: September 14, 2011

Facts: Mother had three minor children, ages 9, 6 and 5, who were the subject of a neglect petition that began this case. The three minor children were removed from their home and Mother’s care after authorities observed a number of safety and sanitation concerns in Mother’s home while executing a search warrant. After the county attorney’s office filed a neglect petition and some identified issues were corrected, the children were returned to their home. Based upon the agreement of all parties to the matter, the juvenile court initially entered an order accepting Mother’s admission of neglect, but holding the adjudication of neglect in abeyance pursuant to the terms of a consent decree which placed the children in the custody of Mother, under the protective supervision of the Department of Family Services (DFS). A multidisciplinary team (MDT) was also established in order to provide recommendations to the juvenile court.

Subsequently, the juvenile court found that Mother violated the terms of the consent decree. Juvenile proceedings were reinstated, and the children were adjudicated to be neglected after the admission of the neglect was entered. Mother retained custody of her children throughout the proceedings while under the protective supervision of DFS. The order reinstating the proceedings authorized DFS to remove the children from Mother’s custody without a subsequent order from the juvenile court. The court set forth a permanency plan of family preservation and ordered Mother to comply with eighteen terms and conditions to reach that goal, while the children continued to live with Mother.

Issues continued to prevail, however, concerning Mother’s compliance with the orders of the juvenile court and concerning the welfare of the children. Based upon these concerns, the parties met with the children’s therapist, and all agreed that it was in the best interests of the children for two of the children to have extended visitation with their grandparents, and for the other child to continue her summer visitation with her father.

The MDT met and decided to recommend that the two children continue with their grandparent visitation, and the other child be temporarily placed with her father. Pursuant to that recommendation, the State filed a motion to change custody and placement of the minor children, and requested that the existing visitation arrangements be continued. On the same day, the juvenile court held an already scheduled review hearing on the matter, and after hearing recommendations from the MDT members, found it was in the best interests of the children to be continued to be placed away from Mother until the hearing on the State’s motion to change custody.

The juvenile court held a two-day hearing on the State’s motion to change custody. After hearing from both sides, and after both sides were presented an opportunity to present evidence to the juvenile court, it ruled that the minor children should not be returned to Mother at that time, and that they should remain with their grandparents and father, respectively. Mother timely appealed.

Issues: 1) Whether the district court committed reversible error when it ordered, without notice to Mother and without conducting any evidentiary hearing, that the two children remain with their grandparents and not be reunited with Mother as had been stipulated; and the other child be placed with her father without Mother’s consent; 2) Whether the district court erred by applying Wyoming Statute § 14-3-429(a)(iv) or stated inversely, whether the district court erred by failing to apply Wyoming Statute § 14-3-405 in deciding the State’s motion to change custody and placement of the minor children after conducting an evidentiary hearing; and 3) Whether the district court’s findings of fact were supported in relevant part by “clear and convincing evidence” as required by Wyoming Statute § 14-3-429(a)(iv).

Holdings: The Court affirmed the juvenile court. Mother’s basic complaint is that her children were removed from her home without an evidentiary hearing. As to the first issue, the Court found no abuse of discretion in the juvenile court’s order temporarily maintaining the placement of the children with their grandparents and father, respectively.

As to the second issue, the Court found that the juvenile court’s conclusions of law were decided under the correct statute. The juvenile court reasoned in its decision that the plain language of § 14-3-429(a)(iv) provides that it is to be used after an adjudication of neglect; that this statute incorporates the best interests of the child which are now of “constitutional preeminence.” The alternative statute proposed by Mother, § 14-3-405(c), demonstrates through its plain language that it applies to emergency situations; and the relief provided in § 14-3-405(c) includes ex parte relief, an emergency order, or a search warrant, none of which was alleged as necessary in light of the two-day evidentiary hearing held in this case.

As to the final issue, the Court noted that the juvenile court held a two-day evidentiary hearing where, after hearing numerous witnesses testify, it issued detailed findings of fact and conclusions of law. Mother’s arguments were not only heard but she was also given the opportunity to dispute the State’s evidence. The juvenile court made 72 findings of fact to support its conclusions that both elements of § 14-3-429(a)(iv) were met. The Court examined the evidence in the light most favorable to the State and upheld the juvenile court’s findings that the statutory requirements for out of home placement were met.

The Court upheld the juvenile court’s findings of fact, conclusions of law and order directing Mother’s minor children to be placed with their grandparents and father, respectively, rather than returned to her custody.

J. Hill delivered the opinion for the court.

Monday, September 12, 2011

Summary 2011 WY 127

Summary of Decision September 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: Weber v. State

Citation: 2011 WY 127

Docket Number: S-10-0049

URL: http://www.blogger.com/goog_1809106292

Appeal from the District Court of Hot Springs County, Honorable Robert E. Skar, Judge

Representing Appellant (Plaintiff): Vance Countryman, Lander Wyoming; Cynthia Van Fleet of Wind River Law Center, Riverton, Wyoming.

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

Date of Decision: September 12, 2011

Facts: Appellant was severely burned by hot mineral water when he lost consciousness in the steam room at the Star Plunge in Hot Springs State Park. He brought a personal injury action, naming C & W Enterprises, Inc., d/b/a the Star Plunge; a Star Plunge principal, Wolfgang Luehne; and the State of Wyoming as defendants. The State moved for summary judgment on a number of grounds, including that it was immune from suit pursuant to the Wyoming Governmental Claims Act. The district court determined the State was immune and granted summary judgment in its favor, but did not rule on any of the State’s other theories of non-liability. Appellant appealed.

Issues: Whether the district court erred by ruling that the State was immune under the circumstances presented here because its activities did not fall within the waiver for operation and maintenance of a public park under Wyo. Stat. 1-39-106 (2011).

Holdings: The Wyoming Governmental Claims Act is a “close-ended tort claims act,” meaning that the general rule in Wyoming, as stated in Wyo. Stat. 1-39-104(a), is the government is immune from liability. Therefore, unless a claim falls within one of the statutory exceptions to governmental immunity stated in Wyo. Stat. 1-39-105 through 1-39-112, it is barred. Appellant asserts his claims fall within the waiver of immunity for operation and maintenance of a public park found in § 1-39-106.

Wyo. Stat. Ann. 36-8-301 et seq. govern Hot Springs State Park. Wyo. Stat. Ann. 36-8-304, specifically authorizes the State to lease park lands and provide hot spring water to lessees. On its face, the legislation envisioned that the operation of Hot Springs State Park would include leasing property to private persons who would provide facilities for the public to use the hot mineral water. The statute also contemplates the State would regulate those buildings and improvements, approve building plans, specify materials, and provide hot mineral water to the facilities. Thus, when § 36-8-304 is read in conjunction with § 1-39-106, it is obvious that the legislature intended to waive immunity for the State’s alleged negligence in approving its lessee’s (the Star Plunge’s) design and construction of the Vapor Cave and in supplying the water.

Also, in addition to the typical regulatory inspections, the Concession and Revenue Manager for the State conducted annual inspections of the Star Plunge as part of the State’s role as owner and lessor of Hot Springs State Park property. The lease between the Star Plunge and the State specifically required the Star Plunge to comply with the rules and regulations adopted by the agency that oversees state parks and the agency that oversees health regulations. Under these circumstances, the State’s operation and maintenance of Hot Springs State Park included overseeing and/or inspecting its lessee’s property. Wyo. Stat. 1-39-106 waives immunity for public employee negligence in this role.

Although the State is not immune under the circumstances presented here, this does not mean to suggest that the State will ultimately bear liability for Appellant’s injuries. The concepts of immunity and liability seem to have been conflated in this case. Immunity prevents the State from being sued in the first place. Even though the State is not immune, there may be other legal principles which insulate it from liability. Issues such as whether the State had a duty to provide for the safety of patrons on the leased property, whether the duty had been delegated to the lessee, whether any duty was breached, and/or whether any breach was the proximate cause of Appellant’s injuries will have to be addressed to determine whether the State is liable in this case. Those questions were not decided by the district court and are not fully joined at this time. The sole issue that has been fully presented to this Court is the question of whether the legislature waived immunity under the Wyoming Governmental Claims Act and it is concluded that it did.

Reversed and remanded.

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

J. Golden, joined by J. Hill, dissented. Wyo. Stat. 36-8-304 (2011) does not mandate the State lease land for concessionaires to open bath houses. The statute only provides that the State “may” lease land. Thus, while the statute establishes the general purpose of the Park to be the establishment of baths and bathhouses for the public to enjoy the healing properties of the mineral water, it does not mandate leasing property as a means of carrying out that objective. Thus, under the statutory mandate, the existence of Star Plunge is not necessary to the operation the Park. The State can, and does, fulfill the purposes of the Park without any particular concessionaire. Because the lease to Star Plunge, and specifically the existence of the Vapor Cave, is not essential to the functionality of the Park, governmental immunity has not been waived on the ground that ensuring the safety of the Vapor Cave is part of the operation of the Park.

The remaining question is whether ensuring the safety of the Vapor Cave is part of the maintenance of the Park. In other words, is ensuring the safety of the Vapor Cave a necessary action to keeping the Park in a state of good repair? By his argument, Appellant asks the Court to find that maintaining the Park includes maintaining facilities owned and operated by third parties on leased land within the Park. The definition should not be extended so far. The State’s maintenance of the Park extends only to land within the direct control of the State. Maintenance of the Park does not include maintaining land leased to third parties.

Appellant also attempts to impose liability on the State under landlord-tenant principles. He does not, however, point to any statutory provision in support of his argument that the State loses its immunity because it is the owner and lessor of the property on which Star Plunge sits. Presumably, then, Appellant must be arguing that being a landlord falls within the category of operating the Park. Leasing property is not required for the functioning of the Park so it is not an operational undertaking by the State.

In essence, Appellant’s argument that the State was negligent in the operation and maintenance of the Park by not ensuring the Vapor Cave was safe is an attempt to make the State the guarantor of people’s safety wherever they might be within the confines of Park land. The scope of the terms “operation” or “maintenance” should not be extended to that degree. Ensuring the safety of the Vapor Cave was not part of the operation or maintenance of the Park.

Friday, September 09, 2011

Summary 2011 WY 126

Summary of Decision September 9, 2011

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

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

Case Name: Glenn v. Union Pacific Railroad Co.

Citation: 2011 WY 126

Docket Number: S-10-0197

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464331

Appeal from the District Court of Sweetwater County, Honorable Nena R. James, Judge

Representing Appellant (Plaintiff): Frederick J. Harrison, Frederick J. Harrison, Rawlins, Wyoming; Robert T. Moxley, Cheyenne, Wyoming.

Representing Appellee (Defendant): Mark C. Hansen, Union Pacific Railroad Company; George E. Lemich, Lemich Law Center.

Date of Decision: September 9, 2011

Facts: Previously, a grant of summary judgment in favor of Appellee was reversed after finding that the railroad had a duty to exercise ordinary and reasonable care in the operation of its railway. After remand, the jury determined that both parties, as well as two non-party actors, were negligent and awarded damages to Appellant. Appellant appeals, contending that the district court erred in refusing to admit evidence of a prior incident involving Appellee that was the catalyst for a change in his employer’s safety procedures.

Issues: Whether the trial court erred in excluding evidence of a similar “near-miss” that occurred two weeks before Appellant’s accident, even after the Appellee “opened the door.” Whether the trial court erred in refusing Appellant’s proposed instruction about intervening and supervening cause and permitting the jury to consider the fault of two nonparty actors. Whether the doctrine of cumulative error should be applied.

Holdings: In addressing Appellant’s first claim of error, the issues that must be resolved are (1) whether the reason for the change in safety procedures is relevant, and (2) whether the district court abused its discretion in rejecting that evidence.

Appellant contends the evidence of a prior “near miss” incident was relevant because it tended to show why the car-checking procedure was changed. Circumstantial evidence that provides background may be relevant if it throws other evidence into sharper relief, helps clarify or explain it, or makes it more vivid or real. In the present action, at the very least, the prior incident helps explain the decision to change the car-checking procedure. More fundamentally, however, the prior incident was relevant to the question of whether the new procedure was more or less safe than its former procedure, or the procedure suggested by Appellee at trial. The degree of safety of the new procedure had direct implications for the jury’s determination as to degree of fault, one of the ultimate issues in this case. The evidence was relevant.

The district court appears to have determined that, by stipulating to the fact that the balloon track was an unsafe place for Appellant to check the train cars, Appellant purged the prior incident of its potential relevance. The evidence of the prior incident, however, did not become irrelevant merely because Appellant admitted that the balloon track was not a safe place to check the train cars. First, an evidentiary admission is not conclusive but is subject to contradiction or explanation. Second, even if the stipulation had removed from consideration the issue of whether the balloon track was “safe,” Appellant’s admission does not answer the question of whether the new car-checking procedure was more or less safe than other possible car-checking procedures. The prior incident was relevant to a determination as to the degree to which the procedure was safe or unsafe, and it was ultimately the jury’s responsibility to factor that determination into its apportionment of fault. The stipulation that the balloon track was not a safe place to check the train cars did not render the prior incident irrelevant.

Unfairly prejudicial evidence is evidence which will likely stimulate an excessive emotion or awaken a fixed prejudice and thus dominate the mind of the jury and prevent a rational determination of the truth. WRE 403 does not allow the exclusion of evidence simply because it is prejudicial. All of the evidence against an appellant is ‘prejudicial.’ The evidence must be unfairly prejudicial before its prejudicial effect is weighed against its probative value. At the hearing on Appellee’s motion in limine, the district court determined that evidence of the prior incident should be excluded, but stated that its admissibility at trial would depend on whether Appellee “opened the door” to the evidence. Despite the fact that Appellee argued that Black Butte Coal Company was negligent in making Appellant go out there and having that policy of walking the loop and checking these cars,” the court determined that Appellee had not “opened the door” to that evidence. The district court’s refusal to admit evidence of the prior incident allowed Appellee to shift blame to Black Butte by producing testimony that its safety procedures were inadequate, but prevented Appellant from defending against those allegations by presenting the prior incident as the catalyst and justification for its change in procedure. The district court’s evidentiary rulings in this case prevented Appellant from presenting a vital part of his theory of the case, which was that the car-checking procedure in effect at the time of Appellant’s accident arose as a direct result of the prior incident, and that the subsequent procedure was more safe than the former procedure in light of that incident. Further, the district court’s rulings had the unfortunate effect of allowing Appellee to argue repeatedly that Black Butte was negligent in allowing its employees to inspect train cars on the balloon track, while restraining Appellant from responding to those arguments with any concrete justification for Black Butte’s judgment that the new procedure was safer than its former procedure. Although the district court was legitimately concerned with the danger of unfair prejudice, the court’s rulings unduly restricted Appellant from presenting his theory of the case. Because the excluded evidence was essential to Appellant’s defense against the allegations that Black Butte was negligent, and because it was the jury’s prerogative to determine the degree of safety of Black Butte’s car-checking procedure, the district court abused its discretion in applying W.R.E. 403.

The court is not required to allow any and all evidence the parties offer on the subject of mismanagement, but it must allow sufficient, admissible evidence to permit them to argue to the jury whether there was or was not a good faith basis to criticize management. Ultimately, the judge has discretion to control the amount of evidence and the resulting length of the trial. Likewise, the district court has discretion to tailor presentation of the evidence to prevent the jury from hearing unnecessary or inflammatory details of the prior incident. Additionally, the dangers of “unfair prejudice” can be addressed through an appropriate limiting instruction. Managing evidence through proper jury instructions accommodates the receipt by the trier of fact of all relevant evidence and, at the same time, permits the parties to fully litigate their case theories.

Appellant was effectively prevented from defending against argument and inference that Black Butte was at fault for his injury. As Appellant’s employer, Black Butte was immune from suit under Wyoming’s Worker’s Compensation Act. Wyo. Stat. Ann. § 27-14-104. However, under Wyoming’s comparative fault statute, the jury was permitted to allocate fault to actors, including Black Butte, who were not made parties to the action. Wyo. Stat. Ann. § 1-1-109. As a result of this statutory scheme, Appellant was placed in the position of having to defend against allegations relating to Black Butte’s negligence, for any percentage of fault allocated to Black Butte would necessarily diminish his recovery. Absent evidence of the prior incident, however, Appellant was unable to provide the jury with a clear justification for Black Butte’s decision to require its employees to walk the balloon track when checking the train cars. Given that any increase in the allocation of fault to Black Butte had a direct effect on Appellant’s recovery, there is at least a reasonable probability that the verdict would have been different if the error in excluding the evidence had not occurred. Accordingly, the error was prejudicial, and so the decision of the district court is reversed and the action is remanded for a new trial.

A duty of care may arise by contract, statute, common law, or when the relationship of the parties is such that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff. In considering whether a duty exists, the following factors have been balanced to aid in that determination: (1) the foreseeability of harm to the plaintiff, (2) the closeness of the connection between the defendant’s conduct and the injury suffered, (3) the degree of certainty that the plaintiff suffered injury, (4) the moral blame attached to the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden upon the defendant, (7) the consequences to the community and the court system, and (8) the availability, cost and prevalence of insurance for the risk involved. Generally a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct with respect to all risks which make the conduct unreasonably dangerous. In the present action, the employee of a non-party company testified at trial that it had a responsibility to clean all of the coal out of the train cars. The employee testified that “[a]ny person releasing a car [is] supposed to release it in a safe condition.” He also testified that his company had received complaints from another company “from time to time” that coking coal was left over in the train cars after leaving its plant. Given that this non-party company was aware that leftover material created problems for its shippers, and that it had requested coal from the Black Butte mine, it was reasonably foreseeable that material left in an improperly unloaded car could cause injury to a Black Butte employee. In sum, the district court did not abuse its discretion in finding that the non-party company owed a duty to Appellant and, accordingly, did not err in denying Appellant’s motion for judgment as a matter of law.

An intervening cause is one that comes into being after a negligent act has occurred, and if it is not a foreseeable event, it will insulate the original actor from liability. In the present action, the district court refused to give an intervening cause instruction. However, the instructions given adequately addressed the issues of causation and comparative fault. In the final analysis, the same facts that supported Appellant’s argument for an intervening cause instruction also allowed him to argue that the non-party company’s comparative fault was minimal in relation to the other actors in this case. In light of the rule that trial courts are afforded substantial latitude to tailor the instructions to the facts of the case, the district court did not abuse its discretion in refusing to give the intervening cause instruction.

Finally, because the action is reversed based on the district court’s exclusion of the prior incident at the Black Butte facility, Appellant’s contention that we should remand on the basis of cumulative error was not addressed.

Reversed and remanded for a new trial.

J. Burke delivered the opinion for the court.

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