Thursday, March 31, 2011

Summary 2011 WY 58

Summary of Decision March 31, 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: Adams v. Walton

Citation: 2011 WY 58

Docket Number: S-10-0109

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461907

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

Representing Appellant (Plaintiff): V. Anthony Vehar of Vehar Law Offices, Evanston, Wyoming; Clark Newhall of Law Office of Clark Newhall, MD, JD, Salt Lake City, Utah

Representing Appellee (Defendant): Stephenson D. Emery of Williams, Porter, Day & Neville, Casper, Wyoming

Date of Decision: March 31, 2011

Facts: Appellant allegedly received negligent medical treatment from Appellee. Appellant brought a medical malpractice claim against Appellee, but filed the legal action after the applicable statute of limitations had run. He alleged the statute of limitations was tolled because Appellee had left the state and he could not find her to effectuate service of process. The district court disagreed and granted summary judgment to Appellee based on the running of the limitation period.

Issues: Whether the district court properly granted summary judgment based on the statute of limitations when Appellee departed the state and Appellant had no knowledge of her whereabouts.

Holdings: According to the undisputed facts, Appellant had no intention of bringing a medical malpractice suit against Appellee. It was only when he was informed the defense theory for the physicians he had sued for malpractice would be to implicate Appellee that Appellant changed his mind. This occurred more than two and a half years after the date of the alleged malpractice. He did not amend his complaint to add Appellee as a defendant until more than three years after the date of the alleged malpractice. The statute of limitations for a medical malpractice action is two years. However, Appellant argues that since Appellee left the state at some point after the date the cause of action accrued his action is timely under the tolling statute [Wyo. Stat. 1-3-116 (2009)].

A statute of limitations, by definition, limits the amount of time a potential plaintiff has to file a legal action. Appellant did not file a legal action against Appellee until more than three years after the cause of action accrued. The fact that she was out of state is not enough to invoke Wyo. Stat. 1-3-116, given the fact that Appellant had no intention of bringing legal action against her within the limitation period.

Affirmed.

J. Golden delivered the opinion for the court.

Wednesday, March 30, 2011

Summary 2011 WY 57

Summary of Decision March 30, 2011

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

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

Case Name: State, ex rel., Wyo. Workers’ Safety and Comp. Div. v. Singer

Citation: 2011 WY 57

Docket Number: S-10-0064

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461899

W.R.A.P. 12.09(b) Certification from the District Court of Natrona County, The Honorable Scott W. Skavdahl, Judge

Representing Appellant (Petitioner): Bruce A. Salzburg, Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General; Douglas M. Lesley, Special Assistant Attorney General.

Representing Appellee (Respondent): Mark L. Carman, Carman Law Office, PC, Billings, Montana.

Date of Decision: March 30, 2011

Facts: Appellee experienced a work-related injury in 2002 and received workers’ compensation benefits related to the injury. In 2003, it was determined that Appellee had a 30 percent whole body permanent partial impairment due to his injury and he accepted a permanent partial impairment award from the Division. In 2004, he received a permanent partial disability award as a result of the same injury. In 2009, the Division determined that Mr. Singer was entitled to a permanent total disability award due to the progression of his injury. The Division reduced Appellee’s permanent total disability award by the amount of the previous permanent partial disability award and also by the amount for the previous permanent partial impairment award.

Appellee agreed that his previous permanent partial disability award should be deducted, but objected to the deduction of his previous permanent partial impairment award. The matter was referred to the Office of Administrative Hearings for a contested case hearing. The hearing examiner concluded that the Division had incorrectly reduced Appellee’s permanent total disability award by the amount paid for his previous permanent partial impairment award. The Division petitioned for review by the district court. The district court certified the matter to this Court pursuant to W.R.A.P. 12.09(b), and the Court accepted the case for review.

Issue: Whether the hearing examiner, as a matter of fact and law, misinterpreted and misapplied Wyo. Stat. Ann. §§ 27-14-405 and 27-14-406 in concluding the legislature did not intend for previous physical impairment awards to be deducted from permanent total disability awards granted pursuant to the Wyoming Worker’s Compensation Act.

Holdings: The Court concluded that Wyo. Stat. Ann. § 27-14-406 is ambiguous. Forced to choose between an interpretation of Wyo. Stat. Ann. § 27-14-406(a) that would require deduction of all impairment awards or none, as in the case presented here, the Court concluded that the legislature intended deduction of Appellee’s prior impairment award. The Court did not determine whether the legislature intended that a prior impairment award must be deducted in every case. Reversed and remanded to the district court with instructions that the case be remanded to OAH.


J. Burke delivered the opinion for the court.

Summary 2011 WY 56

Summary of Decision March 30, 2011

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

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

Case Name: Scott v. State

Citation: 2011 WY 56

Docket Number: S-10-0139

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461897

Appeal from the District Court of Campbell County, Honorable John C. Brooke, Judge

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

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

Date of Decision: March 30, 2011

Facts: The appellant was convicted of multiple counts of sexual assault, attempted sexual assault, and sexual abuse of a minor. The appellant asserts that the district court abused its discretion in failing to strike certain portions of the presentence investigation (PSI) report prior to sentencing.

Issues: Whether the district court abused its discretion when it denied the appellant’s motion to strike from the PSI report the sentencing recommendations of the probation and parole agent.

Holdings: Trial courts have broad discretion when imposing sentence to consider a wide range of factors about the defendant and the crime. They are free, in the exercise of their sentencing discretion, to consider victim impact statements, PSIs and other factors relating to the defendant and his crimes in imposing an appropriate sentence within the statutory range.

The preparer of a presentence report is to be a neutral and independent participant in the sentencing process. It necessarily follows that a parole or probation officer acts on behalf of an independent judiciary, not as an agent of the state, in preparing a presentence report. Like the sentencing court, the preparer of a presentence report is neither a party to nor bound by a plea agreement between the defendant and the state and, therefore, cannot breach the terms of that agreement in preparing the report. In the present action, the Appellant argues that the PSI writer did not make a neutral, rational recommendation and was “solely a victim advocate, and not a neutral factfinder for the trial court. However, it is common and appropriate for a PSI writer to make a sentencing recommendation. A sentencing recommendation contained in a PSI is one of the factors that a court may properly consider in determining the appropriate sentence to impose. A PSI writer’s recommendation that the sentencing deviate from the terms of the plea agreement is not inconsistent with the recognized role of a probation and parole officer compiling a PSI report. However, the recommendation may not be erroneous, extreme, inflammatory, or argumentative, and should not contain indications of personal animosity toward the appellant or undue sympathy for the victims. The recommendations made by the PSI author in the present action, when read and considered in their entirety, simply do not lead to the conclusion that they were inappropriate and should have been stricken. Although the PSI author urges the district court to make certain sentencing decisions, those recommendations do not possess the traits that have been condemned in the past. Therefore, it cannot be said that the district court abused its discretion when it denied the appellant’s motion to strike from the PSI report the sentencing recommendations of the probation and parole agent.

Affirmed.

J. Voigt delivered the opinion for the court.

Tuesday, March 29, 2011

Summary 2011 WY 55

Summary of Decision March 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: Laramie County School District No. One v. Cheyenne Newspapers, Inc.

Citation: 2011 WY 55

Docket Number: S-10-0221

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461874

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

Representing Appellant (Defendant): David Evans, Richard D. Bush, and Kristi Radosevich of Hickey & Evans, LLP, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Michael J. Krampner and Ian K. Sandefer of Krampner, Fuller & Associates, Casper, Wyoming.

Date of Decision: March 29, 2011

Facts: As the parties agreed that no genuine issues of material fact existed, the district court ruled as a matter of law that the Wyoming Public Records Act, Wyo. Stat. 16-4-201 through 205 (2009), read in conjunction with a provision of the Wyoming Education Act, Wyo. Stat. 21-3-110(a)(ii)(A) (2009), entitled Newspaper to information concerning the names and salaries of the individual employees of District.

Issues: Whether the Wyoming Public Records Act, read in conjunction with the Wyoming Education Code, entitles the Plaintiffs to information concerning the names and salaries of individual employees of a school district.

Holdings: The Wyoming Public Record Act (WRPA), specifically Wyo. Stat. 16-4-203(d), provides that employment contracts, working agreements or other documents setting forth the terms and conditions of employment of public officials and employees are not considered part of a personnel file and shall be available for public inspection. A “public employee” is, according to the Wyoming Governmental Claims Act, any “officer, employee, or servant of a governmental entity.” Wyo. Stat. 1-39-103[(a)(iv)(A) . The WPRA thus contains a specific provision which requires that documents reflecting the terms and conditions of employment be made available. It seems obvious that the amount an employee is paid is a term of any employment contract. Thus, the Appellee would be obligated to make this information available to the public and Plaintiffs unless there is some other specific legal provision providing otherwise. Of course, no governmental entity would be required to disclose personal information such as address, age, date of birth, social security number or other similar personal information, since these do not relate to the terms and conditions of employment, and would impact privacy rights of employees.

The Appellee argues that disclosure of its employees’ salaries correlated to the employees’ names is contrary to a specific provision in the Wyoming Education Code (WEC), Wyo. Stat. 21-3-110(a)(ii)(A) (2009), and that this information is therefore exempt from disclosure regardless of the express terms of the WPRA. It contends that the WEC provides the exclusive means for making its employees’ salary information available to the public, and that the legislature has clearly expressed its intent that the information be provided in categories without reference to individual names. However, Wyo. Stat. 21-3-110(a)(ii)(A) does not contain an express statement that information concerning the identity of a school district’s employees is confidential information which must not be revealed to the public, at least in conjunction with salary information, notwithstanding the provisions of the WPRA. While the legislature intended that school districts would offer general salary information which was not specific to any employee to the public through the annual publication required by Wyo. Stat. 21-3-110, it did not intend to make specific salary information confidential as to those employees if a member of the public or the press wishes to expend the time and effort to obtain that information by making a proper request.

In this case, when § 16-4-203(a)(i) and § 16-4-203(d)([i]ii) of the WPRA and § 21-3-110(a)(ii)(A) of the WEC are read in conjunction with each other, the provisions of the education code are not clear enough to exempt the records sought in light of the specific language of the WPRA concerning the right of access to documents relating to terms and conditions of public employment.

The summary judgment in favor of the Appellant, declaring that the Appellee must make the documents described in Wyoming Stat. 16-4-203(d)(iii) available to them for inspection, without concealment of the identity of the employee involved is affirmed. Other personal information such as address, telephone numbers, social security information, and date of birth may be redacted to protect employee privacy, since this information is not part of the terms and conditions of employment. This ruling is without prejudice to the district’s ability to claim that disclosure of the records of particular employees would do a substantial injury to the public interest and to seek a court order so finding.

J. Golden delivered the opinion for the court.

Friday, March 25, 2011

2011 WY 54

Summary of Decision March 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: Worman v. BP America Production Company

Citation: 2011 WY 54

Docket Number: S-10-0162

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461868

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

Representing Appellants (Plaintiffs): Larry B. Jones and William L. Simpson, Burg, Simpson, Eldredge, Hersh & Jardine, Cody, Wyoming; Aaron J. Vincent and John R. Vincent, Vincent & Rutzick, Riverton, Wyoming

Representing Appellee (Defendant): John A. Coppede, John M. Walker, and Robert J. Walker, Hickey and Evans, Cheyenne, Wyoming

Date of Decision: March 25, 2011

Facts: An arbitrator denied Appellant’s claims against Appellee finding that that Appellee would be liable for its “man on site’s” injurious actions only if they were “within the scope of employment or apparent scope of authority.” She concluded that the actions constituted “horseplay” that was “motivated by personal reasons” and “outside the scope of his authority.” On that basis, she ruled that BP was not liable to Appellant. Appellant asked the district court to vacate the arbitrator’s decision, asserting that it reflected a “manifest mistake of Wyoming law.” The district court concluded that manifest mistake of law is not one of the grounds available for vacating this arbitration award, but even if it were, the Arbitrator had not made a manifest mistake of Wyoming law. the arbitrator’s decision. The district court denied the Appellant’s motion to vacate the arbitrator’s decision.


Issues: Whether the arbitrator’s decision must be vacated because it shows “a manifest mistake of fact and law.”

Holdings: Pursuant to the parties’ agreements, this arbitration was governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. Grounds for vacating an arbitration award under the Federal Arbitration Act are limited. “Manifest mistake of law,” sometimes termed “manifest disregard of law,” has been recognized as a judicially-created or “common law” basis for vacating an arbitration award. However, manifest mistake of law is not explicitly listed in 9 U.S.C. 10(a) which provides the grounds for vacating an arbitration award, and it is unclear whether judicially-created grounds for vacatur survive after Hall Street Associates, L.L.C. v. Mattel, Inc. , 552 U.S. 576 (2008) stated that 9 U.S.C. 10-11 provide the exclusive grounds for expedited vacatur and modification of an arbitration decision. There is a split in the federal circuits with the First, Fifth, Sixth, Eighth, and Eleventh Circuits as having “decided that manifest disregard of the law is no longer an independent ground for vacating arbitration awards under the FAA,” while the Second and Ninth Circuits maintain that manifest disregard “remains a valid ground for vacatur.”

Having relied on an argument that the Arbitrator made a “manifest mistake of Wyoming law,” Appellant has provided no grounds upon which the court could apply § 10 or § 11 of the FAA to vacate or modify the Arbitrator’s denial of an award to him. However, since there remains a distinct split of federal authority on this issue and since the United States Supreme Court recently declined to determine the issue in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., ___ U.S. ___, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010) (“We do not decide whether ‘manifest disregard’ survives our decision in Hall Street Associates . . . as an independent ground for review or as a judicial gloss on the enumerated grounds for vacatur set forth at 9 U.S.C. § 10.”). The court was willing to concede that there is some room for Appellant’s argument” that manifest mistake of law remains a valid basis for vacating an arbitration award under the Federal Arbitration Act. And consider the merits of Appellant’s position. .

To show that the arbitrator’s award could be vacated for a manifest mistake of law, Appellant cannot rely on mere legal error. The standard is much higher than that, and has been characterized as “highly deferential.” The “manifest disregard” standard can be characterized as willful inattentiveness to the governing law. Manifest disregard of the law “clearly means more than error or misunderstanding with respect to the law.

Under the respondeat superior theory, an employer is liable for the negligence of an employee acting within the scope of his employment. The conduct of an employee is within the scope of his employment only if it is of the kind he is employed to perform; it occurs substantially within the authorized time and space limits; and it is actuated, at least in part, by a purpose to serve the master As described by the district court, the arbitrator in Appellant’s case found that the employee who injured Appellant “was not performing the kind of work that he was hired to perform when he intentionally placed Appellant in a headlock.” To the contrary, his actions “interfered with the efficient and safe operation of the drilling rig.” These findings underpinned the arbitrator’s conclusion: “No reasonable inference could be made that the employee was acting within the scope of his agency when he engaged in the prohibited act of horseplay.”
At the time of the headlock, he might well have been on the premises for work-related activities but he certainly was not employed to engage in horseplay and the horseplay was not actuated by any purpose to serve Appellee but were motivated solely by personal reasons.

The arbitrator made no manifest mistake of law in determining that Appellant was not entitled to an award. The district court’s decision is affirmed.


J. Burke delivered the opinion for the court.

Thursday, March 24, 2011

2011 WY 53

Summary of Decision March 24, 2011

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

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

Case Name: Baker v. State

Citation: 2011 WY 53

Docket Number: S-10-0265

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461860

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

Representing Appellant (Defendant): Matthew Wayne Baker, pro se.

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

Date of Decision: March 24, 2011

Facts: Appellant challenges an order from the district court denying him credit against a prison sentence for time spent in a community corrections facility as a condition of probation. Appellant also contends he is due credit for time spent in jail after violating the terms of his probation, in addition to the credit the district court granted for this time.

Issues: Whether the district court properly credited Appellant’s prison sentence with time served prior to imposition of the sentence when the court (1) granted credit for time spent in jail subsequent to Appellant’s probation violations and (2) denied credit for time spent at a community corrections facility as a condition of probation.


Holdings: 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. Further, because absenting oneself from a community corrections facility may lead to an escape charge, time spent as a resident in such a facility must be counted against a sentence that is later imposed upon violation of probation. Additionally, a defendant is entitled to credit for time spent in pre-sentence confinement against both the minimum and maximum sentence if he was unable to post bond for the offense of which he was convicted as well as time spent in custody awaiting disposition of probation revocation proceedings must be credited against the probationer’s underlying sentence if the incarceration is directly attributable to the underlying criminal conviction.

The district court in this action properly granted Appellant credit for the time served subsequent to his probation violations, but erred in failing to award credit to him for the 207 days spent in a community corrections facility. Accordingly, the action is affirmed in part and reversed in part, and remanded to the district court for entry of an order consistent with this opinion.

J. Burke delivered the opinion for the court.

Summary 2011 WY 52

Summary of Decision March 24, 2011

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

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

Case Name: Lane-Walter v. State, ex rel., Wyo. Workers’ Safety and Comp. Div.

Citation: 2011 WY 52

Docket Number: S-10-0087

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461861

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

Representing Appellant (Petitioner): George Santini of Ross, Ross & Santini, LLC, Cheyenne, WY.

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

Date of Decision: March 24, 2011

Facts: Appellant, challenged an order of the district court which affirmed the decision of a Medical Commission Hearing Panel (Medical Commission). The Medical Commission’s order denied the benefits Appellant sought for a back surgery procedure. Benefits were denied on the basis that the surgical procedure at issue, to implant a device in the appellant’s back, did not qualify as “reasonable and necessary medical care.” Appellant contended that she was entitled to that “medical care” under the prior settlement agreement that she reached with the Wyoming Workers’ Safety and Compensation Division. In addition, Appellant sought preauthorization for the surgery and was told by the Wyoming Workers’ Safety and Compensation Division (Division) that preauthorization was not required in her case. After the surgery had been successfully completed and Appellant had recovered much of her ability to perform the usual activities of her daily life, albeit with some disability still remaining, all of the claims submitted to the Division by her health care providers were denied.

Issues: 1) Whether the decision of the Medical Commission was arbitrary and capricious for the reason that it omitted material evidence from its Findings of Fact, Conclusions of Law and Order; 2) Whether the Medical Commission improperly [relied] upon medical opinions which were based upon an inadequate foundation? 3) Whether it was arbitrary, capricious, and an abuse of discretion to apply the Wyoming Workers’ Safety and Compensation Division’s preauthorization guidelines to deny claims for medical treatment when the appellant and her treating surgeon were informed by the Division that those guidelines and procedures were not applicable to her claim.

Holdings: To the extent that Appellant had a burden of proof in this case, the Court held there is not substantial evidence to support the agency’s decision to reject the evidence offered by the appellant. The Medical Commission’s determinations that both the treating orthopedic surgeon witness and Appellant were not credible witnesses were not supported by substantial evidence.



The order of the district court affirming the Medical Commission was reversed. Furthermore, the matter was remanded to the district court with directions that it further remand it to the Medical Commission with directions that it direct the Division to pay the claims submitted by Appellant and her health care providers for the reasonable and necessary medical treatment at issue in this case.

J. Hill delivered the opinion for the court.

J. Burke specially concurring, with J. Voigt, joining.

The concurrence agrees with the result reached by the majority, but writes separately in disagreement with the majority’s conclusion that the burden of proof was on the Division “to demonstrate that the treatment the [appellant] received was not reasonable and not medically necessary.” First, the issue was not raised by Claimant at the hearing level, on appeal with the district court, or in the appeal to this Court; Second, placing the burden of proof on the Division conflicts with precedent; Third, the majority cites no legal authority for switching the burden of proof to the Division; and finally, switching the burden of proof to the Division in this case will cause problems in future cases.

Tuesday, March 22, 2011

Summary 2011 WY 51

Summary of Decision March 22, 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: Bonney v. State

Citation: 2011 WY 51

Docket Number: S-10-0164

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461834

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

Representing Appellant (Claimant): Kathleen M. Karpan and Margaret M. White of Karpan and White P.C., Cheyenne, Wyoming

Representing Appellee (Respondent): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; David L. Delicath, Senior Assistant Attorney General

Date of Decision: March 22, 2011

Facts: In March 2008, the State charged Appellant with four counts of second degree sexual assault (sexual intrusion) under Wyo. Stat. Ann. § 6-2-303(a)(v) and one count of third degree sexual assault (sexual contact) under Wyo. Stat. Ann. § 6-2-304(a)(ii) for crimes alleged to have occurred in 2000 and 2001. The victims were both around eight years old at the time the offenses were committed, and Appellant was sixteen or seventeen years of age. Eventually, Appellant entered into a stipulated plea agreement wherein he agreed to plead guilty to two counts of second degree sexual assault in exchange for dismissal of the other counts. As part of that agreement, the State agreed to forego filing similar charges involving another minor victim and to recommend that Colorado authorities not pursue charges related to allegations that Appellant committed similar crimes with another minor victim in that state. The plea agreement also provided for Appellant to receive consecutive prison sentences of fifteen to twenty years, with the second sentence to be suspended in favor of probation.

Over one year later, Appellant, through new counsel, petitioned the district court for post-conviction relief, alleging multiple instances of ineffective assistance of trial counsel. Following an evidentiary hearing, and after careful consideration of Appellant’s claims and the evidence presented in support of those claims, the district court denied relief. Appellant did not timely seek review of that denial.

Appellant subsequently moved the district court, pursuant to W.R.Cr.P. 35(b), for a reduction of his sentence. The motion and the supporting memorandum filed relied extensively on the allegations and evidence underlying the post-conviction action and focused primarily on attacking his convictions, the victims, and trial counsel’s representation. After a hearing, the district court took the matter under advisement. In an order entered on April 27, 2010, the district court denied the motion. Appellant appeals from the order of the district court denying his motion for a sentence reduction.

Issue: Whether the district court abused its discretion when it denied Appellant’s motion for a sentence reduction.

Holdings: Appellant argues the district court improperly denied his W.R.Cr.P. 35(b) motion for a sentence reduction. Appellant’s argument is two-fold. He first argues the district court based its ruling on a mistaken belief that it was foreclosed by the stipulated plea agreement from reducing his sentence. He also argues the district court failed to consider the information he submitted in support of the motion before denying his request for a sentence reduction. The Court finds no merit in Appellant’s arguments.

The district court’s order clearly indicates that it considered the contents of Appellant’s motion, in conjunction with the court file. It is also abundantly clear the district court declined to reduce Appellant’s sentence after giving due consideration to that motion in light of the facts of the case, not because the court believed it was precluded from doing so by the plea agreement. The order of the district court denying Appellant’s motion for a sentence reduction is affirmed.

Justice Golden delivered the opinion for the Court.

Monday, March 21, 2011

Summary 2011 WY 50

Summary of Decision March 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: Orthopedics of Jackson Hole, P.C. v. Ford

Citation: 2011 WY 50

Docket Number: S-09-0136

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461833

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

Representing Appellant (Defendant): Gary R. Scott of Hirst Applegate, LLP, Cheyenne, Wyoming

Representing Appellee (Plaintiff): Paul J. Hickey and O’Kelley H. Pearson of Hickey & Evans, LLP, Cheyenne, Wyoming; and Joel M. Vincent of Vincent & Vincent, Riverton, Wyoming. Argument by Mr. Vincent.

Date of Decision: March 21, 2011

Facts: Appellant is a professional organization founded by five orthopedic surgeons in 1998. Appellee is an orthopedic surgeon who joined the organization in 2000, at which time he received one share of stock. In 2005, Appellee left the professional organization. The parties could not agree on the value of the one share of stock, prompting Appellee to commence the instant legal action. Appellee brought a petition for a declaratory judgment as to the value of the stock as well as other causes of action. Appellant counterclaimed that in leaving at the time he did, Appellee breached his fiduciary duty to the organization. Appellant also brought a promissory estoppel counterclaim against, asserting it incurred extra costs based on an alleged promise by Appellee, made in 2004, to continue working for Appellant for five to ten years. After a bench trial, the district court accepted the valuation of the stock as presented by Appellee. The district court also denied all Appellant’s counterclaims.

Issues: 1) Whether the trial court erred when it found that Appellee signed a 1998 shareholder’s agreement, and thus that it was that agreement that was the relevant agreement for purposes of valuing Appellee’s one share of Appellant’s stock; 2) Whether the trial court erred when it then reformed the 1998 shareholder’s agreement and failed to apply the valuation formula contained in that agreement; 3) Whether the trial court erred when it failed to apply the valuation formula agreed to by Appellee in a shareholders’ meeting in August 2003; 4) Whether the trial court erred when it denied Appellant’s Motion in Limine, and allowed Appellee on the eve of trial to change the theory of his case as to the relevant valuation formula; 5) Whether the trial court erred when it found that Appellant failed to prove by a preponderance of the evidence its counterclaims for promissory estoppel and breach of fiduciary duty.

Holdings: The Court reversed the district court’s decision as to the valuation of the stock and remanded for further proceedings on the issue. The district court had reasoned that neither the 2003 Formula nor the 2005 Agreement applied because they were not unanimously adopted, as required by the terms of the original 1998 Agreement. Although legally technically correct, the conclusion was improper because it went beyond the issues presented by the parties, who, in their pleadings and all pretrial proceedings, agreed the language of the 2003 Formula would govern the valuation in the context of this litigation. The Court further found the legal and factual evidence in the record was sufficient to determine the proper value of the stock, which was the amount accepted by the appellee at trial.

As to the Appellant’s counterclaims, the Court affirmed the district court’s denial of the counterclaims. On the issue of promissory estoppel, the Court found that Appellant failed to meet its burden of proving, under the strict standard of proof required, that it acted in reliance on the appellee’s statement. Specifically the Court found no evidence that Appellant, through the actions of its shareholders, entered into a fifteen year lease because of the Appellee’s stated intention to continue practicing five to ten years.

As to the issue of a breach of fiduciary duty, framed as a claim in the context of Wyo. Stat. Ann. § 17-16-830(a), the Court found the statute did not apply to the current situation, had nothing to do with Appellee’s statutory corporate responsibilities because Appellee resigned as an employee, and that Appellee exercised good faith under the circumstances.

In summary, the court reversed the district court’s decision as to the valuation of the stock and remanded for further proceedings on the issue. However, the district court was correct in denying Appellant’s claims for promissory estoppel and breach of fiduciary duty, and that part of the judgment was affirmed.

J. Golden delivered the opinion for the court.

Summary 2011 WY 49

Summary of Decision March 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: Watkins v. State

Citation: 2011 WY 49

Docket Number: S-10-0129

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461832

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

Representing Appellant (Claimant): Bill G. Hibbler of Bill G. Hibbler, P.C., Cheyenne, Wyoming.

Representing Appellee (Respondent): 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: March 21, 2011

Facts: The Appellant felt a pop in his back and began experiencing pain after he jumped down from his work truck. The Wyoming Workers’ Safety and Compensation Division awarded temporary total disability (TTD) benefits for a period of time and then eventually terminated those benefits. The Division’s denial of benefits was affirmed in a contested case hearing before the Wyoming Medical Commission and the Appellant appealed from that decision.

Issue: Whether the Commission’s determination that the Appellant did not meet his burden of proving he was entitled to further TTD benefits was supported by substantial evidence.

Holdings: The Appellant’s January 2, 2007, injury (back pain arising after he jumped down from his truck) was work-related and compensable. The question presented was whether there was substantial evidence to support the Commission’s determination that the Appellant was no longer entitled to TTD benefits after May 21, 2007―the date of the Appellant’s IME. The Appellant claimed that there was a “total lack of substantial evidence” to support the Commission’s determination that his condition had stabilized on that date such that he should not receive additional TTD benefits. The Commission’s determination that the Appellant did not meet his burden of proving he was entitled to further TTD benefits was supported by substantial evidence. Based on the facts presented, the Court found that the Commission could have reasonably concluded as it did. Affirmed.

Justice Voigt delivered the opinion for the Court.

Justice Hill filed a dissenting opinion.

The dissenting opinion concluded that when the Court deletes from consideration what amounts to idle speculation on the part of the hearing panel, as well as inaccurate, incomplete and/or insubstantial findings, the denial of benefits in this case could not stand.

The dissenting opinion would reverse the order of the district court and remand the case to that court with further directions that it be remanded to the Medical Commission for the purpose of it directing the Division to award Appellant any and all medical benefits and disability awards that are due him for the work-related injury that occurred on January 2, 2007.

Friday, March 18, 2011

Summary 2011 WY 48

Summary of Decision March 18, 2011

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

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

Case Name: Gess v. Flores

Citation: 2011 WY 48

Docket Number: S-10-0040

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461831

W.R.A.P. 11 Certification from the District Court of Laramie County, The Honorable Michael K. Davis, Judge

Representing Appellant (Appellant): T. Thomas Metier and Patrick J. DiBenedetto of Metier Law Firm, LLC, Fort Collins, Colorado

Representing Appellee (Appellees): Kate M. Fox and Amanda Ferguson of Davis & Cannon, LLP, Cheyenne, Wyoming

Date of Decision: March 18, 2011

Facts: Appellant timely filed a governmental claim with the City of Cheyenne. Approximately 10 months later, Appellant filed a complaint in the First Judicial District. The Complaint did not allege the date of the filing of the claim as required under the WGCA, and did not allege compliance with the constitutional signature and certification requirements of the WGCA, as required by Wyoming case precedent. Just after the one-year period to file a complaint under the WGCA, Appellees filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction pursuant to Wyoming Rule of Civil Procedure (12)(b)(1). In response, Appellant filed a Motion to Amend the Complaint Pursuant to Wyoming Rule of Civil Procedure 15(a). The Court would allow Appellant to amend his Complaint if it had the jurisdiction to do so.

Issues: 1) Whether, in a cause of action arising under the Wyoming Governmental Claims Act (WGCA), Wyoming Statute §§ 1-39-101 et seq. and the Wyoming Constitution Article 16, § 7, the district courts have the discretion to permit Appellants to amend their complaints, after the expiration of the statute of limitations, pursuant to Wyoming Rule of Civil Procedure (W.R.C.P.) 15(a), to cure jurisdictional pleading deficiencies and to permit said amendment to relate back to the date the original complaint was filed pursuant to W.R.C.P 15(c)(2); and 2) Whether Wyoming’s “savings statute,” Wyoming Statute § 1-3-118, permits Appellants whose complaints filed under the Wyoming Governmental Claims Act (WGCA), Wyoming Statute §§ 1-39-101 et seg. are dismissed by the district court for failing to adequately plead compliance with the WGCA, after the expiration of the statute of limitations, to re-file the action within one year of dismissal.

Holdings: The Court’s recent decisions in Brown v. City of Casper, et al., 2011 WY 35, __ P.3d __ (Wyo. 2011), and Madsen v. Board of Trustees of Memorial Hospital of Sweetwater County, Wyoming, 2011 WY 36, __ P.3d __ (Wyo. 2011), are controlling authority to answer the first certified question in the affirmative and, consequently, the Court need not answer the second certified question in the case. The Court remanded the case to the district court for further proceedings consistent with this opinion.

J. Golden delivered the opinion for the court.

J. Voigt delivered a dissenting opinion.

The dissenting opinion disagrees with the Court’s decision in Brown v. City of Casper, which should not, therefore, form the basis for an opinion in the case. Furthermore, the Dissent argues that Wyo. Stat. Ann. § 1-39-114 (LexisNexis 2009) is a jurisdictional statute of limitations that is part of the right created by the Wyoming Governmental Claims Act. And finally, that the savings statute should not and does not apply to actions filed under the Wyoming Governmental Claims Act. The Dissent would answer “no” to both certified questions.

Monday, March 14, 2011

Summary 2011 WY 47

Summary of Decision March 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: Donald Ray Daves v. State of Wyoming

Citation: 2011 WY 47

Docket Number: S-10-0135

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461819

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

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

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

Date of Decision: March 14, 2011

Facts: Appellant was convicted after a jury trial of twelve counts involving the kidnapping and sexual assault of his wife (hereinafter referred to as “the victim”). On appeal, he challenged the district court’s response to a jury question requesting a definition of “used a firearm” and claimed he was denied his constitutional right to be present when the court provided supplemental instructions to the jury. He also argued that the evidence was insufficient to convict him on four counts of first degree sexual assault because the State did not prove that he gained the victim’s submission by threatening her, her boyfriend and himself.


Issues: Whether the district court’s instruction defining what it means to have “used” a firearm while committing a felony violated clearly established Wyoming law, and was it a valid and reasonable interpretation of Wyo. Stat. Ann. § 6-8-101(a). Whether the district court committed reversible error by conferring with counsel and responding to questions presented by the jury during deliberations. Whether the evidence was sufficient to support appellant’s convictions for first degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-302 (a)(ii).

Holdings: Appellant failed to establish the district court committed plain error when it defined “used a firearm” for the jury. The Court concluded that, although the district court erred by failing to provide the supplemental instructions to the jury in open court while the defendant was present, the error was not prejudicial. Finally, the record contained sufficient evidence to support the first degree sexual assault convictions because the State demonstrated Appellant threatened the victim and himself with serious bodily injury or death in order to obtain her submission to the sexual assaults. Affirmed.

Chief Justice Kite delivered the opinion for the court.

Friday, March 11, 2011

Summary 2011 WY 45

Summary of Decision March 11, 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: Mahaffey v. State ex rel. Wyo. Workers’ Safety and Comp. Div.

Citation: 2011 WY 45

Docket Number: S-09-0091

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461815

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

Representing Appellant (Respondent): Donna D. Domonkos, Cheyenne, Wyoming

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

Date of Decision: March 11, 2011

Facts: After suffering a compensable work-related neck injury, Appellant applied for permanent partial disability (PPD) benefits in accordance with the Wyoming Workers’ Safety and Compensation Act. The Workers’ Compensation Division (Division) denied the application and Appellant requested a hearing. Following the hearing, the Office of Administrative Hearing’s (OAH) awarded him benefits, determining that Appellant was unable to drive due to his injury; the only available jobs paying a comparable wage identified by the vocational evaluator required driving; and therefore, he was unable to return to work at a wage comparable to his pre-injury earnings. The Division appealed the award to the district court, contending that the only factor preventing him from driving was that he had lost his driver’s license as a result of his arrest for DUI. The district court reversed the OAH decision, and Appellant appealed to this Court. After the appeal was filed, Appellant passed away and the personal representative of his estate was substituted as the party of record.

Issues: Whether the OAH’s decision was supported by substantial evidence or whether the OAH abused its discretion or acted arbitrarily, capriciously or not in accordance with the law when it awarded benefits.

Holdings:

The district court improperly substituted its judgment for the fact finder’s when it reversed the OAH decision awarding Appellant benefits. Although the evidence in this case may be subject to different interpretations, substantial evidence was presented to support the OAH’s determination that Appellant was not able to drive on a regular basis because of his injury. The OAH decision was not otherwise arbitrary, capricious or contrary to law. The Court reversed and remanded to the district court with directions the case be returned to the OAH for reinstatement of the order awarding benefits to Appellant.

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

J. Golden filed a dissenting opinion.

The dissenting opinion concluded that the hearing examiner had not carefully weighed all of the material evidence and had not resolved the conflicts in that evidence, providing the Court no rational basis upon which to conduct its appellate review of the hearing examiner’s decision. The Dissent would reverse the order of the district court, remand the case to that court with directions to vacate the order denying benefits, and would direct the district court to remand the case to the OAH for supplemental findings of fact and conclusions of law.

Summary 2011 WY 46

Summary of Decision March 11, 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: Monty Sullivan v. State of Wyoming

Citation: 2011 WY 46

Docket Numbers: S-10-0099

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461816

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

Representing Appellant: Diane Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; and Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: 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: March 11, 2011

Facts: After being found guilty of two counts of first degree sexual abuse of a minor, Appellant asserts that he was denied the right to a fair trial due to prosecutorial misconduct.

Issues: Whether Appellant was denied his right to a fair trial due to prosecutorial misconduct which occurred when the prosecutor solicited inappropriate testimony from its witness and informed the jury that Appellant did not take a polygraph test.

Holdings: Appellant argues that his right to a fair trial was violated by several instances of prosecutorial misconduct. Appellant contends that the Chief twice improperly commented on Appellant’s guilt, and during his testimony vouched for the victim. The Court held:

[I]t is impermissible for either a lay witness or an expert to vouch for the credibility of another witness, or to comment on the guilt of the accused. The question becomes whether the error requires reversal or whether the error was harmless under W.R.A.P. 9.04.

Regarding the Chief’s testimony, Appellant alleges that the Chief was improperly commenting on Appellant’s guilt and vouching for the credibility of the victim. The Court did not agree with the Appellant. Regarding opinion testimony, it is “the jury’s role, not the witness’s, to make this determination.” The record showed little, if any, harm occurred as a result of the challenged comments. In the context of the trial testimony as a whole, the statement that a polygraph was not given – not that Appellant refused one – was brief and spontaneous. The remark was not solicited. There was no prejudicial inference from the witness’s remarks, because there was no explicit statement that there was a “refusal” to take the polygraph. The polygraph was never referenced again, and the district court admonished the jury to disregard the question and the answer. Given the bulk of evidence in this case, the Court cannot speculate that the jury disregarded the court’s admonitions and placed any importance on the comments by the prosecutor and the Chief. The Court affirmed Appellant’s conviction, concluding that he received a fair trial, and that, in light of the evidence proven at trial, any error was harmless.

Justice Hill delivered the opinion for the court.

Justice Voigt filed a special concurrence.

This case exemplifies the fact that our admonitions to prosecutors and law enforcement officials too often fall on deaf ears. It is hard to believe that, with precedent being so clear, a criminal trial in Wyoming could include both the investigating officer giving his opinion that the victim’s interview “was very believable to me,” and that same officer and the prosecutor in tandem telling the jury that the defendant did not take a “lie detector test.”

The direct fault lies with the prosecutors. The indirect fault lies with the harmless error rule. So long as the system requires an appellant to prove that he or she was prejudiced by prosecutorial misconduct, some prosecutors will continue to act as they do.

Thursday, March 10, 2011

Summary 2011 WY 44

Summary of Decision March 10, 2011

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

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

Case Name: Crosby v. State

Citation: 2011 WY 44

Docket Number: S-10-0153

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461810


Original Proceeding Certified Questions from the District Court of Campbell County, Honorable John R. Perry, Judge

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

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

Date of Decision: March 10, 2011

Facts: The circuit court imposed a sentence on Appellant that exceeded the maximum authorized by the relevant statute. After serving part of the sentence in the community corrections facility where he had been placed, Appellant left without authorization. He was charged with escape and claims the charge is improper because he was serving an illegal sentence at the time he left the facility.

Certified Questions:

1. Whether the original sentence was void ab initio in its entirety, or is it an illegal sentence subject to correction under Rule 35(a), Wyoming Rules of Civil Procedure?

2. Given that the escape charge in the above-captioned matter was filed at a time when the sentence was illegal, is it proper to continue the prosecution of the Defendant for escape, should this Court find that the original sentence was illegal and subject to correction?

Answers: The first part of question 1 is answered “no”; the original sentence was not void ab initio in its entirety. The second part of question 1 is answered “yes”; the original sentence was subject to correction under W.R.Cr.P. 35(a). The answer to the second question is “yes”; it was proper to continue the prosecution of Appellant for escape.

Holdings: Wyoming law is clear that when part of a divisible sentence is illegal or improper, it may be modified by vacating or striking that part which is illegal or improper and affirming the balance. When a district court exceeds its sentencing authority and the sentence is divisible, the Supreme Court has the option of remanding for resentencing or simply mandating that the illegal portion be stricken. In the present action, the circuit court was authorized to sentence Appellant to a maximum sentence of six months. It was not authorized to sentence him to serve more than six months. The term of imprisonment up to six months is affirmed and the remainder is stricken. However, Appellant had not yet served six months and was properly incarcerated when he allegedly escaped from the correctional facility. At the time he escaped, he was lawfully confined. Thus, the prosecution for the escape charge may continue.

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

Summary 2011 WY 43

Summary of Decision March 10, 2011

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

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

Case Name: Christopher Donald Howard v. State of Wyoming

Citation: 2011 WY 43

Docket Numbers: S-10-132

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461809

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

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

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Jenny L. Craig, Assistant Attorney General.

Date of Decision: March 10, 2011

Facts: Appellant appeals the district court’s decision revoking his probation.

Issues: Whether the court abused its discretion by considering quadruple hearsay.

Holdings: Appellant argues that the district court abused its discretion by revoking his probation based on quadruple hearsay. Despite his attorney’s concession that only the dispositional phase was contested, Appellant argues that his defense related to both the adjudicative and dispositional phases. His defense was, ostensibly, that he was wrongfully terminated from VOA although he had not violated VOA rules.

As part of his argument, Appellant weaves in the assertion that his defense was related to both the dispositional phase and the adjudicative phase. He challenges case law that indicates that the adjudicatory phase is over once it is established that the probationer did not complete the program in question. Furthermore, he argues that the “fourth hand” information does not meet due process requirements, let alone minimal requirements required in the dispositional phase.

Based upon the evidence in the record and the evidence provided at the dispositional hearing, we affirm the district court’s conclusion that Appellant willfully violated the terms of his probation. Therefore, the district court did not abuse its discretion in revoking Appellant’s probation. Affirmed.

Justice Hill delivered the opinion for the court.

Wednesday, March 09, 2011

Summary 2011 WY 42

Summary of Decision March 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: Sierra Club v. Wyo. Dep’t of Envtl. Quality

Citation: 2011 WY 42

Docket Number: S-10-0105

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461805

W.R.A.P. 12.09(b) Certification from the District Court of Laramie County, The Honorable Peter G. Arnold, Judge

Representing Appellant (Petitioner): Gay George, George Law, PC, Cheyenne, Wyoming; Andrea Issod, Sierra Club, San Francisco, California. Argument by Ms. Issod.

Representing Appellees (Respondents): Bruce A. Salzburg, Attorney General; Jay Jerde, Deputy Attorney General; Nancy Vehr, Senior Assistant Attorney General; John Coppede, Hickey & Evans, LLP, Cheyenne, Wyoming; Mary Throne, Throne Law Office, Cheyenne, Wyoming. Argument by Ms. Vehr and Ms. Throne.

Date of Decision: March 9, 2011

Facts: Appellee DEQ issued an air quality permit to Appellee Medicine Bow, authorizing the construction of a facility that will gasify and liquefy coal, and of an associated underground coal mine. DEQ determined that the proposed facility’s PTE for sulfur dioxide is approximately 37 tons per year. Appellant claimed that the facility’s PTE should be much larger, arguing that the DEQ improperly excluded emissions that will occur during malfunctions of the facility, and emissions resulting from “cold starts,” which are necessary after the facility has been shut down long enough that the equipment has cooled to ambient air temperature. Appellant appealed the issuance of that permit to the Wyoming Environmental Quality Council (Council), which upheld the DEQ’s decision. Appellant appealed the Council’s decision to the district court, which certified the appeal directly to this Court pursuant to W.R.A.P. 12.09(b).

Issues: (1) Whether the air permit for the coal to liquids plant fails to consider significant sulfur dioxide emissions from flares in determining the Potential to Emit and fails to apply the Best Available Control Technology (BACT) to limit the flare emissions; (2) Whether the permit fails to consider fine particulate matter (PM2.5) emissions; (3) Whether DEQ failed to include fugitive particulate emissions in its model to demonstrate compliance with 24-hour air quality standards.

Holdings: The Court concluded that DEQ’s decision to exclude emissions from malfunctions and cold starts from the PTE was not contrary to applicable Wyoming statutes and regulations. Appellant did not demonstrate that it was inconsistent with federal authority or EPA guidance. The Council did not err in upholding DEQ’s decision. As to the second part of the sulfur dioxide issue, the Court observed that the Council was not limited to the record compiled by DEQ prior to issuing the permit. The Court’s review of the record on appeal indicated that DEQ supported its motion for summary judgment. The Court further concluded that the Council did not err in ruling against Appellant and upholding DEQ’s decision.

As to the particulate matter issue, when the appellees moved for summary judgment against the appellant on this issue, they argued as a matter of law that no permit-specific reasonableness determination was required, but even if it were, as a matter of fact the use of the surrogate was reasonable. The Council ruled as a matter of law that the Trimble decision did require a permit-specific reasonableness determination, but that there were no genuine issues of fact that DEQ had made such a determination. The Court, on the other hand, concluded that the Trimble decision does not apply retroactively, so that no permit-specific reasonableness determination was required in Appellees’ case. Although the Court reached their conclusion on a basis different from the Council’s, the Court concluded that the Council did not err when it rejected Appellant’s fine particulate matter claim and upheld DEQ’s issuance of the air quality permit.

As to the fugitive particulate emissions issue, the Court agreed that in granting summary judgment to Appellees, the Council determined that DEQ’s long-standing practice of not requiring modeling of fugitive particulate emissions to demonstrate compliance with the 24-hour standards is consistent with controlling law, and that Appellant failed to show that DEQ’s actions were contrary to the law or applicable DEQ rules and regulations. The Court concluded that the Council did not err in rejecting the appellant’s fugitive particulate emissions claim.

The Court affirmed the Council’s grant of summary judgment in favor of Appellees.

J. Burke delivered the opinion for the court.

Summary 2011 WY 41

Summary of Decision March 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: Walters v. Walters

Citation: 2011 WY 41

Docket Number: S-09-1052, S-10-0059

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461804

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

Representing Appellant (Plaintiff): Kristin Shaun Wilkerson of Trent & Wilkerson Law Office, Laramie, Wyoming

Representing Appellee (Defendant): Mary T. Parsons of Parsons & Cameron, Cheyenne, Wyoming

Date of Decision: March 9, 2011

Facts: The two appeals consolidated for decision in this opinion arise out of the divorce litigation between Appellant and Appellee. In appeal No. S-09-0152, Appellant challenges the district court’s property distribution set forth in the Judgment and Decree of Divorce. In appeal No. S-10-0059, Appellant appeals from the district court’s order in the post-divorce proceeding that found her in civil contempt and imposed sanctions.

Issues: Appeal No. S-09-0152

Whether the district court abused its discretion, commit serious procedural error and/or violate a principle of law by finding Appellant in contempt. Whether the district court abuse its discretion by punishing Appellant through its distribution of property. Whether the district court’s division of marital property was clearly erroneous, against the great weight of evidence, and/or otherwise not supported by substantial evidence.


Holdings: The record is clear that Appellant violated a court order in this case. The Court entered a mutual restraining order which would have prevented either party from expending substantial funds of the marital estate without a further order of the Court. Despite this order, Appellant used funds to build a home after it was entered. Appellant never asked the Court to authorize the expenditures. It has therefore been proven by clear and convincing evidence that Appellant willfully violated a court order and is in contempt of court. The district court did not explicitly impose a punishment or sanction on Appellant, but rather explicitly reserved sanctions “which may be imposed in the event of failure to comply with any of the divorce decree’s conditions.” Thus the district court did not punish her contemptuous conduct by awarding certain undisclosed property to Appellee in the division of marital property. Appellant is unable to indicate what property was awarded to him as punishment. The district court has considerable discretion to form a distributive scheme appropriate to the peculiar circumstances of the individual case including the respective merits and credibility of the parties. Both parties presented evidence about the origin and value of the marital property in question and the district court properly considered that evidence in making the property division. A review of the record shows that that the district court could reasonably conclude as it did when dividing the property and that it is equitable from the perspective of the overall distribution of marital assets and liabilities.

The Judgment and Decree of Divorce is affirmed.


Issues: Appeal No. S-10-0059

Whether Appellee proved that Appellant violated court orders issued in the divorce proceedings. Whether the district court abused its discretion, committed procedural error, or violated a principle of law by finding Appellant in civil contempt of court and awarding compensatory damages of $10,000.00.


Holdings: Having heard the testimony and considered the evidence concerning the alleged violations the district court concluded that the Appellee had proven by clear and convincing evidence that Appellant willfully failed to return the property and documents that she had been ordered to return to Appellee in the divorce decree. The district court was in the best position to assess the witnesses’ credibility and weigh their testimony. A review of the entire record shows that the district court’s factual findings were not clearly erroneous. However, no evidence of Appellee’s actual losses was presented and, absent that, the sum of $10,000 awarded to him is speculative and arbitrary and, reluctantly, cannot stand. Consequently, the award is reversed.

J. Golden delivered the opinion for the court.

Tuesday, March 08, 2011

Summary 2011 WY 40

Summary of Decision March 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: Pennant Service Company, Inc. v. True Oil Company, LLC

Citation: 2011 WY 40

Docket Number: S 09 0234, S 09 0235

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461800

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

Representing Pennant Service Company, Inc.: Rex O. Arney and Orintha E. Karns of Brown, Drew & Massey, Sheridan, WY.

Representing True Oil Company, LLC: Scott P. Klosterman and Patrick J. Murphy of Williams, Porter, Day & Neville, Casper, WY.

Date of Decision: March 8, 2011

Facts: This is an appeal and a cross-appeal between True Oil Company, LLC, and Pennant Service Company, Inc., a Colorado corporation. Both companies were originally involved in a negligence action brought by Christopher Van Norman after he was injured in an oil well accident. True Oil settled out of court with Van Norman for $500,000.00. The original suit was resolved in 2005, leaving only a third-party suit that alleged breach of contract and indemnification between True Oil and Pennant. After a bench trial on those issues, the trial court found in favor of True Oil. Pennant was found to have breached the contract, and the court awarded True Oil $500,000.00 in damages.

Issues: Case 09-0234

Whether the indemnitee was entitled to damages after failing to prove its damages came as a result of the breach of contract. In the alternative, if the indemnitee is entitled to the award of damages from the indemnification clause, then: whether the trial court erred by ruling that an indemnitee’s burden of showing potential liability is met merely by the existence of the original plaintiff’s claim and whether the trial court erred by ruling that when only an indemnity issue is presented, there is no right to a jury trial.

Case 09-0235

Whether the district court abused its discretion when it failed to award attorney’s fees to True when an express contractual provision exists for such an award, and True proved its fees at trial without rebuttal from Pennant. Whether the district court abused its discretion when it failed to award prejudgment interest to True on the liquidated settlement sum of $500,000.00 and the attorney’s fees it incurred.


Holdings: Indemnity has its roots in equitable principles of restitution and unjust enrichment. A person who has been unjustly enriched at the expense of another is required to make restitution to the other. In general, the action for indemnity was premised on the desirable shifting of liability from a party who has paid damages but who should not have had to bear the entire burden alone.

Wyoming endorses the universal view that where an indemnitor declines to approve a proposed settlement or assume the burden of defense, then the indemnitee is only required to prove a potential liability to the original plaintiff in order to support a claim against the indemnitor. A showing of “potential liability” is required because the indemnitee must not be a mere volunteer who has settled the underlying claim when there was no exposure to legal liability that obligated him or her to do so. Only if the indemnitor is not given notice and an opportunity to assume responsibility for the claim must the settling indemnitee show that it was actually liable to the plaintiff. Where notice has been given to the indemnitor and the indemnitor has elected not to act to protect himself, he, in effect, consents to allow the indemnitee to act for him and will not be heard to complain about the outcome.

The indemnitee may settle for a reasonable amount and then recover that amount from the indemnitor by showing that it was not liable on any theory outside the indemnity agreement and was potentially liable on a theory covered by the agreement. If, before settlement is concluded, the indemnitor is offered a choice between approving the settlement or taking over the defense of the claim, and refuses to do either, the indemnitee can recover by showing potential liability to the original plaintiffs and need not prove actual liability.

In the present action, potential liability was established when the Van Norman complaint was amended to include a claim for vicarious liability. This conclusion was based upon much more than the mere allegation, but the showing by True Oil throughout the lawsuit that it was potentially liable. However, Pennant stipulated to the reasonableness of the settlement in this case and had to have considered the possibility of indemnification in accordance with the contract. Pennant was asked repeatedly to participate in the settlement negotiations with Van Norman, or to approve the settlement amount. Pennant did not object or respond in any manner until it stipulated to the reasonableness of the amount of the settlement. Pennant argues that “only those damages which are the natural and foreseeable result of a breach of contract are recoverable.” True Oil actually agrees with that statement, and contends that the $500,000.00 settlement payment was absolutely within the contemplation of the parties.

Pennant executed this contract which expressly states that Pennant must indemnify True Oil for settlements or judgments to Pennant’s employees arising out of Pennant’s acts or omissions. Pennant was well aware of True Oil’s vicarious liability risk, and Pennant agreed, through the contract, to indemnify True Oil for any damages resulting therefrom. Furthermore, by stipulating to the reasonableness of the $500,000.00 settlement paid by True Oil to Van Norman, Pennant supported True Oil’s “potential liability” for Pennant’s negligence.

The issue of reasonable apprehension of liability was clearly established in this instance, and that the damages in this case were proven to a reasonable degree of certainty. As evidenced by the contract, Pennant and True Oil each contemplated indemnification damages for bodily injuries when they signed. The district court’s award of $500,000.00 to True Oil is affirmed.

Although Wyoming generally subscribes to the American rule regarding the recovery of attorney’s fees, under which rule each party pays his or her own fees, a prevailing party may be reimbursed for attorney’s fees when provided for by contract or statute. However, a trial court in its discretion may properly disallow attorney’s fees altogether on the basis that such recovery would be inequitable.

An indemnity provision is interpreted in the same manner as any other contract, affording the language its plain meaning. However, Wyoming Wyo. Stat. 30-1-131 is an oil field specific anti-indemnity statute which invalidates indemnification clauses under certain circumstances. An agreement containing a provision violative of the anti-indemnity statute is not void and unenforceable in total, but only to the extent that it violates the statute. Further, indemnification is not prohibited except for the indemnitee’s own negligence. Although indemnification is not available for liability arising from negligence, reasonable attorney’s fees and costs expended in the defense of the underlying action are available to be recovered.

The district court determined the accident that injured Van Norman was caused 100% by Pennant. Thus, the indemnification provision was not a basis to be relied upon by the district court in denying True Oil’s request for attorney’s fees. It is a valid and enforceable part of the agreement. Relieving True Oil of any negligence, but then denying its attorney’s fees in defending itself against Pennant was an abuse of discretion by the district court. True Oil is thus entitled to its attorney’s fees incurred in defending the claims associated to this case. However, nothing in the clause suggests that it provides for the recovery of legal expenses incurred in establishing the right to indemnity. Accordingly, the trial court did not abuse its discretion when it determined that True Oil was not entitled to attorney’s fees incurred pursuing those claims.

Prejudgment interest is an accepted form of relief in Wyoming where the claim is “liquidated,” which is defined as one that is readily computable by basic mathematical calculation. The general principle is that he who retains money which he ought to pay to another should be charged interest upon it. The successful claimant is compensated for the lost “use value” of the money owed. That is, an award of prejudgment interest is in the nature of preventing the unjust enrichment of the defendant who has wrongfully delayed payment.

True Oil paid $500,000.00 to Christopher Van Norman to settle all claims asserted against it by him. The amount sought to be recovered was a sum certain of which Pennant had notice prior to the trial court’s decision. Both parties were well aware of the settlement amount between True Oil and Van Norman, as was the court. The $500,000.00 sum awarded by the court was a liquidated sum. Given the circumstances present in this case, the trial court’s ruling that this was not an appropriate case for prejudgment interest is reversed.

Pennant breached its contract with True Oil, and the court’s award of $500,000.00 to True Oil is affirmed. Regarding attorney’s fees, the trial court was half right in its decision. Reversing the trial court, True Oil is entitled to its attorney’s fees incurred in defending the negligence claims associated with case. However, the court’s ruling that True Oil is not entitled to attorney’s fees incurred asserting its indemnity claims is affirmed. Finally, the trial court’s ruling that this was not an appropriate case for prejudgment interest is reversed.

J. Hill delivered the opinion for the court.

J. Burke concurred in part and dissented in part. The district court’s denial of True’s claim for attorney fees incurred prior to the filing of the amended complaint should be affirmed. True was being sued solely for its own negligence. Any agreement to indemnify True for its own negligence was void pursuant to Wyo. Stat. 30-1-131(a)(iii) (2009). The “freedom to contract” is restricted by Wyo. Stat. 30-1-131, which specifically provides that agreements to indemnify an entity for its own negligence are against public policy and are void and unenforceable.

Friday, March 04, 2011

Summary 2011 WY 39

Summary of Decision March 4, 2011

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

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

Case Name: Dana L. Graham v. The State of Wyoming

Citation: 2011 WY 39

Docket Number: S-10-0163

URL:http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461798

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

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

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


Date of Decision: March 4, 2011

Facts: Appellant challenges the district court’s judgment and sentence finding her guilty of delivery of methamphetamine (second or subsequent offense). She maintains that the district court abused its discretion by denying the State’s motion to dismiss the charges against her (without prejudice to refile them). She also contends that the district court erred in excluding the testimony of an eye witness to her crime, on the basis that the district court was concerned that the witness might exercise his right not to incriminate himself (Fifth Amendment protections) and, thereby, deflect the jury’s attention from Graham’s criminal act. We will affirm.

Issues: Whether the court abused its discretion in denying the State’s motion to dismiss without prejudice, in violation of the separation of powers doctrine. Whether the trial court erred when it excluded Appellant’s witness in violation of her Sixth Amendment rights without sufficient showing of the extent the witness would exercise his Fifth Amendment rights.


Holdings: The district court did not abuse its discretion in denying the State’s pretrial motion to dismiss the information without prejudice. Appellant failed to produce a cogent argument or pertinent authority that the district court erred in not allowing Appellant to call a witness once he had clearly expressed his intent not to answer any questions that might serve to incriminate him with respect to the events after consulting with his attorney. Appellant contends that she was denied her right to compulsory process when he ultimately did not testify. Appellant further contends that the district court’s action with respect to the potential witness and his ultimate decision not to testify violated Appellant’s right to a fair trial. Although some of the proceedings associated with his decision not to testify were unusual, Appellant was not prejudiced by the State’s or the district court’s actions with respect to this issue. Appellant has not presented cogent argument or pertinent authority that these circumstances constitute reversible error. The judgment and sentence of the district court are affirmed.

Justice Hill delivered the opinion for the court.

Summary 2011 WY 38

Summary of Decision March 4, 2011

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

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

Case Name: Mowery v. State

Citation: 2011 WY 38

Docket Number: No. S-10-0127

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461797

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

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; Diane E. Courselle, Director, UW Defender Aid Program; E. Jeannee Nunn, Student Intern.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jessica Y. Frint, Student Director, Jessica G. Van Norman, Student Intern.

Date of Decision: March 4, 2011

Facts: Appellant appeals a conviction for felony interference with a peace officer, in violation of Wyo. Stat. 6-5-204(b) (2009). She contends the district court erred in allowing the State to amend the information to remove the charge of attempting to interfere with a peace officer. She also asserts that the district court erred by refusing to instruct the jury on the defense of self-induced intoxication.


Issues: Whether the district court abused its discretion under Wyoming Rule of Criminal Procedure 3(e) when it allowed the last minute amendment of the information removing the charge of attempting to interfere with a peace officer since it prejudiced her defenses of self-induced intoxication. Whether the trial court erred when it declined to Appellant’s proposed instruction which provided that self-induced intoxication is a defense to the crime of intentionally and knowingly causing bodily injury to a peace officer in violation of Wyo. Stat. Ann. § 6-5-204(b).

Holdings: Appellant faced conviction under the original information for both the attempted and completed versions of felony interference with a peace officer. However, self-induced intoxication is a defense only to the attempted crime, and not to the completed crime. When the State amended the information, the possibility of conviction for the attempted crime was eliminated. But Appellant continued to face, as she did from the beginning of the proceedings, the possibility of conviction for the completed crime if the State proved its case. Despite having ample opportunity to present a defense to the completed crime, Appellant presented no other defense apart from self-induced intoxication. The fact that Appellant’s intoxication defense was negated by the removal of the attempted crime from the charge against her did not prejudice her substantial rights. She was on notice of the attempted and completed versions of the crime from the beginning of the case, and the attempted version was based in the same statutory provision and arose out of identical factual circumstances as the completed crime. The district court did not abuse its discretion in allowing the State to amend the information.

“Specific intent” is most commonly used to refer to a special mental element that is required above and beyond any mental state that is attached to the physical act of a crime. Specific intent crime is often described as one that involves an intent to do some further act or achieve a future consequence in addition to the basic physical act of the crime. When the statute sets out the offense with only a description of the particular unlawful act, without reference to intent to do a further act or achieve a future consequence, the trial judge asks the jury whether the defendant intended to do the outlawed act. Such intention is general intent. When the statutory definition of the crime refers to an intent to do some further act or attain some additional consequence, the offense is considered to be a specific intent crime and then that question must be asked of the jury. In Wyo. Stat. 6-5-204(b), the mere use of the words “intentionally and knowingly” does not transform the crime of felony interference with a peace officer into a specific intent crime. Because the accused does not have to intend a further act or future consequence beyond the injury to a peace officer, the completed offense described in Wyo. Stat. Ann. § 6-5-204(b) is a general intent crime. Thus, the completed version of felony interference with a peace officer is not a specific intent crime and, accordingly, self-induced intoxication is not available as a defense.

Affirmed.

J. Burke delivered the opinion for the court.

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