Wednesday, February 29, 2012

Summary 2012 WY 29

Summary of Decision February 29, 2012

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was 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: MSH v. ALH

Citation: 2012 WY 29

Docket Number: S-11-0179

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465118

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

Representing Appellant (Defendant): Donna D. Domonkos, Domonkos Law Office, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): John M. Burman, Faculty Supervisor, and Sarah Chavez, Student Intern, UW Legal Services Program. Argument by Ms. Chavez.

Date of Decision: February 29, 2012

Facts: Father and mother were married in Texas in 2001. The couple had three children born in 2001, 2003, and 2004. Shortly after the last child was born, Appellant (father) began serving a ten-year term of imprisonment after pleading guilty to aggravated sexual assault of a minor. The incident to which he pleaded guilty occurred before his marriage to mother, and involved him engaging in the sexual abuse of his then girlfriend’s six-year-old learning disabled daughter.

Mother filed a petition to terminate father’s parental rights to all three children. The district court held a hearing and, thereafter, entered an order terminating father’s parental rights. The district court concluded that mother had presented clear and convincing evidence that father was incarcerated for a felony conviction and that he was unfit to have custody and control of the children. In addition to considering the circumstances surrounding father’s felony conviction, the court found that father had provided no financial or physical support for the children, and his incarceration made him unable to be a parent since 2004. The court further found that, by the time father is guaranteed release from prison, he will have missed the majority of the children’s childhood years. Father appealed the order.

Issues: 1) Whether the officer’s testimony and the admission of his report into evidence was plain error; 2) Whether the officer’s testimony regarding the credibility of the victim’s statement was plain error; and 3) Whether mother presented clear and convincing evidence that father was unfit to have the custody and control of his children.

Holdings: After a careful review of the record, the Court found that plain error did not occur during the officer’s testimony or when his police report was introduced into evidence. The Court also found that the record contained clear and convincing evidence supporting the district court’s decision to terminate father’s parental rights. The Court affirmed.

J. Voigt delivered the opinion for the court.



Summary 2012 WY 30


Summary of Decision February 29, 2012

[SPECIAL NOTE:  This opinion uses the "Universal Citation."  It was given an "official" citation when it was 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:  Board of Professional Responsibility, Wyoming State Bar v. Jack R. Vreeland

Citation: 2012 WY 30

Docket Number: D-12-0004


Date of Order: February 29, 2012

After a careful review of the Board of Professional Responsibility’s Report and Recommendation and the file, this Court finds that the Report and Recommendation should be approved, confirmed and adopted by the Court; and that the Respondent Jack R. Vreeland should be publicly censured for his conduct.  Mr. Vreeland violated Rule 1.1, which requires a lawyer to provide competent representation to a client.  Mr. Vreeland also violated Rule 1.3, which requires a lawyer to act with reasonable diligence and promptness in representing a client.  

Friday, February 24, 2012

Summary 2012 WY 28

Summary of Decision February 23, 2012


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was 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: Vincent Rosty v. Shari Skaj and Steve Skaj

Citation: 2012 WY 28

Docket Number: S-11-0063, S-11-0136

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465111

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

Representing Appellant (Defendant): Hampton K. O’Neill and Timothy M. Stubson, Brown, Drew & Massey, LLP, Casper, Wyoming. Argument by Mr. Stubson.

Representing Appellee (Plaintiff): Robert T. Ingram, Ingram Olheiser, P.C., Casper, Wyoming; Timothy W. Miller, Miller Law Office, Casper, Wyoming. Argument by Mr. Ingram.

Date of Decision: February 23, 2012

Facts: In these consolidated appeals, Appellant, Vincent Rosty, challenges the district court’s order entering default judgment and the district court’s denial of his motion to set aside entry of default and default judgment. Appellees, Shari and Steve Skaj, brought suit against R & R Roofing, Inc., Steve Rosty, and Appellant to recover damages caused when an idling dump truck that had been driven by Appellant was knocked into gear, pinning Ms. Skaj against a motor home. The complaint alleged that the dump truck and R & R Roofing were owned by defendant Steve Rosty, and that the truck was used by Appellant in his employment with the business. The complaint stated causes of action for negligence and negligent infliction of emotional distress, and sought to recover compensatory and punitive damages from all defendants.

Issues: Appellant presents the following issues:

Whether Appellant timely appealed the district court’s ruling denying Appellant’s motion to set aside entry of default and motion to set aside default judgment.

Whether the district court erred by permitting the hearing on default judgment to proceed when Appellees failed to provide notice to Appellant of the hearing as required by Rule 55(b)(2).

Whether the district court violated Appellant’s due process rights by entering default judgment without allowing Appellant a meaningful opportunity to present evidence on issues of fault and damages?

Whether the default judgment issued by the district court is void because of Appellees’ failure to properly serve the Appellant with the Complaint and Summons.

Whether the district court abused its discretion by failing to set aside the entry of default and the default judgment in this case.

Whether the district court’s award of punitive damages was permitted where the Appellees failed to provide any evidence of Appellant’s wealth.

Holdings: After careful review of the issues, the district court’s denial of Appellant’s motion to set aside default and default judgment was affirmed. The Court reversed that part of the district court’s order awarding punitive damages and remanded for further proceedings consistent with this opinion.

Justice Burke delivered the opinion for the court.





Thursday, February 23, 2012

Summary 2012 WY 27

Summary of Decision February 23, 2012


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was 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: Board of Professional Responsibility, Wyoming State Bar v. Robert Willis Ingram

Citation: 2012 WY 27

Docket Number: D-10-0003

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465108

Order Reinstating Attorney to the Practice of Law

Date of Order: February 23, 2012

The Court, after a careful review of the Board of Professional Responsibility’s Report and Recommendation for Reinstatement, and the file, this Court finds that the Report and Recommendation should be approved, confirmed and adopted by the Court; and that the Respondent, Robert Willis Ingram, should be reinstated to the practice of law.

Summary 2012 WY 26

Summary of Decision February 23, 2012

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was 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: Board of Professional Responsibility, Wyoming State Bar, v. Jeffery C. Metler

Citation: 2012 WY 26

Docket Number: D-12-0003

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465110

Order of Public Censure

Date of Order: February 23, 2012

After a careful review of the Board of Professional Responsibility’s Report and Recommendation and the file, this Court finds that the Report and Recommendation should be approved, confirmed and adopted by the Court; and that the Respondent Jeffery C. Metler should be publicly censured for his conduct which essentially involves misleading communications about the lawyer or the lawyer’s services, and is addressed in Section 7.0, “Violations of Duties Owed to the Profession.”




Summary 2012 WY 25

Summary of Decision February 23, 2012


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was 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: Board of Professional Responsibility, Wyoming State Bar v. Mary Dunn

Citation: 2012 WY 25

Docket Number: D-12-0002

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465107

Order Suspending Attorney From the Practice of Law

Date of Order: February 23, 2012

After a careful review of the Board of Professional Responsibility’s Report and Recommendation for Suspension and the file, this Court finds that the Report and Recommendation for Suspension should be approved, confirmed and adopted by the Court; and that the Respondent, Mary M. Dunn, should be suspended from the practice of law for a period of thirty (30) days, beginning March 1, 2012, for violation of Rules 3.3(a)(1), 3.4(c), 8.4(a) and 8.4(d) of the Wyoming Rules of Professional Conduct.

Summary 2012 WY 24


Summary of Decision February 23, 2012

[SPECIAL NOTE:  This opinion uses the "Universal Citation."  It was given an "official" citation when it was 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: REDCO CONSTRUCTION, a Wyoming Corporation v. PROFILE PROPERTIES, LLC, a Wyoming LLC.

Citation:  2012 WY 24

Docket Number: S-10-0255


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

Representing Appellant (Defendant): Justin Kallal of Justin Kallal, PC, Jackson, Wyoming.

Representing Appellee (Plaintiff): Raymond W. Martin of Sundahl, Powers, Kapp & Martin, LLC, Cheyenne, Wyoming.

Date of Decision: February 23, 2012

Facts: This case is a lien foreclosure case involving a landlord, a tenant and a contractor. Profile Properties, LLC (Profile) leased commercial real property to Clean Start, LLC (Clean Start).  Clean Start sought to renovate the property to convert it from office space to a commercial laundry facility.  Profile granted Clean Start permission to renovate the property on the condition that Clean Start would pay for the renovations, and Clean Start thereafter contracted with Redco Construction (Redco) to perform the work.  When Clean Start defaulted on its payments to Redco, Redco filed a lien against Profile’s property.

Redco thereafter filed a complaint against Profile and Clean Start, alleging claims for breach of contract, breach of the implied covenant of good faith and fair dealing, quantum meruit, unjust enrichment, and promissory estoppel, and seeking to foreclose on its lien against Profile’s real property.  The district court interpreted Wyoming’s lien statutes to allow a lien against a landlord’s real property for the debt of a tenant under two circumstances: 1) if the landlord agreed to pay for the improvements to the property; or 2) if the tenant was acting as the landlord’s agent in contracting for the improvements.  It then granted Profile’s motion for summary judgment finding that Profile did not agree to pay for the renovations to the property and that Clean Start was not acting as Profile’s agent in contracting for the improvements.

Issues:  Redco presents the following single issue on appeal: Did the trial court err as a matter of law by finding that for a valid mechanic’s lien to exist for improvements placed upon the landlord’s property by the tenant, “specifically authorized” as used in W.S. 29-2-105(a)(ii), requires the finding of something akin to an agency relationship between the landlord and tenant and granting summary judgment to the Defendant?

Holdings: The Court found that the district court correctly interpreted Wyo. Stat. Ann. § 29-2-105(a)(ii) to require a finding of agency between the landlord and tenant before a mechanic’s lien may attach to the landlord’s property for work performed at the tenant’s behest.  In this case, that relationship did not exist.  The decision of the district court was affirmed.

Justice Golden delivered the opinion for the court.



Wednesday, February 22, 2012

Summary 2012 WY 23

Summary of Decision February 22, 2012


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was 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 of Wyoming v. Holohan

Citation: 2012 WY 23

Docket Number: S-11-0078

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465106

Original Proceeding, Petition for Writ of Review, District Court of Uinta County, The Honorable Dennis L. Sanderson, Judge

Representing Petitioner: Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Paul S. Rehurek, Senior Assistant Attorney General. Argument by Mr. Rehurek.

Representing Respondent: John P. LaBuda and Jessica M. Stull of LaBuda Law Office, P.C., Pinedale, Wyoming. Argument by Ms. Stull.

Date of Decision: February 22, 2012

Facts: After initiating a traffic stop, a Wyoming Highway Patrol trooper found marijuana in Respondent’s vehicle. Respondent was charged with two counts of possession of a controlled substance with intent to deliver. He filed a motion to suppress the evidence seized during the search of his vehicle, claiming the trooper lacked probable cause or reasonable suspicion to justify the traffic stop at the time he activated his flashing lights and could not use events occurring after activating his lights to justify the stop. The district court agreed and granted the motion, basing its conclusion on its finding that the video and other evidence did not support the trooper’s testimony that the vehicle crossed the center or fog lines several times before he activated his lights. The State filed a petition for writ of review of the district court’s order which this Court granted.

Issues: Whether the Fourth Amendment requires reasonable suspicion for a traffic stop to exist at the moment an officer makes his show of authority (activating his light bar), and whether traffic violations occurring after the show of authority may be used to establish reasonable suspicion for the stop.

Holdings: After de novo review the Court concluded the ultimate seizure was constitutional. The district court found, based on the trooper’s testimony, that the vehicle kept going for approximately two miles before stopping after the trooper activated his flashing lights. The trooper further testified that he saw the vehicle swerving side to side as it traveled the two miles before stopping, and saw the driver and one of the passengers switch seats. Applying these facts to the law, the Court concluded that the driver of the vehicle did not submit to the trooper’s show of authority and there was no Fourth Amendment seizure until the vehicle pulled off the highway and stopped. At that point, the trooper had probable cause to stop the vehicle for weaving erratically and a reasonable suspicion of criminal activity based upon the driver’s failure to pull over in response to the flashing lights. There having been no seizure until then, the evidence was not fruit of an illegal seizure and was admissible. The Court reversed the district court’s order granting the motion to suppress and remand for further proceedings.


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

Thursday, February 16, 2012

Summaey 2012 WY 22

Summary of Decision February 16, 2012

[SPECIAL NOTE:  This opinion uses the "Universal Citation."  It was given an "official" citation when it was 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:  Broderick v. Dairyland Insurance Company

Citation:  2012 WY 22

Docket Number: S-11-0096


Appeal from the District Court of Natrona County, The Honorable Catherine E. Wilking, Judge

Representing Appellant (Plaintiff):  Stephen R. Winship of Winship & Winship, P.C., Casper, Wyoming.

Representing Appellee Dairyland (Defendant): Richard G. Schneebeck & Amanda M. Good of Hirst Applegate, LLP, Cheyenne, Wyoming.  Argument by Mr. Schneebeck.

Representing Appellee Schrack (Defendant): Cameron S. Walker of Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming.

Date of Decision: February 16, 2012

Facts:  The appellant was physically injured as a result of an accident caused by an underinsured motorist.  Prior to the accident, the appellant purchased an insurance policy for his motorcycle from the appellee insurance company, through his insurance agent, also an appellee in this case.  Although the appellant requested “full coverage,” the policy did not include underinsured motorist coverage.  All parties acknowledge that neither the appellant nor his wife read the policy.  When the other driver’s insurance did not fully cover the appellant’s damages, the appellant sued the appellees, raising numerous theories as to why he should recover under the policy. 

After investigating the matter, the appellee insurance company filed a declaratory judgment action in federal district court seeking a determination that it was not required to pay the appellant under the terms of the policy.  The action in state district court commenced following the federal court’s dismissal of the lawsuit.  Subsequently, Appellees filed separate motions for summary judgment.  Following a hearing on the motions, the district court granted both the insurance company’s motion, and the insurance agent’s motion.  This appeal followed. 

Issues:  Did the district court properly grant summary judgment in favor of Appellees?

Holdings:  The court held that Wyoming’s uninsured motorist statutes unambiguously do not require insureds to obtain, or insurers to provide, underinsured motorist liability coverage.  The liability insurance policy the appellant obtained from the insurance company through the insurance agent unambiguously did not contain underinsured motorist coverage, and unambiguously disallowed changes in its terms except by policy endorsement. The appellant did not know these facts because he did not read the policy.  The appellant’s failure to read the policy is available as a defense to both appellees as to the appellant’s negligence and contract claims against them, and bars application of the doctrine of promissory estoppel.  Further, the doctrine of reasonable expectations was not available to alter the unambiguous terms of a policy that the insured did not read.  Neither could the policy be reformed to provide underinsured motorist coverage, because there was no antecedent mutual agreement that such would be provided in the policy.  The appellee agent did not have actual authority to bind the appellee insurance company to provide underinsured motorist coverage, and he did not have apparent authority to do so, given the unambiguous language of the policy to the contrary.  Finally, the appellant cannot pursue a private remedy for an uncured deceptive trade practice under the Wyoming Consumer Protection Act because the statutorily required notice of the alleged deceptive trade practice was not given.

The Court Affirmed.

J. VOIGT delivered the opinion for the court. 

Tuesday, February 14, 2012

Summary 2012 WY 21

Summary of Decision February 14, 2012

[SPECIAL NOTE:  This opinion uses the "Universal Citation."  It was given an "official" citation when it was 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:  Whitney Holding Corp. v. Terry

Citation:  2012 WY 21          

Docket Number: S-11-0075


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

Representing Appellant (Defendant):  Mistee L. Godwin and Dan B. Riggs, Lonabaugh & Riggs, LLP, Sheridan, Wyoming; Joseph E. Jones, Fraser Stryker PC, Omaha, Nebraska.  Argument by Mr. Jones.

Representing Appellee (Plaintiffs):  S. Thomas Throne and Jacob T. Haseman, Throne Law Office, P.C., Sheridan, Wyoming.  Argument by Mr. Throne and Mr. Haseman.

Date of Decision: February 14, 2012

Facts:  Appellees owned property for many years prior to entering into an agreement to sell the property to Appellant.  Appellant wanted the property in order to expand its coal mining operation in the area, and initially contacted Appellees in the early 1970’s about purchasing the property.  Appellant maintained its interest and ultimately Appellees agreed to sell.  In 1979, Appellant and Appellees entered into a Contract for Deed.  In the Contract for Deed, Appellees are identified as “Seller” and Appellant is identified as “Buyer.”  In the contract, Appellees were provided the option of receiving the purchase price in cash, in installments, or by making a “like-kind” exchange.  Appellees chose the “like-kind” exchange option and informed Appellant they had selected a property for the exchange.  Appellant entered into an agreement with third parties to purchase the property.  In the agreement, the third parties are identified as “Sellers.”  Appellant is identified as “Buyer.”  The agreement referenced a life estate in one-half of the minerals that burdened the property.  In the agreement, the third parties expressly represented the life estate would terminate upon the death of the remaining life tenant.

The transactions closed in 1980.  At the closing, the third parties executed a Warranty Deed conveying their property to Appellant.  Appellant, in turn, executed a Limited Warranty Deed conveying the property to Appellees. 

The Warranty Deed to Appellant identified the third parties as “Grantors” and in the body of the deed, specified that the conveyance was “SUBJECT TO the reservation of coal, oil, gas and other minerals set forth in Exhibit ‘A.’”  Exhibit A provided a lengthy legal description reserving one-half of the minerals. The Warranty Deed did not mention the life estate.

In the Limited Warranty Deed from Appellant to Appellees, Appellant is identified as “Grantor.”  The deed also contains an Exhibit A that is identical to the Exhibit A in the  Deed to Appellant, with two exceptions:  the term “Grantors” is changed to “sellers,” and there is a specific reference to the life estate.  It is this deed that is at the center of the dispute between the parties.

Three months after the closing, Appellees executed an oil and gas lease for their mineral interest in the property.  They also executed a Ratification of Oil and Gas Lease that had previously been signed by the life tenant.  Through the years, Appellees executed additional mineral leases for the property.  Appellees also recorded the termination of the life estate in the minerals.  There is no indication in the record that Appellant ever claimed any mineral interest in the property.

Eventually, Appellees became aware of potential title problems, but their efforts to resolve them were unsuccessful.  Subsequently, Appelless filed a “Complaint to Quiet Mineral Title” against Appellant.  Appellant denied nearly all of the allegations of the Complaint and raised several affirmative defenses including an allegation that Appellees’ claim “is barred by the applicable statute of limitations.”

Prior to trial, the parties entered into a joint stipulation.  In that stipulation, the parties agreed to the admissibility of several documents, including:  The Contract between Appellant and Appellees, the Agreement for Warranty Deed between the third party and Appellant, the Warranty Deed to Appellant, and the Limited Warranty Deed from Appellant to Appellees.  Appellant also filed a motion in limine seeking to exclude other extrinsic evidence that Appellees might attempt to introduce to interpret the Limited Warranty Deed.  Appellant contended that the deed was unambiguous.  Appellees resisted the motion.  They asserted that the deed was ambiguous and that extrinsic evidence was admissible to interpret the deed.  The district court took the motion under advisement and trial proceeded.  Appellant renewed its objection to specific extrinsic evidence throughout the trial.  At the conclusion of the trial, the district court determined that the Limited Warranty Deed was ambiguous and, after considering the language of the deed and extrinsic evidence, quieted title to the minerals in the appellees.  Appellant filed a timely appeal.

Issues:  1) Whether the District Court erred in finding that extrinsic evidence was admissible to discern the true intent of the parties and meaning of the Limited Warranty Deed; 2) Whether the District Court erred when it concluded that the language of the Limited Warranty Deed was unclear and ambiguous;  3) Whether the District Court erred by finding that Appellant does not own a mineral interest in the subject property and that Appellees own one-half of the mineral rights in the subject property and 4) Whether the District Court erred in its determination that Appellees were not barred by the statute of limitations for a reformation action because they were pursuing a quiet title action.

Holdings:  The Court held the district court properly determined that the Limited Warranty Deed was ambiguous because there was more than one reasonable interpretation for the plural term “sellers”, used but not defined, in the Limited Warranty Deed.  The Court held the district court did not err in admitting extrinsic evidence to interpret the deed.  The Court agreed with the district court’s analysis that the parties intended, and the deed reflected, that Appellant did not reserve a mineral interest in the conveyed property. 

Appellant also claimed that the district court erred in failing to hold that Appellees’ claim was barred by the ten year statute of limitations applicable to claims to reform a contract.  The Court held that disagreement as to the meaning of a term in an agreement does not convert a quiet title action into an action for reformation.  Appellees’ quiet title action was therefore not barred by the statute of limitations.

Affirmed.

J Burke delivered the opinion for the court.

J. Hill, joined by C.J. Kite, dissented, stating that the Limited Warranty Deed clearly and unambiguously reserved a one-half mineral interest to the seller, Appellant.  The dissent believed the district court and majority improperly used parol evidence to contradict the terms of the contract, and the parties’ statements as to their subjective intent were not relevant or admissible under any circumstances to interpret the deed.  The dissent observed that the reservation may have been a mistake.  The dissent would conclude that the district court erred by saving the Appellees from the reformation statute of limitations by improperly using deed interpretation principles to completely remove a mistaken, but clear, reservation of mineral interest.

Summary 2012 WY 20

Summary of Decision February 14, 2012


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was 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: Davis Russell and Dana Russell, and John H. Kellersman, Jr., v. Lloyd Sullivan

Citation: 2012 WY 12

Docket Number: S-11-0128

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465088

Appeal from the District Court of Park County, The Honorable Steven R. Cranfill, Judge.

Representing Appellant (Defendant): M. Jalie Meinecke of Meinecke & Sitz, LLC, Cody, Wyoming.

Representing Appellee (Plaintiff): S. Joseph Darrah of Darrah, Darrah & Brown, Powell, Wyoming.

Date of Decision: February 14, 2012

Facts: John Kellersman Sr., (decedent) died on April 16, 2005 and was survived by a son and a daughter. His home was his only remaining asset. Lloyd Sullivan, a developer who claimed to have purchased the property from the decedent’s daughter, filed a petition for probate without administration of an alleged will of Mr. Kellersman. The Russells, neighbors who lived across the street from the property, filed a petition to revoke the probate of the will alleging, among others things, that the will was invalid and that the probate court improperly admitted the will to probate without sufficient proof of its validity. The decedent’s son filed a motion to intervene and join as a petitioner seeking to revoke the probate. The probate court concluded that it did not have jurisdiction to hear the neighbors’ “Petition to Revoke” because they did not have standing and granted the developer’s motion to dismiss the petition to revoke the will.

Issues: Appellants state the issues as follows:

The order does not comport with the standard of applicable law, specifically, W.R.C.P Rule 17(a) states that a ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest, therefore, the Court improperly applied the facts of this case to the law as set forth in Merrill v. District Court [of Fifth Judicial District], 272 P.2d 597, 599 (Wyo. 1954).

The order does not comport with the standard of applicable law, specifically, the Court erred when holding that had the Appellant Mr. Kellersman, Jr. filed a petition to revoke the will it would have been untimely.

Holdings: The Court found that because the son had filed a motion to intervene rather than his own petition challenging the will, the Court’s jurisdiction was not properly invoked. The Court also recognized that there may be information that was not provided to the Court on appeal. The Court reversed and remanded the case for further proceedings consistent with this opinion.

Justice Hill delivered the opinion for the court.

Thursday, February 09, 2012

Summary 2012 WY 19

Summary of Decision February 9, 2012

[SPECIAL NOTE:  This opinion uses the "Universal Citation."  It was given an "official" citation when it was 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:  Sinclair v. City of Gillette

Citation:  2012 WY 19

Docket Number: S-11-0164


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

Representing Appellant (Plaintiffs):  Randall T. Cox, Cox, Horning & McGrath, LLC, Gillette, Wyoming.

Representing Appellee (Defendants): Catherine M. Fox, Davis & Cannon, LLP, Cheyenne, Wyoming; Kendal R. Hoopes, Yonkee & Toner, LLP, Sheridan, Wyoming.  Argument by Ms. Fox.

Date of Decision: February 9, 2012

Facts:  Appellants own property near the City.  In the early summer of 2008, Appellants noticed survey crews setting up instruments on their property.  The surveyors were working under a contract with the City to develop an expansion of the City’s storm drain system.  Appellants objected, asserting that the City had no right to install the storm drain across their property.  Despite their protests, the surveyors continued their work.  Appellants took their complaint to the City, still maintaining that it had no easement or other legal right to locate the storm drain on their property. 

During the summer, City employees and contractors made a large excavation across Appellants’ property.  They installed a concrete storm drain, refilled the excavation and graded the lot.  Appellants continued to protest that the City had no legal right to install the storm drain across their property.  The storm drain currently remains in place.

Pursuant to the Wyoming Governmental Claims Act, specifically Wyo. Stat. Ann. § 1-39-113 (LexisNexis 2009), Appellants presented notice of their claim to the City.  They followed up by filing a complaint in the district court, setting forth three claims for relief.  In the first, they sought an injunction ordering the City to remove the storm drain and restore the property.  In the second, entitled “Statutory Damages,” they requested compensation pursuant to Wyoming’s Eminent Domain Act, specifically Wyo. Stat. Ann. §§ 1-26-506 – 508.3.  In the third, entitled “Alternative Damages,” Appellants claimed that, if they were not granted injunctive relief, they were entitled to an award of damages, including the loss in value of the land, punitive damages against the City’s contractor, and attorneys’ fees and litigation costs.

The City filed a motion to dismiss Appellants’ third claim. The City conceded that the appellants may be entitled to compensation pursuant to the Wyoming Eminent Domain Act, but maintained that the Wyoming Governmental Claims Act barred the third claim for relief, asserting the claim did not fit within any of the statutory exceptions. Appellants opposed the City’s motion to dismiss.

After briefing and oral argument, the district court concluded that Appellants’ third claim was not authorized under the Wyoming Governmental Claims Act, and granted the City’s motion to dismiss the claim.  In response to Appellants’ unopposed motion, the district court certified pursuant to W.R.C.P. 54(b) that this dismissal was a final judgment as to the third claim, and that there was no just reason to delay entry of final judgment on the claim.  Appellants have appealed that final judgment, and the parties agreed to stay the remainder of the case pending the result of the appeal.

Issues:  1) Whether the district court erred when it concluded that the appellants damages claims against the City are barred by the Wyoming Governmental Claims Act; and 2) Whether the application of immunity based on the Wyoming Governmental Claims Act as applied to negligence, trespass, and forcible taking of property claims which arise in the operation of public utilities and services violated the due process, equal protection, and open court protections of the United States and Wyoming Constitutions.

Holdings:  The City conceded for purposes of this appeal that it was negligent in investigating the ownership status of Appellants’ property.  The Court concluded, however, that such negligence was unrelated to the “operation” of the storm drain.  The storm drain operates and functions regardless of who owns the property.  Because negligence in determining the legal status of the property is not negligence in the operation of the storm drain, the Court found Appellants’ claim did not fit in the niche provided under the Wyoming Governmental Claims Act.  The fact that Appellants’ exclusive remedy is under the Wyoming Eminent Domain Act reinforced the Court’s conclusion that Appellants have no viable cause of action against the City under the Wyoming Governmental Claims Act.

As to the second issue, the Court found the claims asserting violations of constitutional rights to be without merit because, despite the dismissal of their claim under the Wyoming Governmental Claims Act, they still have access to the courts to pursue their claim for injunctive relief and their inverse condemnation claim under the Wyoming Eminent Domain Act.

Affirmed.

J. Burke delivered the opinion for the court.

Summary 2012 WY 18

Summary of Decision February 9, 2012

[SPECIAL NOTE:  This opinion uses the "Universal Citation."  It was given an "official" citation when it was 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 NameRoger Lee Snow v. The State of Wyoming

Citation:  2012 WY 18

Docket Number: S-11-0031


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

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

Representing Appellee (Plaintiff): Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Prosecution Assistance Program; Joshua Beau Taylor, Student Director; and Bret Engstrom, Student Intern.  Argument by Mr. Engstrom.

Date of Decision: February 9, 2012

Facts: After being convicted of felony burglary and a related misdemeanor, appellant Roger Lee Snow (Snow) appeals his conviction, contending that the district court erred when it denied his request for a new attorney and that he received ineffective assistance of counsel. 

Issues:  Snow presents the following two issues: 1) Whether the district court failed to properly inquire as to whether [Snow] wanted and had grounds to terminate appointed counsel and whether [Snow] was given an improper choice between having appointed or retained counsel; and 2)  Whether [Snow’s] trial counsel was ineffective, when he failed to present a lesser-included offense instruction to the jury, and when that lesser-included offense was supported by evidence and would have been accepted by the district court.

Holdings: After consideration of both issues on appeal, the Court concluded that Snow did not demonstrate that the district court failed to properly address his desire for substitute counsel, and accordingly did not abuse its discretion. Furthermore, by not requesting a lesser-included offense instruction, counsel was not ineffective.  Affirmed.

Justice Hill delivered the opinion for the court.

Summary 2012 WY 17

Summary of Decision February 9, 2012

[SPECIAL NOTE:  This opinion uses the "Universal Citation."  It was given an "official" citation when it was 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:  Peterson v. State of Wyoming

Citation:  2012 WY 17

Docket Number: S-10-0104


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

Representing Appellant (Defendant):  Diane M. Lozano, Wyoming State Public Defender; Tina N. Olson, Appellant Counsel; David E. Westling, Senior Assistant Appellate Counsel.  Argument by Mr. Westling.

Representing Appellee (Plaintiff):  Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Joshua Beau Taylor, Student Director, and Anthony Barton, Student Intern, of the Prosecution Assistance Program.  Argument by Mr. Taylor.

Date of Decision: February 9, 2012

Facts:  Appellant was charged with second degree sexual abuse of a minor under Wyo. Stat. Ann. § 6-2-315(a)(iii) (LexisNexis 2011)3 (Count I), two counts of first degree sexual abuse of a minor under Wyo. Stat. Ann. § 6-2-314(a)(ii) (LexisNexis 2011)4 (Counts II and III), and soliciting a minor to engage in sexual relations under Wyo. Stat. Ann. § 6-2-318 (LexisNexis 2011) (Count IV).  Appellant’s jury trial began after several continuances.  The jury found Appellant guilty on Counts I and IV but acquitted him on Counts II and III.  The district court sentenced Appellant to eighteen to twenty years on the sexual abuse count and to a consecutive term of four to five years on the soliciting count.  Appellant then initiated this appeal. 

Contemporaneously with the filing of the appellate brief, Appellant filed a motion seeking a partial remand to the district court to develop evidence concerning the effectiveness of his trial counsel.  This Court granted the remand motion and directed the district court to consider the following four issues:  (1) whether trial counsel failed to conduct a proper investigation and failed to interview the witness SP prior to trial; (2) whether trial counsel was ineffective with regard to the competency/taint hearing involving the minor victim and with regard to a Daubert hearing; (3) whether trial counsel was ineffective because he did not dedicate his full attention to the trial; and (4) whether trial counsel was ineffective with regard to his cross-examination of the victim.  The district court held an evidentiary hearing and determined that trial counsel was not ineffective in his representation of Appellant.  The case then returned to this Court for briefing and argument. 

Issues:  Did the cumulative effect of trial counsel’s general lack of preparation, failure to investigate, failure to propose jury instructions and general incompetence amount to ineffective assistance of counsel?

Holdings:  As to the issue of whether counsel failed to investigate and interview the witness SP, the Court found Appellant failed to demonstrate that counsel’s investigation and evaluation of SP’s likely testimony was flawed and outside the realm of professionally competent assistance.

As to the competency hearing, the Court observed that Appellant made no showing that presenting his slight evidence of taint at the competency hearing would have prevented the child from testifying, or that presenting the evidence only at trial lessened his chances of acquittal.  The Court found Appellant’s failure to make the required showing of deficient performance and resulting prejudice defeated his ineffectiveness claim.

The Court concluded that throughout the trial, defense counsel vigorously represented Appellant and challenged the State’s evidence.  Appellant failed to sustain his burden of proving that he was deprived of his constitutional right to the effective assistance of counsel. 

Affirmed.

J. Golden delivered the opinion for the court.

Summary 2012 WY 16

Summary of Decision February 9, 2012

[SPECIAL NOTE:  This opinion uses the "Universal Citation."  It was given an "official" citation when it was 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: Wyatt L. Bear Cloud v. The State of Wyoming

Citation:  2012 WY 16

Docket Number: S-11-0102


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

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

Representing Appellee (Plaintiff): Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Jeffrey S. Pope, Assistant Attorney General.  Argument by Mr. Pope.

Date of Decision: February 9, 2012

Facts: On August 26, 2009, Appellant Wyatt Bear Cloud and two co-defendants were involved in the armed burglary of a residence in Sheridan, Wyoming.  During the course of the burglary, one of Bear Cloud’s co-defendants shot and killed one of the home’s residents.  Bear Cloud was charged with, and ultimately pleaded guilty to,  Murder in the First Degree (Felony-Murder), in violation of Wyo. Stat. Ann. § 6-2-101(a) (LexisNexis 2011); Conspiracy to Commit Aggravated Burglary, in violation of Wyo. Stat. Ann. §§ 6-1-303(a) and 6-3-301(a) and (c)(i) (LexisNexis 2011); and Aggravated Burglary, in violation of Wyo. Stat. Ann.  § 6-3-301(a) and (c)(i) (LexisNexis 2011).  He was sixteen years of age at the time of these offenses.  In addition to his sentences on the burglary and conspiracy charges, Bear Cloud was sentenced to life imprisonment for his conviction for felony-murder.  He now appeals his convictions and sentences on numerous grounds. 

Issues:  Bear Cloud presents the following issues for review: 1) Was Appellant’s trial counsel ineffective, specifically by: (A) inviting intrusion into the attorney-client relationship, (B) waiving his meritorious appellate issues and (C) incorrectly advising him of the consequences of his pleas, thus rendering his pleas involuntary? 2) Is a motion to transfer a case to juvenile court a dispositive motion, so it may be the subject of conditional guilty pleas? 3) Did the trial court abuse its discretion when it refused to transfer Appellant to juvenile court? 4) Does the sentence of life in prison for a juvenile who did not commit or intend to commit a homicide violate the [Eighth] Amendment of the United States Constitution? 5) Does the sentence of life in prison for a juvenile who did not commit or intend to commit a homicide violate Art. 1, § 14 of the Wyoming Constitution? 6) Does the prohibition against cruel and unusual punishment provided in the [Eighth] Amendment of the United States Constitution and Art. 1, § 14 of the Wyoming Constitution, prohibit the imposition of mandatory life imprisonment on a juvenile when the sentencing court cannot take into consideration the child’s age, culpability or other mitigating factors? 7) Did the trial court abuse its discretion in denying Appellant’s motion to withdraw his guilty pleas?  Appellee, the State of Wyoming, generally relies upon the same issues. 

Holdings: The Court concluded that the district court did not err in denying  Bear Cloud’s motion to transfer the proceedings to juvenile court nor did it abuse its discretion in denying his motion to withdraw his guilty pleas.  To the extent his appellate claims survive the entry of a guilty plea, trial counsel was not ineffective in her representation of Bear Cloud.  Further, Bear Cloud’s assertion that his life sentence for felony-murder was unconstitutional, under either the United States Constitution or the Wyoming Constitution, failed.  A sentence of life imprisonment, with the possibility of parole, for a juvenile offender convicted of felony-murder satisfies the constitutional mandates of the Eighth Amendment of the United States Constitution and Article 1, § 14 of the Wyoming Constitution.  Finally, Wyo. Stat. Ann.  § 6-2-101(b) was not rendered unconstitutional by its mandatory sentencing structure, even as applied to a juvenile offender, and particularly in light of the district court’s ability to consider mitigating circumstances when considering whether to transfer proceedings to juvenile court.  Bear Cloud’s convictions and sentences were affirmed in all respects.

Judge Donnell delivered the opinion for the court.



Tuesday, February 07, 2012

Summary 2012 WY 15

Summary of Decision February 7, 2012

[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:  Schreibvogel v. State of Wyoming

Citation:  2012 WY 15

Docket Number: S-11-0172


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

Representing Appellant (Petitioner):  W. Keith Goody, Cougar, Washington.

Representing Appellee (Respondent):  Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; Meri V. Geringer, Senior Assistant Attorney General.  Argument by Ms. Geringer.

Date of Decision: February 7, 2012

Facts:  The appellant was convicted of two counts of first-degree sexual assault and one count of robbery.  The Court’s opinion affirming those convictions upon direct appeal is found at Schreibvogel v. State, 2010 WY 45, 228 P.3d 874 (Wyo. 2010).  In that proceeding, the appellant alleged, inter alia, that his trial counsel was ineffective for failing to object to inadmissible evidence, and for failing adequately to cross-examine the victim in regard to the defense of consent. The appellant did not prevail on either allegation.

Just less than a year after losing his appeal, the appellant filed in the district court a Verified Petition for Post-Conviction Relief.  In his petition, the appellant alleged that his appellate counsel was ineffective for not raising in the direct appeal two additional allegations of trial counsel’s ineffectiveness: (1) failure to pursue as a defense the synergistic effect of the victim’s simultaneous use of the prescription drug Paxil and alcohol; and (2) failure to investigate and pursue expert medical testimony as to the cause of an injury to the victim’s face.  In addition, the appellant also alleged that appellate counsel rendered ineffective assistance by failing to seek an evidentiary hearing under W.R.A.P. 21.

The State filed a Motion to Dismiss Petition for Post-Conviction Relief, citing Wyo. Stat. Ann. § 7-14-103(a)(iii) for the proposition that the appellant’s claim of ineffective assistance of trial counsel was procedurally barred because it had been determined on the merits in the direct appeal.  The district court heard the motion to dismiss and subsequently issued a lengthy decision letter and order dismissing the petition. 

In response, Appellant filed this Petition for Writ of Review.  The Court granted the petition, the matter was briefed, and oral argument was heard.

Issues:  Where the appellant has raised the claim of ineffective assistance of trial counsel in his direct appeal, may he raise the claim again, on different factual grounds, in a petition for post-conviction relief by arguing that appellate counsel was ineffective for not raising those different factual grounds? 

Holdings:  This was a question of first impression before the Court.  The Court answered the question in the negative.  The Court held that where a claim of ineffective assistance of counsel has been raised and decided against the appellant in his direct appeal, he may not raise a claim of ineffective assistance of counsel, based upon different allegations, in a petition for post-conviction relief because the claim is procedurally barred by Wyo. Stat. Ann. § 7-14-103(a)(iii).  A stand-alone claim of ineffective assistance of appellate counsel is not cognizable under the post-conviction relief statutes because post-conviction relief is limited to the alleged denial of constitutional rights during the proceedings which resulted in conviction.  The jurisdictional exception for the consideration of ineffective assistance of appellate counsel provided in Wyo. Stat. Ann. § 7-14-103(b)(ii) is limited to situations where a claim “[c]ould have been raised but was not raised” in the direct appeal, as addressed by Wyo. Stat. Ann. § 7-14-103(a)(i).

J Voigt delivered the opinion for the court.

In a concurring opinion, Chief Justice Kite wrote separately because, while she agreed that Petitioner was not entitled to the relief he sought, she disagreed with the majority’s conclusion that the district court and this Court lacked subject matter jurisdiction to decide his post-conviction claim.  The concurrence would hold that Petitioner’s assertion that he was denied his Sixth Amendment right to effective assistance of appellate counsel falls within the scope of § 7-14-101(b) and is not barred under § 7-14-103 and would have addressed the merits of the claim. 

Monday, February 06, 2012

Summary 2012 WY 14

Summary of Decision February 6, 2012


[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: Joseph Randall Owens v. The State of Wyoming

Citation: 2012 WY 14

Docket Number: S-11-0184

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465073

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

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

Representing Appellee (Plaintiff): Gregory A. Phillips, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Director, and Joshua B. Taylor, Student Director, Prosecution Assistance Program, University of Wyoming, College of Law.

Date of Decision: February 6, 2012

Facts: Appellant, Joseph Randall Owens, entered a conditional guilty plea to felony possession of methamphetamine in violation of Wyo. Stat. Ann. § 35-7-1031(c)(ii). He reserved the right to appeal the constitutionality of the search that resulted in discovery of the methamphetamine.

Issues: Appellant presents the following issue: Should the motion to suppress evidence seized in a warrantless search of Appellant’s containers have been granted?

Holdings: Appellant contends that evidence of methamphetamine seized from his backpack should have been suppressed because it was discovered during an unlawful search. He claims that the search of his backpack was unreasonable because there was no connection between his medical emergency and the search. Under the circumstances presented, however, the Court found that the search was reasonable.

The responding officer was presented with an emergency situation when, upon entering Appellant’s motel room, he found Appellant convulsing on the floor. Appellant was unable to communicate with the officer and did not respond to the officer’s attempts to gain his attention. During the encounter, Appellant’s eyes were extremely wide and periodically rolled to the back of his head. The officer was unable to gather any pertinent information about Appellant’s condition from Appellant’s acquaintance. Under these circumstances, it was reasonable for the officer to search Appellant’s backpack, as well as the containers found therein, in an attempt to aid Appellant. Despite the subsequent arrival of emergency medical personnel, it was reasonable for the officer, who had also received training as an emergency medical technician, to seek identification indicating a specific medical condition, emergency medication to alleviate Appellant’s seizure, or substances that may have contributed to Appellant’s condition. The officer’s discovery of methamphetamine prompted the medical technicians to treat Appellant for a suspected drug overdose. Based on the totality of the circumstances, the Court found that the State satisfied its burden of establishing specific and articulable facts showing that the search was justified pursuant to the officer’s community caretaker function.

Appellant asserted that the officer’s seizure of a cardboard box from his friend’s motel room showed that the officer engaged in a “general exploratory search” that was “related to the emergency only as a matter of fortuitous opportunity.” The Court agreed that the officer’s search of the adjoining motel room was unrelated to the exigencies created by Appellant’s emergency. However, the fact that the officer retrieved a cardboard box from the neighboring motel room did not undermine the conclusion that the officer’s search of Appellant’s backpack was objectively reasonable. The search of the trash can in the neighboring room, conducted after Appellant had been transported to the hospital, had no bearing on the reasonableness of the officer’s search at the time of Appellant’s emergency. Further, the issuance of the search warrant for Appellant’s room was not in any measure based on evidence discovered during the officer’s search of the neighboring room. The officer’s affidavit in support of the warrant to search Appellant’s motel room made no reference to his search or observations in the adjoining room. While the facts may present a question as to whether the search in the adjoining room was lawful with respect to Appellant’s friend’s Fourth Amendment rights, Appellant did not demonstrate that he had a reasonable expectation of privacy in his friend’s room and, as a result, he did not have standing to challenge that search. Affirmed.

Justice Burke delivered the opinion for the court.

Summary 2012 WY 13

Summary of Decision February 6, 2012

[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:  Brock v. State of Wyoming

Citation:  2012 WY 13

Docket Number: S-11-0108


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

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

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

Date of Decision: February 6, 2012

Facts:  Appellant was employed as an assistant manager at a restaurant. He failed to deposit two days earning at the bank.  Appellant was charged with one count of larceny, which was later amended to larceny by bailee.  Appellant pled not guilty and his case proceeded to trial.

At that hearing, defense counsel objected in advance to the introduction of evidence concerning Appellant’s rumored gambling problems.  The subject of gambling was not mentioned during trial.

Defense counsel also opposed the introduction of recently discovered incriminating statements, and requested that the court grant a continuance or prevent the State from introducing those statements.  In response, the court ordered the State to make the witness available that morning for an interview.  The witness was interviewed by the defense that day, and was called as the State’s final witness on the second day of trial.

At the conclusion of the trial, the jury returned a guilty verdict. The court sentenced Appellant to a term of seven to ten years in prison.  Appellant timely filed this appeal.

Issues: 1) Whether it was ineffective assistance of counsel when trial counsel failed to call the investigating police officers to testify with regard to their investigation; 2) Whether it was ineffective assistance of counsel when trial counsel failed to investigate or interview or call key witnesses with possibly exculpatory information; and 3) Whether the trial court abused its discretion in sustaining the prosecution’s objection to cross-examination of a witness regarding statements made to the police.

Holdings:  As to the first issue, the Court found that Appellant discounted the possibility that police testimony would have been more damaging than helpful to his case.  The Court also found that trial counsel’s effort to preclude evidence of Appellant’s rumored gambling problems did not constitute deficient performance when properly viewed as a strategic decision securely within the reasonable judgment of counsel. 

As to the second issue, the Court did not find that defense counsel’s investigation of witnesses to be presumptively prejudicial.  Appellant made no attempt to identify the favorable evidence that additional investigation by defense counsel would have revealed.  Accordingly, the Court rejected his claim of ineffective assistance of counsel.

Lastly, the court found that Appellant failed to establish that he was prevented from asking any specific question during cross-examination of a witness, or that the district court abused its discretion in sustaining the prosecutor’s objection to a document never specifically identified in the record.

Affirmed.

J. Burke delivered the opinion for the court.

Summary 2012 WY 12

[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: Shepherd of the Valley Care Center v. Rebecca K. Fulmer

Citation: 2012 WY 12

Docket Number: S-10-0236

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465064

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

Representing Appellant: Scott P. Klosterman of Williams, Porter, Day & Neville, P.C., Casper, Wyoming

Representing Appellee: Peter J. Timbers of Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming

Date of Decision: February 2, 2012

Facts: Rebecca K. Fulmer (Fulmer) suffered injuries on two separate dates while working as a Certified Nursing Assistant (CNA) at Shepherd of the Valley Care Center (Shepherd). She submitted worker’s compensation claims for both injuries. Shepherd objected to both claims, and the Wyoming Workers’ Safety and Compensation Division (Division) denied benefits for the two injuries.

Fulmer requested a hearing, and following a combined contested case hearing, the Office of Administrative Hearings (OAH) upheld the denial of benefits. The OAH concluded Fulmer was not entitled to benefits for her first injury because it was the result of Fulmer’s own culpable negligence. It concluded Fulmer was not entitled to benefits for the second injury based on its finding that “Fulmer was performing activities of daily living not causally related to her work and the fracture could have become complete at any time or place.”

Fulmer appealed, and the district court reversed the OAH decision. The district court found the record did not support either the finding that Fulmer’s first injury was caused by her own culpable negligence or the finding that Fulmer’s second injury was caused not by her work but by normal activities of day-to-day living.
Issues: Whether the hearing examiner correctly determined that the injury sustained by Rebecca Fulmer on August 12, 2008, was caused by her culpable negligence and therefore [was] not a compensable injury as defined under Wyo. Stat. § 27-14-102(a)(xi). Whether the hearing examiner correctly determined that the injury sustained by Rebecca Fulmer on August 30, 2008, resulted primarily from normal activities of day-to-day living and therefore [was] not a compensable injury as defined under Wyo. Stat. § 27-14-102(a)(xi).

Holdings: The Court found that Shepherd did not meet its burden of proving Fulmer was culpably negligent when she injured her hip lifting a patient by herself; nor did it meet its burden of proving a normal activity of day-to-day living caused Fulmer’s hip fracture. The Court remanded to the district court with directions that it remand to the OAH for entry of an order awarding benefits to Fulmer for both her August 12, 2008, and August 30, 2008, hip injuries.

Justice Golden delivered the opinion for the court.

Thursday, February 02, 2012

Summary 2012 WY 11

Summary of Order February 1, 2012

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

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

Case Name: Board of Professional Responsibility, Wyoming State Bar v. Don Franklin Shreve, Jr.,

Docket Number: D-12-0001

Date of Order: February 1, 2012

Pursuant to Section 17 of the Disciplinary Code for the Wyoming State Bar, Bar Counsel for the Wyoming State Bar filed a “Petition for Interim Suspension of Attorney.” The Court, after a careful review of the Petition for Interim Suspension, the affidavit of Bar Counsel, and the other materials attached to the petition, concludes that the petition for interim suspension should be granted and that Respondent should be suspended from the practice of law pending resolution of the formal charge that has been, or will be, filed against Respondent.

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