Summary 2012 WY 62

Summary of Decision April 25, 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:  MARCIA BECKWITH v. KARL AND TINA WEBER, husband and wife, dba GROS VENTRE RIVER RANCH

Docket Number: S‑11‑0101, S-11-0245

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465471

Appeal from the District Court of Teton County, Honorable Timothy C. Day, Judge

Representing Appellant (Plaintiff/Defendant): Gerard R. Bosch of Law Offices of Jerry Bosch, LLC, Wilson, Wyoming

Representing Appellee (Plaintiff/Defendant): Katherine L. Mead of Mead & Mead, Jackson, Wyoming

Date of Decision: April 25, 2012

Facts: These consolidated appeals arise from a judgment on jury verdict in a case involving personal injuries suffered by Appellant Marcia Beckwith.  She fell from a horse while on a trail ride operated by the Gros Ventre River Ranch in Grand Teton National Park.  The jury found that Ms. Beckwith’s injuries were the result of an inherent risk of horseback riding as defined by the Wyoming Recreation Safety Act, and she therefore recovered no damages for her injuries.   In Case No. S-11-0101, Ms. Beckwith claims the district court erred in failing to instruct the jury as she requested.  In Case No. S-11-0245, she claims the district court erred in awarding costs to Appellees due to her indigence. 

Issues: In Case No. S-11-0101, the issues are:

1.                 Did the District Court err when it declined to instruct the jury that a duty of care could arise from a contract and in refusing a verdict form which would have asked the jury to determine if Appellees provided skilled guides?

2.                 Did the District Court err in declining to instruct the jury on the meaning of the terms “characteristic,” “intrinsic,” and “integral” as they are used to define the term “inherent risk” in the Wyoming Recreation Safety Act?

3.                 Did the District Court err in declining to instruct the jury that exculpatory clauses are to be strictly construed?

4.                 Did the District Court err in declining to instruct the jury that Appellant was exercising due care at the time she was injured?

In Case No. S-11-0245, the issue is:

1.         Did the District Court abuse its discretion in awarding costs to Appellees?

Holdings: The district court properly instructed the jury as to Appellant’s claims, and also provided an appropriate form of special verdict for the jury’s use.  The award of costs it made was not an abuse of discretion.  The judgment of the district court and its order awarding costs were affirmed. 

District Judge Davis delivered the opinion for the court.

Summary 2012 WY 61

Summary of Decision April 19, 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: CHRISTINA CLARK v. THE STATE OF WYOMING

Docket Number: S 11 0123

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465424

Appeal from the District Court of Converse County, Honorable John C. Brooks, Judge

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

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Matthias L. Sayer, Assistant Attorney General

Date of Decision: April 19, 2012

Facts: Pursuant to a plea agreement, Christina Clark pled guilty to two counts of third degree sexual abuse of a minor.  The district court sentenced her to two concurrent terms of six to ten years in prison.  She appealed from the judgment and sentence, claiming her guilty pleas were not voluntary and she is entitled to a new sentencing hearing because the district court failed to mention probation in the written judgment and sentence.

Issues: Ms. Clark presented the following issues for this Court’s determination:  Did the district court err in accepting appellant’s guilty plea, as there was not an adequate foundation established to ensure that it was a voluntarily and informed decision?  Is reversal for a new sentencing required under the rule mandated in Trumbull v. State, 2009 WY 103, 214 P.3d 978 (Wyo. 2009)?  

The State asserted the district court properly accepted Ms. Clark’s guilty pleas after receiving sufficient information to ensure they were the product of a voluntary and informed decision.  The State also contended the district court appropriately considered probation as an alternative sentence as required by Trumbull and its failure to so state in the written judgment was merely a clerical error requiring remand to correct the omission.

Holdings: The Court affirmed Ms. Clark’s conviction and sentence and remanded to the district court for entry of an amended sentence in accordance with this opinion.

Chief Justice Kite delivered the opinion for the court.

Summary 2012 WY 60

Summary of Decision April 18, 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:  Shaw Construction, LLC, v. Rocky Mountain Hardware, Inc.

Citation:  2012 WY 60

Docket Number: S-11-0171

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465426

Appeal from the District Court of Teton County, The Honorable Timothy C. Day, Judge

Representing Appellant (Defendant):  Peter F. Moyer, Jackson, Wyoming.

Representing Appellee (Plaintiff): Mark D. Sullivan, Mark D. Sullivan, P.C., Wilson, Wyoming.

Date of Decision: April 18, 2012

Facts:  Appellant appeals from the district court’s order requiring it to pay for hardware furnished by Appellee on a construction project.  The district court also awarded contractual interest and attorney fees under the terms of a 2003 credit agreement between the parties.  Appellant claims the district court erred by concluding it had entered into a contract with Appellee. 

Issues:  Whether Appellee is entitled to contract damages, 21% interest and attorney’s fees, based on a 2003 account credit application signed solely by an unknown “guarantor” over 4 years prior to a 2008 construction job, where the district court expressly found that there was no contract between the parties for the 2008 job.

Holdings: Under the credit agreement, Appellant agreed to pay the costs of collection, including legal fees, and interest on any unpaid balances.  Although Appellant suggested that the agreement was not valid because no one could identify the Appellant representative who signed it and it was only signed in the “Personal Guarantee” space, the evidence demonstrated that the application was, in fact, authorized by Appellant as the credit references were provided on Appellant letterhead.  Appellee also sent Appellant a confirmatory letter, indicating the credit account had been opened and there is no indication Appellant objected.  The best evidence that Appellant authorized the application and entered into the credit agreement was that following the opening of the account, the parties operated under this agreement for several years prior to the construction project at issue.  The district court properly ruled the credit agreement applied in this case and, pursuant to its terms, Appellant was responsible for the principal balance due on the hardware contract, together with contractual interest and attorneys fees. Affirmed.

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

Summary 2012 WY 59

Summary of Decision April 13, 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:  CHIP DAVE v. BILL VALDEZ

Docket Number: S‑11‑0231

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465373

Appeal from the District Court of Sweetwater County, Honorable Dennis L. Sanderson, Judge

Representing Appellant (Plaintiff/Defendant):  Michael W. Stulken of Mathey Law Office, Green River, Wyoming.

Representing Appellee (Plaintiff/Defendant): Richard H. Honaker of Honaker Law Offices, LC, Rock Springs, Wyoming.

Date of Decision: April 13, 2012

Facts: Chip Dave (the appellant) purchased a car on eBay.  Before he took possession of the vehicle, the seller sold it to another buyer, Bill Valdez (the appellee).  The appellant filed a complaint against the appellee citing a number of causes of action, including replevin.  Following the appellee’s failure to respond to the appellant’s second amended complaint, a default judgment was entered and the appellant was granted a writ of replevin ordering the appellee to relinquish possession of the vehicle.  The appellant appealed the district court’s denial of an award of attorney fees. 

Issues: Did the district court abuse its discretion by denying the appellant’s request for attorney fees?

Holdings: Following an entry of default against the appellee, the district court issued a writ of replevin requiring the appellee to relinquish possession of a vehicle previously purchased by the appellant, but the district court denied the appellant’s request for attorney fees.  The appellant appealed that denial, arguing that the American rule, requiring each party to pay his or her own attorney fees, was inapplicable.  The Court disagreed.  The statutory exception to the American rule applies only where the legislature has made it explicit that attorney fees will be allowed. The statute relied upon by the appellant makes reference only to damages.  The exception for certain replevin actions involving fraud is also inapplicable.  This exception only allows for attorney fees when the replevin action was initiated fraudulently.  The district court did not abuse its discretion in denying the appellant’s request for attorney fees.  Affirmed.

Justice Voigt delivered the opinion for the court.

Summary 2012 WY 58

Summary of Decision April 12, 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: DENNIS POITRA, JR. v. THE STATE OF WYOMING

Docket Number: S-11-0085

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465365
Appeal from the District Court of Sheridan County, Honorable John G. Fenn, Judge

Representing Appellant (Plaintiff/Defendant): Elisabeth M. W. Trefonas, Assistant Public Defender, Jackson, WY.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Senior Assistant Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Justin A. Daraie, Assistant Attorney General. Argument by Mr. Daraie.

Date of Decision: April 12, 2012

Facts: A jury convicted Dennis Poitra Jr., of felony murder, aggravated burglary, and conspiracy to commit burglary. Poitra and two other assailants were involved in the armed robbery of a residence in Sheridan that ended in the killing of 76-year-old Bob Ernst. Poitra presents four issues on appeal.

Issues: The trial court erred in denying Poitra’s right to present the defense of involuntary intoxication, because involuntary intoxication does not require a “Not Guilty by Reason of Mental Illness” plea. The trial court erred in refusing to instruct the jury on the defense of involuntary intoxication. The trial court abused its discretion in denying Poitra’s motion to change venue and violated his right to a trial by a fair and impartial jury. Poitra’s sentence to life imprisonment without the possibility of parole was arbitrary and capricious.

Holdings: The Court found that the trial court did not deny Poitra his constitutional right to present a defense by restricting the use of certain evidence. The Court affirmed the district court’s denial of Poitra’s motion for a change of venue, and disagreed that the court impaneled a biased juror. Finally, the Court found that the district court did not abuse its discretion at sentencing. The conviction and sentence in this case was affirmed.

Justice Hill delivered the opinion for the court.

Summary 2012 WY 57

Summary of Decision April 11, 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: HAILEY JACOBSEN REMMICK v. THE STATE OF WYOMING

Docket Number: No. S-11-0015

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465348

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

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

Representing Appellee (Plaintiff/Defendant): Bruce Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Meri V. Geringer, Senior Assistant Attorney General. Argument by Ms. Geringer.

Date of Decision: April 11, 2012

Facts: Appellant, Hailey Jacobsen Remmick, challenged her conviction of six counts of receiving stolen property and one charge of conspiracy to commit larceny by a bailee. Ms. Remmick claimed that pre-charging delay deprived her of due process of law and that there was insufficient evidence to support the jury’s verdict.

Issues: Ms. Remmick presented two issues: Was Appellant denied due process of law by pre-charging delay? Was the jury verdict supported by sufficient evidence?

Holdings: Affirmed.

Justice Burke delivered the opinion for the court.

Summary 2012 WY 56

Summary of Decision April 11, 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: VICTOR EVERETT JACKSON v. THE STATE OF WYOMING

Docket Number: S-11-0145

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465346

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

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

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

Date of Decision: April 11, 2012

Facts: Victor Everett Jackson pled guilty to one count of third degree sexual assault in exchange for the State’s agreement to request probation under Wyo. Stat. Ann. § 7-13-301 (LexisNexis 2009). The district court placed him on supervised probation for five years. Six months later, the State filed a petition to revoke his probation but proceedings on the petition were delayed. A year later, Mr. Jackson filed a motion to withdraw his guilty plea asserting that the victim of the assault had identified someone else as the perpetrator. The district court denied the motion and entered an order revoking probation. The district court entered judgment and imposed a sentence of four to five years. Mr. Jackson appealed, claiming the district court abused its discretion in denying his motion to withdraw his guilty plea.

Issues: Mr. Jackson claims the district court abused its discretion and violated his right to due process when it denied his motion to withdraw his guilty plea. The State responded that the district court properly exercised its discretion when it denied the motion.

Holdings: The Court found nothing to indicate the district court could not reasonably have concluded as it did. The Court affirmed the district court’s denial of Mr. Jackson’s motion to withdraw his guilty plea.

Chief Justice Kite delivered the opinion for the court.

Summary 2012 WY 55

Summary of Decision April 11, 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: MULLINAX CONCRETE SERVICE COMPANY, a Wyoming corporation v. MERLIN AND LORI ZOWADA and THE SHERIDAN COUNTY BOARD OF COUNTY COMMISSIONERS

Docket Number: S-11-0213

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465349

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

Representing Petitioner:

Anthony T. Wendtland and Debra J. Wendtland of Wendtland & Wendtland, LLP, Sheridan, Wyoming. Argument by Ms. Wendtland.

Representing Respondents Merlin and Lori Zowada:

Harlan W. Rasmussen of Attorneys at Law of Wyoming, P.C., Sheridan, Wyoming.

Representing Respondent Sheridan County Board of County Commissioners:

No Appearance.

Date of Decision: April 11, 2012

Facts: This case, concerning a petition for the establishment of a private road filed by the Zowadas, came before the Court for a second time, on a petition for writ of review. In Mullinax Concrete Service Co., Inc., v. Zowada (Mullinax I), 2010 WY 146, 243 P.3d 181 (Wyo. 2010), the Court remanded the case to the district court for further remand to the Sheridan County Board of County Commissioners (the Commission) to make adequate findings of fact on specific issues. While the case was pending before this Court, the legislature amended Wyo. Stat. Ann. § 24-9-101, which governs the procedure used when petitioning for the establishment of a private road. On remand, the Commission and its hearing officer chose to apply the statute as amended in 2008 and 2009, although the case had originally proceeded under the statute as it existed in 2005. Mullinax petitioned the Court to determine whether the amended statute applies or whether the statute applies as it existed in 2005.

Issues: Whether, on remand to the Commission, Wyo. Stat. Ann. § 24-9-101 should be applied as it existed in 2005 or as it currently exists with the 2008 and 2009 amendments.

Holdings: The Court found that Wyo. Stat. Ann. § 24-9-101 as it existed in 2005 applies.

The hearing officer’s decision to apply Wyo. Stat. Ann. § 24-9-101 as it existed in 2009 was in error. While the amendments to the statute are procedural in nature, the Court found that the general rule against retroactive application of the amendment applies. The Commission did not have the authority to certify the matter to the district court. The Court reversed the district court’s order denying Mullinax’s petition for writ of review and remanded the case to the district court to order the Commission to comply with the remand requirements this Court ordered in Mullinax I, 2010 WY 146, ¶ 23, 243 P.3d at 192.

Justice Voigt delivered the opinion for the court.

Summary 2012 WY 54

Summary of Decision April 11, 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: DAVID KENNETH MERCER v. THE STATE OF WYOMING

Docket Number: No. S-11-0204

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465343

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

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

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Director, Joshua B. Taylor, Student Director, and Callan E. Riedel, Student Intern, Prosecution Assistance Program, University of Wyoming, College of Law.

Date of Decision: April 11, 2012

Facts: Pursuant to a plea agreement, David Kenneth Mercer pleaded no contest to three felony counts of sexual abuse of a minor. After he was sentenced, Mr. Mercer appealed, asserting that the prosecutor breached the plea agreement.

Issues: Mr. Mercer presented one issue: Did the State breach its plea agreement at sentencing when it misstated facts and argued for a harsh sentence based on Mr. Mercer’s alleged failure to accept personal responsibility?

Holdings: The Court found no breach of the agreement and affirmed.

Justice Burke delivered the opinion for the court.

Summary 2012 WY 53

Summary of Decision April 10, 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:

Docket Number: S-11-0091, S-11-0092

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465335

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

Representing Sutherlands: Bruce S. Asay, Associated Legal Group, LLC, Cheyenne, Wyoming.

Representing Meridian Granite Company: Franklin D. O’Loughlin and Jaclyn K. Casey, Rothgerber, Johnson & Lyons, LLP, Denver, Colorado. Argument by Mr. O’Loughlin.

Date of Decision: April 10, 2012

Facts: John Sutherland and Minerva Selbe Sutherland entered into a mining lease granting Meridian the right to conduct mining operations on the Sutherlands’ property. A dispute developed between the Sutherlands and Meridian regarding the Sutherlands’ obligation to pay taxes relating to the mineral production. The dispute led to litigation. On cross-motions for summary judgment, the district court ruled that the Sutherlands were obligated to pay the disputed taxes. It therefore granted Meridian’s motion and denied the Sutherlands’. The Sutherlands appealed the district court’s ruling, and Meridian filed a cross-appeal.

Issues: The Sutherlands presented a single issue: Did the district court err in allowing Meridian to deduct ad valorem and severance taxes from payments to the Sutherlands when such tax payments are not required by the State?

In its cross-appeal, Meridian raises four issues: Did the district court err in allowing the Sutherlands to pursue claims barred by the applicable statutes of limitation? Did the district court err when it failed to dismiss the Sutherlands’ claims based on the doctrine of laches? Did the district court err in allowing the Sutherlands to pursue a claim for declaratory judgment when the Sutherlands simultaneously asserted a claim for breach of contract? Did the district court err in denying Meridian’s motion to dismiss for failure to join an indispensable party, where the party not joined was a party to the contract at issue?

Holdings: The district court did not err when it denied the Sutherlands’ motion for summary judgment and granted summary judgment in favor of Meridian. As Meridian recognized in its cross-appeal brief, the Court’s affirmation of the district court’s judgment makes it unnecessary to address the issues raised by Meridian in its cross-appeal. Affirmed.

Justice Burke delivered the opinion for the court.

Justice Hill and Justice Golden respectfully dissented from the majority opinion.

Summary 2012 WY 52

Summary of Decision April 10, 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: BERTHEL LAND AND LIVESTOCK, a Wyoming Limited Partnership v. ROCKIES EXPRESS PIPELINE LLC fka ENTREGA GAS PIPELINE LLC, and KINDER MORGAN NATGAS OPERATOR LLC, both organized under the law of Delaware, ROCKIES EXPRESS PIPELINE LLC fka ENTREGA GAS PIPELINE LLC, and KINDER MORGAN NATGAS OPERATOR LLC, both organized under the laws of Delaware, v. BERTHEL LAND AND LIVESTOCK, a Wyoming Limited Partnership

Docket Number: S-10-0227, S-10-0228

URL:
http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465335

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

Representing Appellant (Plaintiff/Defendant): Bill G. Hibbler of Bill G. Hibbler, P.C., Cheyenne, Wyoming

Representing Appellee (Plaintiff/Defendant): David G. Ditto of Associated Legal Group, Cheyenne, Wyoming

Date of Decision: April 10, 2012

Facts: Berthel Land and Livestock (Berthel) entered into a Pipeline Easement Agreement (Agreement) with Rockies Express Pipeline (Rockies Express). After completion of the pipeline, Berthel filed an action against Rockies Express asserting claims for breach of contract and fraudulent inducement. The breach of contract claims alleged a failure to remove rock from the property and a failure to provide required as-built drawings of the completed pipeline, and the fraudulent inducement claim alleged that Rockies Express never intended to remove the rock as required by the Agreement.

The district court granted Berthel summary judgment as to liability on the breach of contract claims, but required a trial on damages on those claims, and denied summary judgment on the fraudulent inducement claim. After a bench trial, the district court found that Berthel had not proven its fraudulent inducement claim or its damages for the rock removal breach. The district court awarded damages for the as-built drawings breach, but at a lesser amount than Berthel requested. Berthel appealed, and Rockies Express cross-appealed.

Issues: Berthel presented the following issues on appeal: Did the district court err as a matter of law by interpreting that the pipeline easement agreement ¶8(m), requires removal of “surface” rocks only? Are the district court’s factual determinations concerning damages for ¶8(m), rock removal, and/or ¶8(q), as-built survey, clearly erroneous? Is the district court’s conclusion that fraudulent inducement was not committed clearly erroneous?

In its cross-appeal, Rockies Express presents these issues: Did the trial court commit error by granting summary judgment for Berthel on the issue of liability for failure to provide Berthel with an as-built survey? Did the trial court commit error by granting summary judgment for Berthel on the issue of liability for failure to remove rocks from the easement? Did the trial court commit error by allowing evidence of “bids” from Berthel’s contractors and engineers that failed to reflect the correct measure of damages?

Holdings: The Court affirmed the district court’s decision on the fraudulent inducement claim and rock removal damages. The Court affirmed in part and reversed in part the award of damages for the as-built drawings breach.

Justice Golden delivered the opinion for the court.

Summary 2012 WY 51

Summary of Decision April 10, 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: Operation Save America v. The City of Jackson, a Wyoming Municipal Corporation

Docket Number: S-11-0149

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465333

Appeal from the District Court of Teton County, Honorable Timothy C. Day, Judge

Representing Appellant (Plaintiff/Defendant): Jack D. Edwards of Edwards Law Office, P.C., Etna, Wyoming

Representing Appellee (Plaintiff/Defendant): Audrey P. Cohen-Davis of The City of Jackson, Jackson, Wyoming

Date of Decision: April 10, 2012

Facts: The Town of Jackson applied to the district court for an ex parte temporary restraining order (TRO) against Operation Save America (OSA), an anti-abortion protest group. The Town sought to restrict OSA’s demonstration activities in and around the Jackson Town Square during the Boy Scouts’ 2011 annual Elk Fest. The district court granted the ex parte TRO, which enjoined OSA “from assembling on the Jackson Town Square without a permit or holding posters/signs or materials of any graphic nature (e.g., aborted fetus pictures) on the Town Square or within a two (2) block radius thereof . . . during the Boy Scouts of America Expo and Elk Antler Auction between 5:00 a.m. and 5:00 p.m. on Saturday, May 21, 2011.”

Issues: Both parties presented numerous procedural and substantive issues for review. Appellant, OSA, framed the issues as follows: The district court did not have subject matter jurisdiction to issue an ex parte temporary protection order. The district court did not have personal jurisdiction over the defendants. The restrictions outlined in the Order Granting Temporary Restraining Order are in violation of Art. I, § 21 of the Wyoming Constitution. The restrictions outlined in the Order Granting Temporary Restraining Order are in violation of the First, Fifth and Fourteenth Amendment of the United States Constitution.

Appellee, the Town of Jackson, presented the issues as follows: Whether there is a direct appeal from the ex parte Order Granting Temporary Restraining Order initially issued by the District Court. Whether an appeal from this validly issued Order Granting Temporary Restraining Order is moot because it expired on its own terms and no motion to vacate or set aside, motion to extend terms of Order Granting Temporary Restraining Order or a preliminary injunction issued. Whether the District Court had subject matter jurisdiction to issue the ex parte Temporary Restraining Order pursuant to W.R.C.P. 65 and W.S. § 15-1-103(a) (xviii). Whether the District Court had personal jurisdiction over the Defendant, Operation Save America. Whether the restrictions outlined in the Order Granting Temporary Restraining Order were in violation of Art. I, § 21 of the Wyoming Constitution. Whether the restrictions outlined in the Order Granting Temporary Restraining Order were in violation of the First, Fifth and Fourteenth Amendments of the United States Constitution.

Holdings: The Court found that the ex parte TRO was issued in violation of the First Amendment to the United States Constitution and Rule 65 of the Wyoming Rules of Civil Procedure and reversed.

Justice Golden delivered the opinion for the court.

Summary 2012 WY 50

Summary of Decision April 5, 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:  MIACHEL G. MAIER v. THE STATE OF WYOMING

Docket Number: S‑11‑0070

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465308

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

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

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Joshua B. Taylor, Student Director, Gregory Asay, Student Intern, of the Prosecution Assistance Program.  Argument by Mr. Asay.

Date of Decision: April 5, 2012

Facts: Miachel G. Maier, the appellant, was convicted of both first-degree and attempted first-degree sexual assault.  He appealed those convictions, arguing that he was prejudiced by the admission of hearsay testimony and by prosecutorial misconduct in closing argument.  He also argued that he was denied his right to effective assistance of counsel at trial due to his attorney’s failure to object to either the hearsay testimony or the prosecutor’s closing remarks.

Issues: Whether the district court committed plain error by admitting hearsay testimony by one of the state’s witnesses.  Whether the prosecutor commit misconduct in the presentation of his closing argument. Whether defense counsel provided ineffective assistance by failing to object to the hearsay testimony and to the prosecutor’s statements in his closing argument.

Holdings:  The appellant argued his convictions should be reversed because he was prejudiced by the admission of hearsay testimony and by prosecutorial misconduct in closing argument.  Although the Court agreed that inadmissible hearsay was presented to the jury, the appellant was not prejudiced as a result.  The appellant’s own testimony provided the jury with sufficient evidence upon which to convict.  The prosecutor’s statements in his closing argument represented reasonable inferences drawn from the evidence as elicited at trial and fairly summarized the main facts of the case.  The appellant also argued that he was denied his right to effective assistance of counsel for failure to object to the hearsay testimony and to the prosecutor’s closing argument.  The appellant failed to demonstrate that his trial counsel’s performance was so deficient as to require reversal of his conviction.  Affirmed.

Justice Voigt delivered the opinion for the court.

Summary 2012 WY 49

Summary of Decision April 5, 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:  ECOSYSTEM RESOURCES, L.C. v. BROADBENT LAND & RESOURCES, LLC and SOUTH & JONES TIMBER COMPANY, INC.

Docket Number: S-11-0143

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465306

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

Representing Appellant (Plaintiff/Defendant):  Phillip William Lear of Lear & Lear, LLP, Salt Lake City, UT; James S. Lowrie; and Nathan D. Thomas of Jones Waldo Holbrook & McDonough, PC, Salt Lake City UT.  Argument presented by Mr. Lowrie.

Representing Appellee (Plaintiff/Defendant): Anna Reeves Olson and Weston W. Reeves of W.W. Reeves, Casper, WY; Mark W. Gifford of Gifford & Brinkerhoff, Casper, WY; and Clayton Thomas, Evanston, WY.  Argument presented by Mr. Gifford.

Date of Decision: April 5, 2012

Facts: This is the second time the present case has been appealed to this Court.  In the first appeal, the Court reversed a judgment on the pleadings and remanded for proceedings to examine the facts and circumstances surrounding Union Pacific’s reservations of timber in deeds from the early 1900s in order to determine the parties’ intent with regard to the duration of the timber estates.  Ecosystem Resources, LC v. Broadbent Land & Resources, LLC, 2007 WY 87, 158 P.3d 685 (Wyo. 2007) (Ecosystem I).  After a bench trial, the district court concluded “in using the term ‘timber,’ Union Pacific intended to reserve only those trees (1) in existence at the time of the grant and (2) of sufficient size to be suitable for use in construction.”  The district court also concluded from the facts and circumstances that the parties intended Union Pacific to have a reasonable time to harvest the timber from the encumbered properties.  It ruled that Union Pacific’s timber reservations had expired because the reserved timber was no longer located on the properties and, in any event, more than a reasonable time had passed.  The district court also ruled, in the alternative, that Broadbent had acquired title to the timber by adverse possession.  It, therefore, granted judgment in favor of the surface owner, Broadbent Land & Resources, LLC[1] and against the timber estate owner, Ecosystem Resources, L.C.

Issues: Ecosystem raised the following issues on appeal: Whether the trial court erred in concluding that the facts and circumstances surrounding the deeds at issue [dated] 1906, 1908 and 1909 indicate an intent of the parties to those deeds to limit the duration of the timber reservation set forth therein. Whether the trial court erred in finding that [Broadbent] had removed timber on disputed lands for a period sufficient to support a finding of adverse possession.

Broadbent offered a more detailed statement of the issues: Whether the district court’s finding that the facts and circumstances surrounding the execution of the timber deeds demonstrated an intent to limit the duration of the timber reservation to a reasonable time was clearly erroneous. Whether the district court’s finding that the timber reservations applied only to timber existing at the time of the deeds was clearly erroneous. Whether the district court erred in construing the deeds against the drafter. Whether the district court erred in considering the subsequent conduct of the parties. Whether the district court’s findings that Broadbent proved the elements of adverse possession [were] clearly erroneous.

Holdings:  Resolving Ecosystem’s appeal, the Court concluded that the district court properly ruled, on the evidence before it, that Union Pacific intended its reservation of “timber” to include only trees of a suitable size which existed on the subject properties at the time of the deeds.  The evidence presented at trial clearly established that such timber no longer exists on the properties.  Consequently, the Court affirmed the district court’s order granting judgment in favor of Broadbent.

Justice Hill delivered the opinion for the court.