Thursday, May 31, 2012

Summary 2012 WY 77


Summary of Decision May 31, 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:  Guerrero v. State of  Wyo.

Citation:  2012 WY 76

Docket Number: S-10-0263


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

Representing Appellant (Defendant):  Diane E. Courselle, Director, and Brian Quinn, Student Intern, Defender Aid Program, University of Wyoming College of Law.  Argument by Mr. Quinn.

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

Date of Decision: May 31, 2012

Facts:  Appellant was employed as a restaurant where servers were required to use the restaurant’s computers to enter food orders and generate customer checks. Because the computers do not hold cash, Appellant and the other servers at the restaurant were required to hold money received from cash-paying customers until the end of a shift.  Another employee observed Appellant apparently entering a manager’s code into the computer, and reported the incident to her supervisor.  Upon review of Appellant’s server records, the supervisor discovered an inordinate number of voids and discounts that had apparently gone unnoticed for over two years.  The server records indicated that Appellant had used a manager’s code to enter voids and discounts on days when that manager was not working.
Following a law enforcement investigation, the State charged Appellant with felony larceny.  In preparation for trial, Appellant proposed that the jury be required to find that he “[s]tole, took and carried, led or drove away” property of another with intent to deprive, echoing the language of Wyo. Stat. Ann. § 6-3-402(a).  The State submitted a proposed instruction requiring the jury to find that Appellant “took” property of another.  The district court, however, drafted an instruction that would require the jury to find that Appellant “took and carried away” property of another.  At the jury instruction conference, the district court altered its proposed jury instruction by substituting “stole” for “took and carried away.”  Appellant initially objected to the modification, but subsequently withdrew the objection.

At trial, the State contended that Appellant had been voiding and discounting customer orders without the customers’ knowledge, and retaining the difference between the full prices paid by the customers and the discounted prices reflected on Appellant’s server reports.  The Stat presented evidence that Appellant’s server records showed that on many days the number of voids and discounts attributable to Appellant surpassed the total entered by all other servers working on those days.  The evidence also indicated, however, that the restaurant computer’s cashier program allowed managers to alter or amend customer checks after they had been entered in the computer.

After being instructed, the jury deliberated and returned a guilty verdict.

The district court sentenced Appellant to three to five years of imprisonment, and suspended that term of incarceration in favor of seven years of supervised probation.  Appellant did not initially appeal his conviction and sentence, but subsequently petitioned this Court for a Writ of Certiorari to reinstate his right to take a direct appeal.  The Court granted Appellant’s petition in full and restored Appellant’s right to appeal from the judgment.  This appeal followed.

Issues: 1) Whether the district court erred in failing to include the elements of “taking” and “carrying” in the jury instruction setting forth the elements of larceny; and 2) Whether there was sufficient evidence to support the conviction of felony larceny?

Holdings:  The Court determined it did not need to decide whether the instructional error was prejudicial to Appellant, because the Court found that Appellant’s second issue, regarding the sufficiency of the evidence, was dispositive.  The Court found that, because the State’s evidence did not establish that the money was ever in the restaurant’s possession, Appellant’s activities could not have constituted a taking under Wyo. Stat. Ann. § 6-3-402(a).  Instead, the State’s evidence tended to show that Appellant’s activities amounted to a conversion under Wyo. Stat. Ann. § 6-3-402(b), but Appellant was not charged with a violation of that statute.  As a result, even when the evidence was viewed in the light most favorable to the State, and when all reasonable inferences from the evidence are granted, the Court could not conclude that the evidence was sufficient to show that Appellant’s activities constituted a taking, as opposed to a conversion, of money belonging to the restaurant

The Court reversed Appellant’s conviction and remanded with directions that the district court enter a judgment finding Appellant not guilty of the crime charged.

J. Burke delivered the opinion for the court. 

Summary 2012 WY 76


Summary of Decision May 31, 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:  Michael’s Constr. v. Am. Nat’l Bank

Citation:  2012 WY 76

Docket Number: S-11-0209; S-11-0210


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

Representing Appellant Michael’s Construction: (Plaintiff/Defendant):  James L. Edwards of Stevens, Edwards, Hallock, Carpenter & Phillips, P.C., Gillette, Wyoming.

Representing Appellee American National Bank (Defendant /Plaintiff):  Clint A. Langer of Davis & Cannon, LLP, Sheridan, Wyoming.

Date of Decision: May 31, 2012

Facts:  After the owner of a construction project in Campbell County defaulted on its obligations to various creditors, mortgage holder Pinnacle Bank foreclosed on the real property securing its mortgage.  Junior mortgage holder American National Bank (ANB) and construction lienholder Michael’s Construction, Inc. (Michael’s) both sought payment from the surplus funds resulting from the foreclosure proceeding.  The district court declared that ANB’s mortgage was superior to Michael’s lien, but denied ANB’s request for contractual interest from the date of foreclosure through the date of final judgment.  Both parties appealed.

Issue (S-11-0209): Whether the district court properly determined that ANB’s mortgage had priority over Michael’s lien.
Issue (S-11-0210): Whether the district court erred in denying ANB the recovery of interest at the contractual rate.

Holdings:  The Court held that W.S. § 29-1-305 clearly gave ANB’s mortgage priority over Michael’s lien.  On the issue of recovery of interest, the Court found the terms of the promissory note included payment of interest through the time of judgment.  ANB’s right to interest was as important a contractual provision as its right to collect the principal.  The Court therefore concluded that the district court did not have the discretion to limit ANB’s recovery by denying it interest at the contractual rate from the time of foreclosure through final judgment. 

Affirmed in part, and reversed and remanded in part.  

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

Wednesday, May 30, 2012

Summary 2012 WY 75


Summary of Decision May 30, 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:  In the Matter of U.S. Currency totaling $7,209.00: Libretti v. State of Wyo.

Citation:  2012 WY 75

Docket Number: S-11-0243   


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

Representing Appellants (Claimants): Joseph Libretti and Frank A. Hohlios, pro se

Representing Appellee (Plaintiff): Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General

Date of Decision: May 30, 2012

Facts:  This is an appeal from a forfeiture order entered by the district court against a total of $116,584.43 and certain items of personal property.  The cash and personal property were seized from several individuals because of their alleged use in violation of the Wyoming Controlled Substances Act.  Appellants claimed $7,209.00 of the cash seized. Both timely responded to the Forfeiture Complaint with the filing of motions to dismiss or in the alternative for a more definite statement.  On August 10, 2011, the district court held the evidentiary hearing on the State’s Forfeiture Complaint.  Appellant Libretti appeared by telephone and objected when the court called the hearing as an evidentiary hearing.  Appellant Hohlios attended the hearing, but the court was not aware of his presence.  On August 26, 2011, the district court issued its Forfeiture Order, finding that the funds seized from Appellants were proceeds from violations of the Wyoming Controlled Substances Act. 

Issues:  I) Whether the District Court erred in not ruling on the claimants’ Motion to Dismiss/Motions for more Definite Statement; II) Whether the District Court erred in not allowing claimants to file an Answer, conduct discovery, and file Motions for Summary Judgment; III) Whether the District Court erred in not ruling on, and not granting, Claimants’ Motions for more Definite Statement; IV) Whether claimants were wrongly denied a Jury trial; V) If the August 10, 2011 proceeding was only an evidentiary hearing, as Plaintiff claims, and not a trial, whether the Court then lacked authority to enter its judgment; and VI) Whether claimant Hohlios was unfairly denied his right to be heard at trial.

Holdings:  The Court held that the district court acted in accordance with the Wyoming Rules of Civil Procedure in ruling on the State’s Forfeiture Complaint and did not deny the rights of Appellants to file answers, conduct discovery, file summary judgment motions, or otherwise fully participate in the proceedings.

The Court affirmed. 

J. Golden delivered the opinion for the court.

Friday, May 25, 2012

Summary 2012 WY 74

Summary of Decision May 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: Mitcheson v. State, ex rel., Wyo. Worker’s Safety and Comp. Div.

Citation: 2012 WY 74

Docket Number: S-11-0236

URL: http://www.courts.state.wy.us/Opinions.aspx

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

Representing Appellant (Petitioner): Robert A. Nicholas, Nicholas & Crank, PC, Cheyenne, Wyoming.

Representing Appellee (Respondent): Gregory A. Phillips, Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General.

Date of Decision: May 25, 2012

Facts: The Wyoming Workers’ Safety and Compensation Division awarded benefits to Appellant after he fell at work and injured his tailbone in 2007. Months later, Appellant found a job driving a truck, which required a commercial driver’s license (CDL). On the health history portion of each of his medical examinations for his CDL, Appellant did not report a history of spinal injury or disease, or chronic low back pain. Approximately twenty months after his workplace injury, and approximately five months after he began working as a truck driver, Appellant returned to the hospital and reported that he had been having pain in his lower back since the accident in 2007. The treating physician ordered an x-ray, determined that Appellant’s complaints stemmed from his 2007 injury, and submitted a bill to the Division along with a request for authorization for an MRI.

The Division denied payment and subsequently issued a final determination denying payment for medical care that Appellant claimed was related to his workplace injury. Appellant requested a contested case hearing, and the Office of Administrative Hearings (OAH) upheld the Division’s determination. Appellant appealed to the district court, which upheld the OAH’s order. He challenged the district court’s decision in this appeal.

Issues: 1) Whether the OAH Order is arbitrary and unsupported by substantial evidence; 2) Whether the OAH Order denying payment for treatment of Appellant’s tailbone injury is arbitrary; and 3) Whether the OAH Order denying payment for medical care is contrary to the “Rule Out” Rule and therefore contrary to law.

Holdings: The Court found that the hearing examiner’s findings are supported by substantial evidence. Specifically, the Court determined that the hearing examiner could reasonably conclude that Appellant’s account of unrelenting pain since his injury was inconsistent with the failure to report his back symptoms for over twenty months after his injury. Second, the hearing examiner’s finding that Appellant’s testimony was not consistent with the symptoms documented in his medical history also found support in the record. Finally, the hearing examiner could reasonably determine that Appellant’s explanations for his failure to report his back symptoms for nearly two years, as well as his failure to report his symptoms on his department of transportation medical exams, reflected poorly on his credibility.


In regards to the second issue of denial of payment for treatment of the tailbone injury, the Court found that the physiologic connection between the claimant’s injury and the diagnostic measure at issue was absent in this case. Given the lack of such a connection, the Court concluded that the treatment was not compensable as a diagnostic test.


In regards to the final issue, because there was no indication that any treatment received was intended to “rule out” the possible causes of Appellant’s back pain, the Court found no basis for Appellant’s claim that treatment received was compensable as a diagnostic measure.


Affirmed.


J.Burke delivered the opinion for the court.



Thursday, May 24, 2012

Summary 2012 WY 73

Summary of Decision May 24, 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: Marvin Kenneth Shue v. The State of Wyoming

Docket Number: S-11-0201

URL:
http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465694

Date of Order: May 24, 2012

This matter came before the Court upon its own motion following notification that appellant has not filed a pro se brief within the time allotted by this Court. Appellant pled guilty to one count of sexual abuse of a minor in the first degree. This is Appellant’s direct appeal from that conviction. On March 5, 2012, Appellant’s court-appointed appellate counsel filed a “Motion to Withdraw as Counsel,” pursuant to Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). Following a careful review of the record and the “Anders brief” submitted by counsel, this Court, on March 27, 2012, entered its “Order Granting Permission for Court Appointed Counsel to Withdraw.” That Order notified Appellant that the District Court’s June 2, 2011 “Judgment and Sentence” would be affirmed unless, on or before May 11, 2012, Appellant filed a brief that persuaded this Court that the captioned appeal is not wholly frivolous. Taking note that Appellant, Marvin Kenneth Shue, has not filed a brief or other pleading within the time allotted, the Court finds that the district court’s “Judgment and Sentence” should be affirmed. It is therefore ordered that the District Court’s June 2, 2011 “Judgment and Sentence” be, and the same hereby is, affirmed.





Summary 2012 WY 72

Summary of Decision May 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: CHRISTINE NODINE, Personal Representative of the Estate of DAVID NODINE v. JACKSON HOLE MOUNTAIN RESORT CORPORATION, a Wyoming Corporation

Docket Number: S-11-0265

URL:
http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465693

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

Representing Appellant (Plaintiff/Defendant): Andrew L. Payne and Shannon T. Hays of Payne Mitchell Law Group, Dallas, Texas; Terry W. Mackey of Terry W. Mackey, P.C., Cheyenne, Wyoming

Representing Appellee (Plaintiff/Defendant): James K. Lubing and Leah K. Corrigan of Lubing & Corrigan, LLC, Jackson, Wyoming; Mikel L. Moore of Moore, Cockrell, Goicoechea & Axelberg, P.C., Kalispell, Montana

Date of Decision: May 23, 2012

Facts: Christine Nodine (Mrs. Nodine), whose husband was killed by an avalanche on a ski run at Jackson Hole Mountain Resort (JHMR), appeals the district court’s summary judgment order dismissing her wrongful death action. The district court dismissed the action because Mrs. Nodine, although duly appointed as personal representative of her husband’s estate in her home state of Texas, had not been appointed personal representative by the Wyoming state district court upon the filing of her wrongful death action and before the two-year period for filing the wrongful death action expired.

Issues: Mrs. Nodine presents the following issues on appeal:

1. Did the District Court err by applying the holding of Estate of Johnson, 2010 WY 63, 231 P.3d 873 (Wyo. 2010), to this case given that the opinion provides the ruling would have prospective application only and the cause of action in this matter accrued long before the publication of Estate of Johnson?

2. If Estate of Johnson applied, would the confirmation of Mrs. Nodine as personal representative by the District Court have related back to the initial filing of her timely state court complaint under the Wyoming Wrongful Death Act?

3. Did the District Court commit error when it concluded that a personal representative lawfully appointed by a Texas probate court, who then timely filed her wrongful death complaint, failed to meet the conditions precedent for bringing a Wrongful Death Act claim in Wyoming?

4. Did the District Court err in ruling that JHMR had standing to challenge Mrs. Nodine’s capacity?

Holdings: This Court’s decision in Johnson does not apply retroactively to strip Mrs. Nodine of her status as a properly appointed personal representative in her wrongful death action against JHMR. The Court reversed the district court order dismissing that action.

Justice Golden delivered the opinion for the court.





Summary 2012 WY 71

Summary of Decision May 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: IN THE MATTER OF THE WORKER’S COMPENSATION CLAIM OF: CATHERINE LYNNETTE MORRIS v. STATE OF WYOMING ex rel. WYOMING WORKERS’ SAFETY AND COMPENSATION DIVISION

Docket Number: S-11-0167

URL:
http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465692

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

Representing Appellant (Plaintiff/Defendant): James C. Worthen of Murane & Bostwick, LLC, Casper, Wyoming

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General

Date of Decision: May 22, 2012

Facts: Catherine Lynnette Morris (Morris) submitted a worker’s compensation claim for permanent total disability (PTD) benefits, and the Wyoming Workers’ Safety and Compensation Division (Division) denied her claim. Morris sought review by the Wyoming Medical Commission (Commission), which upheld the Division’s denial of benefits. The district court affirmed.

On appeal, Morris did not contend that the Commission’s decision was unsupported by substantial evidence or that the Commission misapplied the law. Morris instead challenged two evidentiary rulings by the Commission: 1) the admission of a psychological report produced after the discovery cutoff; and 2) a limitation on the scope of Morris’ testimony to matters not testified to in the Division’s discovery deposition of Morris.

Issues: Morris presents the following issues on appeal:

Issue 1 – Did the Hearing Officer err when he admitted the expert report of Dr. Kenneth Bell into evidence?

Issue 2 – Did the Hearing Officer err when he denied Ms. Morris the opportunity to present live testimony before the Medical Commission on matters previously discussed in her discovery deposition?

Holdings: The Court found no abuse of discretion in the Commission’s admission of Dr. Bell’s psychological report, but found that the Commission did abuse its discretion in the limitation it placed on the testimony of Morris. Morris did not object below to that limitation, however, and the Court concluded she waived her right to appeal that issue. The decision of the Commission is affirmed.

Justice Golden delivered the opinion for the court.





Summary 2012 WY 70

Summary of Decision May 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: CHRISTOPHER RAY COUNTS v. THE STATE OF WYOMING,

Docket Number: S-11-0160

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465691

Appeal from the District Court of Natrona County, Honorable Catherine E. Wilking, 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): Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Meri Geringer, Senior Assistant Attorney General. Argument by Ms. Geringe.

Date of Decision: May 22, 2012

Facts: Christopher Ray Counts was convicted of aggravated burglary and kidnapping. He raised several issues on appeal, but the Court found no reversible errors in the district court proceedings.

Issues: Mr. Counts presented these issues:

Did the court abuse its discretion by refusing to admit complete documents and recordings and by admitting altered documents?

Did the court abuse its discretion by denying Mr. Counts the right to cross-examine and impeach the witness against him in violation of his constitutional rights?

Did the court abuse its discretion in denying the motion for a bill of particulars?

Did the court improperly instruct the jury?

Was the verdict inconsistent?

Was there sufficient evidence to support the verdict?

Holdings: After a thorough analysis and a finding of sufficient evidence to support the conviction on the charge of aggravated burglary, the Court affirmed the decision of the district court.

Justice Burke delivered the opinion for the court.





Summary 2012 WY 69

Summary of Decision May 17, 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: TIMOTHY DAVID KRAMER v. THE STATE OF WYOMING

Docket Number: S-11-0043

http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465690
Appeal from the District Court of Carbon County, Honorable Wade E. Waldrip, Judge

Representing Appellant (Plaintiff/Defendant): Donna D. Domonkos, Domonkos Law Office, Cheyenne, WY.

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

Date of Decision: May 17, 2012

Facts: Timothy David Kramer was convicted of attempted first-degree murder and complains on appeal that the jury was improperly instructed, that he received ineffective assistance of counsel, and that a witness improperly testified by video conference.

Issues: Kramer listed three issues for consideration:

1) The jury was not properly instructed on the elements of first-degree murder as the instructions did not state the jury had to find unanimously that Kramer did not act in the defense of others and the verdict form did not give the jury a venue to make this finding.

2) Kramer received ineffective assistance of counsel when his counsel failed to investigate the case and failed to object to the proposed jury instructions.

3) The trial court erred when it allowed one of the main witnesses in the trial to testify via video conference.

Holdings: Plain error was not committed when instructing the jury. No clear rule of law obligated the district court to blend the elements instructions with the defense-of-others instructions and as a whole, the instructions effectively identified the issues that the jury needed to resolve. Furthermore, Kramer received effective assistance of counsel and counsel’s investigation was sufficient. Finally, the district court did not abuse its discretion or violate Kramer’s confrontation right when it allowed a witness to testify by video conference. Under the circumstances, presentation of his testimony in that manner was necessary to further an important public policy and the reliability of the testimony was otherwise assured. Affirmed.

Justice Hill delivered the opinion for the court.



Summary 2012 WY 68

Summary of Decision May 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: IN THE MATTER OF THE TERMINATION OF PARENTAL RIGHTS TO: ZMETS, ZCJS, ZPMS, and ZKMS, Minor Children, DMM, v. THE STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES

Docket Number: S-11-0212

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465689

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

Representing Appellant (Plaintiff/Defendant): Timothy C. Cotton, Timothy C. Cotton, PC, Casper, Wyoming

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

Guardian Ad Litem: Roxie Hensley, Hensley Law LLC, Laramie, Wyoming.

Date of Decision: May 16, 2012

Facts: Appellant, DMM, challenged the district court’s order terminating her parental rights pursuant to Wyo. Stat. Ann. §§ 14-2-309(a)(iii) and (a)(v). She claimed there was insufficient evidence to support the district court’s decision.

Issues: Appellant raised the following issues: Whether the Trial Court record contains clear and convincing evidence supporting termination under applicable Wyoming Statutes.

The Department of Family Services (DFS) presented the issues as follows: Can Mother, who failed to timely answer the petition to terminate parental rights, appeal the entry of a default judgment on the basis of sufficiency of the evidence?

Was there sufficient evidence presented in the default hearing and in the complaint to constitute clear and convincing evidence to support the termination of Mother’s parental rights?

The children’s guardian ad litem phrased the issue in a substantially similar manner.

Holdings: The district court’s order terminating Appellant’s parental rights was affirmed.

Justice Burke delivered the opinion for the court.





Summary 2012 WY 67

Summary of Decision May 15, 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: ALFRED LEE BALDES v. THE STATE OF WYOMING

Docket Number: S 11 0168

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465619

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

Representing Appellant (Plaintiff/Defendant): David Hooper and Katherine A. Strike, of Hooper-Strike Law Offices, LLC, Lander, WY. Argument by Ms. Strike.

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

Date of Decision: May 15, 2012

Facts: Alfred Lee Baldes (Baldes) appeals his conviction of two counts of third-degree sexual assault, contending insufficiency of the evidence and improper admission of W.R.E. 404(b) evidence.

Issues: Whether the evidence presented at trial was insufficient to sustain Alfred Baldes’ conviction, specifically there was insufficient evidence to prove that Mr. Baldes was in a position of authority and that sexual contact occurred, as required by W.S. § 6-2-303(a)(vi) and W.S. § 6-2-304(a)(iii), respectively. Whether the trial court erred and abused its discretion when, following an improper Gleason analysis, it allowed the introduction of W.R.E. 404(b) evidence, specifically the testimony of J.G., which was ultimately not offered for its proper purpose by the State.

Holdings: The Court concluded that ample evidence was presented to prove that Baldes was in a position of authority over and had sexual contact with the victim, K.S. Furthermore, the district court followed a proper Gleason analysis of the proffered Rule 404(b) evidence, and the evidence served the purpose for which it was admitted. Affirmed.

Justice Hill delivered the opinion for the court.

Thursday, May 10, 2012

Summary 2012 WY 66

Summary of Decision May 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: YALE PRESTON v. MARATHON OIL COMPANY and THOMAS SMITH

Docket Number: S-11-0166

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465579

Certified Question from the United States Court of Appeals for the Federal Circuit, The Honorable William C. Bryson, Circuit Judge

Representing Appellant (Plaintiff/Defendant): Philip A. Nicholas and Mitchell H. Edwards, Nicholas & Tangeman, LLC, Laramie, Wyoming. Argument by Mr. Edwards.

Representing Appellee (Plaintiff/Defendant): Mark R. Ruppert, Joanna R. Vilos and Tyler J. Garrett, Holland & Hart LLP, Cheyenne, Wyoming; Shane P. Coleman, Holland & Hart LLP, Billings, Montana. Argument by Mr. Ruppert.

Date of Decision: May 10, 2012

Facts: The United States Court of Appeals for the Federal Circuit certified a question regarding the validity of an assignment of intellectual property rights given by Yale Preston to Marathon Oil Company without any additional consideration other than continued at-will employment.

Certified Question: Does continuing the employment of an existing at-will employee constitute adequate consideration to support an agreement containing an intellectual property-assignment provision?

The answer to the question is “yes,” continuation of at-will employment is sufficient consideration for an agreement requiring assignment of intellectual property.

Chief Justice Kite delivered the opinion for the court.

Wednesday, May 09, 2012

Summary 2012 WY 65

Summary of Decision May 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: RICKY D. MILLER and CHRISTOPHER L. GONZALEZ v. WYOMING DEPARTMENT OF HEALTH, TOM FORSLUND, Director, TOM JOHNSON, Chemical Testing Supervisor, JAMES L. MOORE, Laboratory Supervisor

Docket Number: S-11-0197

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465570

Appeal from the District Court of Laramie County, the Honorable Michael K. Davis, Judge
Representing Appellant (Plaintiff/Defendant): Cole N. Sherard, Wheatland, WY.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General, and Robin Sessions Cooley, Deputy Attorney General.

Date of Decision: May 9, 2012

Facts: After being separately cited and arrested for driving while under the influence of alcohol (DWUI) in violation of Wyoming law, Ricky D. Miller and Christopher L. Gonzalez petitioned the district court for review of agency inaction by the Wyoming Department of Health (WDOH). Miller and Gonzalez requested that the district court require the WDOH to retroactively decertify the chemical test operators (hereinafter “officers”) who had performed chemical tests of Miller’s and Gonzalez’s breath to determine the quantity of alcohol in their respective bodies. On motion by the WDOH, Tom Forslund, in his official capacity as director, Tom Johnson in his official capacity as chemical testing laboratory manager, and James L. Moore, in his official capacity as laboratory supervisor (collectively referred to as “Department”), the district court dismissed the “Petition for Judicial Review” on the grounds that Miller and Gonzalez lacked standing to bring the action and that the matter is not ripe for review. Miller and Gonzalez challenged the order dismissing their petition.

Issues: Miller and Gonzalez presented two issues for consideration: Is the Appellants’ Petition for Judicial Review, challenging the WDOH failure to decertify the officers’ certification to perform chemical analysis ripe for review by this Court? Do the Appellants have standing to petition the district court to order the WDOH to decertify these officers for failing to comply with [its] own administrative rules and regulations for chemical testing?

Holdings: Miller and Gonzalez lacked standing to bring the action set forth in their “Petition for Judicial Review.” Affirmed.

Justice Hill delivered the opinion for the court.





Friday, May 04, 2012

Summary 2012 WY 64

Summary of Decision May 4, 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: EARL D. WALLACE and NAWANA V. WALLACE v. PINNACLE BANK - WYOMING

Docket Number: S 11 0230

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465540

Appeal from the District Court of Hot Springs County, Honorable Robert E. Skar, Judge
Representing Appellant (Plaintiff/Defendant): Stephen R. Winship of Winship & Winship, P.C., Casper, Wyoming

Representing Appellee (Plaintiff/Defendant): Michael Messenger and Curtis Cheney of Messenger & Jurovich, P.C., Thermopolis, Wyoming. Argument by Mr. Cheney.

Date of Decision: May 4, 2012

Facts: Earl D. Wallace and Nawana V. Wallace (the Senior Wallaces) borrowed $15,789 from Pinnacle Bank - Wyoming (Pinnacle) to finance a vehicle the Senior Wallaces purchased for their son and his wife (the Junior Wallaces). Although the Senior Wallaces borrowed the money in their own names and agreed to make the payments on the loan, the collateral for the loan was the vehicle they bought for and titled in the Junior Wallaces’ names. To that end, the Junior Wallaces signed a Third Party Security Agreement pledging the vehicle as collateral.

The day following the loan transaction, the Junior Wallaces filed a bankruptcy petition. During the course of the bankruptcy, the bankruptcy trustee seized and eventually sold the vehicle to benefit the bankruptcy estate. The Senior Wallaces thereafter stopped making payments on the loan.

After making demand for payment, Pinnacle filed a complaint in district court seeking damages in the amount of the principal due on the note together with accrued interest, late fees, and attorney fees. The Senior Wallaces contended that because Pinnacle had not taken sufficient steps to protect the vehicle from seizure by the bankruptcy court, the Senior Wallaces no longer had any obligation to repay the loan. The district court rejected the defenses asserted by the Senior Wallaces and granted Pinnacle’s motion for summary judgment.

Issues: The Senior Wallaces presented the following issues on appeal:

1. Whether Appellee is barred from collecting from Appellants due to the application of the doctrine of avoidable consequences?

2. Whether Appellants’ loan obligation was discharged by a supervening frustration?

3. Whether Appellee’s impairment of the collateral securing the loan precludes it from collecting on the loan?

4. When Appellee transferred its lien to the Bankruptcy Trustee, was Appellee no longer the proper party in interest to collect on the loan obligation?

5. Whether the failure to provide Appellants with notice of the sale of the collateral should have barred Appellee’s suit?

Holdings: The Senior Wallaces are in default on their Loan Agreement with Pinnacle, and are not excused from performance by any of their asserted defenses. The Court affirmed the judgment of the district court in favor of Pinnacle and remanded for further proceedings consistent with this opinion, including a determination of the accrued interest and attorney fees and execution on the judgment.

Justice Golden delivered the opinion for the court.







Summary 2012 WY 63

Summary of Decision May 1, 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: FRANK J. JONES v. DAN ARTERY

Docket Number: S-11-0173

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465522

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

Representing Appellant (Plaintiff/Defendant): Frank J. Jones, pro se

Representing Appellee (Plaintiff/Defendant): Richard A. Mincer and Melissa R. Skorcz of Hirst Applegate, LLP, Cheyenne, Wyoming

Date of Decision: May 1, 2012

Facts: In June 2009, Dan Artery (Artery) was attacked by three Boston terriers that were under the care and responsibility of Frank Jones (Jones) and Amy Bates (Bates). Artery brought an action against Jones and Bates for injuries Artery sustained during the attack. On the morning of trial, Jones admitted one hundred percent liability for the injuries, and the district court dismissed Bates as a defendant. The remaining question of damages was then tried to a jury, and the jury awarded Artery damages in the amount of $13,059.83. Thereafter, the district court, over the objections of Jones, ordered Jones to pay Artery’s costs in the amount of $1,005.20. Jones appeals a portion of the awarded costs.

Issues: Whether the district court abused its discretion in awarding certain costs to Appellee.

Holdings: The Court affirmed in part and reversed in part. The district court abused its discretion in awarding $70.00 for witness subpoena service fees for the vacated November 2010 trial. The Court found no other abuse of discretion in the district court’s award, and remanded for entry of an order awarding costs consistent with this opinion.

Justice Golden delivered the opinion for the court.







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