Summary 2012 WY 93

Summary of Decision June 27, 2012


Order affirming the judgment and sentence of the District Court

Case Name: Dennis Jay Gross v. The State of Wyoming

Docket Number: S-11-0296

URL: http://www.courts.state.wy.us/Opinions.aspx
Order affirming the judgment and sentence of the District Court

Date of Order: June 27, 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. Pursuant to a plea agreement, Appellant entered a “no contest” plea to driving under the influence of alcohol, a fourth offense felony under Wyo. Stat. Ann. § 31-5-233(e). This is Appellant’s direct appeal from the resulting conviction. On March 27, 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 April 24, 2012, entered its “Order Granting Permission for Court Appointed Counsel to Withdraw.” That Order notified Appellant that the District Court’s October 7, 2011 “Judgment and Sentence” would be affirmed unless, on or before June 11, 2012, Appellant filed a brief that persuaded this Court that the captioned appeal is not wholly frivolous. Taking note that Appellant, Dennis Jay Gross, 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 October 7, 2011, “Judgment and Sentence” be, and the same hereby is, affirmed.

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

[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]

Summary 2012 WY 92

Summary of Decision June 27, 2012


Justice Golden delivered the opinion for the Court. Affirmed.

Case Name: MONICA S. CLAMAN v. JEAN M. POPP

Docket Number: S-11-0254

URL: http://www.courts.state.wy.us/Opinions.aspx
Appeal from the District Court of Sweetwater County, Honorable Jere A. Ryckman, Judge

Representing Appellant (Plaintiff/Defendant): Michael Stulken, Attorney at Law, Green River, Wyoming

Representing Appellee (Plaintiff/Defendant): James K. Lubing and Leah K. Corrigan of Lubing & Corrigan, LLC, Jackson, Wyoming. Argument by Ms. Corrigan.

Date of Decision: June 27, 2012

Facts: In July 2008, Monica Claman (Claman) purchased a house in Rock Springs, Wyoming, from Jean Popp (Popp). In September 2008, Claman filed an action against Popp based on subsidence-caused defects in the house. The district court entered summary judgment against Claman on her breach of contract and negligent misrepresentation claims, and following a bench trial, it entered judgment against her on her fraudulent inducement claim.

Issues: Claman presents the following issues on appeal:

1. Whether the trial court appropriately entered summary judgment against Appellant as to her breach of contract claim.

2. Whether the trial court appropriately entered summary judgment against Appellant as to her claim for negligence/negligent misrepresentation.

3. The legal conclusions reached by the district court as to the facts presented relating to the Appellee’s claims to the Wyoming Department of Environmental Quality were improper.

Holdings: The district court’s summary judgment against Claman’s breach of contract and negligent misrepresentation claims was in accordance with law and the undisputed facts. The Court also concluded that the court’s findings of fact on Claman’s fraudulent inducement claim were not clearly erroneous and its conclusions and order were in accordance with law. Affirmed.

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

[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]

Summary 2012 WY 91

Summary of Decision June 27, 2012


Chief Justice Kite delivered the opinion for the Court. Affirmed.

Case Name: KEVIN EUGENE KIDWELL v. THE STATE OF WYOMING

Docket Number: S-11-0238

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

Appeal from the District Court of Natrona County, Honorable W. Thomas Sullins, 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, Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General.

Date of Decision: June 27, 2012

Facts: Kevin Eugene Kidwell challenged his convictions for false imprisonment and simple assault. He claimed the prosecutor committed misconduct by failing to give prior notice of evidence suggesting he had attempted to persuade a witness to testify falsely in his favor at trial in violation of W.R.E. 404(b).

Issues: Mr. Kidwell presented the following issue on appeal:

Did the prosecutor commit misconduct when he admitted [sic] 404(b) evidence without providing notice?

The State provided a more detailed statement of the issue:

Proposed defense witness, Andrew Scott, abandoned his plan to testify falsely on Kidwell’s behalf and advised the prosecution of both his plan and his change of heart shortly before the end of the noon recess on the third day of trial. Without first notifying defense counsel, the prosecutor called Scott, to repeat his story, as the second witness of the afternoon. Does the record as a whole support the district court’s conclusion that the prosecutor’s omission was neither misconduct nor prejudicial?

Holdings: Mr. Kidwell failed to demonstrate a clear violation of law or any prejudice. Affirmed.

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

[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]

Summary 2012 WY 90

Summary of Decision June 26, 2012


Justice Burke delivered the opinion for the Court. The district court’s decision was reversed and remanded for resentencing.

Case Name: Michael Patterson v. The State of Wyoming

Docket Number: S-11-0246

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

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

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

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

Date of Decision: June 26, 2012

Facts: Michael Patterson claimed that the sentence he is serving for a conviction of accessory to second degree murder is illegal.

Issues: Mr. Patterson presented a single issue: Did the district court err by reinstituting an illegal sentence? The State raised a different issue: Is Mr. Patterson’s claim barred from review under the doctrine of res judicata?

Holdings: The Court agreed with the district court that Mr. Patterson’s sentence of 240-267 months was illegal and must be set aside. The Court also concluded that the reinstituted sentence of 20-22 years is illegal, and must set it aside as well. The Court reversed the district court’s decision and remanded to the district court so that Mr. Patterson may be resentenced.

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

[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]

Summary 2012 WY 89

Summary of Decision June 22, 2012


Chief Justice Kite delivered the opinion for the Court. Affirmed.

Case Name: VIC AND JANE GARBER; SANDRA LANGE, Trustee of the Sandra K. Lange Trust; FRED AND WENDY LARSON; FRED SMITH; MICHAEL AND NITA WERNER; ROSS AND BIFF GORMAN; DR. KIRBY KIRKLAND; and DAVE AND GLYNDA EDWARDS v. WAGONHOUND LAND & LIVESTOCK COMPANY, LLC; VENJOHN OIL, INC., and STEVEN M. VENJOHN

Docket Number: S 11 0006

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

Appeal from the District Court of Converse County, Honorable Keith G. Kautz, Judge

Representing Appellants:

Harriet M. Hageman and Kara Brighton of Hageman & Brighton, P.C., Cheyenne, Wyoming. Argument by Ms. Hageman.

Representing Appellee Wagonhound Land & Livestock Company, LLC:

Robert G. Berger and Mistee L. Godwin of Lonabaugh and Riggs, LLP, Sheridan, Wyoming. Argument by Ms. Godwin.

Representing Appellees VenJohn Oil, Inc. and Steven M. VenJohn:

No appearance.

Date of Decision: June 22, 2012

Facts: Wagonhound Land and Livestock Company, LLC (Wagonhound), VenJohn Oil, Inc., and Steven M. VenJohn (VenJohn) (collectively Applicants) filed a petition with the Wyoming State Board of Control (Board) seeking to change the place of use, point of diversion and means of conveyance for water appropriations attached to 174.8 acres. VenJohn owned the appropriations from the North Platte River and requested that the point of diversion and place of use of the rights be moved upstream to Wagonhound’s land. Vic and Jane Garber, et al. (Objectors), who were intervening water right holders, objected to the petition, and the Board held a contested case hearing. The Board granted the Applicants’ petition but reduced the transferred rights to 152.5 acres. The Objectors petitioned the district court for review of the Board’s decision, and that court affirmed. They then appealed.

Issues: The Objectors presented the following issues on appeal: 1)Whether the final decision of the Board of Control was supported by substantial evidence in the record. 2)Whether the final decision of the Board of Control was in violation of Wyo. Stat. § 41-3-104. 3)Whether the final decision of the Board of Control was in violation of Wyo. Stat. § 41-3-114.

The Applicants articulated a single issue: 1)Whether the decision of the Board of Control to grant in part and deny in part the Petition was supported by substantial evidence, and was not arbitrary, capricious, an abuse of discretion or contrary to law, in accordance with Wyo. Stat. § 16-3-114(c).

Holdings: The Court concluded that the Board’s decision was supported by substantial evidence and was consistent with the law. Affirmed.

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

[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]

Summary 2012 WY 88

Summary of Decision June 20, 2012


Justice Burke delivered the opinion for the Court. Affirmed.

Case Name: Kristen N. Spreeman v. The State of Wyoming

Docket Number: S-11-0237

URL: http://www.courts.state.wy.us/Opinions.aspx
Appeal from the District Court of Campbell County, Honorable Michael N. Deegan, Judge

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

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

Date of Decision: June 20, 2012

Facts: Appellant, Kristen N. Spreeman, challenged her conviction of felony driving while under the influence (DWUI) in violation of Wyo. Stat. Ann. §§ 31-5-233(b)(iii)(A) and (e). She claimed that she did not have three prior qualifying convictions, as required by Wyo. Stat. Ann. § 31-5-233(e), to enhance her DWUI conviction to a felony.

Issues: Appellant presented the following issue:

Did the trial court err in denying Appellant’s motion to dismiss the felony “DUI” charge against her, since she did not have three prior qualifying convictions?

The State phrases the issue as follows:

Under Wyo. Stat. Ann. § 31-5-233(e), driving while under the influence becomes a felony if a defendant has three prior convictions in this or any other state under a law prohibiting “driving while under the influence.” One of Spreeman’s three previous Michigan convictions is for driving while “visibly impaired.” Is Michigan’s prohibition against driving while “visibly impaired” a law that prohibits driving “while under the influence,” for purposes of sentencing enhancement under Wyo. Stat. Ann. § 31-5-233(e)?

Holdings: Affirmed.

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

[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]

Summary 2012 WY 87

Summary of Decision June 19, 2012


Chief Justice Kite delivered the opinion for the Court. The convictions and sentences were affirmed.

Case Name: BRYAN ELLIS PHELPS v. THE STATE OF WYOMING

JUSTIN LINDALE FITCH v. THE STATE OF WYOMING

Docket Number: S-11-0215; S-11-0216

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

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

Representing Appellant (Plaintiff/Defendant): Dion J. Custis of Dion J. Custis, PC, Cheyenne, Wyoming.

Representing Appellee (Plaintiff/Defendant): 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: June 19, 2012

Facts: A Wyoming Highway Patrol trooper stopped Bryan Ellis Phelps and Justin Lindale Fitch for a traffic violation, detained them, conducted a drug dog sniff of their vehicle and, after the dog alerted to the presence of controlled substances, searched the vehicle and found marijuana. Messrs. Phelps and Fitch were each charged with three felonies. They moved to suppress the evidence seized during the search and the district court denied the motion. They subsequently entered pleas of guilty to one of the counts, while reserving their right to appeal the denial of their suppression motion. On appeal, they challenge that denial as well as the district court’s denial of a discovery motion.

Issues: Messrs. Phelps and Fitch present the following issues for our consideration:

I. Was there reasonable cause to stop the vehicle?

II. Did the traffic stop exceed the scope of an investigatory detention?

III. Was the dog’s alert sufficient to establish probable cause for a search of the vehicle?

IV. Did the district court abuse its discretion and commit reversible error by denying the Appellants’ motions to discover[1] and to suppress?

The State asserts the initial stop was justified, the initial questioning was reasonably related to the stop, reasonable suspicion supported continued questioning, and probable cause existed to search the vehicle.

Holdings: The Court affirmed the convictions and sentences.

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

[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]

Summary 2012 WY 86

Summary of Decision June 18, 2012


Chief Justice Kite delivered the opinion for the court. The conviction and sentence was affirmed.

Case Name: Vincent James Scott v. The State of Wyoming

Docket Number: S-11-0150

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

Appeal from the District Court of Sheridan County, Honorable John G. Fenn, 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, Attorney General; David Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Travis J. Kirchhefer, Assistant Attorney General.

Date of Decision: June 18, 2012

Facts: A jury convicted Vincent James Scott of first degree sexual assault, aggravated assault and child abuse. He appealed, claiming the district court denied his Sixth Amendment right to represent himself at trial and imposed an illegal sentence.

Issues: Mr. Scott stated these issues for consideration:

I. Did the trial court arbitrarily deny Vincent Scott his constitutional right to represent himself during the criminal proceedings against him?

II. By running misdemeanor sentences concurrent with consecutive felony sentences, did the trial court create an impossible sentencing arrangement which is therefore illegal?

The State rephrased the issues as:

I. Should Scott be denied the opportunity to represent himself at trial?

II. Did the district court impose an illegal sentence when it ordered Scott to serve three misdemeanor terms concurrently with three consecutive felony terms of incarceration?

Holdings: The Court affirmed Mr. Scott’s conviction and sentence.

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

[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]

Summary 2012 WY 85

Summary of Decision June 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: Kuhl v. Wells Fargo Bank, N.A

Citation: 2012 WY 85

Docket Number: S-11-0221

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

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

Representing Appellant (Plaintiff): Bernard Q. Phelan, Phelan Law Offices, Cheyenne, Wyoming.

Representing Appellee (Defendant): Matthew E. Turner, Mullikin, Larson & Swift, LLC, Jackson, Wyoming.

Date of Decision: June 15, 2012

Facts: Appellant, a bank president, learned that Appellee was planning to purchase several banks, including his. Appellant attended a meeting at which the sales agreement was presented for shareholder approval. From that agreement, he learned that the presidents of three other banks being purchased by Appellee would be offered written two-year employment contracts. However, Appellant was not on the list of bank presidents to be offered such a contract.

Appellee’s human resource manager for the region came to Appellant’s bank to deliver written employment offers to those employees Appellee wanted to retain. Appellant was among those, and at the end of the day, the human resources manager provided him with a letter offering him employment with Appellee. The first paragraph informed Appellant that Appellee was “committed to retaining key employees such as you through this transition.” The letter also set forth a base salary, retention bonus payments after six months and one year employment, and other employment details. However, above Appellant’s signature, the letter also include a paragraph setting forth conditions of at will employment. Appellant asked the human resource manager about the “employment at will” language. The response is disputed, but Appellant contends the manager told him his employment could be terminated only if he did something illegal. Several other employment documents signed by Appellant, including an employee handbook, repeated the acknowledgement of at will employment.

The employment relationship between Appellant and Appellee deteriorated rapidly after the closing. The reasons are in dispute, but were not material at the summary judgment stage. Appellee terminated Appellant’s employment after just under six months employment.

Appellant brought wrongful termination claims against his former employer. The district court granted summary judgment against him and in favor of Appellee, and Appellant appeals that ruling.

Issues: 1) Did the district court err in granting summary judgment in favor of Appellee on Appellant’s claim for breach of an express contract of employment? 2) Did the district court err in granting summary judgment in favor of Appellee on Appellant’s claim for breach of an implied contract of employment? 3) Did the district court err in granting summary judgment in favor of Appellee on Appellant’s claim for promissory estoppel? 4) Did the district court err in granting summary judgment in favor of Appellee on Appellant’s claim for tortious breach of the implied covenant of good faith and fair dealing?

Holdings: The Court determined the written employment contract between Appellee and Appellant unambiguously provided that his employment was at-will, and was not modified orally by either Appellant or the human resource manager. The Court also concluded that because he read and understood the disclaimers, Appellant could not reasonably claim that the Appellee handbook created an implied contract modifying his status as an at-will employee. The same disclaimers that prevented the formation of an implied contract of employment, also preclude his claim of promissory estoppel. The Court also found that Appellant’s brief tenure with Appellee was insufficient to establish the sort of special relationship needed to sustain a tort claim of breach of the implied covenant of good faith and fair dealing.

Affirmed.

J. Burke delivered the opinion for the court.

Summary 2012 WY 84

Summary of Decision June 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: Black Diamond Energy Partners v. S & T Bank

Citation: 2012 WY 84

Docket Number: S-11-0206

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

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

Representing Appellants (Plaintiffs): Greg L. Goddard of Goddard, Wages & Vogel, P.C., Buffalo, Wyoming; Mark A. Waller of Sneed Lang Herrold PC, Tulsa, Oklahoma. Argument by Mr. Goddard.

Representing Appellee (Defendant): Stuart R. Day and Ryan Schwartz of Williams, Porter, Day & Neville, P.C., Casper, Wyoming; John B. Joyce and Andrew G. Dittoe of Grenen & Birsic, P.C., Pittsburgh, Pennsylvania. Argument by Mr. Joyce.

Date of Decision: June 15, 2012

Facts: Appellants are Nevada limited partnerships which own interests in coal bed methane wells located in Wyoming. Appellants are comprised of approximately 3800 limited partners and two general managing partners (a Wyoming corporation and a Delaware corporation) who reside in various states, including Pennsylvania and Wyoming. The two general managing partners (the Wyoming and Delaware corporations) are wholly owned subsidiaries of a Nevada limited liability company.

The limited liability company (LLC) entered into a loan agreement in Pennsylvania with Appellee, a regional state bank with offices only in Pennsylvania. At the time the loan agreement was executed, the two owners (who were also principal officers and directors) were residents of Pennsylvania. The loan agreement and note provided that they were governed by and to be construed in accordance with Pennsylvania law and, in the event of a dispute, The LLC consented to the “non-exclusive jurisdiction” of a Pennsylvania court. Between 2002 and 2009, Appellee and the LLC executed nine amendments to the original loan agreement and note.

The LLC ultimately defaulted on the loan. Appellants (the limited partnerships) filed a complaint in Wyoming against Appellee alleging negligence, breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing and other claims. Appellee moved to dismiss the complaint, asserting Wyoming lacked personal jurisdiction because Appellee did not have sufficient contacts with the State to establish personal jurisdiction. The district court granted Appellee’s motion. Appellants appealed, claiming the district court erred in concluding it did not have personal jurisdiction over Appellee.

Issue: Whether the district court correctly concluded it did not have personal jurisdiction over Appellee.

Holdings: The Court concluded Appellee purposefully and voluntarily elected to accept as collateral property located in Wyoming and the payments Appellee received on the loans were earned in Wyoming based on oil and gas operations here. It was reasonable under the circumstances that Appellee should have foreseen there would be consequences here.

The Court further concluded the cause of action arose from the consequences of Appellees’ activities in Wyoming, including: accepting as collateral property located exclusively in Wyoming; using money loaned as working capital for the managing partners’ Wyoming operations; receiving payments on the loans from money earned in Wyoming; visiting Wyoming to inspect the property; employing a Wyoming petroleum engineer to evaluate the property; exercising control over whether the property could be sold, received and holding the proceeds from such sales; and employing a consultant to come to Wyoming to oversee liquidating the property.

Finally, the Court concluded Appellee’s activities had a substantial enough connection to Wyoming to make the exercise of jurisdiction by Wyoming courts reasonable. All of the collateral for the loan agreements was located in Wyoming, thereby making Wyoming the state with the greatest interest in the transaction. The collateral consisted of oil and gas interests located in Wyoming in which the State has a strong interest.

The Court noted this case was brought by the Appellant partnerships, who were not parties to the Pennsylvania loan agreements, against Appellee for actions it took with respect to property located in Wyoming which, they claim, adversely and improperly affected their financial interests. In that context, and in light of the undisputed facts concerning Appellee’s activities in Wyoming, the Court concluded the exercise of personal jurisdiction is appropriate in Wyoming.

Reversed and remanded to district court for further proceedings consistent with the opinion.

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

Summary 2012 WY 83

Summary of Decision June 14, 2012


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

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

Case Name: Vance v. State of Wyo.

Citation: 2012 WY 83

Docket Number: S-11-0275

URL: http://www.courts.state.wy.us/Opinions.aspx
Appeal from the District Court of Sweetwater County, The Honorable Jere A. Ryckman, Judge

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

Representing Appellee (Plaintiff): Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Ryan T. Schelhaas, Senior Assistant Attorney General.

Date of Decision: June 14, 2012

Facts: After entering a conditional plea to one count of felony child abuse, Appellant reserved his right to challenge the denial of his motion to dismiss, which was premised on grounds of constitutional speedy trial. On appeal, Appellant claimed that a six and one-half year delay between charging and arrest raised a presumption of prejudice that the State did not persuasively rebut.

Issue: Was Appellant denied his constitutional right to speedy trial?

Holdings: The Court found that because the district court appeared to have overlooked the question of presumptive prejudice and because no evidence was offered by the prosecution to rebut the presumption of prejudice afforded to Appellant, the Court must conclude that the district court erred in denying Appellant’s motion to dismiss based upon a violation of his constitutional speedy trial right. The Court reversed the district court’s order and remanded for entry of an order granting Appellant’s motion to dismiss based upon the conclusion that his speedy trial rights were violated.

J. Hill delivered the opinion for the court.

Summary 2012 WY 82

Summary of Decision June 14, 2012


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

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

Case Name: Jones v. State of Wyo.

Citation: 2012 WY 82

Docket Number: S-11-0073

URL: http://www.courts.state.wy.us/Opinions.aspx
Appeal from the District Court of Laramie County, The Honorable Peter G. Arnold, Judge

Representing Appellant (Defendant): Diane Lozano*, State Public Defender; Tina N. Olson*, Appellate Counsel; Kirk A. Morgan*; and Janae E. Ruppert, of Woodhouse Roden, LLC. Argument by Ms. Ruppert.

Representing Appellee (Plaintiff): Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage; Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Sean C. Chambers, Senior Assistant Attorney General; and John Guyton Knepper, Senior Assistant Attorney General. Argument by Mr. Knepper.

Date of Decision: June 14, 2012

Facts: Appellant robbed and killed the victim during a party. Appellant was charged with one count of first-degree murder, one count of aggravated robbery with a deadly weapon, and one count of conspiracy to commit robbery. Appellant entered a plea of not guilty to each count and trial was set. The district court then began to act upon a series of motions, including the granting of Appellant’s motion for a new attorney and a subsequent motion for continuance. At trial, the State dismissed the conspiracy to commit robbery charge. The jury found Appellant guilty of murder in the first-degree and aggravated robbery with a deadly weapon. Appellant was sentenced to life imprisonment without the possibility of parole.

Issues: 1) Whether it was plain error for the district court to omit the intent element from the jury instruction defining robbery which caused prejudice to Appellant; 2) Whether the evidence at trial was insufficient to sustain a conviction of robbery; and 3) Whether Appellant was denied his right to a fair trial due to the cumulative effect of four acts of prosecutorial misconduct.

Holdings: As to the first issue of alleged error, the Court found the judge never attempted to define “reasonable doubt,” and furthermore the jury is presumed to have followed the instructions actually given to them, which correctly placed the proper burden upon the prosecution to prove its case beyond a reasonable doubt

As to the second claim, The Court agreed with the State that Appellant’s argument relied on selected portions of the prosecutor’s comments which, out of context, suggest a different meaning conveyed when looking at the same comments in context. Moreover, the Court found that any impropriety was corrected by the district court’s instruction to the jury regarding the presumption of innocence, an instruction not contested by the defense.

As to the third claim, The Court found no impropriety where the prosecutor never mentioned any particular witness by name, never suggested any witness was more credible than another, and never asked the jury to sympathize with any witness.

The Court concluded that there was no prejudice to Appellant from the jury instructions, that the evidence at trial was sufficient to sustain a conviction of robbery, and that Appellant was not denied his right to a fair trial due to the cumulative effect of any alleged prosecutorial misconduct that may have occurred. Affirmed.

J. Hill delivered the opinion for the court.

Summary 2012 WY 81

Summary of Decision June 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: Nicholson v. Dep’t of Emp’t, Unemployment Ins. Comm’n.

Citation: 2012 WY 81

Docket Number: S-12-0117

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

Order Dismissing Appeal

Date of Order: June 13, 2012

Facts: Appellant filed a timely petition for review of agency action, pursuant to W.R.A.P. 12. The district court dismissed the petition, due to procedural deficiencies. Nine days later, Appellant filed a “Motion for Reconsideration Based on Wyoming Rules of Civil Procedure, Rule 60 & 61 and Wyoming Rules of Appellant [sic] Procedure, Rule 9.04.” Subsequently, the district court entered its “Order Denying Motion for Reconsideration.” Appellant filed a notice of appeal to challenge the Order Denying Motion for Reconsideration. Appellant has not filed a notice of appeal to challenge the “Order Granting Motion to Dismiss.” After this appeal was docketed, Appellee (Commission) promptly filed a motion to dismiss.

Issue: When a district court enters a final judgment in a W.R.A.P. 12 agency appeal, can a party file a W.R.C.P. 60 motion to set aside the district court’s judgment?

Holdings: The Court concluded that, even if Appellant’s motion is not a nullity based on how it was styled, a district court’s judgment in a W.R.A.P. 12 case is not subject to challenge through a W.R.C.P. 60 motion, a W.R.A.P. 9.07 application for rehearing, or a W.R.A.P. 15 petition for reinstatement. The Court found that the captioned appeal should be dismissed.

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

Summary 2012 WY 80

Summary of Decision June 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: Jackman Constr. v. Town of Baggs, Wyo.


Citation: 2012 WY 80

Docket Number: S-11-0252

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

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

Representing Appellant (Plaintiff): Clark Stith, Rock Springs, WY.

Representing Appellee (Defendant): Thomas A. Thompson and Matthew E. Riehl of MacPherson, Kelly & Thompson, LLC, Rawlins, WY. Argument by Mr. Riehl.

Date of Decision: June 12, 2012

Facts: Appellant was awarded a contract to improve Appellee’s town water treatment plant. After the project suffered significant delays, payments were submitted and accepted, and a dispute ensued as to whether or not the last payment constituted “final payment.” Appellant filed a governmental claim as well as a complaint for breach of contract, both seeking damages from Appellee for unjustified assessment of liquidated damages and other damages due to additional expenses incurred by Appellant as a result of delay caused by Appellee. Appellee filed its “Motion for Summary Judgment,” which the district court granted. The court stated that pursuant to the clear and unambiguous contractual terms, Appellant failed to make a written request of its claim and also waived any further claim against Appellee by accepting final payment. Furthermore, Appellant’s failure to notify Appellee of any claim, during any time, could not absolve it of its failure to abide by the clear contractual terms. This appeal followed.

Issues: A) Whether the district court erred in finding no genuine issues of material fact and that the last payment by Appellee to Appellant was “Final Payment” under the contract between the parties; B) Whether the district court erred in finding no genuine issues of material fact and that Appellee did not expressly acknowledge in writing that the issue of liquidated damages was still unsettled when it made its last payment to Appellant; and C)Whether the district court erred in finding no genuine issues of material fact and that Appellant was required to submit, but had not submitted, a written “claim” in connection with Appellee’s imposition of liquidated damages.

Holdings: The Court concluded sufficient evidence from the record and timeline supported the district court’s conclusion that the last payment from Appellee to Appellant was indeed “final payment.” The Court found that under the clear and unambiguous terms of the contract, Appellant agreed to waive all claims by accepting “final payment,” which it did.

Affirmed.

J. Hill delivered the opinion for the court.

Summary 2012 WY 79

Summary of Decision June 6, 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: KM UPSTREAM, LLC, a Delaware limited liability company v. ELKHORN CONSTRUCTION, INC., a Wyoming corporation.

ELKHORN CONSTRUCTION, INC., a Wyoming corporation v. KM UPSTREAM, LLC, a Delaware limited liability company

Docket Number: S-11-0185, S-11-0207, S-11-0186, S-11-0208

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465790

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

Representing Appellant (Plaintiff/Defendant): Drake D. Hill, Rebecca H. Noecker, and Michael L. Beatty of Beatty, Wozniak & Reese, PC. Argument by Ms. Noecker.

Representing Appellee (Plaintiff/Defendant): Mark W. Harris of Harris Law Firm, PC; Scott D. Cessar and Audrey K. Kwak of Eckert Seamans Cherin & Mellott, LLC. Argument by Mr. Cessar.

Date of Decision: June 6, 2012

Facts: The district court granted summary judgment to Elkhorn Construction, Inc. (Elkhorn), a subcontractor, on its mechanic’s lien claim against KM Upstream, LLC (KM), the owner of an amine plant, the construction of which plant underlies all the issues of this case. KM appealed, arguing that summary judgment was improper because of the existence of genuine issues of material fact, and because the district court did not have jurisdiction to proceed with the case, given the automatic stay arising in the bankruptcy proceedings of Newpoint Gas, LP (Newpoint, LP).[1] KM also asserts that the district court could not proceed in the absence of Newpoint because Newpoint, the contractor, is an indispensable party. Elkhorn cross-appealed, contending that the district court should have adjudicated its claimed oil and gas lien, in addition to the mechanic’s lien, thereby making attorney’s fees and costs available.

Because of a W.R.C.P. 54(b) certification issue, the appeal and the cross-appeal were each filed twice. The resulting four docketed cases, as referenced in the heading of this opinion, have been joined for briefing, argument, and opinion.

Issues: 1) Did the automatic stay in Newpoint, LP’s bankruptcy deprive the district court of jurisdiction to enter summary judgment in this case? 2) Did the district court err in granting summary judgment in the absence from this case of Newpoint, an indispensable party? 3) Did the district court err in granting summary judgment in the absence from this case of HFG Engineering US, Inc. (HFG), an alleged joint venturer with Newpoint, and therefore an indispensable party? 4) Did the district court err in finding no genuine issues of material fact? 5) Did the district court err in awarding summary judgment in an amount exceeding the contract price where Wyo. Stat. Ann. § 29-2-101(b) (LexisNexis 2007) requires that the work or materials establishing a mechanic’s lien be furnished under a contract?

Holdings: The automatic stay in the bankruptcy of the contractor, Newpoint, did not deprive the district court of jurisdiction to enter summary judgment in favor of the subcontractor, Elkhorn, in an in rem lien foreclosure action against the owner. Furthermore, because the lien foreclosure was an in rem proceeding not requiring the presence in the case of either Newpoint or HFG, the district court did not err in proceeding in their absence. Elkhorn presented a prima facie case in support of its motion for summary judgment, and KM’s argumentative and speculative response did not prove the existence of genuine issues of material fact, making summary judgment appropriate. The labor and materials supporting the mechanic’s lien claim were furnished under a contract and did not exceed the time and materials contract price, as determined by the conduct of the parties. Elkhorn’s Lien Statement set forth both a mechanic’s lien claim and an oil and gas lien claim. Prejudgment interest was an appropriate part of the damage award in the summary judgment order because Elkhorn’s claim was a liquidated claim in the sense that it was readily determinable by simple mathematical computations. The district court did not determine that $181,369 of Elkhorn’s lien claim was not valid; rather the district court determined that $181,369 of Elkhorn’s lien claim was disputed, meaning that such requires remand and resolution in the district court. Resolution of the mechanic’s lien claim in favor of Elkhorn did not make moot the issues of the validity and amount of Elkhorn’s oil and gas lien claim. Affirmed in part and reversed in part and remanded to the district court for further proceedings consistent herewith.

Justice Voigt delivered the opinion for the court.

Summary 2012 WY 78

Summary of Decision June 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: IN THE MATTER OF THE ADOPTION OF SDL, AJL and GASL, Minor Children: SL, Appellant (Respondent), v. CAD, Appellee (Petitioner).

Docket Number: S-11-0268

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

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

Representing Appellant (Plaintiff/Defendant): Pro se.

Representing Appellee (Plaintiff/Defendant): Farrah L. Spencer, Long, Reimer, Winegar, Beppler, LLP, Park City, Utah.

Date of Decision: June 4, 2012

Facts: Father and Mother were divorced in Colorado in 2008. Six children had been born of the marriage. Mother was granted custody of the children, and Father was ordered to pay $686.00 per month for child support. Mother married Stepfather in 2009, and the couple moved to Wyoming with the three youngest children. By that time, the oldest child had joined the military. The second child remained in Colorado, living with the family of a friend. The third child moved into Father’s home.

In 2011, Stepfather filed a petition with the district court to adopt the three youngest children. Mother consented to the adoption. The petition alleged that Father’s consent was not required because he had willfully failed to satisfy his child support obligations. Father responded to the petition for adoption, disputing that he was in arrears with his child support payments, and raising several other issues.

The district court held a hearing on the matter on September 22, 2011. It heard testimony from Stepfather, Mother, Father, Father’s brother, and the third child. The district court later issued an order granting Stepfather’s petition for adoption. Father appealed from that order. Father, SL, resisted the petition by Stepfather, CAD, to adopt SL’s three youngest children. The district court approved the adoption over SL’s objections, and SL appealed.

Issues: Father, who appears pro se in this appeal as he did in the district court, lists several issues: 1)Did the district court err in calculating the arrearages in Father’s child support payments? 2)Did the district court misapply Wyo. Stat. Ann. § 20-2-304(e) (LexisNexis 2011) by failing to give Father credit for social security payments made directly to Mother as child support? 3)Did the district court err in finding Stepfather “fit and competent” to adopt the children? 4)Did the district court err in failing to consider information contained in Father’s answer to the petition for adoption, in Father’s proposed findings of fact following the hearing in this matter, and in a letter sent to the court by Stepfather’s attorney after the hearing? 5)Did the district court err in denying Father’s motions for visitation with the children?

Stepfather presented this statement of the issue: Did the district court abuse its discretion when it granted the petition for adoption?

Holdings: The district court’s decision was affirmedJustice Burke delivered the opinion for the court.