Summary 2012 WY 152

Summary of Decision November 30, 2012

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: KATRINA LUCERO and EL and IL, by and through their next Friend, Guardian and Mother, KATRINA LUCERO v. NANETTE HOLBROOK

Docket Number: S-12-0062

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

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

Representing Appellant: John I. Henley of Henley Law Firm, P.C., Casper, Wyoming.

Representing Appellee: Julie Nye Tiedeken and Brian J. Hunter of McKellar, Tiedeken & Scoggin, LLC, Cheyenne, Wyoming. Argument by Ms. Tiedeken.

Date of Decision: November 30, 2012

Facts: Nanette Holbrook, the appellee, left her car unattended with the motor running in her private driveway while she briefly returned to her home to retrieve her pocketbook. In the interim, Colbey Emms (Emms), a methamphetamine user, stole her vehicle. Emms later got into a high-speed chase with the police, which ended when the car he was driving collided with a vehicle driven by Katrina Lucero (Lucero), one of the appellants, and mother of EL and IL, also appellants. Lucero filed a complaint on behalf of herself and her children alleging that the appellee breached a duty to them of due care by leaving her car unattended with the keys in the ignition. The district court granted the appellee’s motion for summary judgment on the basis that no duty was owed to the appellants under either the common law or by statute, and that the appellee’s leaving of her keys in her car with the motor running was not the proximate cause of the accident.

Issues: Did the district court appropriately grant the appellee’s motion for summary judgment?

Holdings: The appellee’s conduct was not proscribed by statute and therefore does not result in the violation of a statutory duty of care. The harm suffered was not a foreseeable consequence of the appellee’s conduct, nor was it closely connected to the conduct. The appellee’s actions are not deserving of moral blame. Imposing a duty on the appellee under these circumstances would substantially burden her and Wyoming residents in general. The Court concluded that the appellee did not owe the appellants a common law duty of care to protect them from the harm that occurred in this case, and therefore affirmed the district court’s grant of summary judgment.

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 151

Summary of Decision November 29, 2012

Justice Burke delivered the opinion for the Court. Reversed.

Case Name: ANTHONY BRETT HAYNES v. THE STATE OF WYOMING

Docket Number: S-12-0065

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

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

Representing Appellant: Tina N. Olson, Appellate Counsel.

Representing Appellee: Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; Meri V. Geringer, Senior Assistant Attorney General.

Date of Decision: November 29, 2012

Facts: Appellant was adjudicated delinquent in juvenile court. Based on the same incident, he was later convicted on a criminal charge. He asserted that the criminal prosecution violated his constitutional right not to be placed twice in jeopardy. The State conceded error. The Court agreed that Appellant’s constitutional rights were violated, and reversed his criminal conviction.

Issues: The first issue presented by Appellant is whether his conviction for sexual abuse of a minor in the second degree should be reversed due to violations of the double jeopardy clauses of the United States and Wyoming Constitutions. Because we reverse his conviction based on this issue, we will not address his second issue, a claim of ineffective assistance of counsel in the criminal proceedings.

Holdings: The record clearly reflects that Appellant was adjudged delinquent, then criminally prosecuted and punished for the same offense. The double jeopardy provisions of our state and federal constitutions provide a clear and unequivocal rule of law prohibiting that subsequent criminal prosecution and punishment, and this rule of law was clearly and obviously transgressed. The prohibited criminal conviction and punishment adversely affected Appellant’s substantial rights and resulted in material prejudice to him. The Court reversed Appellant’s criminal conviction of sexual abuse of a minor in the second degree.

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 150

Summary of Decision November 28, 2012

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Names: IN THE MATTER OF THE TERMINATION OF PARENTAL RIGHTS TO: KAT, SAT, and JGS, Minor Children, NLT v. THE STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES

IN THE MATTER OF THE TERMINATION OF PARENTAL RIGHTS TO: JGS, Minor Child, MDS v. THE STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES
Docket Numbers: S-12-0068 and S-12-0069

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

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

Case No. S-12-0068:

Representing Appellant: Mary L. Scheible of Scheible Law Office, Thermopolis, Wyoming.
Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General. Argument by Ms. Kucera.

Guardian Ad Litem: Bobbi D. Overfield of Messenger & Overfield, P.C., Thermopolis, Wyoming.

Case No. S-12-0069:
Representing Appellant: Christopher J. King of Worrall & Greear, P.C., Worland, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Christina F. McCabe, Assistant Attorney General. Argument by Ms. McCabe.

Guardian Ad Litem: Bobbi D. Overfield of Messenger & Overfield, P.C., Thermopolis, Wyoming.

Date of Decision: November 28, 2012

Facts: This opinion encompasses two separate cases that have been consolidated for the purpose of decision. NLT, who is one of the appellants in this matter, is the mother of KAT, SAT, and JGS. The other appellant, MDS, is the father of JGS. Following a five-day bench trial, the district court terminated NLT’s and MDS’s parental rights to the minor children. Both parents appealed, claiming that the Department of Family Services (DFS) failed to provide clear and convincing evidence that their parental rights should be terminated. We affirm the district court’s decision.

Issues: Did DFS present clear and convincing evidence to support the district court’s decision to terminate NLT’s parental rights to KAT, SAT, and JGS? Did DFS present clear and convincing evidence to support the district court’s decision to terminate MDS’s parental rights to JGS?

Holdings: DFS presented clear and convincing evidence at trial to support the district court’s decision to terminate NLT’s parental rights to KAT, SAT, and JGS, pursuant to Wyo. Stat. Ann. § 14-2-309(a)(v). The evidence demonstrated that all of the children had been in foster care for 15 of the most recent 22 months, and that NLT continuously put her children in dangerous situations, placed the wants and desires of her ex-husband and boyfriends ahead of the welfare of her children, and cannot meet the basic financial and parental needs of the children. The evidence also showed that NLT would never be able to provide adequate care for her children absent extraordinary help from service providers. DFS also presented clear and convincing evidence to support the district court’s decision to terminate MDS’s parental rights to JGS, pursuant to Wyo. Stat. Ann. § 14-2-309(a)(iv). MDS is currently serving two consecutive sentences of not less than 20 years nor more than 35 years in prison for sexually abusing KAT. MDS cannot appropriately care for JGS’s ongoing physical, mental or emotional needs while he is in prison and will not be eligible for parole until JGS is in his adulthood. Further, the evidence demonstrates that MDS is a sexual offender who suffers from such moral delinquency that he cannot be considered a fit parent. We affirm both of the district court orders terminating NLT’s and MDS’s rights to KAT, SAT, and JGS.

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 149

Summary of Decision November 27, 2012

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: ETHAN L. CALL v. THE TOWN OF THAYNE

Docket Number: S‑12‑0115

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

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

Representing Appellant (Plaintiff/Defendant): Ethan L. Call, Pro se, Afton, WY

Representing Appellee (Plaintiff/Defendant): Joseph B. Bluemel of Bluemel Law Office, Kemmerer, WY

Date of Decision: November 27, 2012

Facts: Ethan L. Call filed a complaint in district court after making an unsuccessful construction bid to the Thayne, Wyoming, City Council (the “Town of Thayne”).  The district court granted the Town of Thayne’s combined motion for summary judgment and motion to dismiss and Call appealed. 

Issues:

Call stated four issues:

1.                  The district court erred in dismissing the Complaint filed by [Call], as a pro se litigant, for failure to state a claim.

2.                  The actions of [the Town of Thayne] during the bid selection process deprived [Call] of any rights, privileges, or immunities secured under the Constitution and laws.

3.                  [The Town of Thayne] in awarding the bid to [its] ‘preferred bidder’ failed to do its duty to provide an independent observation of the evaluation and selection process in bidding the Canal Beautification Project for which [it was] going to use federal funds.

4.                  [The Town of Thayne’s] publication of an open invitation to bid on the Canal Beautification Project created an implied covenant of good faith and fair dealing.

Holdings: Given the deficient brief filed by Call and his failure to follow the Wyoming Rules of Appellate Procedure, the decision of the trial court was summarily 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 148

Summary of Decision November 21, 2012


Justice Hill delivered the opinion for the Court. Reversed in part. Affirmed in part.

Case Name: ROLLY REDLAND, KENDRICK REDLAND, and TERESA SHELTON, individually and as Beneficiaries of the Robert and Irene Redland Family Trust, Dated August 10, 1989 v. ROBERT REDLAND, Individually, ROBERT REDLAND, as Trustee of the Robert and Irene Redland Family Trust, Dated August 10, 1989, LISA KIMSEY and MIKE KIMSEY and ROBERT REDLAND, as Trustee of the Robert Redland Revocable Trust, dated October 30, 2002, and as Successor Trustee of the Irene Redland Revocable Trust, dated October 30, 2002.

ROBERT REDLAND v. ROLLY REDLAND, KENDRICK REDLAND, ROALENE McCARTHY, and TERESA SHELTON, individually and as Beneficiaries of the Robert and Irene Redland Family Trust, Dated August 10, 1989 and SHARON REDLAND.

ROALENE McCARTHY v. ROBERT REDLAND, Individually, ROBERT REDLAND, as Trustee of the Robert and Irene Redland Family Trust, Dated August 10, 1989, LISA KIMSEY and MIKE KIMSEY.

Docket Number: S-12-0010, S-12-0011, S-12-0012

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

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

Representing Appellants/Appellees Rolly, Kendrick, Sharon and Debbie Redland and Teresa Shelton: S. Joseph Darrah of Darrah Law Office, P.C., Powell, WY.

Representing Appellees/Appellants Robert Redland and Roalene McCarthy: J. Kenneth Barbe II of Welborn Sullivan Meck & Tooley, P.C., Casper, WY; Ronald P. Jurovich, Thermopolis, WY; and Steve C.M. Aron of Aron and Hennig, LLP, Laramie, WY.

No appearance entered for Appellees Lisa and Mike Kimsey in S-12-0010 and S-12-0012.

No appearance entered for Appellees Roalene McCarthy and Teresa Shelton in S-12-011.

Date of Decision: November 21, 2012

Facts: These consolidated appeals stem from the Redland family’s dispute over ranch property and operations. Appeals numbered S-12-0010 and S-12-0012 relate to real property that some of the Redland children claim their father, Robert Redland, agreed to place in a family trust. The district court granted Robert Redland partial summary judgment, holding that the claims were barred by the statute of limitations and by the statute of frauds, and the Redland Children appealed that summary judgment order.

Following the entry of partial summary judgment, a bench trial was held on the remaining issues. Among the issues tried were claims for unjust enrichment by the two Redland sons, Rolly Redland and Kendrick Redland, against Robert Redland for improvements that they had made to the disputed trust properties. The trial court ruled against Robert Redland on the unjust enrichment claims and awarded damages to both Rolly and Kendrick Redland. The trial court also ruled against Robert Redland on his counterclaim against Kendrick Redland, and his wife, Sharon, for a partnership interest in Kendrick and Sharon Redland’s Angus cattle operation. In Appeal No. S-12-0011, the father appealed the trial court’s rulings on the unjust enrichment and partnership claims.

Issues: Appeals S-12-0010 and S-12-0012 are both appeals from the district court’s order granting partial summary judgment. In S-12-0010, which was filed by three of the Redland children, Rolly Redland, Kendrick Redland and Teresa Redland Shelton, the following issues are presented for this Court’s review:

1. Whether the District Court erred when it determined the [S]tatute of Frauds barred Appellants’ claims for declaratory judgment, recovery of real property, estoppel and specific performance after Appellants had fully performed the agreement?

2. Whether the District Court erred when it determined that the applicable statute of limitations barred Appellants’ claims for declaratory judgment, recovery of real property, estoppel and specific performance when there was no evidence that Appellants knew or should have known that the Agreement was breached before the limitations period expired?

In Appeal S-12-0012, Roalene Redland McCarthy, in a separately filed appeal from the summary judgment ruling, states the issues differently but presents essentially the same questions for our review:

ISSUE I: For purposes of the Statute of Limitations, when did the cause of action for specific performance accrue?

ISSUE II: Whether full performance by the Appellant of a Trust Agreement presented a genuine issue of material fact that precluded entry of summary judgment on the basis of the Statue of Frauds.

ISSUE III: Did the discovery of a breach present a genuine issue of material fact that precluded entry of summary judgment for filing outside the Statute of Limitations?

ISSUE IV: Where one of seven parties to a Trust Agreement breached the contract, was it error in applying the “discovery rule” for the District Court to impute to Appellant what that court apparently concluded was either known or should have been known by others of the non-breaching contracting parties?

In Appeal S-12-0011, Robert Redland appeals the district court’s rulings following a bench trial and presents the following issues on appeal:

A. Issues Related to Unjust Enrichment

1. Did the trial court err when it found that Rolly Redland and Kendrick Redland had proven the elements of unjust enrichment?

2. If Rolly Redland and Kendrick Redland proved the elements of unjust enrichment, did the trial court err in the amount of the damages awarded?

B. Issues Related to Redland Angus

1. Did the Court err when it admitted Plaintiff’s Exhibit 105 redacting Plaintiff's sticky note which said “part of bull sale[?]”

2. Did the Court err when it found that Robert Redland is not and was not a partner in Redland Angus?

Holdings: Disputed issues of material fact precluded summary judgment on the questions of whether the Redland Children’s property claims were barred by the statute of limitations or the statute of frauds, and the Court therefore reversed the grant of summary judgment and remanded for a trial on those claims. The Court found no clear error or abuse of discretion in the district court’s rulings on the unjust enrichment claims and Redland Angus partnership claims, and affirmed those rulings.

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 147

Summary of Decision November 20, 2012


Chief Justice Kite delivered the opinion for the Court. Reversed and Remanded.

Case Name: IN THE MATTER OF THE WORKER’S COMPENSATION CLAIM OF: TYLER L. STALLMAN v. STATE OF WYOMING, ex rel., WYOMING WORKERS’ SAFETY AND COMPENSATION DIVISION

Docket Number: S-12-0087

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

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

Representing Appellant: Brian J. Hunter of McKellar, Tiedeken & Scoggin, LLC, Cheyenne, Wyoming.

Representing Appellee: 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: November 20, 2012

Facts: Tyler L. Stallman was injured in a car accident that occurred in the course of her employment. After receiving a 22% permanent partial impairment award from the Wyoming Worker’s Compensation Division (Division), she sought permanent partial disability (PPD) benefits. The Division denied her application stating that she had not complied with the statutory work search requirements. Ms. Stallman requested a contested case hearing. Both parties submitted motions for summary judgment. After a hearing, the Office of Administrative Hearings (OAH) concluded as a matter of law that Ms. Stallman had not timely submitted documentation showing she had sought work and granted summary judgment for the Division.

Ms. Stallman sought review in the district court, which affirmed the OAH’s ruling. She then appealed to this Court, claiming the OAH ruling granting the Division’s summary judgment motion was arbitrary, capricious and contrary to the evidence. Specifically, she asserted the Division improperly denied her application for benefits when she did not submit her work search documentation on the date it arbitrarily imposed – a date weeks before the statutory deadline for submitting her application. She contended the OAH erred in upholding the denial based upon its incorrect finding that she has failed to provide her work search documentation as required by Wyo. Stat. Ann. § 27-14-405(h)(iii) (LexisNexis 2011).

Issues: Ms. Stallman states the issues for this Court’s determination as follows:

I. Whether the decision by the Office of Administrative Hearings to grant the Wyoming Division of Workers’ Compensation’s Motion for Summary Judgment was arbitrary, capricious, not in accordance with the substantial evidence presented and contrary to Wyoming Statute.

II. Whether the decision by the Office of Administrative Hearings to deny Ms. Stallman’s Motion for Summary Judgment was arbitrary, capricious and contrary to Wyoming Statute.

The Division asserts the OAH properly granted its motion for summary judgment, Ms. Stallman did not timely submit her application with the required documentation and it was not estopped from denying her claim.

Holdings: The Court held that Ms. Stallman’s work search submission was timely. The Court further held that she was entitled to a hearing and the opportunity to present evidence showing that she actively sought work. The Court reversed the district court’s order affirming the OAH’s order granting the Division’s motion for summary judgment and remanded for proceedings consistent with this opinion.

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 146

Summary of Decision November 20, 2012

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: TODD L. ROMSA v. STATE OF WYOMING, ex rel., WYOMING DEPARTMENT OF TRANSPORTATION.

Docket Number: S-12-0005

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

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

Representing Appellant: R. Michael Vang of Fleener & Vang, LLC, Laramie, WY.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; and Michael T. Kahler, Senior Assistant Attorney General.

Date of Decision: November 20, 2012

Facts: After being arrested for driving while under the influence (DWUI) in violation of Wyo. Stat. Ann. § 31-5-233(b) (LexisNexis 2011), Todd L. Romsa submitted a request for contested case hearing before the Office of Administrative Hearings (OAH). Romsa asked the OAH to rule that the procedure used by the arresting officer to conduct the chemical breath test upon which his arrest was based did not comply with Wyo. Stat. Ann. § 31-6-105(a) (LexisNexis 2011) and, therefore, the proposed suspension of his driver’s license must be vacated. The OAH hearing examiner issued an Order Upholding Per Se Suspension on June 9, 2011. Romsa petitioned the district court to review the order of the OAH and on November 11, 2011, that court affirmed the OAH’s order. Romsa appealed the order of the district court.

Issues: Romsa presents two issues for our consideration:

I. It is improper for OAH to apply a presumption that the underlying chemical test result is valid where the certified record establishes a failure to comply with Wyoming Statute § 31-6-105(a).

II. If OAH is allowed to apply the presumption that a chemical test is valid, then [Romsa] should be allowed under Rule 12.08 of the Wyoming Rules of Appellate Procedure to provide evidence to rebut the arresting officer’s claims that he complied with Wyoming Statute § 31-6-105(a), where this evidence was not available to [Romsa] at the time of his implied consent administrative proceeding.

Holdings: The Court found that the certified record presented by the WYDOT at the administrative hearing established that the arresting officer performed the chemical analysis of Romsa’s breath “according to the methods approved by the department of health,” (specifically, Rules and Regulations for Chemical Analysis for Alcohol Testing, Ch. III, § 1(a)(i)), and as a result, it was proper for the OAH to apply a presumption that the underlying chemical test result was valid. § 31-6-105(a); Special Rules Relating to Driver’s Licenses, Ch. VI § 2(c).

Romsa did not present any evidence at the administrative hearing to rebut the presumption that the breath test results were accurate (Special Rules Relating to Driver’s Licenses, Ch. VI, § 2 (c)), and failed to meet the requirements of W.R.A.P. 12.08 that would allow this Court to “order the additional evidence to be taken before the agency.” Consequently, the Court affirmed the district court’s Order Affirming Per Se Suspension and affirmed the Order Upholding Per Se Suspension by the Office of Administrative Hearings.

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 145

Summary of Decision November 20, 2012

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

Case Name: DONALD J. BOUCHER v. THE STATE OF WYOMING

Docket Number: S-12-0045

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

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

Representing Appellant: Diane Lozano, State Public Defender, PDP; Tina N. Olson, Chief Appellate Counsel; Diane E. Courselle, Director, Defender Aid Program; Sara Caty, Student Director.

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

Date of Decision: November 20, 2012

Facts: After this Court affirmed his six sexual assault convictions in Boucher v. State, 2011 WY 2, 245 P.3d 342 (Wyo. 2011), Donald J. Boucher filed two motions for sentence reduction, one through counsel and one pro se. The district court denied the pro se motion without mentioning counsel’s motion. Mr. Boucher appealed, claiming the district court erred as a matter of law when it denied his motion without considering his change of circumstances.

Issues: Mr. Boucher asserts the district court erred in denying his motion for sentence reduction. The State asserts the district court properly exercised its discretion and denied the motions upon finding the sentence fair and just.

Holdings: The district court did not abuse its discretion in denying Mr. Boucher’s motions for sentence reduction. The order was 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 144

Summary of Decision November 14, 2012

Justice Burke delivered the opinion for the Court. Affirmed.

Case Name: IN THE MATTER OF THE WORKER’S COMPENSATION CLAIM OF: MICHAEL WILLEY v. STATE OF WYOMING, ex rel., WYOMING WORKERS’ SAFETY AND COMPENSATION DIVISION

Docket Number: S-12-0081

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

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

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

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Claudia Lair, Legal Intern.

Date of Decision: November 14, 2012

Facts: The Wyoming Workers’ Safety and Compensation Division issued a final determination awarding Appellant, Michael Willey, a 2% permanent partial impairment benefit after Mr. Willey was injured in a work-related accident. Mr. Willey challenged the district court’s order affirming the Medical Commission’s decision to uphold the Division’s final determination.

Issues: Appellant presents the following issue for the Court’s consideration:

Whether the Medical Commission’s decision is supported by substantial evidence.
Holdings: The evidence in the record supports the Commission’s finding that Mr. Willey tended to exaggerate the extent of his symptoms. Ultimately, however, the Commission’s findings with respect to Mr. Willey’s credibility had little, if any, bearing on its decision to uphold the Division’s award of a 2% impairment benefit. As set forth above, that decision was based on Mr. Willey’s medical records, the assessments of Mr. Willey’s impairment by Dr. Shih and Dr. Uejo, and the criteria set forth in the AMA Guides. Accordingly, even if the Court found that the Medical Commission’s credibility findings were not supported by the record, substantial evidence would remain to support the Commission’s decision. 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 143

Summary of Decision November 14, 2012

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: JASON JAMES JORESKI v. THE STATE OF WYOMING

Docket Number: S-12-0066

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

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

Representing Appellant: Diane Lozano, State Public Defender and Tina N. Olson, Chief Appellate Counsel.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Joshua Eames, Student Intern.

Date of Decision: November 14, 2012

Facts: Jason Joreski entered an Alford plea to three counts of first degree sexual abuse of a minor and one count of third degree sexual abuse of a minor. The Alford plea allowed Joreski to enter a guilty plea without allocuting or otherwise admitting his participation in the crimes. During Joreski’s sentencing hearing, the district court cited to a number of factors that influenced the court’s sentencing decision and then commented on Joreski’s flippancy and lack of remorse before announcing its decision. Joreski challenged the sentence, contending that the district court violated his constitutional right against self incrimination by using his silence as evidence of a lack of remorse.

Issues: Joreski presents a single issue on appeal:

Did the trial court err in considering [Joreski’s] lack of remorse at sentencing, when [Joreski] entered an Alford plea, and declined at sentencing to allocute.

Holdings: Joreski had not established that the district court inferred a lack of remorse based on his silence, and the Court therefore did not address the question whether such an inference would infringe on a defendant’s right against self-incrimination. Moreover, the Court found no plain error in the district court’s sentencing decision. 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 142

Summary of Decision November 7, 2012

Case Name: BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR v. DION J. CUSTIS, WSB #6-2674.

Docket Number: S-12-0008

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

ORDER OF PUBLIC CENSURE

This matter came before the Court upon a “Report and Recommendation for Public Censure,” filed herein August 29, 2012, by the Board of Professional Responsibility for the Wyoming State Bar. The Court, after a careful review of the Board of Professional Responsibility’s Report and Recommendation, the “Respondent’s Brief,” and the file, finds that the Report and Recommendation should be approved, confirmed and adopted by the Court, and that Respondent Dion J. Custis should be publicly censured for his conduct, which is described in the attached Report and Recommendation for Public Censure. It is, therefore,

ADJUDGED AND ORDERED that the Board of Professional Responsibility’s Report and Recommendation for Public Censure, which is attached hereto and incorporated herein, shall be, and the same hereby is, approved, confirmed, and adopted by this Court; and it is further

ADJUDGED AND ORDERED that Dion J. Custis is hereby publicly censured for his conduct; and it is further

ORDERED that, on or before December 31, 2012, Mr. Custis shall complete four (4) hours of continuing legal education on the subject of ethics; and it is further

ORDERED that, pursuant to Section 26 of the Disciplinary Code for the Wyoming State Bar, Mr. Custis shall reimburse the Wyoming State Bar the amount of $11,897.60, representing the costs incurred in handling this matter, as well as pay the administrative fee of $500.00. Mr. Custis shall pay the total amount of $12,397.60 to the Clerk of the Board of Professional Responsibility on or before December 31, 2012; and it is further

ORDERED that the Clerk of this Court shall docket this Order of Public Censure, along with the incorporated Report and Recommendation for Public Censure, as a matter coming regularly before this Court as a public record; and it is further

ORDERED that, pursuant to Section 4(a)(iv) of the Disciplinary Code for the Wyoming State Bar, this Order of Public Censure, along with the incorporated Report and Recommendation for Public Censure, shall be published in the Wyoming Reporter and the Pacific Reporter; and it is further

ORDERED that the Clerk of this Court cause a copy of this Order of Public Censure to be served upon Respondent Dion J. Custis.

DATED this 7th day of November, 2012.

BY THE COURT:*

/s/

MARILYN S. KITE
Chief Justice

*Justice Davis took no part in the consideration of this matter. Retired Justice Michael Golden participated by assignment.

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 141

Summary of Decision November 2, 2012

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

Case Name: IN THE MATTER OF THE WORKER’S COMPENSATION CLAIM OF: GORDON R. BILYEU, AN EMPLOYEE OF BABCOCK & WILCOX CONSTRUCTION, v. THE STATE OF WYOMING, ex rel., WYOMING WORKERS’ SAFETY AND COMPENSATION DIVISION

Docket Number: S-12-0051

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

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

Representing Appellant (Plaintiff/Defendant): Andrew F. Sears 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: November 2, 2012

Facts: Gordon R. Bilyeu was injured in an accident while driving his motorcycle to work. He filed a claim for worker’s compensation benefits asserting that his injuries were covered because he sustained them while traveling to work and his employer reimbursed him for travel expenses. The Wyoming Worker’s Compensation Division (the Division) denied his claim. After a contested case hearing, the Office of Administrative Hearings (the OAH) also denied his claim. Mr. Bilyeu sought review of the OAH ruling in district court, which affirmed the denial. He appealed to this court claiming the OAH’s decision was contrary to the evidence because it ignored evidence showing that his employer reimbursed him for travel expenses.

Issues: The issue for this Court’s determination is whether the OAH’s conclusion that Mr. Bilyeu failed to meet his burden of proving he was reimbursed for travel expenses within the meaning of Wyo. Stat. Ann. § 27-14-102(a)(xi)(D) was contrary to the overwhelming weight of the evidence.

Holdings: The OAH’s conclusion that Mr. Bilyeu did not meet his burden of proving his employer reimbursed him for travel expenses was not contrary to the overwhelming weight of the evidence. 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 140

Summary of Decision November 1, 2012


Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: BJ HOUGH, LLC, LEO L. GARCIA, MARY D. GARCIA, FRANCIS SHIVE, RAWLEY D. MARRS, DONELLA L. MARRS, NORMAN PRING, MARY JANE PRING, KATHLEEN SHEEHAN, KENNETH J. RACINE, RENA J. RACINE v. CITY OF CHEYENNE, a Wyoming municipal corporation and SWAN RANCH, LLC.

Docket Number: S-11-0180

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

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

Representing Appellants: Gay V. Woodhouse and Teri Cassidy* of Woodhouse Roden, LLC, Cheyenne, WY. Argument by Ms. Woodhouse.

Representing Appellees: Daniel E. White, City Attorney, for Appellee City of Cheyenne. Argument by Mr. White. No appearance entered for Appellee Swan Ranch.

*Order Allowing Withdrawal of Counsel entered March 14, 2012.

Date of Decision: November 1, 2012

Facts: After Swan Ranch was annexed by the City of Cheyenne (“the City”) in 2009, the Appellants herein filed a declaratory judgment action against the City alleging that the annexation was invalid under Wyo. Stat. Ann. § 15-1-402(a). Ultimately, the district court granted the City’s responding summary judgment argument on two claims and conducted trial on the third and final claim. Following trial, the district court found the annexation was proper. This appeal followed.

Issues: The Court restates the Appellants’ issues as a single question: Did the district court err in finding the annexation ordinance valid?

Holdings: The Court concluded that the district court’s decision upholding the Swan Ranch annexation was not clearly erroneous. There was no reason to disturb the decision on the basis of the evidence presented. The district court’s decision upholding the validity of the annexation statute under the facts of this case was 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 139

Summary of Decision October 31, 2012

Justice Hill delivered the opinion for the Court. Dismissed.

Case Name: IN THE MATTER OF THE ESTATE OF JOHN H. HIBSMAN, JR., Deceased: JASON HIBSMAN v. ROBERT “BOB” MULLEN and TRUDY HIBSMAN, REBECCA HIBSMAN and EMILY HIBSMAN

Docket Number: S-12-0036

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

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

Representing Appellant: M. Gregory Weisz and Jodi D. Shea of Pence and MacMillan, LLC, Laramie, WY. Argument by Mr. Weisz.

Representing Appellee: Robert Mullen, of Casper, WY. No appearances entered for Trudy, Rebecca, and Emily Hibsman.

Date of Decision: October 31, 2012

Facts: Jason Hibsman (Appellant) appealed an order issued by the district court finding prima facie evidence for the Personal Representative of John H. Hibsman, Jr.’s estate to proceed in recovering “not less than $137,566.46” from Appellant.

Issues: Appellant states one issue:

1. Whether there was sufficient evidence presented at the September 9, 2011, hearing to find that [Appellant] concealed, embezzled, conveyed away and/or disposed of monies and other property of the Estate and whether the evidence presented at the September 9, 2011 hearing supported the judgment entered against [Appellant] in an amount not less than $137,566.46.

Holdings: Although a special proceeding occurred, no substantial right of Appellant’s was affected by the district court’s decision, and thus the Court lacked jurisdiction to hear the instant case on appeal. Dismissed.

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 138

Summary of Decision October 31, 2012

Judge Price delivered the opinion for the Court. Affirmed in part. Reversed and remanded in part.

Case Names: BIG-D SIGNATURE CORPORATION, a Wyoming Corporation v. STERRETT PROPERTIES, LLC, 3 CREEK RANCHES, LLC, Utah Limited Liability Companies, and MORRIS R. STERRETT, an individual;

STERRETT PROPERTIES, LLC, 3 CREEK RANCHES, LLC, Utah Limited Liability Companies, and MORRIS R. STERRETT, an individual v. BIG-D SIGNATURE CORPORATION, a Wyoming Corporation

Docket Number: S-12-0046; S-12-0047

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

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

Representing Big-D Signature Corporation: David F. DeFazio and Sarah E. Tollison of DeFazio Law Office, LLC, Jackson, Wyoming. Argument by Ms. Tollison and Mr. DeFazio.

Representing Sterrett Properties, LLC, 3 Creek Ranches, LLC, and Morris R. Sterrett: Andrea L. Richard of The Richard Law Firm, P.C. Jackson, Wyoming.

Date of Decision: October 31, 2012

Facts: This case arose out of a home construction contract between the contractors, Big-D Signature Corporation (Big-D) and two LLCs, Sterrett Properties, LLC and 3 Creek Ranches, LLC (LLCs). Morris Sterrett is the owner of the property on which the home was built. Big-D filed suit against the LLCs and Mr. Sterrett, who then counterclaimed. The district court entered a partial summary adjudication which was later partially vacated. Then a jury trial commenced, but a mistrial was declared. A partial summary judgment order followed. The remaining issues were disposed of by the district court under a sua sponte dismissal with prejudice. Both sides appealed.

Issues: In their briefs, the parties present multiple issues for appeal, and there is conflict as to whether some of those issues are properly before this Court. Rather than quote the issues as put forward in the briefs, this Court finds it simpler to restate the issues. There are six separate issues that need to be decided in these appeals.

1. Does this Court have jurisdiction to consider the Order Granting Plaintiff’s Motion for Partial Summary Judgment and Order on Issues Remaining for Trial even though it was not specifically mentioned in the notice of appeal? In other words, is that order subsumed into the final order of the case?

2. Did the district court properly grant summary judgment in favor of Big-D as to the original contract and Prime Contract Change Order (PCCO) Nos. 1 and 2, or was there a genuine issue of material fact making that ruling inappropriate?

3. Was the partial summary judgment entered against Mr. Sterrett as an individual or only against the LLCs?

4. Did the district court properly dismiss Big-D’s unjust enrichment claim against Mr. Sterrett? Namely, was there an adequate remedy at law under the contract making the claim inappropriate?

5. Did the district court properly dismiss Big-D’s claims under PCCO Nos. 3 and 4? Specifically, were they barred by the contract because they were unsigned?

6. Did the district court properly dismiss the LLCs’ and Mr. Sterrett’s claim for delay damages? Simply put, were they barred by the consequential damages waiver in the contract or because contractual requirements were not met in bringing the claim?

Holdings: The Court found that the Order Granting Plaintiff’s Motion for Partial Summary Judgment and Order on Issues Remaining for Trial entered by the district court was properly before the Court because it was subsumed into the final Order of Dismissal with Prejudice. They also found that there were no genuine issues of material fact as to the original contract and PCCO Nos. 1 and 2. The Order Granting Plaintiff’s Motion for Partial Summary Judgment and Order on Issues Remaining for Trial entered by the district court was affirmed. Furthermore, the Court found that Mr. Sterrett was individually liable under the contract and the PCCOs because his counsel conceded the point after referring to his affidavit in which he admitted it was his project.

Next, the Court found that there were facts under which Big-D could obtain relief under PCCO Nos. 3 and 4. On this issue, the district court’s Order of Dismissal with Prejudice was reversed and the case is remanded. On remand, Big-D will have the burden of proving that there was an oral agreement as to PCCO Nos. 3 and 4, and that both parties took action consistent with the oral agreement. As to the contention of the LLCs and Mr. Sterrett that some of the items in PCCO Nos. 3 and 4 were consequential damages barred by the contract and not escalation costs, the Court will also remand that issue to the district court.

Finally, the Court found that the damages claims of the LLCs and Mr. Sterrett are barred by the contract’s waiver of consequential damages. The district court’s Order of Dismissal with Prejudice was affirmed on this issue. Affirmed in part. Reversed and remanded in part.

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]