Summary 2013 WY 37

Summary of Decision March 27, 2013

Justice Hill delivered the opinion for the Court. Dismissed.

Case Name: SARAH FERRELL v. EARL KNIGHTEN

Docket Number: S-12-0174

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

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

Representing Appellant (Plaintiff/Defendant): Mary L. Scheible, Thermopolis, WY.

Representing Appellee (Plaintiff/Defendant): Michael S. Messenger and James A. Michel Jr. of Messenger and Overfield, P.C., Thermopolis, WY.

Date of Decision: March 27, 2013

Facts: Appellant Sarah Ferrell challenges an order dismissing her professional negligence claim against a real estate agent who represented the sellers in Ferrell’s 2001 purchase of a commercial property. On appeal, Ferrell claims that the agent was negligent in failing to provide a property disclosure statement.

Issues: Ferrell presents one issue: Whether a realtor acting as seller’s agent has a duty of care to the buyer.

Holdings: Due to Ferrell’s failure to challenge the statute of limitations ruling by the district court, this case is 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 2013 WY 36

Summary of Decision March 20, 2013

Justice Burke delivered the opinion for the Court. Reversed and remanded.

Case Name: SHERIDAN FIRE FIGHTERS LOCAL NO. 276, IAFF, AFL-CIO, CLC v. CITY OF SHERIDAN, WYOMING

Docket Number: S 12 0108

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): Thomas B. Buescher, Buescher, Goldhammer, Kelman and Dodge, PC, Denver, Colorado; H.W. Rasmussen, Sheridan, Wyoming. Argument by Mr. Buescher.

Representing Appellee (Plaintiff/Defendant): Jodi D. Shea and Michael G. Weisz, Pence and MacMillan, LLC, Laramie, Wyoming; Gregory A. Von Krosigk, Pence and MacMillan, LLC, Sheridan, Wyoming. Argument by Mr. Weisz.

Date of Decision: March 20, 2013

Facts: Appellant, Sheridan Fire Fighters Local No. 276, IAFF, AFL-CIO, CLC, filed suit in district court against the City of Sheridan alleging breach of their collective bargaining agreement. Local 276 claimed that the City breached the Agreement when it failed to provide pay raises to five firefighters who had qualified for a “step increase” in salary. The City contended that the raises were not required and that, under the terms of the Agreement, it retained discretion in the award of pay raises. Both parties filed motions for summary judgment, and the district court granted summary judgment in favor of the City. Local 276 challenges that decision in this appeal.

Issues: Local 276 presents these issues: Whether the Trial Court erred as a matter of law in determining that the provision regarding step increases in the 2010-2011 Collective Bargaining Agreement between the parties is not ambiguous, therefore not warranting the consideration of extrinsic evidence. Whether the Trial Court erred as a matter of law in concluding that the provision regarding step increases in the 2010-2011 Collective Bargaining Agreement between the parties unambiguously allowed the City to unilaterally decide not to pay out step increases.

The City’s statement of the issues is as follows: Whether a collective bargaining agreement is ambiguous as to qualification for a “step” increase when the collective bargaining agreement contains the parties’ express agreement that the City retained the power to determine all employee qualifications. Whether an implied term can be added to a collective bargaining agreement when doing so would violate statutory budgeting provisions. Whether an integral and material item such as a guaranteed pay raise can be added to a collective bargaining agreement by implication and without additional consideration therefore, and assuming arguendo such a material term can be added by implication would such an amendment be in contravention of Wyoming law concerning the contracting ability of a governing body.

Holdings: The collective bargaining agreement between the City and Local 276 for the fiscal year 2010-2011 was ambiguous about whether step increases in salary were mandatory or left to the City’s discretion. We therefore considered extrinsic evidence in an effort to interpret the Agreement and discern the parties’ intent. In support of its summary judgment motion, Local 276 presented evidence of the parties’ past conduct, which was consistent with the Union’s interpretation that the Agreement required the City to give step increases to all eligible firefighters. The City offered no evidence to the contrary, and so raised no genuine issues of material fact. “[E]ven where extrinsic evidence is admissible to establish the intent of the parties, a summary judgment may be appropriate when the evidence fails to raise an issue of fact requiring resolution at trial.” Madison, 619 P.2d at 716. When there are no genuine issues of material fact and one party has shown it is entitled to judgment in its favor, this Court has the authority to order that summary judgment be entered in favor of that party. See, e.g., Baker v. Ayres and Baker Pole and Post, Inc., 2005 WY 97, ¶ 33, 117 P.3d 1234, 1244 (Wyo. 2005). We reverse the district court’s grant of summary judgment in favor of the City, and remand for entry of summary judgment in favor of Local 276.

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 2013 WY 35

Summary of Decision March 20, 2013


Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: STEVEN DAVID LUNDEN v. THE STATE OF WYOMING

Docket Number: S 12 0145

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

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

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

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Darrell D. Jackson, Faculty Director, Emily N. Thomas, Student Director, Alan J. Dees, Student Intern, Prosecution Assistance Program.

Date of Decision: March 20, 2013

Facts: The appellant, Steven David Lunden, appeals the district court’s denial of his motion to correct illegal sentence. On appeal, he claims that the judgment and sentence entered after he pled guilty to misuse of a credit card and forgery are illegal because he was not advised that his guilty pleas may result in the disqualification of his right to possess firearms pursuant to federal law.

Issues: Did the district court err when it denied the appellant’s motion to correct an illegal sentence?

Holdings: We decline to consider the merits of the appellant’s claim because it is being raised for the first time on appeal. We also find that, had this claim been raised before the district court, it would have been barred by res judicata. We affirm.

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 2013 WY 34

Summary of Decision March 19, 2013

Chief Justice Kite delivered the opinion for the Court. Affirmed in part. Reversed and remanded in part.

Case Name: BARLOW RANCH, LIMITED PARTNERSHIP v. GREENCORE PIPELINE COMPANY, LLC; GREENCORE PIPELINE COMPANY, LLC v. BARLOW RANCH, LIMITED PARTNERSHIP

Docket Number: S-12-0038; S-12-0039

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

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

Representing Barlow Ranch, Limited Partnership: Dan B. Riggs, Mistee L. Elliott and Amanda K. Roberts of Lonabaugh and Riggs, LLP, Sheridan, Wyoming. Argument by Mr. Riggs and Ms. Elliott

Representing Greencore Pipeline Company, LLC: Jon T. Dyre of Crowley Fleck, PLLP, Billings, Montana; Timothy M. Stubson of Crowley Fleck, PLLP, Casper, Wyoming. Argument by Messrs. Dyre and Stubson.

Date of Decision: March 19, 2013

Facts: Greencore Pipeline Company, LLC (Greencore) filed an action seeking to condemn easements across property owned by Barlow Ranch, Limited Partnership (Barlow) for a pipeline to transport carbon dioxide (CO2). The parties reached an agreement on the terms of possession and scope of the easements but asked the district court to determine the amount that would justly compensate Barlow for the partial taking of its property.

During a two day bench trial, Barlow presented evidence of prices paid for other comparable pipeline easements to show the fair market value of Greencore’s easement and the compensation due for the partial taking. Greencore argued that Barlow was only entitled to a percentage of fee value and comparable easement sales should not be considered in determining the appropriate amount of compensation for the condemned easement. The district court concluded Wyoming statutes allowed consideration of comparable sales in determining just compensation, but the easements Barlow presented were not sufficiently comparable to be reliable evidence of the fair market value of Greencore’s easement. Instead, it awarded compensation based upon the average of the amounts Greencore had paid other landowners for easements for its CO2 pipeline. Barlow appealed the district court’s order and Greencore cross appealed.

In its appeal, Barlow claimed the district court erred in concluding the easements it relied upon were not valid comparables. Barlow also asserted the district court erred in concluding annual payments for a condemned easement are not permissible under Wyoming law. In its cross appeal, Greencore asserted the district court erred in considering evidence of comparable easements in arriving at a damages award far in excess of the fair market value of the land on which the easement is located. Greencore further asserted the district court erred in not granting it the right to abandon the pipeline in place.

Issues: The issues presented in these consolidated cases are:

A. Did the district court err by concluding comparable easements were proper evidence to establish the value of a partial taking of real property for a pipeline easement?

B. Did the district court err when it ruled the easements offered by Barlow as comparables were not the result of arms’ length transactions?

C. Did the district court err in concluding the pipeline easements offered by Barlow were not comparable to the Greencore easement pursuant to Wyo. Stat. § 1-26-704(a)(iii)(B) and (C) (LexisNexis 2011)

D. Did the district court err in concluding annual payments for a condemned easement are not permissible under Wyoming law?

E. Did the district court err when it refused to rule that Greencore was entitled to abandon its pipeline in place when its need for it terminates?

Holdings: Wyoming law specifically provides for use of comparable sales of easements to determine the fair market value of a condemned easement. The district court, however, applied incorrect legal standards and committed clear error when it concluded none of Barlow’s proposed easement transactions were comparable. The district court did not follow the proper methodology in determining whether the transactions were arms’ length or the other easements were of comparable type, size and location. On remand, the district court should analyze the proffered easements to determine whether they are comparable under the appropriate standards. The analysis may consider the comparables as substantive evidence of fair market value and/or as a basis for Barlow’s appraiser’s calculation of fair market value. In determining the fair market value, the district court will need to address the similarities and differences between the individual comparables and the Greencore easement. As the Court stated in Frangos, fair market value based on comparable sales is determined by “making adjustments for prices of those [comparables] that are more similar or dissimilar to condemned property.” Frangos, 487 P.2d at 807.

The district court also incorrectly concluded, as a matter of law, that an annual payment cannot form part of the just compensation in easement condemnation cases. On remand, the district court must conduct a factual analysis to determine whether annual payments are appropriate in this case. Once the proper analysis is done, the resulting award may be higher or lower than the original award of a one-time lump sum in the amount of the average Greencore paid for its other easements. The district court properly concluded the issue of whether Greencore has to remove the pipeline upon abandonment and termination of the easement is not yet ripe for consideration.

Affirmed in part and reversed and remanded in part for additional 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 2013 WY 33

Summary of Decision March 19, 2013


Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: STEVEN A. DELOGE v. SCOTT HOMAR, LARAMIE DISTRICT ATTORNEY and CHEYENNE POLICE DEPARTMENT

Docket Number: S-12-0130

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

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

Representing Appellant: Steve A. DeLoge, Pro se.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; and Patricia L. Bach, Senior Assistant Attorney General for Laramie County District Attorney’s Office; and J. Mark Stewart of Davis and Cannon, LLP, Cheyenne, WY, for Cheyenne Police Department.

Date of Decision: March 19, 2013

Facts: In 2011, Steven DeLoge filed a 42 U.S.C. § 1983 complaint for damages arising out of property confiscated from his home in 1999 when he was arrested and convicted on six counts of sexual assault. The district court dismissed Mr. DeLoge’s complaint as time barred, and in his fifth appearance before this Court, Mr. DeLoge appealed.

Issues: Mr. DeLoge appears pro se and presents the following issues on appeal:

Issue I: Whether the district court correctly dismissed the 42 U.S.C. § 1983 complaint finding the claims barred by statute of limitations and failure to file governmental claims?

Issue II: Whether the district court opinion and order on motions to dismiss the 42 U.S.C. § 1983 complaint denied [DeLoge] full and fair adjudication based on the merits of the case?

Issue III: Whether the Supreme Court should consider barring [DeLoge] from further litigation relating to this matter.

Holdings: The district court properly dismissed Mr. DeLoge’s Section 1983 complaint for damages as time barred, and the district court’s decision is therefore affirmed, and the Court direct that Mr. DeLoge be prohibited from filing any further litigation relating to the subject matter of this case in any court of the State of Wyoming without first having obtained leave of this Court to do so.

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 2013 WY 32

Summary of Decision March 15, 2013

Justice Davis delivered the opinion for the Court. Affirmed in part. Reversed and remanded in part.

Case Name: EXXON MOBIL CORPORATION v. WYOMING OIL AND GAS CONSERVATION COMMISSION and DENBURY ONSHORE, LLC

Docket Number: S-12-0140

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

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

Representing Appellant: Walter F. Eggers, III, P.C., and Patrick R. Day, P.C., of Holland & Hart LLP, Cheyenne, Wyoming. Argument by Mr. Eggers, III.

Representing Appellee Wyoming Oil and Gas Conservation Commission: No appearance.

Representing Appellee Denbury Onshore, LLC: John A. Masterson and Alaina M. Stedillie of Rothgerber Johnson & Lyons LLP, Casper, Wyoming. Argument by Mr. Masterson.

Date of Decision: March 15, 2013

Facts: The Wyoming Oil and Gas Conservation Commission approved Cimarex Energy Company’s plan to reinject waste carbon dioxide and hydrogen sulfide into a producing natural gas formation in southwest Wyoming, over the objection of Appellant Exxon Mobil Corporation. Exxon unsuccessfully sought to overturn the Commission’s decision in the District Court for the Seventh Judicial District, and appealed the district court’s order affirming that decision to this Court.

Issues: 1. Did the Commission provide adequate findings of fact as to whether Cimarex’s plan to reinject carbon dioxide and hydrogen sulfide would result in waste of natural gas and improperly interfere with Exxon’s correlative rights?

2. Should the Commission have granted Exxon’s petition for a rehearing due to Denbury Onshore’s acquisition of Cimarex’s interests in the production unit where the proposed injection well would be located and its announcement of a plan to eventually sell carbon dioxide produced on that unit?

Holdings: Because the Commission’s decision would force this court to speculate as to its findings of both basic and ultimate facts, the Court reversed and remanded to the district court with directions that this case be remanded to the Commission for the purpose of making appropriate findings. However, the Court affirmed the Commission’s decision to deny Exxon’s petition for rehearing.

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 2013 WY 31

Summary of Decision March 14, 2013


Justice Voigt delivered the opinion for the Court. Affirmed in part. Reversed and remanded in part.

Case Name: RIDGERUNNER, LLC, a Wyoming Limited Liability Company; and SARAH A CARRELLI and CYNTHIA D. PORTER, Individually v. RICHARD MEISINGER and MEISINGER INVESTMENTS, INC.

Docket Number: S-12-0118

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

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

Representing Appellant: Sky D Phifer, Phifer Law Office, Lander, Wyoming.

Representing Appellee: Collin C. Hopkins and Cynthia Van Vleet of Hopkins & Van Vleet, LLC, Riverton, Wyoming. Argument by Mr. Hopkins.

Date of Decision: March 14, 2013

Facts: The appellants, Ridgerunner, LLC, Sarah A. Carrelli, and Cynthia D. Porter, appealed the district court’s decision to dismiss on summary judgment their claims for breach of contract and breach of the covenant of good faith against the appellees, Meisinger Investments, Inc. and Richard Meisinger. The appellants claim that the district court improperly converted the appellees’ motion to dismiss the complaint to a motion for summary judgment and, therefore, the case must be reversed.

Issues: Did the district court properly dismiss the appellant’s complaint for breach of contract and breach of the covenant of good faith brought against the appellees?

Holdings: The district court improperly converted the appellees’ motion to dismiss to a motion of summary judgment. Reviewing the motion as one to dismiss the complaint under W.R.C.P. 12(b)(6), the Court agreed with the district court that the appellants failed to present any facts or allegations that would put the appellees on notice that the appellants were seeking to pierce the corporate veil in an attempt to hold Richard Meisinger personally liable for the claims against Meisinger Investments, Inc. However, the Court found that the appellants did present a proper claim against Meisinger Investments, Inc., despite the fact the corporation has been dissolved. The Court affirmed in part, reversed in part, and remanded to the district court for further 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 2013 WY 30

Summary of Decision March 13, 2013


Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: CONNOR TIMOTHY CORRIGAN PHIPPEN v. THE STATE OF WYOMING

Docket Number: S-12-0157

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

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

Representing Appellant (Plaintiff/Defendant): Christopher M. Wages of Goddard, Wages & Vogel, Buffalo, WY.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Paul S. Rehurek, Senior Assistant Attorney General, and Christyne Marie Martens, Assistant Attorney General. Argument by Ms. Martens.

Date of Decision: March 13, 2013

Facts: After conditionally pleading guilty to possession with intent to deliver marijuana, Connor Timothy Corrigan Phippen challenges the district court’s denial of his motion to suppress evidence discovered during a search of his vehicle. He contends that the drug dog sniff was inconclusive and that the subsequent search of his vehicle was illegal.

Issues: Phippen presents one issue: Whether or not the warrantless search of Mr. Phippen’s vehicle violated Article I, Section 4 of the Wyoming Constitution because it was unreasonable under the circumstances and was not supported by probable cause.

Holdings: Having concluded that the search of Phippen’s truck was lawful based upon the totality of circumstances prior to his arrest, the Court affirmed the district court’s denial of the Motion to Suppress.

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 2013 WY 29

Summary of Decision March 13, 2013

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: KENNETH JAMES HUCKFELDT v. THE STATE OF WYOMING

Docket Number: S-12-0183

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

Appeal from the District Court of Sweetwater County, Honorable Nena James, Judge

Representing Appellant (Plaintiff/Defendant): W. Keith Goody, Cougar, WA.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Darrell D. Jackson, Prosecution Assistance Clinic, Emily N. Thomas, Student Director; and Adrianna J. Potts, Student Intern. Argument by Mr. Racines.

Date of Decision: March 13, 2013

Facts: A jury convicted Kenneth Huckfeldt of sexual assault in the first degree and sexual abuse of a minor in the first degree. Huckfeldt appeals the district court’s denial of a continuance motion and the court’s admission of uncharged misconduct evidence of his prior conviction for sexual assault of a minor.

Issues: Huckfeldt presents the following issues for our review:

Did the district court abuse its discretion when it denied Mr. Huckfeldt’s motion for continuance of the trial due to a missing witness and was it mistaken when it found that the public defender did not use due diligence?

Did the district court abuse its discretion in admitting into evidence testimony of the victim that resulted in a prior conviction of Mr. Huckfeldt for sexual assault?

Holdings: The Court found no abuse of discretion in the district court’s denial of Huckfeldt’s continuance motion or its admission of uncharged misconduct 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 2013 WY 28

Summary of Decision March 12, 2013


Justice Davis delivered the opinion for the Court. Reversed and Remanded.

Case Name: TYLER L. STALLMAN v. STATE OF WYOMING, ex rel., WYOMING WORKERS’ SAFETY AND COMPENSATION DIVISION

Docket Number: S-12-0172

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, Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General.

Date of Decision: March 12, 2013

Facts: Appellant Tyler L. Stallman worked for the Wyoming Department of Corrections at the Wyoming Women’s Center in Lusk, Wyoming. She sustained significant injuries during a vehicle rollover while driving to pick up a prisoner in Sheridan. After receiving a 22% permanent partial impairment award from the Wyoming Workers’ Safety and Compensation Division (the Division), she applied for permanent total disability (PTD) benefits. The Division denied her application, finding that she did not meet the statutory definition of permanent total disability. Ms. Stallman requested a contested case hearing, and the case was referred to a panel of the Medical Commission (the Commission or panel). Based upon the evidence presented, the Commission concluded that Ms. Stallman did not meet her burden of proving that she was entitled to PTD benefits under the odd lot doctrine. The district court affirmed, and Ms. Stallman appealed to this Court, claiming that the Commission’s final order was unsupported by substantial evidence and contrary to applicable law due to improper application of the odd lot doctrine

Issues: Was the Commission’s determination that Ms. Stallman was not entitled to permanent total disability benefits under the odd lot doctrine supported by substantial evidence and consistent with applicable law?

Holdings: The application of the odd lot doctrine is undoubtedly more difficult when a claimant lives in an isolated rural community where jobs are scarce. Nonetheless, our cases make it clear that once a claimant shows that she is de facto unemployable in her community due to her degree of physical impairment and other factors, the burden shifts to the Division to show that gainful employment was in fact available. The overwhelming weight of the evidence indicates that Ms. Stallman was a prima facie candidate for odd lot treatment, and that the Division failed to establish that light work she could perform was available within a reasonable distance from Lusk. There was an error of law in the application of the odd lot doctrine, and substantial evidence does not support the Commission’s conclusions. The Court accordingly reversed and remanded, directing the district court to remand to the Commission for further 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 2013 WY 27

Summary of Decision March 7, 2013

Justice Voigt delivered the opinion for the Court. Affirmed in part and reversed in part. Justice Burke concurred in part and dissented in part, with whom Chief Justice Kite joins.

Case Name: BRANDON LEE JENSEN v. MARGARET E. MILATZO JENSEN

Docket Number: S-12-0080, S-12-0083

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

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

Representing Appellant (Plaintiff/Defendant): Brandon L. Jensen, pro se, of Budd-Falen Law Offices, LLC, Cheyenne, Wyoming.

Representing Appellee (Plaintiff/Defendant): Wallace L. Stock and Lance T. Harmon of Bailey, Stock & Harmon P.C., Cheyenne, Wyoming.

Date of Decision: March 7, 2013

Facts: Brandon Lee Jensen, the appellant (Father), and Margaret E. Milatzo-Jensen, the appellee (Mother), divorced in 2007. In the litigation that followed the divorce, the district court granted Mother’s motion to modify the visitation schedule, denied Father’s request to present expert testimony, denied Father’s claims for child support abatement, denied Father’s petition to modify child support, partially reimbursed Father’s day-care expenses, and awarded attorney’s fees to Mother. Father now appeals those orders.

Issues: Did the district court abuse its discretion by modifying Father’s visitation schedule? Did the district court abuse its discretion by denying Father’s request to present the testimony of two expert witnesses? Did the district court err by denying Father’s claims for abatement of child support? Did the district court abuse its discretion by denying Father’s Petition to Modify Child Support? Did the district court abuse its discretion by not fully reimbursing Father for day-care expenses? Did the district court abuse its discretion in its award of attorney’s fees against Father?

Holdings: Father’s move to Colorado, which substantially disrupted the visitation schedule and substantially impacted the child’s life, represented a substantial change in circumstances sufficient to address whether a modification in the visitation schedule would be in the best interest of the child. Because of the long and frequent commutes, and the stress incurred by the child, the district court did not abuse its discretion in determining that a modification was appropriate. Father did not show on appeal that the district court abused its discretion in excluding an expert witness with a potential conflict of interest and limiting the testimony of another expert witness by permitting her only to testify with regard to matters in dispute. Father meets the statutory requirements for abatement in child support. We remand to the district court for a determination of the appropriate amount of that abatement. Because we affirm the modification to the visitation schedule, which results in a reduction in Father’s time with the child, Father is not entitled to application of the shared custody support calculation provided in Wyo. Stat. Ann. § 20-2-304(c). The district court abused its discretion by only partially reimbursing Father for day-care expenses because the divorce decree did not require Father to pay any day-care expenses while he was paying child support. The district court also abused its discretion in its award of attorney’s fees against Father because Mother presented insufficient evidence indicating that the fees requested were reasonable. Affirmed in part, reversed in part, and remanded to the district court for further appropriate action consonant herewith.

Justice Burke concurred in part and dissented in part, with whom Chief Justice Kite joins. See the full opinion for further comment.

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 2013 WY 26

Summary of Decision March 6, 2013


Justice Burke delivered the opinion for the Court. Reversed and Remanded.

Case Name: STATE OF WYOMING, ex rel., WYOMING WORKERS’ SAFETY AND COMPENSATION DIVISION v. TIMOTHY SMITH

Docket Number: S-12-0169

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

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

Representing Appellant: Gregory A. Phillips, Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General; Amy M. Taheri, Special Assistant Attorney General.

Representing Appellee: Robert A. Nicholas, Nicholas Law Office, Cheyenne, Wyoming.

Date of Decision: March 6, 2013

Facts: Appellant, Wyoming Workers’ Safety and Compensation Division, challenged an order from the Office of Administrative Hearings awarding additional temporary total disability (TTD) benefits to Appellee, Timothy Smith. The Division contended the award exceeded the maximum period for which an injured worker may receive temporary total disability benefits.

Issues: The Division presents a single issue:

Smith sustained a compensable neck injury and, despite four separate surgeries to address it, never returned to work. The Division paid Smith Temporary Total Disability benefits for thirty-six months – the maximum period allowed by Wyo. Stat. Ann. § 27-14-404(a) and the Division’s Rules. The OAH found that each of Smith’s four separate surgeries was a second compensable injury, extending the amount of time the Division could pay TTD benefits. Do Wyo. Stat. Ann § 27-14-404(a) and the Division’s Rules limit TTD benefits to a cumulative maximum of thirty-six months for injuries resulting from any one incident or accident regardless of the second compensable injury role?

Mr. Smith phrases the issue as follows:

Does a second compensable injury restart the limitation period for paying temporary total disability benefits under W.S. 27-14-404(a)?

Holdings: The Court found Wyo. Stat. Ann. § 27-14-404(a) and the Division’s rules to be unambiguous. Receipt of temporary total disability benefits is limited to a maximum period of thirty-six months, which includes twenty-four months authorized under Section 404(a) and an additional twelve months allowed in extraordinary circumstances pursuant to Division rules. Under the plain language of the statute, this limitation applies to all “injuries” resulting from “any one (1) incident or accident,” encompassing situations in which the claimant receives multiple injuries simultaneously or a subsequent compensable injury as a result of a single workplace accident. Because the Division awarded TTD benefits to Mr. Smith for a period of thirty-six months as a result of a single workplace accident, he is not entitled to receive additional TTD benefits. Reversed and remanded for entry of an order 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 2013 WY 25

Summary of Decision March 5, 2013


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

Case Name: RAYMOND ALEXANDER VERHEYDT v. TAMMI WAI-PING VERHEYDT

Docket Number: S-12-0153

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

Appeal from the District Court of Sweetwater County, Honorable Nena James, Judge.

Representing Appellant: Galen Woelk of Aaron & Hennig, LLP, Laramie, Wyoming.

Representing Appellee: Elizabeth Greenwood and Inga L. Parsons of Greenwood Law, LLC, Pinedale, Wyoming.

Date of Decision: March 5, 2013

Facts: Tammi Wai-Ping Verheydt (Wife) and Raymond Alexander Verheydt (Husband) were divorced by decree entered February 27, 2012. Husband appealed, claiming the district court abused its discretion in imputing his monthly income and ordering him to pay child support for several months when he was living in the marital home after Wife filed for divorce and ordering him to pay half the cost of the children’s past and future activities as an upward deviation of child support. Husband also contended the district court deprived him of due process in making the above rulings without evidentiary support.

Issues: Husband presents the issues for this Court’s determination as follows:

1. The District Court imputed income to [Husband] without evidence supporting its findings.

2. The District Court’s upward deviation in child support is not supported by evidence, and does not conform to Wyoming’s statutory requirements.

3. The District Court cannot order child support and an upward deviation to that support, for time in which a parent resides with his children.

4. The District Court deprived [Husband] of his right to due process when it entered an order having no evidentiary support.

Holdings: The Court found that Husband waived his right to assert these claims on appeal and affirmed the district court’s 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]