Summary 2013 WY 51

Summary of Decision April 30, 2013

Justice Davis delivered the opinion for the Court. Affirmed in Part. Reversed in part. Remanded.

Case Name: JAMES E. KOCH v. J&J RANCH, LLC, a Wyoming Limited Liability Company.

Docket Number: S-12-0179

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

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

Representing Appellant: Daniel B. Frank of Frank Law Office, P.C., Cheyenne, Wyoming

Representing Appellee: James R. Salisbury of Riske & Salisbury, P.C., Cheyenne, Wyoming

Date of Decision: April 30, 2013

Facts: The parties are two rural landowners who own easements crossing a parcel of ranchland in Laramie County, Wyoming. When Appellant James Koch improved the common roadway and asked his neighbor to contribute to the cost of those improvements, Appellee J&J Ranch, LLC brought suit against Koch in the District Court for the First Judicial District. J&J sought a declaratory judgment as to the parties’ respective rights and duties relating to maintenance and repair of the road, as well as injunctive relief and damages for Koch’s alleged interference with J&J’s use of the easement.

Koch responded with similar counterclaims, but also claimed the right to equitable contribution from J&J for the costs he incurred in improving the road.

Issues: We restate the questions raised by this appeal as follows:

1. Was the district court’s denial of Koch’s equitable contribution claim consistent with the principles set out in Rageth v. Sidon Irrigation District, 2001 WY 121, 258 P.3d 712 (Wyo. 2011), and otherwise not clearly erroneous or an abuse of discretion?

2. Did the court err as a matter of law when it declared that:

a. Appellant had no right to repair or maintain the easement?
b. Appellant had no right to recover a portion of the costs of repair or maintenance from Appellee?
c. Appellant’s use of the easement could not exceed the boundaries of his grant?

Holdings: The district court made findings which were not erroneous in light of the record before it, and it likewise reasonably exercised its discretion in denying Koch’s claim for an equitable contribution for the cost of rebuilding the parties’ common private road. Consequently, the Court affirmed that portion of the district court’s decision.

Because the provisions of the court’s declaratory relief order finding that Koch cannot maintain the easement or recover a share of the cost of doing so if he does cannot be sustained as a matter of law, the Court reversed and remanded for entry of an order granting declaratory relief consistent with this decision. The Court also reversed the district court’s determination that Koch may not use any portion of the easement outside the boundaries of the Fogg/Palen grant because the owner of the servient estate was not a party to this case. Affirmed in part, reversed in part, and remanded.

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 50

Summary of Decision April 30, 2013

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

Case Name: KIET HOANG NGUYEN v. THE STATE OF WYOMING

Docket Number: S-12-0173

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

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

Representing Appellant: Diane M. Lozano, State Public Defender, PDP; Tina N. Olson, Chief Appellate Counsel. Kirk A. Morgan, Senior Assistant Appellate Counsel.

Representing Appellee: Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Jeffrey Pope, Assistant Attorney General.

Date of Decision: April 30, 2013

Facts: Kiet Hoang Nguyen challenged the judgment and sentence entered after he pleaded guilty to one count of larceny. He claimed that the factual basis provided by the State for his guilty plea did not meet the elements of larceny, specifically the “taking” requirement. Apparently recognizing the factual basis did not establish the crime of larceny, the State argued that his conviction should, nevertheless, be affirmed because Mr. Nguyen understood his conduct was criminal and he waived any challenge to the sufficiency of the evidence when he pleaded guilty.

Issues: Mr. Nguyen presents the following issue on appeal:

Did the trial court err when it accepted Mr. Nguyen’s guilty plea without obtaining a sufficient factual basis to support the offense of larceny?

The State phrases the issue differently:

Requiring a district court to accept a factual basis for a guilty plea ensures a defendant understands his conduct was criminal and is not misled into waiving substantial rights. The factual basis for Kiet Nguyen’s guilty plea showed he deposited potentially forged checks from accounts with insufficient funds and then withdrew some of the money before the bank knew. Was there a sufficient factual basis for Nguyen to understand his conduct was criminal?

Holdings: The Court concluded the district court committed plain error by entering judgment on Mr. Nguyen’s guilty plea when it was not supported by a sufficient factual basis. Consequently, the Court reversed.

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 49

Summary of Decision April 25, 2013

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

Case Name: IN THE INTEREST OF SWM v. THE STATE OF WYOMING

Docket Number: S-12-0119

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

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

Representing Petitioner: Diane M. Lozano, State Public Defender; Aaron Hockman, Assistant Public Defender; Tina N. Olson, Appellate Counsel. Argument by Mr. Hockman.

Representing Respondent: Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General. Argument by Mr. Delicath.

Date of Decision: April 25, 2013

Facts: In this interlocutory appeal, Petitioner, SWM, challenged the juvenile court’s determination that he was competent to proceed to adjudication in a delinquency proceeding. He contended that the juvenile court violated his constitutionally protected due process rights when it disregarded relevant evidence and failed to apply the proper standard in determining competency.

Issues: SWM presents one issue: Do the Constitutions of the United States and the State of Wyoming require that the due process considerations that underlie Wyo. Stat. Ann. § 7-11-303 also apply in determining the competency of a minor under Wyo. Stat. Ann. § 14-6-219?

Holdings: The Court agreed that the juvenile court violated SWM’s due process rights and accordingly, the decision of the juvenile court was reversed, and the case 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 2013 WY 48

Summary of Decision April 25, 2013

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

Case Names: THE PUBLIC SERVICE COMMISSION OF WYOMING v. QWEST CORPORATION.

RANGE TELEPHONE COOPERATIVE, INC., RT COMMUNICATIONS, INC., DUBOIS TELEPHONE EXCHANGE, INC. AND ADVANCED COMMUNICATIONS TECHNOLOGY, INC., v. QWEST CORPORATION.

TRI COUNTY TELEPHONE ASSOCIATION and TCT WEST, INC. v. QWEST CORPORATION.

THE OFFICE OF CONSUMER ADVOCATE v. THE PUBLIC SERVICES COMMISSION OF WYOMING.

Docket Number: S-12-0119; S-12-0120; S-12-0121; S-12-122

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

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

Representing the Public Service Commission of Wyoming: Gregory A. Phillips, Wyoming Attorney General; Martin L. Hardsocg, Deputy Attorney General; Ryan T. Schelhaas, Senior Assistant Attorney General; Michael M. Robinson, Senior Assistant Attorney General. Argument by Mr. Robinson.

Representing Qwest Corporation: Paul J. Hickey and O’Kelley H. Pearson of Hickey & Evans, LLP, Cheyenne, Wyoming. Argument by Mr. Pearson.

Representing Range Telephone Cooperative, Inc., RT Communications, Inc., Dubois Telephone Exchange, Inc., and Advanced Communications Technology, Inc.: Elizabeth Zerga of Jubin & Zerga of Jubin & Zerga LLC, Cheyenne, Wyoming.

Representing Tri County Telephone Association and TCT West, Inc.: Michael B. Rosenthal and Marianne Kunz Shanor of Hathaway& Kunz, P.C., Cheyenne, Wyoming. Argument by Ms. Shanor.

Representing the Office of Consumer Advocate: Alexander K. Davison of Patton & Davison, Cheyenne, Wyoming. Argument by Mr. Davison.

Date of Decision: April 25, 2013

Facts: The manager of the Wyoming Universal Service Fund (WUSF) filed confidential reports with the Wyoming Public Service Commission (PSC) containing his recommendations for the WUSF assessment level for fiscal years 2009-2010 and 2010-2011. Upon notice from the PSC that public hearings would be held to consider the manager’s reports, Qwest asked for contested case hearings. Qwest also asserted it did not have sufficient information to allow it to determine whether the manager’s reports were correct.

The PSC denied Qwest’s requests for contested case hearings, concluding WUSF proceedings are legislative in nature. It convened public hearings and subsequently issued orders establishing the WUSF assessment levels as recommended by the manager. The Office of Consumer Advocate (OCA) and Qwest filed petitions for review of the PSC order in the district court.

Before the district court, Qwest reiterated its argument that it could not address whether the PSC’s orders were in error without seeing all of the information the PSC relied upon. The PSC argued the telecommunications companies submitted the information necessary to make the WUSF determination under the promise of confidentiality. Range Telephone Cooperative, Inc. (Range), RT Communications, Inc. (RT), Dubois Telephone Exchange, Inc. (Dubois), and Advanced Communications Technology, Inc. (Advanced Communications) filed motions to intervene for the limited purpose of protecting their confidential data.

After an initial hearing, the district court ordered portions of the 2009 data to be provided to Qwest but denied the request for 2010 data. Subsequently, the district court held that the PSC erred in denying Qwest’s requests for contested case hearings, reversed the administrative orders and remanded the cases to the PSC for contested case hearings.

Four notices of appeal from the district court’s order were filed. In case No. S-12-0119, the PCS claimed the district court erred in granting Qwest access to confidential information and in holding that Qwest had a property interest and was entitled to a contested case hearing. In case No. S-12-0120, Range, RT, Dubois and Advanced Communications asserted the district court erred in granting Qwest access to confidential information. Tri County Telephone Association (Tri County) likewise challenged the district court’s order releasing the information in case No. S-12-0121. In case No. S-12-0122, the OCA asserted the PSC erred in concluding it was not required to hold contested case hearings.

Issues: This Court granted motions to consolidate the four appeals. The determinative issue for our consideration is whether Qwest was entitled to contested case hearings before the PSC.

Holdings: The Court affirmed on different grounds the district court’s holding that the PSC was required to convene contested case hearings and remanded these cases to the district court with directions to remand to the PSC 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 2013 WY 47

Summary of Decision April 24, 2013

Justice Burke delivered the opinion for the Court. Convictions affirmed. Sentence vacated and remanded.

Case Name: DHARMINDER VIR SEN v. THE STATE OF WYOMING

Docket Number: S-11-0151

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

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

Representing Appellant: Diane E. Courselle, Director, and Samantha Lind, Cally Lund, and Brian Quinn, Student Interns, Defender Aid Program, University of Wyoming College of Law. Argument by Ms. Lind.

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

Date of Decision: April 24, 2013

Facts: Appellant, Dharminder Sen, was convicted of first-degree felony murder, aggravated burglary, and conspiracy to commit aggravated burglary for his participation in the killing of Robert Ernst after breaking into Mr. Ernst’s home with Wyatt Bear Cloud and Dennis Poitra, Jr. He challenged his convictions on a number of grounds, and contended that his sentence of life without the possibility of parole is unconstitutional under the United States Supreme Court’s recent decision in Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

Issues: Sen presents six issues, which we discuss in the following order:

1. Did the trial court abuse its discretion when it failed to grant Dhar Sen’s motion to transfer his case to juvenile court, where the court did not meticulously consider the evidence, made inadequate findings, and made serious mistakes weighing the relevant factors?

2. Did the trial court err when it denied Dhar Sen’s motion to suppress his confession where the confession was involuntary as the product of coercion and failure to knowingly and intelligently waive his right to an attorney?

3. Did the trial court err when it found that the gunshot residue kit obtained without a warrant was admissible at trial?

4. Whether excluding expert testimony by Dr. Marie Banich, offered for the purpose of calling into question the specific intent element of aggravated burglary (and felony murder), violated Dhar Sen’s Sixth Amendment right to present a defense?

5. Whether Dhar Sen was denied effective assistance of counsel due to his attorney’s failure to investigate and failure to raise significant issues at sentencing?

6. Whether a sentence of life imprisonment without the possibility of parole or commutation, for a homicide committed at the immature age of 15, violates Dhar Sen’s constitutional protection against cruel and unusual punishment under the United States and Wyoming Constitutions?

The State phrases the issues in a substantially similar manner.

Holdings: The Court found no error impacting Sen’s convictions and, accordingly, affirmed those convictions. However, Sen’s sentence of life without parole was imposed under a sentencing scheme that precluded the possibility of parole. As a result, Sen’s sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment and relevant Supreme Court precedent. Accordingly, the Court vacated Sen’s sentence and remanded to the district court for resentencing on all counts.

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 46

Summary of Decision April 19, 2013

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: TRAVIS J. KOVACH v. THE STATE OF WYOMING

Docket Number: S-12-0150

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

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

Representing Appellant: Gerard R. Bosch, Law Offices of Jerry Bosch, Wilson, WY; and Tim Newcomb, Laramie, WY. Argument by Mr. Newcomb.

                       
Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; and Jeffrey Pope, Assistant Attorney General. Argument by Mr. Pope.

Date of Decision: April 19, 2013

Facts: Travis Kovach was a passenger in a vehicle traveling on a narrow backcountry road.  As the vehicle in which Kovach was traveling passed another oncoming vehicle, the two vehicles clipped each other.  Kovach pursued the other vehicle, and after catching up with it, he assaulted the vehicle’s seventy-three-year-old driver and sixty-seven-year-old passenger.  Kovach then forced the two men back to his hunting camp, where he again assaulted them. 

A jury found Kovach guilty of numerous charges, including false imprisonment, felonious restraint and aggravated assault and battery.  On appeal, Kovach contended the prosecutor suppressed exculpatory evidence in violation of his state and federal due process rights.  He also challenged the district court’s order requiring him to disclose witness statements and its imposition of sanctions related to that order; alleged misconduct in the prosecutor’s failure to correct false or misleading testimony; alleged the district court relied on impermissible information in sentencing; and alleged the district court erred in sua sponte issuing an amended judgment correcting the fine imposed against Kovach. 

Issues:    Kovach presents eight issues on appeal, which we consolidate and restate as follows:

1.      Did the prosecutor suppress exculpatory evidence in violation of Kovach’s federal and state due process rights?

2.      Did the district court abuse its discretion and violate Kovach’s federal and state constitutional rights when it ordered him to disclose witness statements and then limited his cross-examination of two prosecution witnesses as a sanction for failure to comply with that order? 

3.      Did the prosecutor commit plain error in violation of Kovach’s due process rights by failing to correct the testimony of two witnesses? 

 4.      Did the district court commit plain error in its sentencing of Kovach by relying on uncharged misconduct evidence and by sua sponte issuing an amended judgment correcting the fine imposed against Kovach?

Holdings: The Court found no violation of Kovach’s constitutional rights in the prosecutor’s failure to disclose information to the defense or in the district court’s discovery orders. The Court further found no prosecutorial misconduct, and no plain error in the court’s sentencing decisions and order. 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 45

Summary of Decision April 17, 2013

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: MEGAN B. GOLDEN, f/k/a MEGAN B. GUION v. TODD A. GUION

Docket Number: S-12-0196

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

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

Representing Appellant: Megan B. Golden, pro se.

Representing Appellee: Robert W. Brown and Amanda K. Roberts of Lonabaugh & Riggs, LLP, Sheridan, Wyoming.

Date of Decision: April 17, 2013

Facts: The appellant, Megan B. Golden (Wife), appealed the district court’s order regarding the distribution of property following the divorce of the appellant and her former husband, the Appellee, Todd A. Guion (Husband). Wife argued that the district court abused its discretion when it divided property contrary to the evidence presented at the trial and when it failed to consider the financial condition in which the parties were left after the divorce. Husband claims that Wife’s brief is riddled with procedural errors, with the fatal error being the omission of the trial transcript from the record.

Issue: Did the district court abuse its discretion when it divided the property as it did in the divorce decree?

Holdings: Wife failed to comply with W.R.A.P 3.02(b) by failing to provide this Court with a transcript of the district court proceedings. Because this Court could not review the evidence, they could not find that the district court abused its discretion in how it divided the parties’ property. Further, because there was no transcript in the record, the Court could not certify that there was reasonable cause to bring this appeal and awarded reasonable costs and attorney’s fees to Husband pursuant to W.R.A.P. 10.5

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 44

Summary of Decision April 17, 2013

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: WENDY WILLIS, f/k/a WENDY DAVIS v. CHAD DAVIS

Docket Number: S-12-0176

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

Appeal from the District Court of Park County, Honorable Steven R. Cranfill, Judge.

Representing Appellant: M. Jalie Meinecke of Meinecke & Sitz, LLC, Cody, Wyoming

Representing Appellee: Matthew D. Winslow of Keegan & Winslow, P.C., Cody, Wyoming

Date of Decision: April 17, 2013

Facts: The appellant, Wendy Willis (hereinafter Mother), appealed the district court’s decision to deny her motion for modification of custody and visitation. She claimed that the district court’s order did not comply with the statutes regarding child custody and visitation and that the district court improperly denied the admission of the children’s treating counselor’s notes and written opinion into evidence at the motion hearing.

Issues: 1. Did the district court abuse its discretion when it denied Mother’s motion for modification of custody and visitation?

2. Did the district court abuse its discretion when it determined that the treating counselor’s notes and written opinion regarding her counseling sessions with the children were inadmissible hearsay?

Holdings: The district court’s conclusion that Mother failed to demonstrate a material change in circumstances surrounding the custody and visitation order was supported by the facts presented at the hearing. For that reason, the district court was not required to engage in an analysis of whether a change in custody or visitation was in the best interests of the children. Finally, the Court declined to consider Mother’s argument that the counselor’s notes and written opinion were admissible as business records under W.R.E 803(6) because that issue was being raised for the first time on appeal. The Court affirmed the district court’s order denying Mother’s motion to modify custody and visitation.

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 43

Summary of Decision April 12, 2013


Justice Davis delivered the opinion for the Court. Affirmed.

Case Name: IN THE INTEREST OF: MC, HC and CC, Minor Children, DL, v. STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES

Docket Number: S-12-0199

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: Curtis Cheney of Messenger & Overfield, PC, Thermopolis, Wyoming

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

Representing Guardian Ad Litem: Dan S. Wilde, Permanency Attorney, Wyoming Guardian Ad Litem Program, Cheyenne, Wyoming; and Claudia Lair, Student Intern. Argument by Ms. Lair.

Date of Decision: April 12, 2013

Facts: After an adjudicatory hearing in this abuse and neglect case, Appelllant was found to have neglected her three children. She challenged that decision on the grounds that she was denied fundamental due process rights because the trial court declined to grant a motion to dismiss or to strike witnesses after claimed discovery violations by the State, and because the evidence was insufficient to support a finding of neglect.

Issues: 1. Did the trial court abuse its discretion when it denied Appellant’s motion to dismiss and to strike witnesses for claimed discovery violations that were not brought to the court’s attention until the date of the trial, and did its rulings on this issue result in a denial of due process?

2. Was there sufficient evidence to support the trial court’s finding of neglect?

Holdings: The Court found that the trial judge did not abuse his discretion in dealing with the claimed discovery violations, that Appellant received due process, and that the evidence was sufficient to support a finding of neglect. 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 42

Summary of Decision April 11, 2013

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: JASON THORNOCK and TRACY THORNOCK v. ERICK W. ESTERHOLDT, as Trustee of the Erik W. Thornock Revocable Trust dated August 6, 2009, and JEANNE M. ESTERHOLDT, as Trustee of the Jeanne M. Esterholdt Revocable Trust dated August 6, 2009.

Docket Number: S-12-0138

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

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

Representing Appellants: David M. Clark of Worrall & Greear, P.C., Worland, Wyoming

Representing Appellee: Sharon M. Rose, The Rose Law Firm, P.C., Evanston, Wyoming.

Date of Decision: April 11, 2013

Facts: The Thornocks filed an action against the Esterholdts and others, seeking to quiet title to certain lands in Lincoln County, Wyoming. The district court eventually granted summary judgment to the Thornocks as to some of the land, but denied summary judgment as to a certain strip of property. After a bench trial, the district court quieted title in the disputed strip of land in the Esterholdts. The Thornocks appealed.

Issues: 1. Whether an appurtenant easement was created by a deed that granted, in addition to tracts of fee title land, “[a]lso that right of way to be used in connection with said land and described as follows:…”

2. Whether, if the answer to the first question is in the negative, an appurtenant easement was created by a deed that granted “[a] right-of-way, described as follows, to wit:…”

Holdings: The district court’s findings of fact are not clearly erroneous in any material way, and they support the court’s conclusions of law. The Thornocks do not have an appurtenant easement in the disputed land, which is owned by the Esterholdts. The district court is affirmed.

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

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

Summary 2013 WY 41

Summary of Decision April 9, 2013

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

Case Name: DOUGLAS HOWARD CRAFT v. THE STATE OF WYOMING

Docket Number: S-12-0107

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

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

Representing Appellant: Diane Lozano, State Public Defender, PDP; Tina N. Olson, Chief Appellate Counsel; Kirk Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; James Michael Causey, Senior Assistant Attorney General; Christyne M. Martens, Assistant Attorney General. Argument by Ms. Martens.

Date of Decision: April 9, 2013

Facts: Douglas Howard Craft was convicted of two counts of first degree sexual abuse of a minor and one count of second degree sexual abuse of a minor upon his three daughters. He appealed, claiming the prosecutor committed misconduct when he questioned a witness about an exhibit that was not admitted as evidence, there was a fatal variance between the charges in the information and the charges proven at trial and the district court abused its discretion when it prohibited his expert witness from testifying about his opinion on what type of sexual abuse allegations were made in this case.

Issues: Mr. Craft presents the following issues on appeal:

1. Did prosecutorial misconduct occur when the prosecutor questioned witnesses on an exhibit he did not intend to submit into evidence?

2. Concerning two of the victims, PC and AXC, was there… a fatal variance between the charges alleged and the charges proven at trial?

3. Did the trial court abuse its discretion when it prohibited Mr. Craft’s expert witness from providing an opinion as to which class the allegation of sexual abuse falls within?

The State presents the same issues but phrased differently.

Holdings: The Court concluded that Mr. Craft was not prejudiced by the identification procedure because sufficient other evidence of Mr. Craft’s identity as the perpetrator was presented at trial. There was no variance between the charges alleged and the charges proven at trial; the evidence was sufficient to support the convictions. Lastly, the district court did not abuse its discretion in excluding the expert testimony, which fell outside the range of permissible opinion testimony. Finding no error, the Court 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 40

Summary of Decision April 4, 2013

Justice Burke delivered the opinion for the Court. Affirmed.

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

Docket Number: S-12-0205

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; David L. Delicath, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General.

Date of Decision: April 4, 2013

Facts: Appellant, Lana Tegeler, challenged a decision from the Office of Administrative Hearings (OAH) denying her Motion to Reopen Case Persuant to W.R.C.P. 60(b). She sought review of that decision in district court and the district court affirmed. She appealed to this Court.

Issues: Ms. Tegeler presents the following issue:

Whether the Office of Administrative Hearing’s decision to deny Ms. Tegeler’s motion to reopen the case is arbitrary, capricious or otherwise not in accordance with the law.

The Division states the issue as follows:

Did the hearing examiner abuse his discretion in denying Ms. Tegeler’s motion seeking relief under W.R.C.P. 60(b)?

Holdings: Ms. Tegeler renewed her claim that relief is warranted under Rule 60(b) because the physical therapy record indicating that she experienced back pain following her workplace accident “was either mistakenly overlooked or inadvertently not relied upon by trial counsel.” Ms. Tegeler provided no evidence to support her claim that the failure to introduce the physical therapy record in question was caused by “mistake” or “inadvertence” on the part of her trial counsel. Further, the significance of the medical record to Ms. Tegeler’s claim for benefits relating to her lower back is not immediately apparent given that the medical record indicated that Ms. Tegeler experienced pain or an annoyance “in the middle and center of her back.” In light of these deficits in the record, the Court found no abuse of discretion in the OAH’s decision denying Ms. Tegeler’s motion. 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 39

Summary of Decision April 3, 2013

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: DEON ALLEN LEONARD v. THE STATE OF WYOMING

Docket Number: S-12-0185

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

Appeal from the District Court of Sweetwater County, Honorable Jere A. Ryckman, Judge.

Representing Appellant: James P. Castberg, Sheridan, WY.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Professor Darrell D. Jackson, Prosecution Assistance Clinic; Emily N. Thomas, Student Director; Caitlin Wallace, Student Intern. Argument by Ms. Wallace.

Date of Decision: April 3, 2013

Facts: Appellant Deon Allen Leonard, after being convicted of four counts of sexual abuse of a minor in the second degree, complained on appeal that prosecutorial misconduct occurred and that his trial’s counsel’s performance was deficient.

Issues: Leonard presents two issues:

The prosecuting attorney’s misconduct during the trial precluded [Leonard] from receiving a fair trial as guaranteed by the due process clause of the 14th amendment to the constitution.

[Leonard] was denied a fair trial as a result of the violation of his 5th amendment right against self-incrimination caused by the deficient assistance of counsel.

Holdings: The Court concluded that the alleged improper question asked by the prosecutor at trial was not improper and thus no prosecutorial conduct occurred. Furthermore, Leonard does not meet his burden of showing that defense counsel’s performance on his behalf was deficient. 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 38

Summary of Decision April 2, 2013

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: VILLAGE ROAD COALITION v. TETON COUNTY HOUSING AUTHORITY;

DON GRONBERG, SUE GRONBERG, JIM FARMER, CHRISTY FOX, JENNY FOX, DENNIS CHICHELLI, SUE CHICHELLI, DEBORAH FOX, DON LANDIS, BEVERLY LANDIS, SCOTT AUSTIN, HOLLY AUSTIN, ROBIN MOYER, PETER MOYER, DOUG HANSON, ANNA MARIE HANSON, BARBARA SELLAS, DEBORAH D. WARD, PAUL PERRY, PAM ROMSA, LOU BREITENBACH, KEN JERN, and SHERRIE JERN v. TETON COUNTY HOUSING AUTHORITY.

Docket Number: S-12-0096; S-12-0104

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

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

Representing Appellant in Case No. S-12-0096: Phelps H. Swift, Jr. of Wilson, Wyoming.

Representing Appellants in Case No. S-12-0104: Peter F. Moyer of Jackson, Wyoming.

Representing Appellee in Case Nos. S-12-0096 and S-12-0104: Kim D. Cannon and Tenille L. Castle of Davis and Cannon, LLP, Sheridan, Wyoming. Argument by Mr. Cannon.

Date of Decision: April 2, 2013

Facts: This opinion represents the consolidation of two related appeals. The plaintiffs in the underlying dispute appealed the district court’s decision to grant Teton County Housing Authority’s (TCHA) motion to dismiss for lack of standing. Separately, Village Road Coalition (VRC) appealed the district court’s decision to deny VRC’s motion to intervene in the underlying dispute for failure to file its motion in a timely fashion.

Issues: 1. Did the district court abuse its discretion by denying VRC’s motion to intervene?

2. Was the district court’s decision to grant TCHA’s motion to dismiss in accordance with the law?

Holdings: The plaintiffs and TCHA had been involved in a protracted dispute centered on TCHA’s purchase of residential property in the neighborhood where the plaintiffs reside. VRC sought to intervene in the underlying dispute, but was not timely in filing its motion to intervene. Because VRC’s interests and relief sought were duplicative of those presented by the plaintiffs, the Court affirmed the district court’s decision denying the motion to intervene. The district court granted TCHA’s motion to dismiss TCHA’s declaratory judgment action for lack of standing. The plaintiffs failed to allege a tangible interest that had been harmed by the acquisition of the property, so the Court 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]