Summary 2013 WY 146

Summary of Decision November 26, 2013

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

Case Name: SHELLEY MOORE v. THE STATE OF WYOMING

Docket Number: S-13-0006

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

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

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. 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; Christyne Martens, Assistant Attorney General. Argument by Ms. Martens.

Date of Decision: November 26, 2013

Facts: Shelley Moore was convicted after a jury trial of felony possession of cocaine and misdemeanor possession of marijuana. At trial, he sought to introduce Chauncey Swain’s out-of-court statements that the cocaine belonged to him. The district court excluded the statements because they were hearsay and did not meet the requirements for the “statement against interest” exception to the hearsay rule. On appeal, Mr. Moore claims the district court erred by refusing to allow Mr. Swain’s statements to be introduced into evidence.

Issue: Whether the district court abused its discretion when it ruled that Mr. Moore could not present evidence that the other occupant in the vehicle had asserted that the cocaine in the vehicle was his, under W.R.E. 804(b)(3).

Holdings/Conclusion: The district court did not abuse its discretion when it weighed the factors and concluded Mr. Moore did not present sufficient corroborating circumstances to establish the trustworthiness of Mr. Swain’s statements under W.R.E. 804(b)(3). Mr. Swain’s statements were properly excluded as inadmissible hearsay. 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 quotation, 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 145

Summary of Decision November 21, 2013

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: MERIT ENERGY COMPANY v. DEPARTMENT OF REVENUE, STATE OF WYOMING

Docket Number: S-13-0056

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

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

Representing Appellant: Randy B. Reed; Gregory C. Dyekman; and Kevin Walton of Dray, Dyekman, Reed & Healy, P.C., Cheyenne, WY. Argument by Mr. Dyekman.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Martin L. Hardsocg, Deputy Attorney General; Cathleen D. Parker, Senior Assistant Attorney General; and Karl D. Anderson, Senior Assistant Attorney General. Argument by Mr. Anderson.

Date of Decision: November 21, 2013

Facts: This appeal concerns the 2006 valuation of natural gas from numerous gas wells in Lincoln, Sweetwater, and Uinta counties for which Merit Energy was a take-in-kind owner. The State of Wyoming Board of Equalization (SBOE) determined that Merit Energy failed to timely appeal several final Wyoming Department of Revenue (DOR) decisions regarding the amount of taxable gas it had received, resulting in a lack of jurisdiction by the SBOE. The SBOE dismissed Merit’s tax case with prejudice, and the district court affirmed the SBOE’s dismissal.

Issues: Merit lists three issues on appeal: 1. The Wyoming State Board of Equalization erred when it dismissed Merit Energy Company’s appeal for lack of jurisdiction. 2. The discrepancy letters sent by the Department of Revenue are not final administrative decisions. 3. The notice of valuation change sent by the Department of Revenue is a final administrative decision for purposes of appeal.

The DOR rephrases the issue as follows: Did the mineral assessments constitute final administrative decisions so that Merit had to appeal from them within thirty days and, therefore, did Merit’s delay divest the Board of jurisdiction to hear its eventual appeal?

Holdings/Conclusion: The 2008 tax assessment letters sent by the DOR to Merit Energy were final administrative decisions. Merit had thirty days in which to appeal these decisions and did not do so. We affirm the district court’s decision affirming the SBOE’s dismissal of Merit’s appeal as untimely. Furthermore, we conclude that even if this Court permitted Merit to appeal the Notice of Valuation Change, the doctrine of collateral estoppel precludes Merit from doing so. The underlying taxable value assessments were finalized by the 2008 tax assessment letters. 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 144

Justice Hill delivered the opinion of the Court. Affirmed.

Case Name: RICHARD REYNOLDS v. CHRISTOPHER BONAR

Docket Number: S-13-0100

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

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

Representing Appellant: Ronald G. Pretty, Cheyenne, WY.

Representing Appellee: Sean W. Scoggin of McKellar, Tiedeken & Scoggin, LLC, Cheyenne, WY.

Date of Decision: November 21, 2013

Facts: In 2011, Richard Reynolds filed a complaint against Christopher Bonar claiming personal injuries arising from a motor vehicle accident. That complaint was dismissed without prejudice for failure to comply with discovery orders. In 2012, Reynolds re-filed his complaint against Bonar. Reynolds’ second complaint was dismissed for failure to comply with discovery, this time with prejudice.

Issue: Did the Court have authority to dismiss [Reynolds’] case with prejudice?

Holdings/Conclusion: We find no constitutional violation in the district court’s dismissal of Reynolds’ complaint for failure to comply with the court’s discovery orders, and we affirm that dismissal with prejudice. Additionally, we impose sanctions upon Reynolds. Bonar shall submit a statement of costs and attorney’s fees associated with responding to Reynolds’ appeal. Upon review, we will award an appropriate amount in the form of sanctions. 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 quotation, 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 143

Justice Davis delivered the opinion of the Court. Reversed and remanded with directions to vacate.

Case Name: SHIRLEY WEIDT v. THE STATE OF WYOMING

Docket Number: S-13-0053

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

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

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey Pope, Assistant Attorney General; Brian J. Fuller, Student Intern. Argument by Mr. Fuller.

Date of Decision: November 19, 2013

Facts: Appellant Shirley Weidt was found guilty of indirect criminal contempt for failure to comply with an injunction and a nunc pro tunc amendment that allowed Sheridan County to enter her property and remove vehicles and trailers which violated county zoning ordinances.

Issue: Did the State present sufficient evidence to prove criminal contempt beyond a reasonable doubt?

Holdings/Conclusion: The evidence was insufficient as a matter of law to prove willful disobedience of a reasonably specific court order beyond a reasonable doubt. We therefore reverse Ms. Weidt’s conviction for indirect criminal contempt, and remand this matter to the district court with directions to vacate its judgment and sentence.


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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note, when you look at the opinion, that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quotation, 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.]

Order Reversing Judgment and Sentence 2013 WY 142

Order Reversing Judgment and Sentence November 14, 2013

Case Name: TAYLOR FORREST COBB v. THE STATE OF WYOMING

Docket Number: S-13-0175

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

Date of Order: November 14, 2013

ORDER REVERSING JUDGMENT AND SENTENCE

This matter came before the Court upon a “Stipulated Motion for Reversal and Remand,” e-filed herein October 28, 2013. After a careful review of the motion and the file, this Court finds as follows. Appellant pled guilty to three offenses: (1) possession of cocaine, a felony; (2) possession of marijuana, a misdemeanor; and (3) possession of heroin, a misdemeanor. Prior to entering his pleas, Appellant was advised that, if convicted of a felony, he would lose his “right to possess firearms under federal law.” The district court’s “Judgment and Sentence” was entered on July 31, 2013

In his appellate brief, Appellant contends that his felony conviction should be reversed because he was not given the firearms advisement required by Wyo. Stat. Ann. § 7-11-507. The State of Wyoming agrees.

This Court agrees as well. While the district court firearms advisement satisfied § 7-11-507(a)(i), the advisement did not satisfy § 7-11-507(a)(ii). Here is what that statute requires:

§ 7-11-507. Advisement of loss of firearms rights upon conviction.

(a) No judgment of conviction shall be entered upon a plea of guilty or nolo contendere to any charge which may result in the disqualification of the defendant to possess firearms pursuant to the provisions of 18 U.S.C. §§ 922(g)(1), (9) and 924(a)(2) or other federal law unless the defendant was advised in open court by the judge:
(i) Of the collateral consequences that may arise from that conviction pursuant to the provisions of 18 U.S.C. §§ 921(a)(33), 922(g)(1), (9) and 924(a)(2); and
(ii) That if the defendant is a peace officer, member of the armed forces, hunting guide, security guard or engaged in any other profession or occupation requiring the carrying or possession of a firearm, that he may now, or in the future, lose the right to engage in that profession or occupation should he be convicted.

As this Court has noted, “the legislature directed that no judgment of conviction be entered without advisement as to the potential loss of firearms privileges and its effect on employment in occupations requiring an employee to possess a gun.” Balderson v. State, 2013 WY 107, ¶ 21, 309 P.3d 809 (Wyo. 2013) (emphasis supplied). Therefore, based on Balderson and Starrett v. State, 2012 WY 133, 286 P.3d 1033 (Wyo. 2012), we reverse Appellant’s conviction and sentence for felony possession of cocaine. It is, therefore,

ORDERED that Appellant’s conviction for felony possession of cocaine, which is contained in the district court’s July 31, 2013, “Judgment and Sentence” be, and hereby is, reversed and vacated. This matter is remanded to the district court for proceedings consistent with this order.

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 141

Justice Davis delivered the opinion of the Court. Affirmed.

Case Name: EVELYN DIFELICI, f/k/a EVELYN BARNES v. CITY OF LANDER

Docket Number: S-13-0046

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

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

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

Representing Appellee: Thomas A. Thompson of MacPherson, Kelly & Thompson, LLC, Rawlins, Wyoming.

Date of Decision: November 12, 2013

Facts: Appellant Evelyn DiFelici was injured when she fell after stepping into a hole drilled in the gutter of a street in the City of Lander. She sued the City, claiming that it was negligent in the operation of a public utility or service, and also that she was entitled to recover under a specific statute rendering cities and towns liable for injuries resulting from excavations or obstructions which make streets or sidewalks unsafe. The district court granted the City’s motion for summary judgment.

Issues: 1. Did the City’s failure to replace a grate over the drain inlet fall within the waiver of immunity for negligence of public employees in the operation of public utilities and services under Wyoming Statute § 1-39-108(a)? 2. Does Wyoming Statute § 15-4-307 provide a statutory basis on which Appellant was potentially entitled to recover from the City?

Holdings/Conclusion: The term “liquid waste” in Wyoming Statute § 1-39-108(a) does not include runoff or storm water, and there is thus no exception to immunity available to the Appellant. We also find that the hole drilled in the gutter of Washakie Street to drain water into a privately-owned irrigation ditch was maintenance of a street to compensate for weather conditions, and that the specific immunity of § 1-39-120 therefore also bars her claim. Finally, we conclude that Wyoming Statute § 15-4-307 does not create a cause of action based on the negligence of public employees of cities and towns for excavations or obstructions of streets. We therefore 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 quotation, 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 140

Summary of Decision November 8, 2013

Justice Burke delivered the opinion of the Court. Affirmed.

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

Docket Number: S-13-0071

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

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

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

Representing Appellee: Gregory A. Phillips, Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Peter Howard, Student Intern.

Date of Decision: November 8, 2013

Facts: The Wyoming Workers’ Safety and Compensation Division awarded benefits to Appellant, Allen Trump, after he experienced a workplace injury to his knees in 1993. In 2009, Mr. Trump sought payment for a left knee arthroscopy that he claimed was related to his workplace injury. The Division denied the claim. Mr. Trump requested a contested case hearing, and the hearing examiner upheld the Division’s decision to deny benefits. Mr. Trump appealed to the district court, which affirmed the hearing examiner’s order. He challenges the district court’s decision in this appeal.

Issues: 1. Is the OAH’s decision supported by substantial evidence? 2. Did the OAH abuse its discretion in excluding hearsay testimony from Mr. Trump regarding the medical opinion of his treating physician?

Holdings/Conclusion: We conclude that the hearing examiner’s finding is supported by substantial evidence. We are unable to conclude that the exclusion of Mr. Trump’s hearsay testimony was an abuse of discretion. 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 quotation, 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 139

Summary of Decision November 8, 2013

Justice Davis delivered the opinion for the Court. Affirmed.

Case Name: JEREMIAH D. LEACH v. THE STATE OF WYOMING

Docket Number: S-13-0009

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

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

Representing Appellant: Nathan W. Jeppsen, Law Offices of Nathan W. Jeppsen, APC, Rock Springs, Wyoming.

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

Date of Decision: November 8, 2013

Facts: A Uinta County jury found Appellant Jeremiah Leach guilty of first degree sexual assault on a physically helpless woman. He contends that the district court erred in admitting statements he made to police, and that certain statements made by the prosecuting attorney in rebuttal closing argument were improper and prejudicial.

Issues: Leach raises two issues, which we condense as follows: 1. Did the district court abuse its discretion in admitting Leach’s statements to police? 2. Did the prosecutor improperly refer to facts not in evidence during his closing argument?

Holdings/Conclusion: The district court properly admitted Leach’s statements to the police, and the prosecutor did not improperly argue facts not in evidence in rebuttal closing. The Judgment and Sentence Nunc Pro Tunc of the District Court for the Third Judicial District is therefore 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 138

Summary of Decision November 4, 2013

Justice Voigt delivered the opinion for the Court. The district court decision is reversed and the OAH decision is reinstated.

Case Name: JOSEPH A. SCHWAB v. JTL GROUP, INC., d/b/a KNIFE RIVER

Docket Number: S-13-0057

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

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

Representing Appellant: Jeff S. Meyer, Murane & Bostwick, LLC, Casper, Wyoming.

Representing Appellee: John M. Kuker, The Kuker Group LLP, Cheyenne, Wyoming.

Date of Decision: November 4, 2013

Facts: The appellant sought worker’s compensation benefits for a low back injury sustained during the course of his employment. The Wyoming Workers’ Safety and Compensation Division (Division) at first denied the claim, but subsequently issued a redetermination finding the injury to be compensable and awarding benefits. The redetermination advised the parties they had fifteen days from the time of mailing to object and request a hearing with the Office of Administrative Hearings (OAH). The employer, however, did not file an objection until four days after the deadline had expired. Based upon the employer’s untimely objection, the OAH granted the appellant’s summary judgment motion without holding a contested case hearing, determining the undisputed facts established the employer failed timely to file its objection and request for hearing. The district court reversed and remanded the case to the OAH for further proceedings, finding genuine issues of material fact existed regarding the employer’s ability to avoid strict application of the objection deadline. The appellant now appeals to this Court, challenging the order of the district court. Although the district court’s order reversing and remanding to the OAH for further proceedings is not an appealable order pursuant to W.R.A.P. 1.05, we will consider the merits of the case by converting the appeal to a petition for writ of review.

Issues: Did the OAH err by granting summary judgment in favor of the appellant due to the employer’s untimely objection to a redetermination issued by the Wyoming Workers’ Compensation and Safety Division?

Holdings/Conclusion: We reverse the district court’s Order on Appeal and reinstate the OAH decision.

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]