Summary 2014 WY 62

Summary of Decision May 14, 2014

Justice Fox delivered the opinion of the Court. Reversed.

Case Name: LEEKS CANYON RANCH, LLC, a Wyoming limited liability company; LEEKS CANYON, LLC, a Wyoming limited liability company; ELIZABETH LOCKHART and KELLY LOCKHART, wife and husband, Appellants v. CALLAHAN RIVER RANCH, LLC, a Wyoming limited liability company; and PORTER RIVER RANCH, LLC, a Wyoming limited liability company, Appellees

Docket Number: S-13-0173

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

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

Representing Appellants: Weston W. Reeves and Anna M. Reeves Olson of Park Street Law Office, Casper, Wyoming; and Thomas N. Long and Aaron J. Lyttle of Long Reimer Winegar Beppler LLP, Cheyenne, Wyoming. Argument by Mr. Reeves.

Representing Appellees: James R. Belcher of Crowley Fleck PLLP, Cheyenne, Wyoming.

Date of Decision: May 14, 2014

Facts: The Jackson Hole Hereford Ranch was divided by a complicated series of conveyances between entities controlled by a brother and sister, two grandchildren of the original owner, who were unable to agree on the validity of language purporting to reserve or convey an easement from the sister’s property across the brother’s property. Brother (and the related entities he controls) sought quiet title and injunctive relief, asserting that the requirements for finding an express or implied easement had not been met; sister (and her husband and the related entities they control) filed a counterclaim asserting the existence of a valid easement. The district court found that the parties failed to sufficiently describe the easement as required by Wyo. Stat. Ann. § 34-1-141, and that the express easement was therefore void. Additionally, the district court found that because the parties specifically contemplated an easement, but failed to effectuate their intent, an implied easement was inappropriate.

Issues: 1) Did the grantor reserve part of the disputed easement when it conveyed parcels in 1992? 2) Is the easement language in the deeds specific enough to locate the easement in accordance with Wyo. Stat. Ann. § 34-1-141? 3) Is the easement appurtenant to the land or in gross? 4) Did the grantor convey an easement across Parcel 25 when it conveyed Parcel 19 to Elizabeth Lockhart in 1998?

Holdings/Conclusion: We reverse the district court’s grant of summary judgment in favor of the Gills and remand with instructions that the district court enter summary judgment in favor of the Lockharts.

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 2014 WY 61

Summary of Decision May 12, 2014

Justice Davis delivered the opinion for the court. Affirmed.

Case Name: IN THE MATTER OF THE WORKER’S COMPENSATION CLAIM OF: CHRISTINA S. HIRSCH, AN EMPLOYEE OF BORDER FOODS, INC. v. STATE OF WYOMING ex rel. WYOMING WORKERS’ SAFETY AND COMPENSATION DIVISION

Docket Number: S-13-0162

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

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

Representing Appellant: Jack D. Edwards of Edwards Law Office, P.C., Etna, Wyoming

Representing Appellee: Peter K. Michael, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Samantha Caselli, Assistant Attorney General

Date of Decision: May 12, 2014

Facts: Appellant Christina Hirsch sought worker’s compensation benefits for back pain she believed was related to an earlier workplace accident. The Office of Administrative Hearings (OAH) upheld the Wyoming Workers’ Safety and Compensation Division’s (Division) denial of temporary total disability and medical pay benefits, and the district court affirmed the OAH decision. Ms. Hirsch appeals to this Court, claiming that the OAH erred by failing to find a causal connection between the workplace accident and her delayed back pain.

Issues: While Ms. Hirsch raises several issues on appeal, we find the dispositive question to be whether there is substantial evidence to support the OAH’s denial of benefits before a remand from the district court for supplementation of the record. We therefore restate the controlling issue as follows: Were the OAH’s Findings of Fact, Conclusions of Law, and Order contrary to the overwhelming weight of the evidence?

Holdings/Conclusion: Ms. Hirsch did not carry her burden of persuading the OAH that the May 2009 incident caused her later back pain. The record contains substantial evidence without the contested supplementation to support the OAH’s initial decision to deny benefits. 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 2014 WY 60

Summary of Decision May 8, 2014

Justice Fox delivered the opinion of the Court. Affirmed.

Case Name: GILBERT ORTIZ, JR. v. THE STATE OF WYOMING

Docket Number: S-13-0127

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: Dion J. Custis, Dion J. Custis, PC, Cheyenne, Wyoming.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Jeffrey S. Pope, Assistant Attorney General; Jennifer E. Zissou, Assistant Attorney General. Argument by Ms. Zissou.

Date of Decision: May 8, 2014

Facts: A jury found Gilbert Ortiz, Jr., guilty of three counts of second-degree sexual assault. Mr. Ortiz raises seven issues on appeal.

Issues: 1) Was Mr. Ortiz denied his right to a speedy trial? 2) Did the district court properly admit forensic interview evidence as a prior consistent statement? 3) Did testimony from a forensic interviewer or a detective improperly vouch for the credibility of the victim? 4) Was the Bill of Particulars sufficient for Mr. Ortiz to adequately prepare a defense? 5) Did the circuit court abuse its discretion when it granted an ex parte motion quashing Mr. Ortiz’s subpoena to call the victim and her mother as witnesses at a preliminary hearing? 6) Did the district court abuse its discretion when it denied admission of sexualized behavior evidence on relevancy and hearsay grounds? 7) Did the State commit prosecutorial misconduct when it referenced a non-religious quote from a church sign in its opening statement?

Holdings/Conclusion: Mr. Ortiz has presented no basis to reverse on any of the issues he raised on appeal. The conviction 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 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 2014 WY 59

Summary of Decision May 7, 2014

Justice Hill delivered the opinion of the Court. Affirmed.

Case Name: DONALD GILMER v. THE STATE OF WYOMING

Docket Number: S-13-0249

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: Donald Gilmer, pro se.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; and Jennifer Zissou, Assistant Attorney General.

Date of Decision: May 7, 2014

Facts: Donald Gilmer filed a motion to reduce his sentence based on his good behavior while incarcerated. The district court denied the motion, and Gilmer appeals.

Issue: Gilmer filed his appeal pro se, and in his statement of the issue he contends that the district court’s decision to deny the motion to reduce his sentence was wrong and unjust. The State frames the issue on appeal as follows: Gilmer pled guilty to strangulation of a household member and domestic battery. After imposition of his sentence, he filed a motion for sentence reduction due to his good behavior while incarcerated. Did the district court abuse its discretion when it denied this motion?

Holdings/Conclusion: The district court did not abuse its discretion in denying Gilmer’s motion to reduce his sentence. 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 2014 WY 58

Summary of Decision May 7, 2014

Justice Hill delivered the opinion of the Court. Dismissed.

Case Name: MARK W. HITZ v. THE STATE OF WYOMING

Docket Number: S-13-0190

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

Appeal from the District Court of Laramie County, the Honorable Steven K. Sharpe, Judge

Representing Appellant: Mark W. Hitz, pro se.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; and Caitlin Wallace, Assistant Attorney General.

Date of Decision: May 7, 2014

Facts: Mark Hitz was placed on probation for a felony larceny conviction, subject to placement in an adult community correctional facility. A little over a month after that placement, Hitz checked out of the facility and failed to return. Hitz pled guilty to felony escape from official detention, his probation was revoked, and he was sentenced on both the larceny and escape convictions.
Approximately a year and a half after the district court reinstated Hitz’s felony larceny sentence and imposed a sentence for the escape conviction, Hitz filed a combined Rule 35 motion for sentence reduction and motion for injunction. Through the motion for injunction, Hitz sought an order enjoining the Wyoming Board of Parole from interpreting Wyoming law in a manner that would preclude him from parole eligibility. The district court ordered that it lacked authority to rule on Hitz’s Rule 35 motion on the ground that the motion was untimely, depriving the court of jurisdiction. The court also ruled that it lacked jurisdiction to review the Board of Parole’s interpretation of Wyoming law or to consider Hitz’s request for injunctive relief.

Issue: Hitz submitted a pro se appeal and did not include a statement of the issue. The State framed the issue on appeal as follows: After a criminal case concludes, district courts retain limited jurisdiction over the defendant. They can only consider the motions provided for in the Rules of Criminal Procedure and, for even these motions, the courts are restricted by the parameters the Rules establish. For example, a motion for sentence reduction must be filed within one year of sentencing. Did the district court properly deny Hitz’s motion for sentence reduction as untimely and correctly deny his motion for lack of jurisdiction?

Holdings/Conclusion: We conclude that the district court was without subject matter jurisdiction to consider Hitz’s combined motion for sentence reduction and injunctive relief and that, consequently, this Court is without jurisdiction to consider this appeal. The appeal 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 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 Order Reversing Judgment and Sentence 2014 WY 57

Order Reversing Judgment and Sentence

Case Name: Robert J. Parks v. The State of Wyoming

Docket Number: S-13-0278

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

Date of Order: May 7, 2014

Order Reversing Judgment and Sentence

This matter came before the Court upon a “Stipulated Motion to Reverse and Remand,” e-filed herein April 23, 2014. After a careful review of the motion and the file, this Court finds as follows. Appellant pled guilty to two felonies: kidnapping and sexual abuse of a minor in the first degree. According to Appellant’s brief, prior to entry of those pleas, the district court advised Appellant that he could lose the “right to own and possess certain types of weapons.” In his brief, Appellant contends his convictions 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’s firearms advisement likely 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, Starrett v. State, 2012 WY 133, 286 P.3d 1033 (Wyo. 2012); Cobb v. State, 2013 WY 142, 312 P.3d 827 (Wyo. 2013), and Pedraza v. State, 2014 WY 24, 318 P.3d 812 (Wyo. 2014) this Court must reverse Appellant’s convictions. It is, therefore,

ORDERED that the “Judgment and Sentence” entered on August 16, 2013, in Converse County District Court Criminal Action No. 4432, 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 2014 WY 56

Summary of Decision May 5, 2014

Justice Burke delivered the opinion of the Court. Affirmed.

Case Name: IN THE MATTER OF A VIOLATION OF THE WYOMING RESIDENTIAL MORTGAGE PRACTICES ACT BY CALCON MUTUAL MORTGAGE CORPORATION: CALCON MUTUAL MORTGAGE CORP v. STATE OF WYOMING, ex rel., WYOMING DEPARTMENT OF AUDIT, DIVISION OF BANKING

Docket Number: S-13-0130

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: James R. Salisbury and Anthony M. Reyes, Riske & Salisbury, Cheyenne, Wyoming. Argument by Mr. Salisbury.

Representing Appellee: Peter K. Michael, Attorney General; Martin L. Hardsocg, Deputy Attorney General; Ryan T. Schelhaas, Senior Assistant Attorney General. Argument by Mr. Schelhaas.

Date of Decision: May 5, 2014

Facts: The Wyoming Department of Audit, Division of Banking (Division) conducted a compliance examination of Appellant, CalCon Mutual Mortgage Corporation (CalCon), and determined that, in six separate brokering transactions, CalCon had received application fees and “yield spread premiums” exceeding those previously disclosed to its customers in violation of the Wyoming Residential Mortgage Practices Act. The Division sought reimbursement of the fees charged in those transactions. CalCon objected and the matter was referred to the Office of Administrative Hearings (OAH) for a contested case hearing. The OAH determined that CalCon had violated the Act and the State Banking Commissioner subsequently ordered CalCon to reimburse the fees. CalCon filed a petition for review in the district court, and the district court affirmed. CalCon appeals from the district court’s decision.

Issues: 1) Whether the Office of Administrative Hearings erred as a matter of law in its construction and interpretation of Wyoming Statute § 40-23-114(d). 2) Whether the decision of the Office of Administrative Hearings is arbitrary, capricious, and not supported by substantial evidence.

Holdings/Conclusion: Because CalCon received fees in excess of the fees originally disclosed to the borrowers in the transactions at issue, and because it did not provide a clear written explanation of the increased fees or the reason for charging fees exceeding those which were previously disclosed, the Banking Commissioner properly concluded that CalCon was statutorily precluded from accepting the increased fees.
In its second issue, CalCon contends the Commissioner’s decision was per se “arbitrary and capricious” because the Division has not used its regulatory powers to define the phrase “most recent good faith estimate.” We find no merit in this argument. We have already determined that the plain language of the statute is sufficient to convey the meaning of the phrase “most recent good faith estimate.” Accordingly, we conclude that the Commissioner’s decision was not arbitrary or capricious. 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 2014 WY 55

Summary of Order April 23, 2014

Order Suspending Attorney from the Practice of Law

Case Name: BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR v. SCOTT M. POWERS, WSB No. 6 3188

Docket Number: D-14-0005

The full report and recommendation can be found here: http://www.courts.state.wy.us/Opinions.aspx

This matter came before the Court upon a “Report and Recommendation for Suspension,” filed herein April 11, 2014 by the Board of Professional Responsibility for the Wyoming State Bar, pursuant to Section 16 of the Disciplinary Code for the Wyoming State Bar (stipulated discipline). The Court, after a careful review of the Board of Professional Responsibility’s Report and Recommendation and the file, finds that the Report and Recommendation should be approved, confirmed and adopted by the Court, and that Respondent Scott M. Powers should be suspended from the practice of law for a period of nine months. It is, therefore,

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

ADJUDGED AND ORDERED that, as a result of the conduct set forth in the Report and Recommendation for Suspension, Respondent Scott M. Powers shall be, and hereby is, suspended from the practice of law for a period of nine months, beginning May 1, 2014; and it is further

ORDERED that Respondent shall comply with Section 22 of the Disciplinary Code for the Wyoming State Bar. That Section governs the duties of disbarred and suspended attorneys; and it is further

ORDERED that, pursuant to Section 26 of the Disciplinary Code for the Wyoming State Bar, Mr. Powers shall reimburse the Wyoming State Bar the amount of $50.00, representing the costs incurred in handling this matter, as well as pay the administrative fee of $500.00. Mr. Powers shall pay the total amount of $550.00 to the Clerk of the Board of Professional Responsibility on or before June 2, 2014; and it is further

ORDERED that the Clerk of this Court shall docket this Order Suspending Attorney from the Practice of Law, along with the incorporated Report and Recommendation for Suspension, as a matter coming regularly before this Court as a public record; and it is further

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

ORDERED that the Clerk of this Court cause a copy of this Order Suspending Attorney from the Practice of Law to be served upon Respondent Scott M. Powers.

DATED this 23rd day of April, 2014.

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]