Summary 2010 WY 75

Summary of Decision issued June 9, 2010

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

Case Name: Lake v. D & L Langley Trucking, Inc.

Citation: 2010 WY 75

Docket Number: S-09-0094

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

Representing Lake: Bernie Q. Phelan, Cheyenne, Wyoming.

Representing D&L Langley Trucking: Scott E. Ortiz of Williams, Porter, Day & Neville, PC, Casper, Wyoming.

Facts/Discussion: This was an appeal from a personal injury negligence case. Lake was involved in a car accident with Whited, employee of D&L Trucking. Lake alleged that Whited negligently attempted to pass him as he was making a left hand turn thereby causing the collision. The case was tried to a jury where the jury found Lake eighty-six percent at fault for the accident.

Sufficiency of the evidence: The Court found substantial and competent evidence supporting the jury’s findings, including that Whited never saw a turn signal on Lake’s pickup; Lake’s testimony that he was not paying attention and began his left turn without checking his mirrors; and the physical evidence that Lake turned into the tractor-trailer when the front of the tractor was already more than fifteen feet past the front of the pickup. Lake argued the accident would not have happened if Whited had not passed in an intersection and that because passing in an intersection violated state statute, the majority of fault must be Whited’s. The Court stated that although Whited passed at an intersection, it does not make him strictly liable for the accident. Lake’s culpability must also be considered. The jury calculated both party’s culpability as instructed. It then determined the fault of each party in regard to causation of the accident. The jury concluded that Lake bore more responsibility for the accident. Sufficient evidence supported the jury’s allocation of negligence.
Alleged surprise in closing argument: Lake also suggested a new trial was warranted because the comments in the closing argument of defense counsel regarding the application of § 31-5-205(a)(ii) constituted a surprise which ordinary prudence could not have guarded against. Given the strength of the evidence, the Court stated it was doubtful any different result would be obtained from a new trial.
Jury misconduct: Lake argued the misconduct was the rendering of an impermissible quotient verdict based upon an affidavit suggesting the jury agreed to average individual estimated fault. The Court agreed with the district court’s determination that it could not consider the affidavit because it violated W.R.E. 606(b). The rule is a codification of a common law rule that the testimony of a juror cannot be received to impeach the verdict in which he has concurred. Legislative history explicitly contradicts Lake’s argument that the juror affidavit in the instant case was admissible.
Lake also argued that because the jury requested a calculator and it did not award any damages, the jury could only have been using the calculator to compute an averaged percentage of fault for the respective parties. The fact the jury may have used a quotient process for determining fault does not warrant the presumption the jury ultimately rendered an impermissible quotient verdict. The validity of a quotient verdict is determined by whether the jury agreed beforehand to be bound by the result reached.

Conclusion: The district court did not abuse its discretion in denying Lake’s motion for a new trial. The evidence was sufficient to support the verdict. If there was any error on the part of defense counsel in closing argument as alleged by Lake, such error was not prejudicial under the facts and circumstances of the case. There was no evidence supporting Lake’s presumption that the jury rendered an impermissible quotient verdict.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/2c48z8g .

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary of Decision issued September 11, 2009

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

Case Name: Lamar Outdoor Advertising v. Farmers Co-Op Oil Co. of Sheridan, WY

Citation: 2009 WY 112

Docket Number: S-08-0131

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

Representing Appellant Lamar: Timothy M. Stubson of Brown, Drew & Massey, LLP, Casper, Wyoming.

Representing Appellee Farmers: Clint A. Langer of Davis & Cannon, LLP, Sheridan, Wyoming.

Representing Appellee Maverick Country Stores: Steven T. Waterman of Ray Quinney & Nebeker PC, Salt Lake City, Utah.

Facts/Discussion: During litigation among the parties concerning Lamar’s claim that other parties had not honored Lamar’s lease-based right of first refusal that provided Lamar the opportunity to purchase certain property upon which Lamar maintained an advertising sign, the parties executed a settlement agreement. Lamar appealed the district court’s summary judgment order that under the terms of the parties’ unambiguous settlement agreement Sheridan failed to act on Lamar’s variance application within eight weeks from the date the variance application was submitted and consequently, the parties remained bound by the terms of their settlement agreement.
Farmers and Maverik argued that Lamar submitted its variance application on August 2, 2006 which started the eight week clock as provided in the parties’ settlement agreement. The parties agree that Sheridan acted on Lamar’s application when it denied it on October 12, 2006. The eight week clock expired on October 2, 2006. Consequently, under the language of the parties’ agreement, the settlement agreement became fully binding.
Lamar relied upon the Mentock affidavit attached to its response. The Court determined the affidavit was insufficient. The affiant’s statement that he was “familiar with the matters set forth herein and they are true to the best of his knowledge, information and belief” did not meet the “personal knowledge” requirement. In addition, the applications for the variation and the required letter of notification to property owners were not attached to the affidavit.

Conclusion: The Court held that Farmers’ and Maverik’s argument prevailed and that Lamar’s argument had no evidentiary support.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/nyow52 .

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 27

Summary of Decision issued February 26, 2009

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

Case Name: Mueller v. State

Citation: 2009 WY 27

Docket Number: S-08-0057

Appeal from the District Court of Washakie County, the Honorable Gary P. Hartman, Judge.

Representing Appellant Mueller: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny L. Craig, Assistant Attorney General.

Facts/Discussion: Mueller was convicted by a jury of felony possession of methamphetamine which police found while executing a search warrant at her basement apartment.
Mueller contended that the search warrant was constitutionally infirm because the affidavit submitted failed to contain sufficient information to support the judicial officer’s finding of probable cause. The existence of probable cause justifying the issuance of a search warrant requires the factual situation described in the affidavit must be sufficient to cause a reasonably cautious person to believe that a crime was being committed or that it had been committed and that there must be an adequate showing that the fruits of the crime were in the structure or area sought to be searched. The Court noted in Rohda v. State, the officer must make a practical common sense decision whether, given all the circumstances set forth in the affidavit, there was a fair probability that contraband or evidence of a crime will be found in a particular place. The affidavit contained information regarding the theft of the Mercury Sable, the personal items that were in the vehicle, the approximate time the car was stolen, the observation that the stolen car was spotted parked outside an apartment building and that men were observed removing plastic boxes from the vehicle and placing them in the basement apartment. The judicial officer had a substantial basis on which to conclude that evidence of criminal activity could be found in the basement apartment. The affidavit contained information provided by citizen informants who are generally entitled to a presumption of reliability. In addition, the information included first-hand observation of the informants and was specific and detailed. The specificity of the information, coupled with the corroboration by other individuals, strongly indicated the informants were reliable.

Conclusion: The affidavit when read in its entirety provided a substantial basis for the warrant-issuing judicial officer’s finding of probable cause. The Court found no error in the district court’s denial of Mueller’s motion to suppress.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/boo8cd .

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2007 WY 142

Summary of Decision issued September 5, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Abeyta v. State

Citation: 2007 WY 142

Docket Number: 06-123

Appeal from the District Court of Carbon County, the Honorable Wade E. Waldrip, Judge

Representing Appellant (Defendant): D. Terry Rogers, Interim State Public Defender; Donna D. Domonkos, Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and David L. Delicath, Senior Assistant Attorney General.

Issues: Whether the affidavit executed in support of the search warrant provided the warrant-issuing judicial officer with a substantial basis for concluding that probable cause existed to search Abeyta’s residence.

Facts/Discussion: Appellant was arrested and charged with three separate criminal drug charges after a search of his residence revealed drugs and drug paraphernalia.
Standard of Review: When reviewing the adequacy of a probable cause affidavit, the Court has stated their duty is to ensure that the warrant-issuing official had a substantial basis for concluding that probable cause existed.
The Fourth Amendment and the Wyoming Constitution protect citizens against unreasonable searches and seizures. The state provision requires that probable cause finding for issuance of a search warrant is to be supported by affidavit. When reviewing, the Court begins with the presumption that the affidavit presented was valid. The warrant-issuing judicial officer must examine the affidavit to determine whether the factual statements contained provide probable cause and applies the “totality of circumstances” analysis. Abeyta’s paragraph-by-paragraph analysis is inconsistent with the above stated approach.
Abeyta relied on Hixon but the facts were distinguishable because unlike the affidavit in Hixon, this affidavit contained independent reliable and verifiable information supporting a finding of probable cause. The Court agreed that there was lack of corroboration supporting the “known drug users” statement. The Court stated the law requires that the affidavit must include more than the bare conclusions of the affiant and determine whether as a whole the warrant-issuing officer had a substantial basis for concluding that probable cause existed. Firsthand observations of a law enforcement officer may include the raw data of his own sense perceptions including the officers’ detailed observations of the activities of individuals at Abeyta’s house and shed. Information from an informant must be based on more than mere information and belief. The informant specifically stated that Abeyta had offered to provide him/her with methamphetamine and provided specific detail regarding a handgun that Abeyta carried. The Court stated that the level of detail implied the informant had firsthand knowledge of what was being reported which allowed the report to properly be considered as part of the totality of the circumstances showing probable cause. The factual link between Abeyta’s house and the methamphetamine was not broken as Abeyta argued. The affidavit indicated that the officer maintained visual contact with the buyer’s vehicle from the time it left Abeyta’s residence until it was eventually stopped. Therefore, a sufficient factual nexus existed between the suspected criminal activity, the contraband to be seized and the place to be searched.

Holding: The Court concluded that based on the information contained in the affidavit, a reasonably cautious and prudent person would believe there was a fair probability that a crime was being committed or had been committed at Abeyta’s residence.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/27q3tb .

Summary 2007 WY 99

Summary of Decision issued June 19, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Jacobsen v. Cobbs, MD

Citation: 2007 WY 99

Docket Number: 06-83

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

Representing Appellant (Plaintiff): William R. Fix and Jenna V. Mandraccia, William R. Fix, PC, Jackson, Wyoming. Argument by Ms. Mandraccia.

Representing Appellee (Defendant): Jeffrey C. Brinkerhoff, Brown, Drew & Massey, LLP, Casper, Wyoming; Nick A. Swartendruber, Poulson, Odell & Peterson, LLC, Denver, Colorado. Argument by Mr. Brinkerhoff.

Issues: Whether the lower court’s Order Denying Motion for Enlargement of Time, Denying Rule 56(f) Motion and Granting Summary Judgment was proper and in accordance with established law. Whether the lower court erred in relying on the Affidavit of Kenneth F.B. Cobbs, MD, as the basis for granting the Defendant’s Motion for Summary Judgment.

Facts/Discussion: Jacobson filed a medical malpractice action against Cobbs. In the course of litigation, Cobbs filed a motion for summary judgment supported by his affidavit in which he opined that his treatment of Jacobson met the applicable standard of care. Jacobson failed to substantively oppose the motion and instead filed motions to extend the time to respond. The district court denied Jacobson’s motions and granted summary judgment to Cobb.

Standard of Review: A summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact.
Motion for Enlargement of Time and W.R.C.P. 56(f) Motion: The Court applied an abuse of discretion standard in reviewing the district court’s decision denying Jacobson’s motions for additional time. The district court explained its reasons for denying the request for additional time including: the failure to answer or respond to discovery served by Defendant after multiple extensions, the failure to seek a scheduling order, the failure to serve discovery on the Defendant, the failure to respond to the Court’s order to Show Cause and the failure to respond substantively to Defendant’s Motion for Summary Judgment. The Court agreed with the district court’s assessment. Rule 56 requires that adequate time be allowed for discovery to be conducted. The Court noted that Jacobson had over ten months in which to commence discovery and failed to take any action during the pendency of the matter to commence or complete discovery.
Affidavit of Dr. Cobbs: The affidavit of Dr. Cobbs was sufficient under the standards set by W.R.C.P. 56(e). It was based on his personal knowledge, it set forth his qualifications and background, it described his treatment and he attached the medical records upon which he relied and he set forth his opinion that his treatment did not fall below the appropriate standard of care. Because Cobbs’ affidavit adequately supported his motion, the burden shifted to Jacobson to establish a genuine issue of material fact. Jacobson failed to meet his burden.

Holding: Because Jacobson was dilatory in prosecuting his case, the district court did not abuse its discretion by denying the motion for enlargement of time and the W.R.C.P. 56(f) motion. As the party opposing the summary judgment motion, he was required to show that evidence was available that would justify a trial on the issue of negligence. Jacobson failed to come forward with any such evidence and summary judgment was therefore properly granted.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/34go7k .

Summary 2007 WY 63

Summary of Decision issued April 13, 2007

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite the opinion, with a P.3d parallel citation. You will also note 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.]

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

Case Name: Estate of Frost: Frost Construction Company v. Dodson, Co-Personal representative of Estate of James T. Frost

Citation: 2007 WY 63

Docket Number: 06-169

Appeal from the District Court of Big Horn County, the Honorable Hunter Patrick, Judge

Representing Appellants (Petitioner): T. Thomas Singer of Axilon Law Group, Billings, Montana.

Representing Appellee (Respondent): Marc C. Thompson of Webster & Thompson, LLC, Cody, Wyoming.

Issues: Whether the trial court erred in denying a claim that was timely asserted against the Estate solely because no affidavit accompanied the claim. Whether the trial court erred in holding that the claimant had failed to plead a constructive trust theory.

Facts/Discussion: The appeal concerns the interpretation of Wyo. Stat. Ann. § 2-7-704 and 2-7-712. In construing these statutes, the district court held that any claim filed against a probate estate must have an attached affidavit. As to the instant case, the court concluded that because there was no affidavit filed, the claim must be considered invalid and barred as if no claim had been filed.
Standard of Review: The determinative issue is a question of law concerning the construction of Wyo. Stat. Ann. § 2-7-704.
Failure to File an Attached Affidavit: The creditor’s claim submitted against the Estate on behalf of the Company was dismissed for failure to file an attached affidavit. The dismissal required a strict interpretation of § 2-7-704(a). Dodson relied on the first sentence of the subsection but failed to incorporate the second sentence of subsection (a) which governed the case. The Claim filed by the Company was contingent on the Company establishing its equitable claims and was not a “claim which is due.” The Court compared their interpretation of the previous statute Wyo. Stat. Ann. § 2-222 and the current version noted above. The current version is substantially similar to its predecessor. However, the Court concluded the particulars may be set forth within the claim as opposed to an affidavit which is consistent with the long-time policy behind such claim requirements. The particulars are clearly set forth in the Claim Against Estate filed on June 18, 2003. Enough information was provided in the Company’s claim to sufficiently challenge the attention of the personal representative and enable him to act advisedly in the exercise of his discretion, subject to the right to require additional proof of the claim.
Failure to State a Proper Theory for Recovery: The district court found fault in the Company’s failure to plead the constructive trust theory with specificity. Dodson relied on W.R.C.P. 8(a). The Court stated that nothing in the Wyoming Probate Code, Wyo. Stat. Ann. § 2-1-101 et seq., or Wyo. Stat. Ann. § 2-7-703 or 704 required a claimant to state the particular legal theories upon which the claim was based or to specify the evidence upon which the claim rested. The Court found no reason to deviate from the requirements set forth by the legislature.
The executor has the ability to request further information to clarify the claim. The executor in the instant case made no such request. If the executor was not satisfied with or was confused by the facts laid out in the Company’s claim, it was her burden to request additional particulars.

Holding: The district court erred in rejecting the Company’s claim due solely to its failure to file an attached affidavit, which was not required under these circumstances. The district court also erred by rejecting the Company’s constructive trust theory. The Court reversed the order of the district court and remanded for appropriate action.

Reversed and remanded.

Dist. J. Waldrip delivered the decision.

Link: http://tinyurl.com/2b8wnw .