Summary 2009 WY 44

Summary of Decision issued March 30, 2009

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

Case Name: Parris v. Parris

Citation: 2009 WY 44

Docket Number: S-08-0247; S-08-0248

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

Representing Appellant Father: Daniel E. White and Rhonda Sigrist Woodard of Woodard & White, PC, Cheyenne, Wyoming.

Representing Appellee Mother: Mary T. Parsons of Parsons & Cameron, PC, Cheyenne, Wyoming.

Facts/Discussion: Father appealed from the child custody provisions of a decree and a clarified decree entered in the parties’ divorce action.

The Court focused on three areas of analysis: First, a decision letter does not constitute a judicial determination which may be considered a final order. The trial ended in April 2007 and in September 2007, the district court issued a decision letter. The living circumstances of the parties changed between then and October 2008 when the district court entered the decree in the matter. During the interim, among other motions, Father had filed a motion for reconsideration of its decision not to forbid contact between Child and Mother’s boyfriend (TM.) The Court noted the district court was free to revise its rulings prior to judgment and could have heard the pre-judgment motion to reconsider. Secondly, the circumstances that existed at the time of trial no longer existed at the time the decree was entered. The primary issue of concern – TM’s contact with Mother and Child - was exactly the opposite of what the trial testimony said it would be. Third, the district court ordered a shared custody arrangement be set in place despite the lack of evidence that the parents in the instant case could make a success of shared custody. In addition, the record did not show that a comprehensive evaluation had occurred prior to determining custody.

Conclusion: The district court abused its discretion by entering a decree containing child custody provisions that were not in the best interest of the child.

Reversed and remanded.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/dmtcrn .

[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 2008 WY 136

Summary of Decision issued November 18, 2008

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

Case Name: Wolf v. Allen

Citation: 2008 WY 136

Docket Number: S-08-0080

Appeal from the District Court of Sublette County, the Honorable Nancy J. Guthrie, Judge.

Representing Appellant Wolf: Phillip Wolf, pro se.

Representing Appellee Allen: Richard Mathey of Green River, Wyoming.

Facts/Discussion: Wolf requested relief from the district court’s grant of summary judgment to Allen. No appeal was taken from the denial of Wolf’s Rule 60(b) motion so the Court only had jurisdiction over the appeal as it related to the Order for Summary Judgment. Wolf’s argument is essentially an argument that he should have been allowed to withdraw his admissions under 36(b).

Wolf did not timely respond to Allen’s Second Request for Admissions. Therefore, the district court was correct in deeming those points admitted to which Wolf failed to respond in a timely manner. A court may permit withdrawal of an admission on motion. However, Wolf never filed a motion requesting withdrawal of his admissions under Rule 36(b).

Holding: Wolf did not request withdrawal of his admissions under Rule 36(b). The district court did not abuse its discretion when it granted summary judgment based on those admissions and the Court affirmed.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/64abtf .

[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 2008 WY 81

Summary of Decision issued July 15, 2008

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is 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]

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

Case Name: Inman v. Williams

Citation: 2008 WY 81

Docket Number: S-07-0064

Appeal from the District Court of Lincoln County, Honorable Nancy J. Guthrie, Judge

Representing Appellant (Plaintiff): John D. Bowers of Bowers Law Firm, Afton, Wyoming

Representing Appellee (Defendant): William L. Combs of Combs Law Office, Evanston, Wyoming

Date of Decision: July 15, 2008

Issues: Whether the district court's order restricting Appellant's rights in caring for his children was not supported by the evidence and/or a violation of his fundamental rights to associate [with] and raise his children

Facts: This appeal brings into focus a non-custodial parent's long-standing effort to secure visitation with her two children which the district court, pursuant to the parents' stipulation, ordered nearly eight years ago. Appellant father, the custodial parent, appeals a district court's order which found that he was not in contempt for failing to follow an earlier order since the failure was neither willful or intentional but also reiterated a number of the same directives made to Father and Mother regarding the children that were contained in that earlier order and made some changes to others. In the appeal, Father asserts that the district court's order with specific directives violates his fundamental rights to associate with and raise his children and is not supported by evidence. While Mother disagrees with Father's assertions, she also raises the issue whether the district court's order is an appealable order as required by W.R.A.P. 1.05 so that this Court has jurisdiction to entertain this appeal.

Holdings: The father and mother are natural guardians of the persons of their minor children. Parents enjoy a constitutionally protected fundamental right to make decisions concerning the care, custody, and control of their children.. This fundamental right has been recognized as a liberty interest protected under the Fifth and Fourteenth Amendments to the United States Constitution, and is also found in Wyo. Const. art. 1, § 6. In the present actions, Appellant Father claims that his right to raise his children and make those decisions is affected by the order's amended directives.

Responding to Father's claims, Mother asserts (1) the order originates from a contempt proceeding in which the court did not hold Father in contempt and, therefore, is interlocutory in nature, not final, and not appealable; (2) the order does not affect Father's substantial rights; (3) the order does not determine the merits of the controversy between Father and Mother; and (4) the order does not resolve all the outstanding issues.

After careful consideration of the parties' respective contentions, the court found that Appellee Mother's arguments were more persuasive. The true thrust of the court's order is to provide therapeutic counseling to the parties' children so that eventually Mother's long-delayed visitation with her children can be determined and established. Until the children's therapeutic counseling has reached the point at which Mother's visitation can be determined and established, the terms of that visitation have not been fixed. Because the order does not hold Father in contempt and does not fix the terms of Mother's visitation, the order does not determine the action.

Although the order contains language that the children's therapeutic counselor, in consultation with the guardian ad litem, shall determine the terms of Mother's visitation when the children have been prepared for that visitation, in the exercise of this Court's supervisory authority, the therapeutic counselor and the guardian ad litem are directed to recommend such terms to the district court and that court shall establish, with all deliberate speed, the appropriate terms of visitation as provided by statute.

Appeal dismissed.

J. Golden delivered the opinion for the court.

Summary 2008 WY 41

Summary of Decision issued April 9, 2008

[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 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]

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

Case Name: Everitts v. InInns

Citation: 2008 WY 41

Docket Number: S-07-0153

Appeal from the District Court of Teton County, Honorable Nancy J. Guthrie, Judge

Representing Appellant (Defendant): Matthew F.G. Castano, Brown & Hiser, Laramie, Wyoming

Representing Appellee (Plaintiff): Lea Kuvinka, Kuvinka & Kuvinka, Jackson, Wyoming

Date of Decision: April 9, 2008

Issues: Whether a court may modify a divorce decree without a party filing a petition for modification and a finding of material change of circumstances.

Whether in the course of interpreting this Decree of Divorce and Settlement Agreement, the district court impermissibly considered evidence beyond the four corners of the document.

Facts: Appellant filed a petition pursuant to Wyo. Stat. 20-2-204 (2007) to require Appellee to appear before the court and show just cause why she should not be held in contempt for willfully violating the court’s order concerning the care, custody and visitation of their son. Appellee responded to Appellant’s petition, denying the bulk of his allegations. Appellee asked the district court to order mediation. The district court entered an order requiring the parties to mediate their disputes. Subsequently, Appellee filed a motion to dismiss Appellant’s petition, essentially contending that things remained about the same as they had been at the time of the divorce, and that the schedule agreed to by the parties at the time of the divorce should remain in force. Appellant filed a motion opposing Appellee’s motion, essentially contending that his employment had changed and that Appellee refused to meaningfully try to accommodate his overseas work schedule. A hearing was held but it was not reported so it is not known what transpired. The district court issued an order after the hearing finding that there were no grounds to hold Appellee in contempt of Court and dismissing the Appellant’s Petition to Show Cause. It was also determined that the parties were to continue following the schedule outlined in the Settlement Agreement and that unless otherwise agreed by the parties, the regular schedule shall not be changed to make-up for time missed, including holidays. The court also encouraged the parties to continue mediating with regard to the schedule.

Holdings: An order originating in a contempt proceeding, which does not even purport to find a party in contempt is interlocutory only and therefore not appealable. However, in the case at hand, the court’s order goes beyond just denying Appellant’s request that Appellee be found in contempt. Although it appears on the face of things that the district court merely iterated provisions of the original decree, absent a transcript that is not a certainty. It was Appellant’s burden to bring the court a complete record upon which to base a decision. It must be assumed that the transcript of that hearing would support the district court’s resolution of this case. The district court’s order is affirmed because the absence of a transcript of the hearing will permit no other result.

The district court’s order is affirmed.

J. Hill delivered the opinion for the court.

Summary 2008 WY 30

Summary of Decision issued March 20, 2008

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

Case Name: Weiss v. Weiss

Citation: 2008 WY 30

Docket Number: S-07-0117

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

Representing Appellants (Defendants): C. M. Aron of Aron and Hennig, LLP, Laramie, Wyoming.

Representing Appellees (Plaintiff/Defendants): Marvin L. Tyler of Busart, West & Tyler, PC, Rock Springs, Wyoming; Dale W. Cottam and Lindsay A. Woznick of Hirst & Applegate, PC, Cheyenne, Wyoming; and Roger Franson of Hickey & Evans, LLP, Cheyenne, Wyoming.

Facts/Discussion: Neil M. Weiss, Sam Jay Weiss, and Stan L. Weiss (Appellants) sought review of an order of the district court entitled “Final Order Approving Plan for Winding Up and Distribution of the Assets of the Weiss Limited Partnership.” Melvin J. Weiss, Morris Weiss and Johanna Weiss Richards (Appellees) contended that the district court’s order should be affirmed as the only practical solution to what has been an insoluble problem for the family. Appellants contended that the General Partner was also a party but no brief was filed by the General Partner. The Receiver, who was appointed by the district court in 2006 to manage the partnership in the absence of the six partners’ ability to reach any sort of agreement about managing the partnership, is not a party to the proceedings. The Weiss Limited Partnership was included in the caption of the case in the district court and was represented by counsel throughout the proceedings below. However, it does not appear in the caption of this appeal and it made no appearance in the Court.
Appellants suggested that the district court’s order although captioned as a “final order” was not really final because additional proceedings in the district court were almost certain to be required before this case was resolved. Appellee’s relied on W.R.A.P. 1.05(e)(2). The Court stated that there are some areas of the law where “finality” can be elusive. The Court stated that Appellee’s reliance on Rule 1.05(e)(2) was plausible. They determined that further analysis was unnecessary because the parties did not thoroughly brief or argue the basis, or bases, for the appeal.
It was undisputed that the parties were unable to decide on how to distribute the partnership assets. It was equally apparent that it was the express will of all partners that the partnership be dissolved and that its assets be equally divided among them. This has been recognized as a proper basis for dissolution of a partnership. Appellants relied on the partnership agreement to argue that each sibling was to be involved in the management of the partnership’s assets and that they may not be compelled by the district court to receive their interest in any form other than cash, and not in kind. They also relied upon Wyo. Stat. Ann. § 17-14-705. The Court stated the statute did not support Appellants’ argument and that they failed to state a sound basis for their objections to distribution of the real estate in kind, in equal-sized and equal-value shares other than that it was not the distribution that they preferred.

Holding: The Court was satisfied that the order of the district court was appealable and that it was as “final” as could be fashioned in the case. The Wyoming statutes authorize a district court to wind up a limited partnership’s affairs and distribute the assets to the limited partners. Upon consideration of the unique circumstances of the instant case, the Court concluded that the district court did not err in entering the order which was the subject of the appeal.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/38b7zx .

[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 2008 WY 19

Summary of Decision issued February 22, 2008

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

Case Name: State, Dep’t of Corrections v. Watts; State, Dep’t of Corrections v. Watts

Citation: 2008 WY 19

Docket Number: S-07-0050; S-07-0095

Appeal from the District Court of Fremont County, the Honorable Nancy J. Guthrie, Judge

Representing Appellants: Patrick J. Crank, Wyoming Attorney General; John W. Renneisen, DeputyAttorny General; Misha Westby, Senior Assistant Attorney General; C. Levi Martin, Senior Assistant Attorney General.

Representing Appellee: David B. Hooper and Tom A. Glassberg of Hooper Law Offices, PC, Riverton, Wyoming.

Facts/Discussion: Watts brought a wrongful death suit after his wife, who was a contract nurse at the Wyoming Honor Farm, was murdered by an inmate. The State moved for summary judgment claiming they were immune from suit pursuant to the WGCA.

Jurisdiction: Generally, the denial of a motion for summary judgment is not an appealable final order. The Court has recognized an exception to the general rule when a district court refused to dismiss a case on the basis of qualified immunity. The Court has jurisdiction to consider the appeal of the district court’s order denying the State’s motion for summary judgment therefore the writ of review was superfluous and was dismissed as unnecessarily granted.
Section 1-39-106: Questions of statutory interpretation are matters of law. The Act is considered a close-ended tort claims act. The Court reviewed previous cases noting that there are two groups of cases which construe the act in terms of strict or liberal construction of the WGCA. More recent cases state the principle that it is a close-ended act in which immunity is the rule and liability is the exception. The Court concluded the general rule in Wyoming is that the government is immune from liability and unless a claim falls within one of the statutory exceptions, it will be barred. The Court used their standard rules of statutory construction to determine whether the legislature intended that immunity be waived for a particular claim. The Court stated that the statute waived immunity for the State’s negligence in making the building functional. The Court reviewed cases from New Mexico and Maine. They concluded that the clear and unambiguous language of § 1-39-106 within the context of the WGCA indicated that the legislature intended to limit the waiver of immunity to negligence associated with the function of the building structure and did not intend to extend the waiver to negligence associated with operation of the penal institution within the building. Because Watts did not argue that any particular physical defect in the building resulted in his wife’s death, his claim does not fall within the parameters of § 1-39-106.

Holding: Section 1-39-106 did not waive the State’s immunity for negligence in the operation of the corrections system. Instead, it specifically limits the exception to matters associated with the physical building itself. Because Mr. Watts’ claims did not pertain to the physical condition of a building at the Wyoming Honor Farm, the State was entitled to judgment as a matter of law.
Case No, S-07-0050, writ of review, was dismissed. Case No. S-07-0095, appeal, was reversed and remanded to the district court.

Reversed.

J. Kite delivered the decision.

Link: http://tinyurl.com/yuz6fy .

[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 208

Summary of Decision issued December 28, 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: Merchant v. Grey

Citation: 2007 WY 208

Docket Number: S-07-0060

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

Representing Appellant (Plaintiffs): Mary Elizabeth Galvan, Mary Elizabeth Galvan, Laramie, Wyoming; V. Anthony Vehar, Vehar Law Office, Evanston, Wyoming

Representing Appellee (Defendants): Patrick J. Crank, Attorney General; John William Renneisen, Deputy Attorney General; Theodore Rafael Racines, Senior Assistant Attorney General; Richard Rideout, Law Offices of Richard Rideout, Cheyenne, Wyoming.

Date of Decision: December 28, 2007

Issue: Whether the Supreme Court lacked jurisdiction because Appellants’ notice of appeal was not timely filed.

Facts: On December 18, 2006, the district court entered its “Order Granting Defendants’ Motions for Summary Judgment and Denying Plaintiffs’ Motion for Summary Judgment.” On February 1, 2007, the district court entered an “Order of Dismissal with Prejudice and Entry of Judgment.” On February 20, 2007, the Appellants filed their Notice of Appeal. Appellants filed their notice of appeal more than thirty days after the summary judgment order was entered. If that summary judgment order was an appealable order, then the Appellants’ notice of appeal was not timely. If the order of dismissal was the appealable order, then the Appellants’ notice of appeal was timely.

Holdings: W.R.A.P. 2.01(a) provides that an appeal from a trial court to an appellate court shall be taken by filing the notice of appeal with the clerk of the trial court within 30 days from entry of the appealable order. W.R.A.P. 1.03 states that timely filing of a notice of appeal is jurisdictional, and it has long been established that the Supreme Court lacks jurisdiction over, and must dismiss, an untimely appeal. W.R.A.P. 1.05(a) defines an appealable order to include an order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment.
It is well-established that the denial of a motion for summary judgment is not an appealable order. The general reasoning is that, when a motion for summary judgment is denied, the parties proceed to trial, and the judgment reached after trial becomes the appealable order. In the present case, the district court both granted the Appellee’s motion for summary judgment, and denied the Appellants’ motion for partial summary judgment. If that order completely resolved the case, then it was an appealable order. An examination of the record showed that there was no issue left unresolved by the district court’s summary judgment order. The ruling left nothing for future consideration, and determined the action. It was, therefore, an appealable order.
After granting summary judgment, the district court took the additional step of entering an order dismissing the case. The record does not explain why the district court entered this superfluous order. That second order was unnecessary and unauthorized and therefore a nullity. As a nullity, it could not extend the time or toll the deadline for the Appellants to file their notice of appeal.
It does appear that the district court, sua sponte, requested Appellee’s counsel to prepare the order of dismissal. Under a principle sometimes called equitable tolling, some courts have held that untimely filing of orders may be excused in circumstances where a party has been prejudiced by reasonable reliance on an erroneous action taken by the trial court. Wyoming jurisprudence has soundly rejected this approach. It is difficult to understand how a party may reasonably rely on a court’s error in applying rules counsel is charged with knowing. If counsel is aware of the error reliance cannot be reasonable; on the other hand, ignorance of the rules is neither reasonable nor excusable.
For these reasons, it is concluded that the district court’s summary judgment order was an appealable order; that the district court’s second order, dismissing the action, was a nullity; that the Appellants’ notice of appeal was therefore untimely; and that the Appellants may not invoke any equitable tolling or unique circumstances to excuse the late filing.

Dismissed.

J. Burke delivered the opinion for the court.

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

By Kathy Carlson

Summary 2007 WY 203

Summary of Decision issued December 18, 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: SEG v. GDK

Citation: 2007 WY 203

Docket Number: S-07-0075

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

Representing Appellant (Plaintiff): M. Jalie Meinecke and Alex H. Sitz III of Meinecke & Sitz, LLC, Cody, Wyoming. Argument by Ms. Meinecke.

Representing Appellee (Defendant): Ethelyn Boak of Cheyenne, Wyoming.

Issue: Whether the district court’s Order on Termination of Parental Rights is an appealable order from which the Court has jurisdiction to entertain an appeal.

Facts/Discussion: Mother, SEG, contests the district court’s refusal to terminate the parental rights of Father, GDK, to the parties’ minor child, KGK.
Standard of Review: Under W.R.A.P. 1.04(a) the Court has jurisdiction to entertain an appeal from a judgment or from an appealable order. Whether a court has jurisdiction is a question of law to be reviewed de novo.
W.R.A.P. 1.05(c), (d), and (e) were not implicated in any possible analysis of the district court’s Order on Termination of Parental Rights. Therefore, in order to qualify as appealable, the order must affect a substantial right, and must either be issued in a special proceeding or prevent a judgment in the case, under W.R.A.P. 1.05(a) or (b). The order in the instant case does not affect a substantial right. Father’s parental rights and right to associate with his daughter were not altered in any way by the interlocutory order. Therefore it was not an appealable order under W.R.A.P. 1.05.

Holding: The Order on Termination of Parental Rights in this case did not affect a substantial right and so was not an appealable order under W.R.A.P. 1.05. The order also was not a judgment under W.R.A.P. 1.04 as it did not resolve all the issues in the case. Therefore, the Court did not have jurisdiction to entertain an appeal from the order.

Dismissed.

C.J. Voigt delivered the opinion.

J. Hill dissented: The Justice dissented because the case involved a special proceeding that is governed by procedures set out in Wyo. Stat. Ann. §§ 14-2-309 through 14-2-319. Substantial rights are always at stake in cases such as the instant case and strict adherence to governing statutes is mandatory. The Justice also noted that the majority opinion was not a de novo review inasmuch as the Court purported to be determining its jurisdiction so the mention of the standard seemed mistaken.
The Justice would hold that the district court’s order was an appealable order. Wyo. Stat. Ann. § 14-2-315 or 14-2-316 were the two governing statutes. The district court chose an option that was not available to it. It was clear the district court intended not to terminate Father’s rights. The Justice would construe the order accordingly and find that the order had the effect of dismissing the petition. Therefore, the district court would have had no jurisdiction to consider any other issues.
For those reasons, the Justice felt it was necessary for the Court to resolve the matter on the merits. The Justice stated the Court recently re-emphasized their view that the procedures for termination of parental rights are mandatory and failure to abide by them is fundamental error requiring reversal.

Link: http://tinyurl.com/2e4pyv .

Summary 2007 WY 148

Summary of Decision issued September 18, 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: Schmid v. Schmid

Citation: 2007 WY 148

Docket Number: 06-268 and 06-270

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

Representing Appellant (Defendant): Clark D. Stith, Rock Springs, Wyoming.

Representing Appellee (Plaintiff): P. Richard Meyer and Robert N. Williams, of Meyer and Williams, Jackson, Wyoming. Argument by Mr. Meyer.

Issues: Whether the district court abused its discretion in excluding the evidence corroborating Mike’s theory of the case. Whether the district court abused its discretion in refusing to allow Mike’s counsel to cross-examine Pat concerning deposition and trial testimony that supported Mike’s theory of the case. Whether the district court violated Mike’s due process rights under article I, section 6 of the Wyoming Constitution. Whether the district court violated Mike’s due process rights under the Fourteenth Amendment to the United States Constitution. Whether the district court erred by denying Mike’s pretrial motion for summary judgment and motion for directed verdict at trial, both made on the grounds of the statute of frauds and the lack of any fiduciary duty from Mike to Pat. Whether the district court abused its discretion in denying Mike’s motion for a new trial.

Facts/Discussion: Mike appealed the judgment entered in favor of his brother Pat.

Standard of Review: The Court reviews a trial court’s evidentiary decisions for abuse of discretion. Even when a trial court errs in an evidentiary ruling, the Court will reverse only if the error was prejudicial.
The Court reviewed the record of the pretrial conference where Pat’s motion in limine was considered prior to the start of trial. The trial court ruled the evidence should be excluded explaining that each agreement has to stand on its own. On the morning before trial started, Mike followed up with a written offer of proof which was excluded as well.
It is important to note that the parties were attempting to establish the terms of their oral agreement. There was no written contract with definite and unambiguous terms. Where the language of a contract is indefinite or ambiguous, all the surrounding circumstances must be considered in order to ascertain its terms. To establish the terms of an oral agreement, a broad range of evidence may be taken into consideration. As a general proposition, all relevant evidence is admissible. Evidence is relevant if it has any tendency to make the existence of a fact of consequence more or less probable than it would be without the evidence. Mike was prepared to testify that the agreements he had with is brother and the two witnesses he sought to bring as evidence were identical. With that connection, the evidence is relevant. The Court concluded that to establish the terms of an oral agreement, evidence about the terms of other, identical agreements is relevant, probative, and generally admissible.
The issue of whether the evidence was unfairly prejudicial was not discussed at the pretrial stage. After trial began, Mike’s counsel renewed his request. The trial court concluded that it would be unfairly prejudicial to change its ruling and admit the evidence because opening arguments had been made, and testimony taken, based on the trial court’s earlier decision to exclude the evidence. The Court stated the relatively simple testimony seemed to present little danger of unfair prejudice, confusion, or misleading the jury. Testimony from two witnesses supporting Mike’s version of the agreement would have had considerable probative value, not outweighed by other consideration.
Mike’s offers of proof were tested against the requirements of the Wyoming Rules of Evidence. The Court found they adequately informed the trial court about the nature of the proposed evidence and provided adequate information for meaningful appellate review.

The Court concluded that the trial court erred in excluding the evidence. They were also persuaded the error was prejudicial. Neither witness was a party to the suit. They were both prepared to testify contrary to their own interest that Mike owed them no bonus according to their understanding of the agreement.

In addition, the Court has indicated that a litigant is usually entitled to a remand and a new trial if he was unfairly restricted in developing and presenting his theory of the case.
Finding no legitimate basis for the trial court’s exclusion of the evidence, the Court was compelled to rule it an abuse of discretion.
Remaining Issues: The Court’s resolution of the first issue resolved most of the remaining issues except for the fifth issue asserting the district court erred in denying his pretrial motion for summary judgment and his motion for directed verdict. The Court left the claim for the trial court to consider in the context of the new trial.
The Court noted the denial of a summary judgment is not an appealable order. However, the trial court’s denial of Mike’s motion for judgment as a matter of law made at the close of trial is an appealable order. The trial court’s legal conclusions are reviewed de novo. Mike relied on the statute of frauds making the agreement void and unenforceable. The trial court rejected that argument ruling that Pat had substantially performed his part of the oral agreement. With the testimony being taken in the light most favorable to Pat, the trial court properly denied Mike’s motion for judgment as a matter of law. The trial court properly applied the substantial performance exception to the statute of frauds in this instance where the agreement was not an employment contract.

Holding: The Court held that the district court abused its discretion in excluding Mike’s evidence concerning other agreements that he asserted were identical to his oral agreement with Pat. With regard to Mike’s motion for judgment as a matter of law, the Court upheld the district court’s denial on the statute of frauds issue. The Court reversed the judgment on the evidentiary issue and remanded the case to the district court for a new trial.

Reversed and remanded.

J. Burke delivered the decision.

Link: http://tinyurl.com/yv42cc