Summary 2013 WY 149

Summary of Decision December 10, 2013

Justice Davis delivered the opinion of the Court. Affirmed.

Case Name: CHRISTOPHER HARIGNORDOQUY v. LEE ANN BARLOW

Docket Number: S-13-0076

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: Christopher Harignordoquy, pro se.

Representing Appellee: Lea Kuvinka of Kuvinka & Kuvinka, P.C., Jackson, Wyoming.

Date of Decision: December 10, 2013

Facts: The parties to this appeal were divorced in the District Court for the Ninth Judicial District (Teton County). Appellant Christopher Harignordoquy contends that the district court erred in exercising child custody jurisdiction, in the determination as to whether his children might be entitled to possible dual citizenship as that finding might relate to child custody, in requiring a bond to permit visitation and limiting visitation to Teton County, and in other respects.

Issues: 1) Did Wyoming have home state jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act so as to permit the district court to make a custody determination? 2) Did the district court abuse its discretion in its custody and visitation decision because it found it unlikely that the parties’ children would obtain dual French citizenship if it awarded Appellant custody or increased visitation? 3) Are any of Appellant’s other arguments adequately supported by pertinent authority or cogent argument so as to permit review? 4) Is Appellee entitled to an award of sanctions under Wyoming Rule of Appellate Procedure 10.05?

Holdings/Conclusion: We find no error in the district court’s rulings, and we therefore affirm. We also award Appellee costs, attorney fees, and damages against Appellant as provided in Wyoming Rule of Appellate Procedure 10.05.

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 2011 WY 7

Summary of Decision January 19, 2011

[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: Wilson v. Tyrrell

Citation: 2011 WY 7

Docket Numbers: S-10-0054, S-10-0055, S-10-0119

URL: http://tinyurl.com/6kxustf

Appeal from the District Court of Goshen County, The Honorable Keith G. Kautz, Judge

Representing Appellants (Petitioners-Plaintiffs): Frank J. Jones of Wheatland, Wyoming.

Representing Appellee (Respondent in his capacity as Wyoming State Engineer, in Case No. S-10-0054): Bruce A. Salzburg, Wyoming Attorney General; Jay A. Jerde, Deputy Attorney General; Peter K. Michael, Senior Assistant Attorney General; S. Jane Caton, Senior Assistant Attorney General. Argument by Ms. Caton.

Representing Appellee (Intervenor-Defendant): Harriet M. Hageman and Kara Brighton of Hageman & Brighton, P.C. Argument by Ms. Hageman.

Date of Decision: January 19, 2011

Facts: The three appeals consolidated for decision in this opinion all arise out of a decades-old dispute between Appellants (Plaintiffs) and Appellee (Defendant) regarding the appellee’s use of an old river channel to carry irrigation water across land owned by the appellants.

Prior to 1900, Appellee obtained and perfected a right to appropriate water from the North Platte River, with the point of diversion located on unpatented lands. The river was divided into two channels in the area, with the headgate to Appellee’s canal located at its adjudicated point of diversion on the eastern channel. In 1913, because of insufficient flow down that channel, the appellee constructed a diversion dam upstream on the main channel, to divert water into the eastern channel. That diversion dam contains no headgate or other “check structure” that can measure or control the amount of water diverted into the eastern channel. The Appellants purchased their property in 1964.

Two decades ago, a Consent Decree and Judgment recognized Appellee’s easement and right-of-way across the Appellants’ land for the purpose of access to, and maintenance of, its irrigation facilities. More recently, Appellants filed a lawsuit seeking to quiet title against Appellee to the land underlying the old eastern channel and the land between that channel and the main western channel, and also alleging trespass damages. In that case, the Supreme Court affirmed the district court’s application of estoppel and res judicata, insofar as those doctrines prohibited the appellants from contesting Appellee’s right to access and use its facilities, including the eastern channel. However, the Court also concluded that reliction had occurred, that the Appellants’ property line was now the thread of the western river channel, and the Court remanded to the district court for entry of an order quieting title to the property in the Appellants, subject to Appellee’s easements.

Subsequently, Appellants sent a letter to the superintendent of the Water Division, asking the superintendent to require the appellee to construct a headgate at its diversion dam on the North Platte River. Relying upon this Court’s holding in the quiet title case, that the eastern channel was no longer part of the river, the Appellants cited Wyo. Stat. Ann. Section 41-3-613 (LexisNexis 2009) for the proposition that the appellee had no choice but to construct a substantial headgate at the diversion dam. The division superintendent denied the Appellants’ request. The Appellants filed in the district court a notice of appeal of the decision of the State Engineer. Generally, the Appellants alleged that the decisions of the division superintendent and the State Engineer were contrary to law, were unsupported by the evidence, and were arbitrary and capricious.

Issues: (1) Whether the decision of the State Engineer that Appellee’s headgate at its adjudicated point of diversion satisfied the requirements of Wyo. Stat. Ann. § 41-3-613 was contrary to law? (2) Whether the decision of the State Engineer that Appellee is not required to install a headgate at its diversion dam was arbitrary and capricious? (3) Whether the district court failed to follow the mandate of the Supreme Court upon remand? (4) Whether any of the district court’s findings of fact were clearly erroneous? (5) Whether the district court abused its discretion by excluding the testimony of the Appellants’ proposed expert witness? (6) Whether Appellee’s certificate of costs was timely filed? (7) Whether the district court abused its discretion in awarding costs to Appellee?

Holdings: The decision of the State Engineer that Appellee’s headgate located at its adjudicated point of diversion satisfied the requirements of Wyo. Stat. Ann. § 41-3-613 was not contrary to law, and the State Engineer’s decision not to require Appellee to install a headgate at its diversion dam was not arbitrary and capricious. The Court found that while Wyo. Stat. Ann. § 41-3-613 might allow the division superintendent to require the appellee to install a headgate at or near the diversion dam, the statute does not mandate that the division superintendent do so.

The Court further found that the process and decisions of the district court were consistent with the Supreme Court’s mandate upon remand, and its findings of fact following the bench trial were not clearly erroneous. The district court’s exclusion of the testimony of Appellants’ belatedly identified expert witness did not evince an abuse of discretion, particularly because the required disclosures in regard to that witness were not made. Finally, the district court did not abuse its discretion in its award of costs to the appellee, except for the award of $497.00 in deposition costs, which were not adequately substantiated under the applicable court rule.

Affirmed in part, and reversed and remanded to the district court for entry of an order consistent herewith.

J. Voigt delivered the opinion for the court.

Summary 2010 WY 138

Summary of Decision issued October 26, 2010

[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: Bellis v. Kersey

Citation: 2010 WY 138

Docket Number: S-10-0013

URL: http://tinyurl.com/2aooar4

Appeal from the District Court of Platte County, Honorable John C. Brooks, Judge

Representing Appellants (Defendants/Plaintiffs): Frank J. Jones of Wheatland, Wyoming.

Representing Appellees Ronny L. Kersey and Peggy J. Kersey (Plaintiffs): Gay Woodhouse of Woodhouse Roden, Cheyenne, Wyoming

Representing Appellees Benjamin H. Howard, Jr., Benjamin H. Howard, IV and Rocky Mountain Timberlands, Inc. (Defendants): William H. Vines of Wheatland, Wyoming.

Date of Decision: October 26, 2010

Facts: The Appellants were the plaintiffs in a quiet title and declaratory judgment action filed on April 4, 2006, against Torey S. Hanks and Julie B. Hanks [the Hanks subsequently sold their land to the General Education Foundation], Benjamin H. Howard, Jr. and Benjamin H. Howard IV, and Rocky Mountain Timberlands, Inc (RMT). The Hanks, Howards, and RMT filed an Answer denying the Appellant’s claims, but presented no counterclaims. Prior to the filing of that action, the Appellants were the defendants in an action filed by Appellees alleging trespass and seeking quiet title, injunctive relief, and ejectment. In their counterclaim against the Appellees, the Appellants asked that title be quieted in them. The district court consolidated the two cases because both disputes involved a contiguous area that had been under common ownership and the Appellant’s claim of ownership to the disputed area of each parcel was based on the same evidence in regard to adverse possession. After a bench trial, the district court concluded that the appellants had not proven ownership of the disputed land through adverse possession, ordered their ejectment from a portion thereof, to which portion title was also quieted in the record owners, and ordered the appellants to pay trespass damages and costs.

Issues: Whether the district court erred in ruling against the Appellants on their claim of adverse possession. Whether the district court erred in ordering the ejectment of the Appellants from the Appellees’ tract. Whether the district court erred in denying the Appellants’ quiet title claim, and in granting the Appellees’ quiet title claim. Whether the district court erred in granting trespass damages to the Appellees. Whether the district court erred in granting costs to the Appellees.

Holdings: The district court’s findings of fact are not clearly erroneous as they relate to the denial of the Appellants’ claim of adverse possession against the Appellees, as they relate to the grant of the Appellees’ claims of trespass and ejectment against the Appellants, or as they relate to the actual trespass damages awarded to the Appellees. Finding no error of law in any of those determinations, the district court is affirmed to that extent. The grant of the Appellees’ quiet title claim is reversed, however, because the Appellees did not prove that they were in possession of the disputed portion of their tract. In fact, they proved the opposite. The award to the Appellees of $1,500.00 as “nominal damages and to aid them in the cost of erecting a boundary fence” is reversed because there are no findings of fact in the record from which this Court can determine how much of the award is for nominal damages and how much is for fence construction, because the Appellees have not produced convincing precedent allowing the recovery of both actual and nominal damages, and because the Appellees did not plead the statutory cause of action for the sharing of the expense of construction of a partition fence. The award of costs to the Appellees is reversed because the certificate of costs was untimely.

Remanded to the district court for entry of an order consistent herewith.

J. Voigt delivered the opinion for the court.

Summary 2010 WY 126

Summary of Decision issued September 14, 2010

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

Case Name: Dollarhide v. Bancroft

Citation: 2010 WY 126

Docket Number: S-10-0023

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

Representing Dollarhide: Weston W. Reeves and Anna M. Reeves Olson of Park Street Law Office, Casper, Wyoming.

Representing Bancroft, Shattuck and Johnson: Richard A. Mincer of Hirst Applegate, LLP, Cheyenne, Wyoming; John A. Sundahl of Sundahl, Powers, Kapp & Martin, LLC, Cheyenne, Wyoming; L. Kathleen Chaney of Lambdin & Chaney, LLC, Denver, Colorado.

Facts/Discussion: In 2001, while employed as a carpenter by Bancroft Construction, Inc., in Teton County, Wyoming, Dollarhide was injured when the raised wooden platform upon which he was standing crashed to the ground. Dollarhide obtained benefits from the Wyoming Worker’s Compensation fund, but also filed a co-employee liability action against Bancroft, the owner of the company, and Shattuck, the company’s general construction superintendent. That action subsequently was consolidated with a similar action by Dollarhide against Johnson, the company’s project superintendent.

Abuse of discretion in granting Bancroft’s motion for mistrial and assessing costs against Dollarhide: The gravamen of the mistrial motion, as well as the district court’s rationale for granting the motion, was that Dollarhide’s counsel had irrevocably tainted the jury by telling it, in effect, that Judge Guthrie had found Dollarhide to have a valid case against the defendants. It is the law that granting a mistrial is an extreme and drastic remedy and at the same time, it is the law that the trial court is in the best position to assess the prejudicial impact of such an error. Comments such as those made in the instant case can have a marked tendency to influence a jury in its analysis. Similar to the Court’s reasoning in State Farm Mutual Auto Ins. Co. v. Resnick, the Court found that the harm engendered by the comment was sufficiently pervasive and prejudicial to negate any curative value the judge’s subsequent instructions might have had.
The Court reviews the award or denial of costs and sanctions after a mistrial for an abuse of discretion. The district court ordered Dollarhide to pay for the jury costs attributable to the mistrial but denied the defendants’ requests for costs and attorney’s fees attributable to the mistrial. The decision as to costs is a matter for the trial court’s discretion. The Court saw no abuse of that discretion.
Abuse of discretion in denying Dollarhide’s motion for entry of default: A dramatic change to Johnson’s testimony occurred which caused his deposition to be re-opened. He admitted that he knew that wooden platforms were being used to work from by Bancroft employees. His previous testimony denied such activity as did those of the other defendants, Shattuck and Bancroft. Dollarhide argued that monetary sanctions were insufficient in the face of perjury, especially where that perjury lies at the heart of a “fraud on the court.” Whether a court chooses to impose a sanction as severe as dismissal or default is a matter left to that court’s discretion. The Court noted that Johnson recanted prior to trial and was re-deposed, cross-examined and impeached; the complicity of Bancroft and Shattuck was surmised by the district court but not found by the jury because the jury found in favor of the defendants. Additionally, the district court did not ignore the alleged misconduct imposing a sanction of $29,044.31.

Conclusion: The district court did not abuse its discretion in granting the motion for a mistrial, in denying the motion to enter a default, or in its costs and sanctions orders.

Affirmed.

J. Voigt delivered the decision.

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

[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 2010 WY 17

Summary of Decision issued February 19, 2010

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

Case Name: Thorkildsen v. Belden

Citation: 2010 WY 17

Docket Number: S-09-0154

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

Representing Appellant Thorkildsen: David G. Lewis of Jackson, Wyoming.

Representing Appellee Belden: Richard J. Mulligan of Mulligan Law Office; Heather Noble of Jackson, Wyoming.

Facts/Discussion: Thorkildsen appealed from the district court’s Order Granting Defendants’ Motion for Costs arguing that the district court erred in not including an award for attorney’s fees.

Thorkildsen argued that the order awarding costs but failing to address attorney’s fees amounted to an implicit denial of an award and that such action was error. The Court found Thorkildsen’s argument that the portion of his motion pertaining to attorney’s fees was “implicitly denied” or “deemed denied” unpersuasive.

Conclusion: Because the district court’s Order Granting Defendants’ Motion for Costs only addressed costs, the district court made no findings of facts and reached no conclusions of law with respect to attorney’s fees. Thus Thorkildsen was left to appeal only from an award of costs that he didn’t challenge. The Court’s remedy was to remand with instructions to make appropriate findings of facts and conclusions of law relating to the issue of attorney’s fees.

Remanded.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/ycbo5u2 .

[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 34

Summary of Decision issued March 28, 2008

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

Case Name: Garrison v. CC Builders, Inc.; CC Builders, Inc. v. Garrison

Citation: 2008 WY 34

Docket Number: S-07-0132; S-07-0133; S-07-0162

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

Representing the Garrisons: Lawrence B. Hartnett of Law Offices of Lawrence B. Hartnett, Jackson, Wyoming.

Representing CC Builders, Inc.: Kenneth S. Cohen of Cohen Law Office, PC, Jackson, Wyoming; and Heather Noble of Jackson, Wyoming.

Facts/Discussion: CC Builders built the Garrisons a house in Teton County on a “cost plus” basis. The litigation is a result of the parties’ subsequent disagreement as to the reasonable cost of construction. Both parties appealed from the district court’s award of damages and costs to the Garrisons.
Are the district court’s findings of fact as to damages clearly erroneous: The Court noted that they accept the district court’s findings of fact unless they are clearly erroneous. The district court relied upon specific numbers in its computation of the amount of damages which meant there was an underlying evidentiary basis for the district court’s conclusion. After reviewing the record, the Court stated that it could not conclude that the district court’s finding was clearly erroneous.
Are the district court’s conclusions of law as to damages inconsistent with its findings of fact: This issue was couched in terms of the district court not following its own announced methodology in determining the damage award. The Court noted that the district court used their “methodology” but used different numbers than those the Garrisons thought were the “right” numbers.
Did the district court err in concluding that CC Builders had not committed fraud: The Court thoroughly combed the record and agreed with the district court that the Garrisons did not prove their fraud claims against CC Builders. They did not find any clear and convincing evidence of actual fraud in the record. There was no evidence of a false representation by CC Builders and no detrimental reliance by the Garrisons. The claim relating to labor charges failed because the testimony of industry custom and practice was not sufficiently uniform to establish that any deviation therefrom must be fraudulent. The district court found that some of the charges were not reasonable and therefore exceeded the reasonable cost of a “cost plus” contract. The evidence supported that conclusion.
Did the district court abuse its discretion in its award of costs to the Garrisons: After entry of the Judgment, the Garrisons filed a Bill of Costs and CC Builders filed a timely objection. The Garrisons’ costs were awarded as requested. A verified bill of costs is prima facie evidence that the items listed were necessarily expended and are properly taxable as costs. The Court stated that the instant case was fundamentally a breach of contract case won for the most part by the Garrisons. The district court did not abuse its discretion in finding the Garrisons to be the prevailing party and in awarding their costs. However, the bill of costs was not verified and of the ten discovery depositions for which costs were requested, only two were used at trial. Three of the remaining depositions were noticed by CC Builders and the appropriate costs related thereto are awardable to the Garrisons. The remaining five had no substantiation. The record did not contain a transcript of the district court hearing on the motion to award costs. The district court’s finding did not reveal any analysis under Rule 501(a)(3)(D). The Court concluded the Garrisons did not overcome the limiting language of the Rule in regard to those five discovery depositions. The Court reduced the costs awarded in the Judgment from $11,042.70 to $4,895.20.

Holding: The Court stated that the district court’s findings of fact were not clearly erroneous, its conclusions of law were not inconsistent with the findings of fact and it did not err in concluding that the Garrisons had failed to prove by clear and convincing evidence that CC Builders committed fraud. The Judgment as reduced by the district court upon remand to $72, 062.77 was affirmed. The Court stated that the award of costs must be reduced to $4.895.20 and remanded to the district court for entry of a new judgment in the appropriate amount.

Affirmed in part and reversed in part.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/3clto6 .

[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 195

Summary of Decision issued December 11, 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: Mueller v. Zimmer

Citation: 2007 WY 195

Docket Number: S-07-0043

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

Representing Appellants (Plaintiffs): Robert John Logan, Logan & Powell, LLP, Thayne, Wyoming.

Representing Appellees (Defendants): John R. Hursh, Central Wyoming Law Associates, PC, Riverton, Wyoming.

Issue: Whether the district court abused its discretion in awarding Appellees attorney fees and costs in the amount of $4,241.99.

Facts/Discussion: Appellants appeal the district court’s order awarding attorney fees and costs to Appellees.
Standard of Review: The Court reviews an award of attorney fees for an abuse of discretion.
The Court noted that Appellants did not contest the reasonableness of the $150 hourly rate charged by Appellees’ attorney. They argued that because Appellees failed to provide an itemized statement reflecting only fees and costs incurred in defense of the ultra vires claim, there was insufficient evidence in the record to support the award and that the failure to provide the separate itemization was fatal to the claim. They relied on Miles v. CEC Homes and Jensen v. Fremont Motors Cody, Inc. The Court stated the reliance was misplaced.
In contrast to the situation in Miles, the record here contains a factual basis for the district court’s decision. Defense counsel’s ledgers and affidavit provided information allowing the district court to make an informed decision regarding a proper attorney fee award. The district court was intimately familiar with the parties, the issues and the overall litigation and so was in an excellent position to evaluate whether Defendants’ documentation and calculations fairly attributed reasonable costs to the particular claim at issue.
Appellants’ case was distinguishable from Jensen. It was undisputed that Appellants were entitled to attorney fees for their defense of the ultra vires claim whereas in Jensen, the denial was warranted because Jensen had failed to establish that he had prevailed on his claim for past due wages.

Holding: Case counsel provided an explanation for his failure to segregate the fees for each of the claims and the district court found that the segregation of fees was a practical impossibility. There was sufficient evidentiary basis for the district court’s award. The Court found no abuse of discretion.

Affirmed.

J. Burke delivered the opinion.

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

Summary 2007 WY 191

Summary of Decision issued December 10, 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: Smith v. Brito, Jr.

Citation: 2007 WY 191

Docket Number: S-07-0137

Petition for Writ of Review, From the District Court of Sublette County, the Honorable Norma E. Young, Judge

Representing Appellant (Defendant): Ralph E. Wood, Wood Law Office, Pinedale, Wyoming.

Representing Appellee (Plaintiff): Clark Stith, Rock Springs, Wyoming.

Issues: Whether the fact that Appellant was not a registered voter of the Town of Pinedale at the time he filed his application for election make him a person “not eligible to hold the office” when he received the highest number of votes cast in the subject election and was a registered voter of the Town of Pinedale on the date of the subject election and on the date he was sworn in to the position he was elected to. Whether the District Court erred in awarding costs to the Appellee where the Appellee did not archive [sic] the relief prayed for in his Verified Complaint.

Facts/Discussion: In a 2006 municipal election, Smith was elected to the Pinedale Town Council. Brito contested Smith’s election on two grounds, including that Smith was not a registered voter at the time he filed his petition for candidacy for the position.
Standard of Review: Since the order appealed from only granted partial summary judgment and was not certified as immediately appealable by the district court, it was not an appealable order. The Court has the authority to convert a notice of appeal to a writ of review under the most extraordinary of circumstances. The Court did so stating that the issues raised were of significant state importance. The Court reviews an award of costs for an abuse of discretion by the district court.
Annulment of Mr. Smith’s Election: Wyo. Stat. Ann. § 22-23-301 explicitly requires a person be a registered voter on the day the petition is filed. The petition form requires an applicant to swear or affirm they are a registered voter as of the closing of the municipal clerk’s office on the day the petition is filed. Smith did not meet that requirement, therefore he was not eligible to petition for candidacy, his name was not properly on the ballot and the votes he received and the election, must be considered null and void. Smith relied on Rue v. Carter which the Court noted was overruled by the Wyoming Legislature and which the Court discussed indirectly in Hayes v. City of Sheridan.
Costs: Brito was awarded costs pursuant to Wyo. Stat. Ann. § 22-17-104. Smith argued that costs should not have been awarded because the entire election was not annulled. The annulment of the election of a single elected municipal official can form the basis for the award of costs.
Appellate Sanctions: The Court did not believe the appeal warranted sanctions. Smith failed to win but his legal arguments were presented cogently and in good faith.

Holding: Because Smith was not a registered voter at the time he filed his petition for candidacy for office, Smith was not eligible to hold the municipal office to which he was elected. The district court correctly awarded costs to Brito however, the Court declined to award sanctions.

Affirmed.

J. Golden delivered the opinion.

Link: http://tinyurl.com/ypb2wm

Summary 2007 WY 53

Summary of Decision issued March 28, 2007

[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 with a citation 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: Shepard v. Beck

Citation: 2007 WY 53

Docket Number: 06-98

Appeal from the District Court of Campbell County, the Honorable Dan R. Price II, Judge

Representing Appellant (Plaintiff): Patrick Dixon of Crowell, Chapin & Dixon, LLC, Casper, Wyoming.

Representing Appellee (Defendant): Paul J. Drew of Drew Law Office, PC, Gillette, Wyoming.

Issues: Whether the district court erred when it concluded that Beck did not breach his employment contract. Whether the district court erred when it split the costs of an accounting audit between the parties instead of placing liability for the costs of the audit on Beck. Whether the district court erred when it declined to award attorney’s fees to Shepard. Whether the district court erred in its order regarding the division of corporate equipment between the parties.

Facts/Discussion: Shepard appeals a judgment and order of the district court finding that Beck did not breach an employment agreement with the professional corporation formed between Shepard, Beck and the corporation and ordering the corporation to dissolve.
Employment contract breach: Shepard argued that the district court’s findings of fact were inconsistent with their ultimate finding that Beck did not breach the employment contract. The Court’s standard for reviewing a district court’s findings of fact and conclusions of law is that while the findings are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Findings of fact will not be set aside unless clearly erroneous.
The Court’s review of the record showed that Beck’s claim that Shepard was not a proper party was raised for the first time on appeal. Based on W.R.C.P. 17 and their decision in Gifford-Hill-Western, Inc. v. Anderson, the Court stated that a party’s failure to object that its opponent was not the real party in interest until the close of the evidence constituted a waiver of any objection on that ground. In addition, in the instant case, Beck individually sought a judgment from Shepard based on her status as an employee of the corporation, so he was estopped from claiming that Shepard was not a proper party to recover for any breaches of his similar employment contract.
Beck did not challenge the above-mentioned factual findings of the district court on appeal and those findings clearly indicated that the Beck’s actions violated his employment contract. The district court’s findings indicated that Beck’s actions constituted a breach of the express terms of the employment contract which was inconsistent with the district court’s general finding that Beck did not breach the contract. The Court stated that long ago they recognized that specific findings control when they conflict with a general finding. Therefore, they concluded that Beck did in fact breach the employment contract and the district court’s ruling in Beck’s favor was clearly erroneous.
Wipfli audit: Having determined that Beck breached his employment contract, the Court then addressed the costs Shepard could recover. The Court reviews awards of costs and attorney’s fees to determine if the district court abused its discretion. The cases cited by Shepard demonstrated the point that an accounting may be considered part of the costs of litigation and therefore may be awarded to the prevailing party. However, the district court determined that while Beck’s actions precipitated the need for the accounting, it was more properly considered a necessity to the mutually beneficial winding up of corporate affairs and not a cost incurred in enforcement of the corporate agreement. Under the circumstances outlined in the record, the Court stated it was within the district court’s broad discretionary powers to find the accounting was necessary in order to wind up the corporation’s business and that Shepard was not entitled to be reimbursed. The Court also noted Shepard was granted her other costs as the prevailing party below.
Award of attorney fees: Shepard claimed she was entitled to attorney fees under the fee shifting provision in the contract. Beck waived his right to object that Shepard was not a proper party to enforce the employment contract by not raising the defense below. Therefore, as prevailing party on the breach of contract claim, Shepard may collect her attorney’s fees as provided for by the contract. However, the district court order in the instant case did not specify whether it ordered each party to pay their own attorney fees under the “American Rule” or under its equitable powers. On remand, the district court was instructed that Shepard was contractually entitled to attorney fees, but such may be adjusted as appropriate under the federal lodestar test.
Division of corporate equipment: Shepard’s argument did not allege any dispute with the nature of the property taken by Beck. Shepard disagreed with the value attached to that property by the district court. On factual issues, the Court affirms the findings of the district court unless they are clearly erroneous. The Court stated the value of the property was supported by the appraisal found in the record and the Court therefore affirmed the distribution of corporate assets ordered by the district court.

Holding: While Beck may have breached his employment contract with the corporation, the district court did not abuse its discretion when it ordered the parties to split the cost of the Wipfli audit evenly between them as part of the dissolution process. Further, Shepard failed to show error in the division of the corporate property. The district court should have ordered Beck to pay Shepard’s reasonable attorney’s fees due to his breach of the contract. The Court affirmed in part, reversed in part and remanded for entry of an order finding Beck in breach and awarding Shepard reasonable attorney fees.

Affirmed in part, reversed in part and remanded for entry of an order awarding reasonable attorney’s fees.

C.J. Voigt delivered the decision.

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