Summary 2010 WY 113

Summary of Decision issued August 6, 2010

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

Case Name: Dawes v. State

Citation: 2010 WY 113

Docket Number: S-09-0211

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

Representing Dawes: Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel.

Representing 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: Dawes appealed from the judgment and sentence entered by the district court after a jury found him guilty of larceny by bailee for converting to his own use funds his employer had placed in a Wyoming checking account. Dawes challenged the district court’s authority to try him in Wyoming because he had never been in the state until he was extradited to face the charge in this case. He also argued that his conviction was improper because he was listed as a joint owner on the account and could not be convicted for converting money that belonged to him. Dawes also claimed the district court committed plain error in its response to the jury’s question about the definition of the “owner” of the money.

Subject matter jurisdiction: The evidence established that Dawes wrote the unauthorized checks on a Wyoming bank account, effectively converting money located in Wyoming and depriving a Wyoming victim of her money. Similar to Hopkinson, Dawes’ actions outside the state resulted in a crime within the state. Under common law principles, the district court was entitled to exercise jurisdiction because the criminal conduct and its result took place in Wyoming.
Variance between charging documents and trial proof/sufficiency of the evidence: The information and jury instructions were substantively identical. The evidence established that Dawes wrote unauthorized checks in California which removed money from an account located in Wyoming. Under those circumstances, there was sufficient evidence for the jury to conclude that the conversion occurred in Wyoming. Dawes apparently maintained that the State was also required to prove he formed his intent to commit the crime in Wyoming and that was impossible since he had never been to the state before the charges were brought. Consistent with § 6-3-402(b), the district court instructed the jury to determine whether Dawes had the intent to steal or deprive the victim of the money. Given that the evidence established that the conversion actually took place in Wyoming, neither § 6-3-402(b) nor common law jurisdictional concepts required that the State prove where Dawes formed his criminal intent. The evidence was sufficient to establish the location of the crime.
Effect of joint ownership of account: Dawes claimed the district court erred by refusing to dismiss the charge because a joint owner of an account cannot be a bailee and accordingly, cannot be charged with larceny by bailee for removing money from an account. Whether Dawes was an owner of the account was a question of fact. The district court correctly denied Dawes’ motion to dismiss and allowed the jury to determine what the parties intended by setting up the joint account.
Jury question: “If the money is owned by more than one person, does the phrase ‘the owner of the money’ apply to each individual owner?” The jury did not ask for the dictionary definition of “owner” and there was no indication that it did not understand the general meaning of that term. Instead the jury was asking for its specific meaning within § 6-3-402(b). The district court did not violate a clear and unequivocal rule of law when it did not provide the dictionary definition of the term “owner” or when it instructed the jury to determine the issue as a factual matter.

Conclusion: The Court concluded that Dawes was properly charged and tried in Wyoming because he converted funds located in the state. In addition, the district court correctly allowed the jury to determine whether the funds in the account belonged to Dawes or his employer. The district court did not err when it responded to the jurors’ question by telling them that the determination of who owned the money was a factual issue for them to decide.

Affirmed.

C.J. Kite delivered the decision.

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

[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 110

Summary of Decision issued August 5, 2010

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

Case Name: Terris v. Kimmel

Citation: 2010 WY 110

Docket Number: S-10-0028

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

Representing Terris: Katherine D. Peters and Thomas S. Peters of Peters Associates, LLC, Teton Village, Wyoming.

Representing Kimmel: Peter F. Moyer of Jackson, Wyoming.

Facts/Discussion: The Terrises appealed the district court’s Judgment, arising from a dispute relating to a lease agreement with Edwal Enterprises, Inc. and Edward Kimmel as principal (Kimmel.) The Terrises rented a storage unit from Kimmel in 1998 and continued doing so until the summer of 2006. The Terrises were over seven months behind in rental payments when Kimmel and his employees smelled gas fumes coming from the unit. They removed three propane tanks and two gas containers from the unit. Storage of flammable items was prohibited by the lease agreement.

Breach of lease agreement: The lease agreement provided for monthly payment of the rent. The manager of the storage facility was not authorized to amend the written lease agreement. Kimmel testified that he never authorized a modification of the contract and that he sent late payment notices three months prior to entering the storage unit. The Terrises prepared several lists of items they claimed were missing from the storage unit. However, they failed to persuade the district court that the items of personal property they listed as missing had existed or that Kimmel had disposed of them. The Court found nothing in the record to suggest otherwise.
Conversion: The Terrises argued that Kimmel violated the implied covenant of good faith and fair dealing and committed a conversion of their property when he failed to follow the lease agreement which required Kimmel to store or sell their property instead of disposing it at the dump. The claims rely on proof that Kimmel removed and disposed of the property which the Terrises failed to prove.
Attorney’s fees and costs: The Terrises argued that the district court erred by awarding attorney’s fees and costs to Kimmel because at the time of the breach, Kimmel had not yet incurred any fees or costs relating to the breach. The attorney’s fees provision of the lease agreement does not limit the availability of fees and costs only to those arising out of claims initiated by the landlord.

Conclusion: The Terrises failed to prove by clear and convincing evidence that the written lease agreement was modified. Consequently, the district court did not err in finding the Terrises in breach of the lease agreement for failure to make timely rental payments. The Terrises also failed to prove that Kimmel removed or disposed any of the Terrises’ personal property. As a result, the district court did not err in finding that Kimmel had not breached the lease agreement, committed a conversion, acted willfully in violation of the lease agreement, or violated the covenant of good faith and fair dealing. Nor did the district court abuse its discretion in awarding attorney’s fees and costs to Kimmel pursuant to the lease agreement, as those fees and costs were a direct result of the Terrises’ default under the lease agreement.

Affirmed.

J. Voigt delivered the decision.

Link: http://tinyurl.com/2cc2fn8 .

[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 2009 WY 98

Summary of Decision issued August 14, 2009

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

Case Name: Aviat Aircraft, Inc. v. Saurenman

Citation: 2009 WY 98

Docket Number: S-08-0143

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

Representing Appellant Aviat: J. Kent Rutledge and James C. Kaste, of Lathrop & Rutledge, PC, Cheyenne, Wyoming.

Representing Appellee Saurenman: Marvin L. Tyler and Ford T. Bussart of Bussart, West & Tyler, PC, Rock Springs, Wyoming; Peter Tolley of Foster, Swift, Collins & Smith, PC, Grand Rapids, Michigan.

Facts/Discussion: Aviat sought review of the district court’s Judgment in Accordance with Verdict. Saurenman worked for Aviat, a corporation wholly owned by Stuart Horn, who was its president and the person in control of its day-to-day operations. Saurenman contended he was constructively discharged in early 2004. Saurenman later moved to North Carolina where he housed the Monocoupe plane in a “garage” that was open to the elements. The damage/deterioration that occurred while the Monocoupe was in the hangar pending trial (2004-2007) remained at issue.
Law of bailment (vs. Conversion): Aviat characterized Saurenman’s actions with respect to the Monocoupe as conversion and that the conversion had persisted for over three years despite the district court’s preliminary injunction. The district court found from the materials in the record that Saurenman came into possession of the Monocoupe lawfully and none of the district court’s findings could be read to suggest that Suarenman’s lawful possession ever transformed to conversion by his refusal to return the plane when demanded to by Aviat.
A gratuitous bailment assumes that the bailee has notice or knowledge that he has possession of the disputed goods. Where possession of goods is imposed upon a person without his permission, that person is known as an involuntary bailee and he is under a duty of reasonable care to protect the receptacle in the condition in which it was received. The district court determined that Saurenman was an involuntary bailee following the preliminary order and had no choice but to hold the aircraft by keeping it in his hangar until the receiver obtained possession of it or until the jury determined the rightful ownership.

Conclusion: To the extent the district court made finding of facts, the Court concluded that none of them was clearly erroneous. The Court concluded the district court’s application of the law to the facts was correct. The terminology used by the parties and the district court may have been a bit too loose, however the result was fully consistent with the law generally applicable to circumstances as in the instant case.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/ov3rex .

[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 20009 WY 75

Summary of Decision issued June 8, 2009

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

Case Name: Wagner v. Reuter

Citation: 2009 WY 75

Docket Number: S-08-0142

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

Representing Appellant Wagner: David M. Clark of Worrall & Greear, PC, Worland, Wyoming.

Representing Appellee Reuter: Mary Helen Reed of McCarty, Reed and Earhart, LC, Cody, Wyoming.

Facts/Discussion: Wagner sued the Reuters to recover the value of field work allegedly performed on a farm purchased by the Reuters, asserting claims of breach of contract, promissory estoppel, and unjust enrichment and to recover damages for the Reuters’ alleged conversion of irrigation tubes owned by Wagner.

Field work: The Court agreed that the promissory estoppel and unjust enrichment claims were precluded by the existence of an enforceable contract. By the contractual language, the Reuters obligated themselves to pay for the completed field work. The amount due was to be settled outside the contract. It was irrefutable the provision was breached. The district court erred in its determination that the contract was not breached. The issue of damages was still pending.
Irrigation tubes: Wagner did not meet all five of the elements necessary to establish a claim for conversion. He left the irrigation tubes in question on the farm after the contractual deadline for removal. Later the Reuters used some of them thinking Wagner no longer wanted them. When contacted by Wagner, the Reuters immediately surrendered the tubes on his demand.
Award of costs: Having determined that summary judgment on the breach of contract claim was improper, the Court concluded that no basis existed for an award of costs to the Reuters.

Conclusion: The Court affirmed the grant of summary judgment on the claims of promissory estoppel, unjust enrichment and conversion. It reversed the grant of summary judgment on Wagner’s breach of contract claim and remanded for further proceedings on the claim. Because the case was remanded, the award of costs was vacated.

Affirmed in part, reversed in part, remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/nfee4m .

[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 65

Summary of Decision issued May 19, 2009

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

Case Name: Lieberman v. Mossbrook; Mossbrook v. Lieberman

Citation: 2009 WY 65

Docket Number: S-08-0159; S-08-0160

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

Representing Lieberman: William D. Bagley of Frontier Law Center, Cheyenne, Wyoming.

Representing Mossbrook, et al: Alexander K. Davison and Terry W. Connolly of Patton & Davison, Cheyenne, Wyoming.

Facts/Discussion: After Lieberman withdrew as a member of Wyoming.com LLC, Wyoming.com filed a petition for a declaratory judgment seeking a determination of its rights and Lieberman filed a complaint for dissolution of the company and the return of his share of its value. Three district court determinations and three appeals to the Court followed during which it was established that Lieberman’s withdrawal did not result in dissolution of the company, he was entitled to the return of his $20,000 capital contribution and he retained an equity interest in the company. Those determinations having been made, the declaratory action was dismissed. Lieberman then filed a complaint against the owners of Wyoming.com, who in the meantime had merged the limited liability company into a corporation. The district court granted partial summary judgment for Lieberman on his claim for conversion and set trial for determination of the value of his equity interest and his entitlement to other damages. The district court entered judgment on the conversion claim for Lieberman in the amount of $958,475.44. The district court found for the Mossbrooks on the remaining claims.
See the opinion for a complete summary of Lieberman I, II and III.

Statute of limitations: In a claim of conversion, the cause of action accrues when the plaintiff knew or should have known that his property was wrongfully converted. The dispute began in 1998 when Lieberman withdrew from Wyoming.com and demanded return of his proportionate share of the company’s value. He filed a complaint in June, 1998 well within the four year statute of limitations for conversion claims. The nature of Lieberman’s equity interest became clear in 2004 when the Court decided Lieberman II and within six months, he filed his claim for conversion. The district court correctly determined that Lieberman’s claim was not barred.
The law of the case: The Court’s decisions in the prior Lieberman cases were based upon an incomplete record from which they were able to determine only that Lieberman retained an equity interest in Wyoming.com. The law of the case doctrine did not limit the district court to any particular method for determining the value of Lieberman’s equity interest in a conversion action.
Date of conversion and valuation of Lieberman’s equity interest: Based upon the record before the Court which included the cancelled membership certificate, Mossbrook’s testimony that the certificate was in fact cancelled April 16, 1998, and the evidence showing that Wyoming.com paid the $20,000 capital contribution to the district court in the garnishment proceeding, the Court stated it was clear Lieberman was entitled to liquidating distributions as of that same date. Therefore, pursuant to § 17-15-142, the corporation was liable to him for conversion. The Court stated that the prior Lieberman decisions were never intended to suggest that Lieberman had any legitimate claim to a shareholder interest in the successor corporation.
The Court determined the value of Lieberman’s interest at the time and place of the conversion based upon an independent appraiser’s value from April 1998. Lieberman’s equity interest was $100,000.
Breach of fiduciary duty: Lieberman alleged the Mossbrooks owed him a fiduciary duty of good faith and fair dealing to provide him with K-1 reports and tax returns. The Court stated that after Lieberman withdrew and Wyoming.com returned his capital contribution, he had no right to K-1 reports and tax returns.
Judgment against the members/shareholders individually and joint and several liability: There was nothing in the record to support a determination that the separate identity of Wyoming.com or the corporation should have been disregarded and the members or shareholders held individually liable. Both the Wyoming and the Federal rules allow the dismissal or addition of parties to an action even after the trial has concluded. The Court stated that adding Wyoming.com prejudiced no one and that no grounds existed for piercing the corporate veil. The shareholders have no liability to Lieberman, jointly, severally or otherwise.
Discovery sanctions: In considering whether a district court abused its discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. The Mossbrooks’ actions with regard to the documents and the deposition did not comply with the district court’s order. The order granting sanctions was affirmed.

Conclusion: Lieberman’s 2005 complaint was not barred by the statute of limitations. The Court’s decisions in Lieberman I, II and III did not establish law of the case precluding the district court from considering the status of Lieberman’s equity interest in light of his conversion claim and evidence presented for the first time after the earlier decisions were rendered. Given the evidence establishing that Lieberman’s membership and equity interest in Wyoming .com ended in 1998, and the applicable statutory and contractual provisions, the district court’s judgment valuing his equity interest as of 2001 was erroneous as a matter of law.
The Mossbrooks presented evidence that the value of Lieberman’s interest was $100,000 less than the $27,965 they returned to him. The Court concluded from the record that the evidence supported Mossbrooks’ calculation and held that Lieberman was entitled to a judgment of $72,035 plus interest. Because the parties against whom he brought his claims were not liable, the corporation must be substituted as the defendant when the judgment was entered. The Court affirmed the district court’s sanctions against the Mossbrooks, although the order must be amended on remand to reflect that Wyoming.com was the responsible party.

Affirmed in part, reversed in part.

J. Kite delivered the decision.

Link: http://tinyurl.com/qm74tg .

[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 44

Summary of Decision issued April 11, 2008

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

Case Name: Retz v. Siebrant

Citation: 2008 WY 44

Docket Number: S-07-0023

Appeal from the District Court of Albany County, the Honorable Jeffrey A. Donnell, Judge

Representing Appellants (Plaintiffs): C.M. Aron, Aron and Henning, LLP; and Mattaniah Eytan, Law Office of Mattaniah Eytan.

Representing Appellees (Defendants): Jason M. Tangeman, Jeff Anthony and Philip A. Nicholas of Anthony, Nicholas and Tangeman for Appellees Siebrant and Zarate. Paul J. Hickey, Roger C. Fransen and Brandi L. Monger of Hickey & Evans, LLP for Appellee Graves; Gregory C. Dyekman and Timothy Woznick of Dray, Thomson & Dyekman, PC, for Appellee UW Foundation.

Facts/Discussion: Appellants, Ron Retz, Anne Burwell Williams, Fred Crouter and Beverly Crouter request relief from the district court’s grant of two separate motions for summary judgment the last of which effectively disposed of Appellants’ claims against Appellees William Siebrandt, Salvador Zarate, Charles E. Graves and the University of Wyoming Foundation. Appellants also contested the district court’s denial of a motion to amend the complaint.
Colonel Rogers died in Carmel, California in 2003. He was 96, not married at the time and had no known children. Anne and Ernest Williams are children of two of the Colonel’s sisters. William Siebrandt was his closest companion. They cut off contact with each other several times over the years. The Colonel made a series of generous monetary gifts to Siebrandt over the course of the relationship. The Colonel was meticulous in his estate planning.
Motion to Amend: The Court could not find that the district court abused its discretion in denying Appellants leave to amend the Complaint. The district court found that Appellants Anne and Ernest Williams’ claim to remove Charles Graves as Trustee was a reiteration of an earlier request for injunctive relief. The district court refused to add claims for elder abuse and undue influence noting Appellants made no cogent argument as to why a Wyoming court should have jurisdiction over torts allegedly committed in California. Fred and Beverly Crouter attempted to bring several claims on behalf of their mother Ada Crouter, the Colonel’s long-time friend and companion during his years in Wyoming and Nebraska. They failed to allege any form of consideration for the alleged promise. The claim for conversion had exceeded the statute of limitations.
Summary Judgment: The district court granted summary judgment on all issues in two separate decision letters. Appellants contested the decision on two of the issues.
Contract to Make a Will: The Williams claimed that the Colonel entered into an agreement with their parents to leave all his money to his family when he died in exchange for their assistance in hiding his assets at the time of his divorce. There was no competent evidence to support the allegation. The Court stated it was against public policy to contract to hide assets in order to prevent a court from considering all assets when dividing a marital estate.
Undue Influence: The Court may affirm a summary judgment on any grounds supported by the record. The determinative issue was that Appellants had not raised an issue of material fact as to the validity of any part of the 2002 trust. The Court found that the district court was correct in finding that Appellees met their burden under the summary judgment standard. Appellants failed to make any showing that the Colonel was in a condition that permitted subversion of his will. They failed to show there was activity on the part of Siebrandt or Zarate with respect to the trust instrument. There was no evidence that either of them unduly profited as beneficiary under the trust.
Forgery: Appellants also attacked the 2002 trust on the basis that the Colonel’s signature was a forgery. The signature was notarized. The notary testified explaining her procedure for a jurat and her memory of the event. Appellants offered the report of a forensic document examiner. As the only evidence offered, it was not enough to raise a genuine issue of material fact with respect to the authenticity of a notarized signature.

Holding: The district court did not abuse its discretion when it denied Appellants’ request to amend their complaint. The district court properly summarily disposed of Appellants’ claims when they failed to produce enough evidence to raise a genuine issue of material fact on any claim.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/55fopm .

[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.]