Summary 2012 WY 28

Summary of Decision February 23, 2012


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Vincent Rosty v. Shari Skaj and Steve Skaj

Citation: 2012 WY 28

Docket Number: S-11-0063, S-11-0136

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465111

Appeal from the District Court of Natrona County, the Honorable W. Thomas Sullins, Judge.

Representing Appellant (Defendant): Hampton K. O’Neill and Timothy M. Stubson, Brown, Drew & Massey, LLP, Casper, Wyoming. Argument by Mr. Stubson.

Representing Appellee (Plaintiff): Robert T. Ingram, Ingram Olheiser, P.C., Casper, Wyoming; Timothy W. Miller, Miller Law Office, Casper, Wyoming. Argument by Mr. Ingram.

Date of Decision: February 23, 2012

Facts: In these consolidated appeals, Appellant, Vincent Rosty, challenges the district court’s order entering default judgment and the district court’s denial of his motion to set aside entry of default and default judgment. Appellees, Shari and Steve Skaj, brought suit against R & R Roofing, Inc., Steve Rosty, and Appellant to recover damages caused when an idling dump truck that had been driven by Appellant was knocked into gear, pinning Ms. Skaj against a motor home. The complaint alleged that the dump truck and R & R Roofing were owned by defendant Steve Rosty, and that the truck was used by Appellant in his employment with the business. The complaint stated causes of action for negligence and negligent infliction of emotional distress, and sought to recover compensatory and punitive damages from all defendants.

Issues: Appellant presents the following issues:

Whether Appellant timely appealed the district court’s ruling denying Appellant’s motion to set aside entry of default and motion to set aside default judgment.

Whether the district court erred by permitting the hearing on default judgment to proceed when Appellees failed to provide notice to Appellant of the hearing as required by Rule 55(b)(2).

Whether the district court violated Appellant’s due process rights by entering default judgment without allowing Appellant a meaningful opportunity to present evidence on issues of fault and damages?

Whether the default judgment issued by the district court is void because of Appellees’ failure to properly serve the Appellant with the Complaint and Summons.

Whether the district court abused its discretion by failing to set aside the entry of default and the default judgment in this case.

Whether the district court’s award of punitive damages was permitted where the Appellees failed to provide any evidence of Appellant’s wealth.

Holdings: After careful review of the issues, the district court’s denial of Appellant’s motion to set aside default and default judgment was affirmed. The Court reversed that part of the district court’s order awarding punitive damages and remanded for further proceedings consistent with this opinion.

Justice Burke delivered the opinion for the court.

Summary 2011 WY 59

Summary of Decision April 12, 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: Wunsch v. Pickering

Citation: 2011 WU 59

Docket Number: S-10-0004

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461954

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

Representing Appellant (Plaintiff): Matthew Giacomini and Andrew Reid, Springer and Steinberg, Denver, Colorado.

Representing Appellee (Defendant): Lea Kuvinka, Kuvinka & Kuvinka, Jackson, Wyoming.

Date of Decision: April 12, 2011

Facts: The district court resolved a dispute between the parties concerning an amount of money Appellant owed Appellee pursuant to the provisions of their divorce settlement agreement regarding the distribution of fees from the financial services business they had operated and Appellant continued to operate.

Issues: Whether the district court abused its discretion by issuing an order compelling Appellant to produce documents that were irrelevant or not in his possession, custody, or control. After the district court entered default against Appellant as a sanction for failing to produce the documents as ordered, whether the district court erred as a matter of law by restricting Appellant’s participation in the subsequent hearing on damages. Whether the evidence was sufficient to support the trial court’s award of damages.

Holdings: WRE 401 provides that relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” If the account information sought by Appellee indicated that clients formerly invested in the parties’ joint accounts had moved those investments through Appellant’s individual account, that would tend to make it more probable that those joint accounts had been replaced and pursuant to the settlement agreement Appellee would be owed one half of the fees. To the extent the information related only to Appellant’s individual clients, that would tend to make it less probable that those accounts had been replaced. The district court could reasonably determine that the documents sought by Appellee were relevant. “Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of the party seeking discovery.” W.R.C.P. 26(b)(1). The district court did not abuse its discretion in granting the order to compel the production of these documents.

Appellant’s objection that the documents were not in his possession, custody, or control is unsupported by facts in the record. Although Appellant did not have client commission statements requested, he could have obtained copies from the parent company of his business. As to the tax records, it appears that Appellant did produce all of the requested information except for the tax returns and 1099 Forms for 2008. Appellant repeatedly represented that the 2008 tax returns were still being prepared, and so were not yet in existence. He asserted that his 1099 Forms for 2008 were unavailable for the same reason. From a practical standpoint, the assertion that the 1099 Forms for 2008 were still unavailable as of September 30, 2009, seems untenable. Moreover, in one hearing, Appellant’s counsel stated that “The 1099 for 2008 has been ordered and should be here,” another admission that the document was not beyond Appellant’s control.

After careful review of the record, it was not unreasonable for the district court to conclude that the documents requested by Appellee through discovery were relevant and within Appellant’s possession, custody, or control. It was not an abuse of discretion to issue an order compelling Appellant to produce the disputed documents.

Appellant claims that, during the hearing held on damages, the district court denied his right to participate in the proceedings by improperly prohibiting him from presenting evidence relating to the damages he owed Appellee. He asserts that the district court erred as a matter of law in restricting his participation in the hearing, and because this raises a question of law, it must be reviewed de novo. However, the record reflects that Appellant was afforded an opportunity to participate in the damages hearing, and that he did participate. The real basis of his complaint is that the district court excluded most of the evidence he sought to introduce at that hearing.

Because the effect of the entry of default was to establish that the disputed accounts had been replaced, evidence offered by Appellant to show that the accounts had not been replaced was irrelevant. Because the entry of default decided the issue of whether the accounts had been replaced, and decided it against Appellant, any evidence suggesting that the accounts had not been replaced was irrelevant, and the district court did not err in excluding it.

As with the previous issue, Appellant’s argument that the evidence was insufficient to support the trial court’s award of damages is based on a misconception of the effect of the entry of default against him. The default judgment amounted to a ruling that the inactive accounts had all been replaced by Appellant and Appellee would have been owed a portion of the fees for those accounts. Appellee was no longer required to prove that any of the accounts had been replaced. She merely had to prove what her damages were if all the accounts had been replaced. The calculation of the amount of fees Appellee would have been owed was done by the Administrator/Accountant who had been appointed during mediation to perform the accounting required under the settlement agreement for the purpose of establishing the “projected amount” Appellee would be owed if the accounts were all replaced. After the district court entered default establishing, in effect, that all the accounts were replaced, this evidence was sufficient to prove Appellee’s damages.

Affirmed.



J. Burke delivered the opinion for the court.

Summary 2010 WY 118

Summary of Decision issued August 18, 2010

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

Case Name: Lykins v. Habitat for Humanity, The Heart of Wyoming, Inc.

Citation: 2010 WY 118

Docket Number: S-10-0045

Appeal from the District Court of Natrona County, the Honorable W. Thomas Sullins, Judge.

Representing Lykins and Sellars: Jim Lykins and Jill Sellars, pro se.

Representing Habitat for Humanity: Jerry A. Yaap, Bishop, Bishop & Yaap, Casper, Wyoming.

Facts/Discussion: In litigation disputing the ownership of a residential property in Casper, a default judgment was entered against Lykins and Sellars. The district court denied Lykins’ and Sellars’ motion to set aside the default judgment.
The Court’s review was restricted by the lack of a record. The hearing on the motion to set aside the default judgment was not reported. Lykins and Sellars did not offer an alternative statement of the evidence that could have been settled by the district court. The sole ground asserted was failure of service of a summons along with the complaint and other documents served upon Lykins and Sellars. Habitat for Humanity provided evidence as well as testimony from the process server.

Conclusion: Because Lykins and Sellars failed to prove they were not properly served and did not demonstrate any other reason justifying relief, the district court properly denied the motion to set aside the default judgment.

Affirmed.

J. Burke delivered the decision.

J. Voigt, special concurrence: The Justice concurred in the result but would have summarily affirmed because no transcript or settled statement of the evidence was provided in the record, so there was nothing available for the Court to evaluate the determinations of the district court.

Link: http://tinyurl.com/2ewutm5 .

[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 2008 WY 106

Summary of Decision issued September 8, 2008

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

Case Name: Wolfe v. Largent

Citation: 2008 WY 106

Docket Number: S-07-0259

Appeal from the District Court of Natrona County, the Honorable W. Thomas Sullins, Judge.

Representing Appellant: Larry W. Harrington, Harrington Law Firm, PC, Casper, Wyoming.

Representing Appellee: William D. Hjelmstad, Casper, Wyoming.

Facts/Discussion: Wolfe and Largent divorced in Washington. Subsequently, Largent moved to Wyoming. Wolfe registered the divorce decree in Wyoming in an effort to collect back child support. Largent did not contest the validity or enforcement of the decree and the district court entered a default judgment in Wolfe’s favor. Largent moved to set aside the judgment and the district court granted the motion. The court ultimately denied confirmation and enforcement of the divorce decree. Wolfe challenged the district court’s order setting aside the default judgment and the district court’s decision to deny confirmation and enforcement of the decree.
Because Largent did not request a hearing to contest the validity or enforcement of the registered order within 20 days of personal service, that order was confirmed by operation of law. Largent sought relief from the default judgment pursuant to W.R.C.P. 55(c) and 60(b). According to the W.R.C.P. 1, the district court had jurisdiction to determine Largent’s motion to set aside the default judgment. The trial court concluded at the hearing that any prejudice to Wolfe was nominal noting that it was an action to collect arrearages where the children were long ago emancipated. Wolfe failed to demonstrate and had not alleged that her ability to litigate the case was compromised between the time the default judgment was entered and the hearing on the merits. The Court found no error in the district court’s determination that Wolfe was not prejudiced by vacation of the default judgment.
Largent asserted several defenses, including that the amount of arrearages claimed were incorrect. The evidentiary record supported the district court’s conclusion that Largent demonstrated a meritorious defense.
Wolfe’s bare assertion that the district court incorrectly found Largent’s negligence non-culpable was insufficient to convince the Court that the district court erred in setting aside the default judgment.
Wolfe contended that the district court erred in failing to enter an order determining the proper amount of arrearages and interest after providing Largent with credit for all payments made. Largent did not contest the validity of the divorce decree instead he asserted that the amount claimed was incorrect. The district court determined that the total support obligation requested was not proper and denied confirmation and enforcement of the divorce decree in its entirety. The Court stated that the decision was not reasonable under the circumstances. On remand, the district court must determine the proper amount of arrearages still owed. After deducting any amounts that cannot be collected due to the applicable statute of limitations, the district court must calculate interest due on the remaining amount and enter an appropriate order confirming and enforcing the Washington divorce decree.

Holding: The Court found no error in the district court’s decision to set aside the default judgment. However, it concluded that the district court erred in its decision to deny confirmation and enforcement of the decree. It reversed the Order Denying Motion for Confirmation and Enforcement of Child Support Order and Arrearages and remanded.

Affirmed in part, reversed in part and remanded.

J. Burke delivered the decision.

Link: http://tinyurl.com/5zj887 .

[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.]