Summary 2014 WY 13

Summary of Decision January 27, 2014

Justice Voigt delivered the opinion for the court. Affirmed.

Case Name: ROBERT OLAF ANDERSON v. THE STATE OF WYOMING

Docket Number: S-13-0019

URL: http://www.courts.state.wy.us/Opinions.aspx

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

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope, Assistant Attorney General. Argument by Mr. Pope.

Date of Decision: January 27, 2014

Facts: A jury convicted the appellant of felony driving while under the influence of alcohol. He now challenges two rulings of the district court—one concerning discovery and one concerning the admissibility of evidence—and also alleges his trial counsel was ineffective.

Issues: 1. Did the district court abuse its discretion by denying in part the appellant’s pretrial Request for IntoxNet Database Pursuant to W.S. § 31-6-105(e) and Proof of Compliance with Statutory Predicate for Admission of a Chemical Test Result Under W.S. 31-6-105(a)? 2. Did plain error occur, in the form of a violation of the appellant’s constitutional right to confrontation, when the State’s expert witness testified as to the operation, maintenance, and accuracy of the breath alcohol test machine used in this case? 3. Was the appellant’s trial counsel ineffective in not calling an expert witness to testify as to the effect of diabetes on the results of a breath alcohol test?

Holdings: Finding no error, we affirm the appellant’s conviction for felony driving while under the influence of alcohol.

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 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]

Summary 2013 WY 43

Summary of Decision April 12, 2013


Justice Davis delivered the opinion for the Court. Affirmed.

Case Name: IN THE INTEREST OF: MC, HC and CC, Minor Children, DL, v. STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES

Docket Number: S-12-0199

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Hot Springs County, Honorable Robert E. Skar, Judge.

Representing Appellant: Curtis Cheney of Messenger & Overfield, PC, Thermopolis, Wyoming

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General. Argument by Ms. Pojman.

Representing Guardian Ad Litem: Dan S. Wilde, Permanency Attorney, Wyoming Guardian Ad Litem Program, Cheyenne, Wyoming; and Claudia Lair, Student Intern. Argument by Ms. Lair.

Date of Decision: April 12, 2013

Facts: After an adjudicatory hearing in this abuse and neglect case, Appelllant was found to have neglected her three children. She challenged that decision on the grounds that she was denied fundamental due process rights because the trial court declined to grant a motion to dismiss or to strike witnesses after claimed discovery violations by the State, and because the evidence was insufficient to support a finding of neglect.

Issues: 1. Did the trial court abuse its discretion when it denied Appellant’s motion to dismiss and to strike witnesses for claimed discovery violations that were not brought to the court’s attention until the date of the trial, and did its rulings on this issue result in a denial of due process?

2. Was there sufficient evidence to support the trial court’s finding of neglect?

Holdings: The Court found that the trial judge did not abuse his discretion in dealing with the claimed discovery violations, that Appellant received due process, and that the evidence was sufficient to support a finding of neglect. Affirmed.

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 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]

Summary 2011 WY 123

Summary of Decision August 25, 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: Baker v. State

Citation: 2011 WY 123

Docket Number: S-10-0229, S-10-0230

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464183

Appeal from the District Court of Natrona County, Honorable David B. Park, Judge

Representing Appellant (Defendant): David Dale Baker, pro se.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny Lynn Craig, Assistant Attorney General.

Date of Decision: August 25, 2011

Facts: Appellant was convicted on six methamphetamine-related charges. He was sentenced to imprisonment for six to eight years on each of the first four charges, with the sentences to be served concurrently. He was sentenced to imprisonment for eighteen to twenty-four months on each of the last two charges, with the sentences to be served concurrently, but consecutive to the sentences on the first four counts. He appealed. His convictions on two of the charges were reversed and affirmed the other four. [See: Baker v. State, 2010 WY 6 (Wyo. 2010)] The action was remanded to the district court for resentencing. On remand, the district court imposed the same sentences as before on the remaining four charges. In these consolidated Appellant challenges the district court’s denial of his motion to correct an illegal sentence. He also claims that the district court erred when it did not grant him access to e-mail correspondence between the Wyoming Department of Corrections and the Wyoming Public Defender’s Office.

Issues S-10-229: Whether the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), is applicable where the consecutive sentence Appellant received is beyond the statutory maximum, and was not presented to the jury for the enhancement of the sentence. Whether it was a violation of the Constitution where Appellant was sentenced with, but did not receive any notice that he was being charged with, nor was he convicted by the jury of a cumulative crime. Whether the Court could not sentence Appellant to a consecutive sentence where there is no statutory authority to do so. Whether the Double Jeopardy Clause was violated as the sentences Appellant received were required to merge where conviction of the underlying felony was required in order to convict and impose a sentence for child endangerment.

S-10-230: Whether it was clear error for the Court to deny Appellant access to the Court by ruling the Court had no jurisdiction to order the Wyoming Honor Farm to produce documents in its possession relating to Appellant. Whether pursuant to Wyoming law Appellant has a Constitutional right to any and all documents referencing and identifying him in the possession of the Wyoming Department of Corrections. Whether Appellant has a Constitutional right to the required service of all documents filed into the District Court.

Holdings: A trial court’s denial of a motion to correct an illegal sentence is reviewed by using an abuse of discretion standard. However, this discretion is limited to a determination by the trial court as to whether the sentence was legal or illegal. An illegal sentence is one which exceeds statutory limits, imposes multiple terms of imprisonment for the same offense, or otherwise violates constitutions or the law. Whether a sentence is illegal is determined by referencing the applicable statute or constitutional provisions, and is subject to statutory interpretation. Appellant contends that his consecutive sentences violate the holding in Apprendi v. New Jersey, 530 U.S. 466 (2000) that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Appellant argues that the imposition of consecutive sentences increased the penalty for his crimes beyond the prescribed statutory maximum, and therefore, Apprendi mandates that the decision to impose consecutive sentences be made by a jury, not the district court. However, the argument that judicial imposition of consecutive sentences violates the Sixth Amendment has been soundly rejected by the courts and therefore, Appellant’s contention is rejected.

Appellant’s second issue is a variation on his first. Based again on Apprendi, Appellant claims that he was improperly denied prior notice that he was charged with a crime for which the penalty could be enhanced by consecutive sentencing. However, consecutive sentences are not enhanced sentences subject to the rationale of Apprendi and Appellant’s second issue is, therefore, meritless.

Appellant’s third issue is a claim that the district court had no authority to impose consecutive sentences. However, it has long been held said that the district court has discretion in determining whether the sentences will be served consecutively or concurrently. Appellant’s third issue also lacks merit.

Finally, in Appellant’s fourth issue, he claims that his sentences violate his rights against being placed in double jeopardy because they represent multiple punishments for the same offense. He contends that he could not have been convicted on charges of child endangerment unless he was also convicted on charges relating to the manufacture of methamphetamine. He therefore contends that the district court was required to merge his convictions for purposes of sentencing.

Merger of sentences implicates a defendant’s constitutional right to be free of multiple punishments for the same offense. This right is one component of the constitutional prohibition against double jeopardy. Consequently, the analytical framework necessary to resolve this issue is derived from the elements test set forth by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299 (1932). It is readily apparent that the crime of child endangerment includes at least one element not found in the other two criminal statutes: the presence of a child. It is equally plain that the crimes of possession of a controlled substance precursor and conspiracy to engage in a clandestine laboratory operation include at least one element not found in the child endangerment statute: engaging, or intending to engage, in a clandestine laboratory operation. Appellant is incorrect in asserting that he could not have been convicted of child endangerment without first being guilty of engaging in methamphetamine manufacturing. A person may be convicted of child endangerment even if he is not actively involved in the manufacturing of the drug. Therefore, under the test set forth in Blockburger and adopted by the Court, the offenses are different because each requires proof of an element that the other does not. The district court was not required to merge the different crimes for sentencing.

Appellant’s arguments in Docket No. S-10-0230 do not merit detailed discussion. He sought the e-mail correspondence only to support a complaint that he intended to file with the Wyoming State Bar against the Wyoming Public Defender’s Office. Given these circumstances, the district court was correct in observing that “there may be other venues” in which Appellant would be entitled to obtain the information he sought, but his motion was “not appropriate” in the context of his ongoing criminal case.

We affirm the district court’s decisions in both Docket No. S-10-0229 and Docket No. S-10-0230.

J. Burke delivered the opinion for the court.

J. Voigt specially concurred expressing the same concerns about the doctrine of sentencing merger that he set forth in Najera v. State, 2009 WY 105. (Wyo. 2009).

J. Hill dissented stating that the district court erred in simply editing out the two convictions that were reversed in Appellant’s prior appeal. While a full-blown resentencing hearing was not required, although such hearing was most certainly within the broad discretion of the district court, a minimal requirement was that the district court actually re-weigh the sentences imposed in light of the reversal two of Appellant’s six felony convictions. Thus, the sentence imposed should be deemed to be “illegal” as contemplated by W.R.Cr.P. 35(a), and should be remanded to the district court so that a sentencing proceeding be conducted. The district court’s order denying Appellant’s motion to correct an illegal sentence should be reversed, and the matter should be remanded to the district court with directions that Appellant’s resentencing be conducted in light of the crimes for which he was convicted.

Summary 2010 Wy 158

Summary of Decision December 7, 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: Steiger v. Happy Valley Homeowners Association

Citation: 2010 WY 158

Docket Number: S-07-0260, S-09-0081

URL: http://tinyurl.com/2dmtq96

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

Representing Appellants (Defendants): Peter B. Steiger and Sylvia Steiger, pro se

Representing Appellee (Plaintiffs): William D. Bagley of Frontier Law Center, Cheyenne, Wyoming

Date of Decision: December 7, 2010

Facts: Appellants owned a tract of land in a subdivision governed by restrictive covenants. The Appellee filed a complaint against them alleging that they were violating the covenant prohibiting homeowners from occupying a modular or mobile home without a permanent foundation. The district court granted summary judgment for the Appellee and the Appellants appealed. The Court reversed the summary judgment and remanded the case to the district court after concluding that by failing to timely respond to a request for admission, the Appellee was deemed to have admitted it lacked the authority to bring the legal action. On remand, the district court entered an order allowing the Appellees to withdraw the admission and submit a response. The district court also entered an order awarding the Appellants the costs for the appeal. The Appellants appealed both orders. The appeal from the order allowing withdrawal of the admission as an improper interlocutory appeal was dismissed. The appeal from the order awarding costs because a trial had been held in the interim and another appeal from the district court judgment seemed likely was stayed. As anticipated, the Appellants have appealed the district court’s judgment enforcing the covenant and dismissing their counterclaims.

Issues: Whether the district court erred in allowing the Appellee to withdraw its admission and respond to the discovery request. Whether the district court’s findings were supported by the evidence. Whether the district court was prejudiced or biased against Appellants or unfairly failed to require Appellees to comply with the Wyoming Rules of Civil Procedure.

Holdings: District courts have broad discretion to manage pretrial discovery matters. Therefore, a district court’s decision on a motion to withdraw or amend admissions under W.R.C.P. 36(b) is reviewed under an abuse of discretion standard. An abuse of discretion occurs when a court acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did.

Appellants served their request for admissions on August 19, 2004. The Appellee did not serve written answers to the requests until September 24, 2004, and there is no indication the district court allowed the Appellee additional time to serve its answers. Thus, in Steiger v. Happy Valley Homeowners Association (Steiger I) 2007 WY 5, 149 P.3d 735 (2007) it was held that the Appellee admitted that it was not legally constituted and that any action the Board might have taken to authorize this suit was invalid. Without proper authorization, the Appellee lacked capacity to prosecute the suit. On remand to the district court, the Appellee filed its motion for an order allowing it to withdraw its admissions and serve responses. In its motion, the Appellee cited the provision in W.R.C.P. 36(b) allowing the court to permit withdrawal or amendment of admissions and asserted that its original responses to the eighty-eight requests for admission, which it served within a week after the thirty day time period, were late because of the volume of Appellants’ discovery requests. After considering the parties’ respective arguments, the district court granted the motion, allowing the Appellee to withdraw its admissions and serve responses.

Appellants contend the order allowing the withdrawal is contrary to the authorization in W.R.C.P. 6(b) allowing the district court to enlarge the time prescribed in other rules only when the request is made before expiration of the period prescribed or when the request is made after expiration of the time and excusable neglect is shown for the failure to act within the time prescribed. The difficulty with Appellants’ argument is that it requires a limiting of the language in Rule 36(b) expressly authorizing the district court to permit withdrawal or amendment of admissions “when the presentation of the merits of the action will be subserved” and “the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice” them. Allowing the Appellee to withdraw its admission and serve its response promoted presentation of the merits of the controversy. Denying the motion would have prevented presentation of the case. Allowing the withdrawal simply placed the burden back where it belonged on the Appellee to prove it was authorized to bring the enforcement action.

Appellants maintain that they relied on the admission for two and a half years and the amount of time a party relies on an admission is a key factor in showing prejudice. The amount of time a party relies on an admission may be an important factor in determining prejudice. Under the facts of this case, however, the reliance factor does not outweigh the preference for deciding a controversy on its merits. Much of the time that passed between the deemed admission and the Appellee’s request to withdraw it resulted from Appellants’ appeal to this Court from the district court’s summary judgment order, time that is not attributable to any action or inaction on the Appellee’s part. The record does not indicate any reliance left Appellants unprepared for trial. To the contrary, the record suggests Appellants were well prepared for trial and had spent untold hours preparing to defend against the Appellee’s claim. The district court could reasonably have concluded as it did that allowing withdrawal of the admission would further resolution of the controversy on the merits and not prejudice Appellants. There was no abuse of discretion in the order granting the motion.

The first finding Appellants assert is not supported by the evidence is the finding that the Appellee’s action was duly authorized by its members. However, from the evidence, the court was not left with the definite and firm conviction that the district court committed a mistake in finding that legal action against Appellants was duly authorized by the Appellee members. Three past or current board members testified that they believed a quorum was present, and the testimony of one of those witnesses went unchallenged. Although Appellants were able to raise a doubt on cross-examination about whether ten percent of the lot owners were present, it cannot be said that doubt was sufficient to overcome the other testimony. In light of the other testimony and the fact that the district court had the opportunity to observe the witnesses and assess their credibility, the district court’s finding was not clearly erroneous.

Appellants also contend the district court’s finding that the Appellee did not abandon the covenants by failing to uniformly enforce them was clearly erroneous. Appellants assert that they provided evidence of numerous violations by other lot owners that the Appellee allowed to go uncorrected, thereby proving the covenants were abandoned. A protective covenant is abandoned by failure to enforce it when it is violated, the violations are ignored or acquiesced to, and the violations are “so great, or so fundamental or radical as to neutralize the benefits of the restriction to the point of defeating the purpose of the covenant. In other words, the violations must be so substantial as to support a finding that the usefulness of the covenant has been destroyed, The evidence presented in this case does not support Appellants’ contention that the other violations were so substantial that the Appellee effectively had abandoned the covenants.

Appellants further contend the district court displayed bias and prejudice against them, decided every issue in favor of the Appellee and required them to comply with the Wyoming Rules of Civil Procedure while not requiring the Appellee to do so. Prejudice is prejudgment or the forming of an opinion without sufficient knowledge or examination; bias is a leaning of the mind or an inclination toward one person over another. Mere allegations will not suffice to show bias or prejudice; the party alleging a claim of bias or prejudice must present specific facts showing prejudgment or a leaning of the mind to the extent that the district court’s decision was based on grounds other than the evidence before it. The fair meaning of any remark made by the trial judge must be interpreted in light of the context in which it was made. A review of the entire record designated in this case, and the comments of the district court in the context in which they were made, indicate that Appellants have not shown the district court was biased or prejudiced. That is, they have not shown the district court formed an opinion about the claims without sufficient knowledge or information, or had leanings in favor of the Appellee and against them. They have not shown the district court’s findings were based on grounds other than the evidence before it. While it is clear from the record that the district court was frustrated at times with both parties, it is equally clear that the court went out of its way to allow the parties, and particularly Appellants, to present their evidence and defend fully against the claim that they violated the covenant.

Affirmed.

J. Kite delivered the opinion for the court.

J. Voigt filed a specially concurring opinion. I concur in the result reached by the majority, but I write separately because, although I agree with the majority’s treatment of the district court’s granting of the Appellee’s motion to withdraw the admission, I have a concern with something not even mentioned in the opinion. The appellants clearly violated that rule and W.R.A.P. 3.05(b) when, in filing their Designation of Records for Transmittal on Appeal, they included no portion of the trial transcript. That bears repeating more simply: there is no transcript of the trial evidence in the record. Without a trial transcript, there is nothing before us from which we can ascertain that a factual finding of the district court is or is not clearly erroneous. I would summarily affirm for that reason.

J. Hill dissented with whom J. Golden, joined. I dissent because I am convinced the majority fails to rely on the “best evidence” available to the Court, in resolving the only thorny issue in this case. From the outset, Appellants contended that the Appellee did not have the legal authority to pursue this action. As is often the case with such Appellees, it is sometimes difficult to get out “the base” when it comes time to vote. However, the Appellee only needed 10% of the lot owners in order to constitute a quorum. There were 95 lots, so rounding off (and upward) it took 10 lot owners to constitute a quorum. The best evidence of attendance was the minutes of the critical meeting and those minutes reflected that 13 “persons” were present. Appellee testified that most were couples who represented only a single lot. The president agreed that that would not amount to 10 lots, which is the absolute minimum needed to conduct such serious business. Despite “memory” testimony somewhat to the contrary, I believe Appellants were entitled to rely on the official records of the Appellee since such records existed, rather than on the vagaries of memory. I would reverse and remand this case to the district court with instructions that the complaint be dismissed.

Summary 2010 WY 29

Summary of Decision issued March 18, 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: Heimer v. Antelope Valley Improvement and Service District

Citation: 2010 WY 29

Docket Number: S-08-0169

Appeal from the District Court of Campbell County, Honorable John R. Perry, Judge

Representing Appellant (Plaintiffs): Tom C. Toner and Kendal R. Hoopes of Yonkee & Toner, Sheridan, Wyoming.

Representing Appellee (Defendant): Rick L. Koehmstedt of Schwartz, Bon, Walker & Studer, Casper, Wyoming.

Date of Decision: March 18, 2010

Facts: Appellants claim a water main maintained by the Appellees leaked for several years causing damage to their residence. In 2004, the water main broke, allegedly causing additional damage. The Appellants filed a governmental claim against Appellees and subsequently brought suit in district court. The Appellees moved for summary judgment, arguing that the action was barred because Appellants failed to file their governmental claim within the statutory time limit. The district court granted summary judgment.

Issues: Whether there are genuine issues of material fact concerning whether Appellants' claims were timely under Wyo. Stat. Ann. § 1-39-113(a) when Appellants did not discover what was causing the subsidence to their property, despite diligent efforts to do so, until November 19, 2004. Whether the Appellants' claims for damages resulting from the total separation of the Appellee's water main occurring on November 30, 2004, which was a separate incident of negligence, timely under Wyo. Stat. Ann. § 1-39-113(a).

Holdings: The Appellee is a governmental entity. Although governmental entities are traditionally immune from suit under the doctrine of sovereign immunity, the Wyoming legislature recognized "the inherently unfair and inequitable results which occur in the strict application of governmental immunity" and enacted the Wyoming Governmental Claims Act, Wyo. Stat. §§ 1-39-101 through 1-39-121 (2009). Among the provisions included in the Wyoming Governmental Claims Act is the procedure to be followed in pursuing a claim against a governmental entity. Strict adherence to this procedure is required. Wyo. Stat. §§ 1-39-113(a) requires claimants to present their claim within two years of when they knew or should have known, with the exercise of due diligence, of the governmental entity's "alleged act, error or omission." The exact date of the beginning of the leak in this case, and accordingly, the date of the Appellee's alleged act, error or omission is undetermined. The discovery rule contained in the statute is, therefore, squarely at issue.

The application of the discovery rule to a statute of limitations involves a mixed question of law and fact; consequently, the entry of summary judgment on the issue of when a statute of limitations commences to run is typically inappropriate. The question can only be resolved as a matter of law if uncontroverted facts establish when a reasonable person should have been placed on notice of his claim. The Appellee argued, and the District court agreed, that the Appellants discovered that the Appellee's act, error or omission was the cause of the damage to their home at least by September 7, 2004, and their letter of that date demonstrated that discovery thereby and triggered the two year limitation period. That is one plausible interpretation of the evidence.

However, Appellee's reply letter stated that the 'testing' which has been done by Appellants has not eliminated other potential causes of his household problems and that the Appellee was not willing to allow the testing of the water lines absent information from Appellants that they have taken sufficient steps to eliminate other causes. The Appellants engaged a firm to do detailed borehole testing. The results of these tests provided to the Appellants on November 19, 2004, indicated that the excess water was coming from the direction of the Appellee's main. When all of the evidence is reviewed, there appear genuine issues of material fact as to whether the Appellants discovered, or should have discovered, the Appellee's act, error or omission by September 7, 2004, and whether due diligence required the Appellants to discover the continuous water leak prior to November 19, 2004. Those issues of material fact should be determined at trial.

The district court did not separately address the water main break in its summary judgment decision letter, apparently believing the break was related to the long term water leak and thereby governed by the same limitation period. The Appellants argue the break in the water main on November 30, 2004, was a separate incident, involving a separate limitation period. The evidence presented in the summary judgment submissions indicated that the water main separated at a joint, which showed no signs of 'wear markers' which would support a claim of long term leaking problems. That evidence implies that the joint that separated was not the source of a long-term leak. An engineering report indicated that the separation was caused by differential movement in the supporting soil, creating a factual question about the cause of such movement. The answer to that question could raise other factual questions as to whether the separation was caused by an act, error or omission by the Appellee and whether it was related to the alleged water main leak. The facts need to be further developed before the beginning of the limitation period for the water main break can be established. Therefore, summary judgment was inappropriate on this issue. On remand, the fact finder will need to determine whether the water main break involved the same act, error or omission as the alleged long term water leak. If so, then the fact finder's determination on the discovery issue regarding continuous water leak will determine the start of the limitation period for the water main break. However, if the fact finder determines that the water main break was not related to a long term leak, then the date of the break, November 30, 2004, would mark the beginning of a new limitation period and the Appellants' filing of their governmental claim on October 19, 2006 was timely.

Genuine issues of material fact exist as to when the statute of limitation began running on the Appellants' water leak claim. The fact finder must determine when the Appellants discovered or should have discovered the Appellee's "act, error or omission" for purposes of starting the limitation period. Moreover, there are genuine issues of material fact surrounding the commencement of the limitation period on the Appellants' claim for damages associated with the water line break.

Reversed and remanded for further proceedings consistent with this opinion.

J. Kite delivered the opinion for the court.

Link: http://bit.ly/9N1biA.

Summary 2009 WY 138

Summary of Decision issued November 10, 2009

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

Case Name: Burke v. State, DOH

Citation: 2009 WY 138

Docket Number: S-09-0022

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

Representing Appellant Burke: Frank J. Jones, Wheatland, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Michael T. Kahler, Assistant Attorney General, Shaun Wilkerson, Assistant Attorney General.

Facts/Discussion: After an audit showed that Burke had been excessively reimbursed for services provided to Medicaid recipients, the Department sought reimbursement from him. Burke filed a request for an administrative hearing, but later withdrew the request and the Department dismissed the administrative action. The Department then filed an action in district court to recover the excess payments. The district court entered summary judgment against Burke finding that he was barred from disputing the claim because he failed to exhaust his administrative remedies.

Application of res judicata: Burke was entitled to an administrative hearing. The Department advised him that he was so entitled. Burke requested a hearing and then withdrew his request. His contention that the district court improperly applied res judicata when the Medicaid rules did not allow him to request an administrative hearing was without merit. The Department’s letters clearly informed Burke that the Department was seeking recovery of excess payments pursuant to Chapter 39 and that he had a right to request reconsideration of the decision to recover excess payments, and upon the Department’s issuance of a final decision, a contested case hearing.
Wyoming Medicaid rules: Burke claimed the Medicaid Rules were ambiguous and inconsistent because while the overpayment and excess payment provisions allow a provider to request an administrative hearing, both provisions also allow the Department to initiate a civil action to recover the payments even when the provider has requested a hearing. The problem with Burke’s argument was that there was no administrative proceeding at the time the civil lawsuit was filed. Consequently, there was no possibility of an administrative ruling in his favor and a simultaneous district court judgment in the Department’s favor.
Discovery: The issue before the district court was whether the Department was entitled to judgment as a matter of law on its complaint for money damages against Burke in the amount of the excess payments. The district court determined that the order dismissing the agency action was final. The district court further determined that the doctrine of res judicata applied to bar re-litigation of the claims raised in the administrative proceeding. The discovery Burke sought to pursue was not necessary to a determination of the issues before the district court.

Conclusion: The Department’s letters clearly informed Burke that the Department was seeking recovery of excess payments pursuant to Chapter 39 and that he had a right to request reconsideration of the decision to recover excess payments, and upon the Department’s issuance of a final decision, a contested case hearing. There was no administrative proceeding at the time the civil lawsuit was filed consequently; there was no possibility of an administrative ruling in his favor and a simultaneous district court judgment in the Department’s favor. The discovery Burke sought to pursue was not necessary to a determination of the issues before the district court.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/ykmvj5z .

[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 90

Summary of Decision issued July 10, 2009

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

Case Name: White v. State, ex rel., WYDOT

Citation: 2009 WY 90

Docket Number: S-08-0224

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

Representing White: Bernard Q. Phelan, Phelan Law Offices, Cheyenne, Wyoming

Representing State: Bruce A. Salzburg, Attorney General; Theodore Racines, Senior Assistant Attorney General.

Facts/Discussion: White and Kenney challenged the district court’s order dismissing their complaint pursuant to W.R.C.P. 37(b)(2) as a sanction for their failure to comply with two orders compelling discovery.
A party served with discovery requests must respond within 30 days of service unless that party objects or moves for a protective order. It was undisputed that Appellants did not respond to discovery requests within the requisite period and did not respond at all to some of the requests. It is also undisputed that Appellants never filed any objection or motion for a protective order. Despite the district court’s warnings Appellants failed to comply. In the instant case, the district court did not abuse its discretion.
Additionally, Appellants contended the Court should find per se abuse of discretion because the district court vacated the trial and stated that a new date would not be set until Appellants paid the costs imposed as a sanction. The Court has expressly held that there is no violation of art. 1, § 8 of the Wyoming Constitution when a district court orders a trial postponed until sanctions are paid.

Conclusion: Appellants were provided with ample opportunity to comply with the Court’s order prior to dismissal. Appellants implied throughout their brief that the discovery requests were unduly burdensome and overbroad. They could have objected to the requests or moved for a protective order. Failure or refusal to comply was not an alternative available under the rules.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/ox6es9 .

[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.]

Cloud Computing - Technology Savior or Privacy Nightmare?

Cloud computing and the concept of SaaS (Software as a Service) are some newish techno terms you may be hearing more of in the last few years. Even if you haven't heard these terms, odds are you may be actually participating in cloud computing. If you use an online email service (for example, Google Mail (gmail) or Yahoo), you are definitely flying in the cloud.

Wikipedia defines cloud computing as "a style of computing in which dynamically scalable and often virtualized resources are provided as a service over the Internet". That reads more or less like Greek to me, so I found a better definition from Dennis Kennedy in his blog post "Nine Legal Technology Trends for 2009 - The Year of Hunkering Down".

4. Get Your head into the Cloud. You will hear even more talk about “cloud computing” and “software as a service” (SaaS) in 2009. In simplest terms, I’m referring to ways both programs and data can be hosted and managed on the Internet through a third-party provider.

Are you using Google Apps or Docs? How about Microsoft Live or Zoho? These are all third-party service providers that hold your information on the Internet (the cloud) through their servers.

As Kennedy mentions in his short description of cloud computing and SaaS, these options provide several benefits (inexpensive, not needing to invest in expensive software and hardware, as well as technology expertise). However, there are also concerns, client privacy being one of the biggies.

One of today's articles from Law.com's Legal Technology addresses some of the legal issues surrounding cloud computing. "Cloud Computing Brings New Legal Challenges" by Shari Claire Lewis begins with a timeline of sorts describing the evolution of storing data, beginning with holding and controlling all data on-site and eventually growing into the option of lessening costs by outsourcing application usage and information storage to third-party providers. Lewis then moves right into the issues of data confidentiality, noting that "[a]s with other forms of "outsourcing," businesses' duties to protect private or confidential data do not end with their transfer of the data to third-party vendors for storage or processing." Lewis also points to other concerns in how cloud computing can effect pretrial discovery, especially electronic discovery. She concludes that:

As with many issues of technology, counsel will need to understand not just the legal precedent concerning cloud servers, but also the particular facts concerning their business' use of cloud servers, the type of data that is stored in the cloud, and the location and document retention practices of the service provider.

Summary 2009 WY 71

Summary of Decision issued May 29, 2009

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

Case Name: Ceja v. State

Citation: 2009 WY 71

Docket Number: S-08-0180

Appeal from the District Court of Campbell County, the Honorable Michael N. Deegan, Judge.

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

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

Facts/Discussion: Ceja was convicted of sexual exploitation of a minor by possessing child pornography. Ceja challenged the district court’s ruling that the State did not violate its discovery obligation when it withheld Det. Owens’ notes.

A criminal defendant’s right to discovery is governed by statute, rule and court order. In the instant case, there was no written or recorded statement. Instead the State offered Det. Owens’ testimony that Ceja had verbally admitted the pornographic materials belonged to him. The Court noted it had addressed a similar issue in Dennis v. State. Rule 16 was designed to provide the defendant with sufficient information to make an informed decision about a plea, to allow the court to rule on admissibility motions before trial, to minimize prejudicial surprise at trial, and to generally increase the efficiency of litigation. Neither the rules nor due process require the disclosure of the substance of the defendant’s statement in a particular form or manner.

Conclusion: The State disclosed Ceja’s oral statements on a number of occasions prior to trial and there was no indication the disclosure was inaccurate or varied in any material fashion form the testimony provided at trial. In accordance with Dennis and the federal cases, the State complied with Rule 16 by disclosing the “substance of” Ceja’s verbal statements; he was not entitled to have that information provided in a specific form or manner or to receive a copy of the officer’s notes in pre-trial discovery. The State provided Ceja with sufficient notice of the statements it intended to use at trial to satisfy the purposes of the Rule. The district court did not abuse its discretion when it denied Ceja’s motion in limine to exclude the detective’s testimony about his admissions.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/n7jx4v .

[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 2009 WY 45

Summary of Decision issued March 31, 2009

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

Case Name: Cramer v. Powder River Coal, LLC

Citation: 2009 WY 45

Docket Number: S-08-0049

Appeal from the District Court of Campbell County, the Honorable Michael N. Deegan, Judge.

Representing Appellant Cramer: C. John Cotton, Cotton Law Offices, Gillette, Wyoming.

Representing Appellee Powder River Coal: Billie Addleman and Richard Mincer, Hirst Applegate, PC, Cheyenne, Wyoming.

Facts/Discussion: Cramer brought suit against the owner and the operator of Caballo Mine, seeking to hold them liable for damages he suffered in an accident that occurred while he was working at the mine site as an employee of Weld Test Inspection & Service. The Caballo Mine is a large surface coal mine located in the Powder River Basin and is owned and operated by two affiliated companies, Powder River Coal, and Caballo Coal known as “PRC”.

Release: PRC requires visitors to the mine to sign their Release. Cramer as a contractor was considered a visitor and was required to sign it. Throughout pretrial proceedings, the parties sharply disputed the meaning and significance of the Release. Their disagreements were raised before the district court numerous times in the context of discovery disputes and motion hearings. As a result, the district court issued several different rulings and decisions regarding the Release.
Limiting discovery concerning PRC’s financial status: The district court granted protective orders to PRC regarding discovery requests for financial information related to Cramer’s punitive damages claim. The parties referred to Campen v. Stone where the Court adopted an approach and procedure for the discovery and presentation of evidence of the financial status of a defendant when punitive damages are sought. The Court reviewed the record and noted the list of facts asserted by Cramer were sufficient only to support a claim of ordinary negligence.
Exclusion of the Release from evidence: The Release was a statement made by PRC that could tend to make it more likely that PRC had breached its duty of taking reasonable precautions to protect visitors from foreseeable hazards. However, not all relevant evidence is admissible. The district court excluded the Release on the basis that it was potentially misleading or confusing to the jury.
Limiting discovery regarding the Release: For the most part, Cramer did not specify which discovery request that PRC should have been required to answer, nor does he suggest how discovering that information might have helped his case.
Claim for “damages for violation of duties imposed by contract”: Cramer pleaded a cause of action alleging that PRC’s conduct violated duties imposed by federal coal leases. He also presented evidence concerning certain MSHA regulations and instructed the jury that regulatory violations could be used as evidence in support of his negligence claim. The three cases Cramer cited, Downtown Auto Parts, Inc. v. Toner, Becker v. Mason and Natrona County v. Blake did not support his contention that PRC’s alleged breach of contract provided him with a basis for pursuing a separate tort claim against PRC apart from the negligence claims he pursued at trial.
Expert testimony regarding whether PRC violated applicable regulations: The record established that the district court allowed all of the expert testimony offered by Cramer dealing with the regulations and the standard of care. When a statute or regulation establishes the applicable standard of care with reasonable clarity, expert testimony as to that standard and its breach are unnecessary. It was not unreasonable for the district court to determine that the expert opinion testimony in this instance was unnecessary and not helpful to the jury.
Response to jury question: The Court found no abuse of discretion in the district court’s decision to remain consistent with its prior ruling that the expert’s opinion was not admissible because it was not helpful to the jury.
Applying collateral estoppels to claims involving cervical injuries: The Division allowed the claims for the injuries to Cramer’s foot and knee but denied the claim for neck injuries on the basis that he failed to prove that it was caused by or related to his workplace accident. In his suit against PRC, Cramer included claims for damages relating to his neck injury. Because the jury found that PRC was not liable for any of Cramer’s damages, any issue relating solely to damages was moot.

Conclusion: The Court agreed with the district court that Cramer failed to make a prima facie showing of a viable punitive damages claim. Given the district court’s conclusion that the Release was only marginally relevant, it was not unreasonable for it to exclude it from evidence. Expert opinion testimony is unnecessary when a statute or regulation establishes the applicable standard with reasonable clarity.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/ctst2q .

[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 37

Summary of Decision issued March 11, 2009

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

Case Name: Nelson v. State

Citation: 2009 WY 37

Docket Number: S-07-0299

Appeal from the District Court of Campbell County, the Honorable Michael N. Deegan, Judge.

Representing Appellant Nelson: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.

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

Facts/Discussion: Nelson was convicted by a jury of aggravated assault and battery as a result of an attempted traffic stop by Sergeant Boisvert. During the incident, Nelson backed his truck into the patrol car requiring Boisvert to jump out of the way. Nelson caused damage to camper trailers as well as to the patrol car.

Discovery: Nelson complained that his entire defense rested on the assertion that the Sergeant was biased and jaded because he had experienced similar past events. Nelson also asserted that testimony concerning other, similar occurrences was the only way to test the Sergeant’s credibility. The Court supported the district court’s decision to deny the request stating that the information relative to the Sergeant’s past work-related affairs was not material in light of the facts. Simply being involved in similar circumstances did not give rise to any presumption of a negative predisposition to such events.
Recall of Sergeant Boisvert: The reason given for calling the Sergeant was to question him about specific past events. The district court denied the request on the grounds that the proposed testimony was not relevant and would likely confuse the jury. The Court agreed stating that any involvement by the Sergeant in prior, similar events was irrelevant to the credibility of his testimony in the instant case.

Conclusion: The Court found no abuse of discretion by the district court in the contested discovery and evidentiary rulings.

Affirmed.

J. Golden delivered the decision.

C.J. Voigt dissented: The Chief Justice noted he would have found an abuse of discretion in the district court’s refusal to allow the appellant to call Sergeant Boisvert as a witness in his case-in-chief. Nelson should have been allowed to question the Sergeant about the prior similar incidents to test whether his perception of the appellant’s intent may have been colored by those incidents. It was relevant and admissible.

Link: http://tinyurl.com/cq5bm6 .

[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 116

Summary of Decision issued October 6, 2008

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

Case Name: Mary’s Bake Shoppe v. City of Cheyenne

Citation: 2008 WY 116

Docket Number: S-07-0243

Appeal from the District Court of Laramie County, the Honorable Edward L. Grant, Judge.

Representing Appellant: Cary R. Alburn, III of Cary R. Alburn, III, PC, Ft. Collins, Colorado.

Representing Appellee: Bill G. Hibbler of Bill G. Hibbler, PC, Cheyenne, Wyoming.

Facts/Discussion: Mary Coonts owned and operated a business known as Mary’s Bake Shoppe. She also owned the building housing her business. In 2004, the building was severely damaged by fire. The City determined the fire-damaged building posed a hazard to people’s health and safety and notified Coonts that it was condemning the building. Shortly after Coonts received the first notice of condemnation, the City decided the building’s condition had deteriorated to the point where it posed an immediate threat and would have to be demolished on an emergency basis. Since Coonts has not contacted the City regarding demolition, the City hired its own contractor. The City held Coonts accountable for the costs of demolition and removal of her building. Coonts failed to pay the costs leading the City to file the instant action.

Legal Framework: The City has adopted the 2003 International Property Maintenance Code (IPMC). The IPMC created a department of property maintenance inspection, which is overseen by a “code official.” The official is responsible for conducting property inspections and issuing notices and orders as required under the IPMC. Under normal circumstances, the IPMC gives the owner of a building subject to a demolition order the right to institute an administrative appeal within twenty days after service of the demolition order. However, if the order is issued as a result of an emergency, the appeal if requested is afforded after the demolition of the building.
Propriety of Summary Judgment: The undisputed evidence was that Coonts’ building was completely destroyed by fire. To the extent she argued her building did not need to be razed, her argument was rejected. Coonts was aware of the need to demolish her building when she was informed of the building’s condition at a property owners meeting. By the end of January 2005, she had two bids for demolition but had accepted neither.
The official condemnation order was superseded by the emergency order. The Court stated it was irrelevant to the discussion. Emergency demolition of the building was ordered and all appropriate action was taken as required by the IPMC, including sending a new Notice and Order to Coonts. Coonts strongly contended the condition of her building did not warrant emergency demolition but submitted no evidence in support of her contention. The Court stated that the City was not required to follow the mandates of Wyo. Stat. Ann. § 15-1-113 because it did not apply to the instant situation.
The action of hiring Spiegelberg Lumber and Building Co. to undertake the demolition and removal of Coonts’ building was reasonable. Coonts’ contention that Spiegelberg did not complete its work in accordance with the conditions of the contract was not supported by the evidence. The Court stated that the invoice from Spiegelberg was adequate to sustain the final charge and justify the City’s payment. Coonts next attacked the lien. The IPMC required the City to pay emergency demolition costs and created an automatic lien against the property for the recovery of such costs. No filing was necessary to validate the lien as between the City and Coonts.
Discovery: Coonts requested production of all investigative reports in the possession of the City regarding the causation of the fire that destroyed her building, whether originated by city employees or others. The City filed a motion for a protective order on the grounds that the documents related to an on-going criminal investigation. The Court agreed with the district court that the documents contained no relevant information. Even if there was any error on the part of the district court in protecting the documents from discovery, it was harmless.
Legal Action: Coonts argued to dismiss the case as to “Mary’s Bake Shoppe”. The Court agreed it was redundant to sue Coonts both individually and as Mary’s Bake Shoppe. However, the judgment was unaffected. There was one judgment and it was against Coonts. Coonts also objected that the City did not plead a recognized cause of action for the recovery of money. The IPMC created the debt. It also created the authority to recover the debt. The cause of action was properly identified as arising under the IPMC.

Holding: Both counts were properly based on the language and authority of the International Property Maintenance Code which has been adopted by the City. The summary judgment in favor of the City and the foreclosure of the cost-of-demolition lien is affirmed.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/4hwww4v

[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.]