Summary 2014 WY 6

Summary of Decision January 15, 2014

Justice Davis delivered the opinion for the Court. Revsered in part. Remanded in part. Affirmed in part.

Case Name: ALAN G. MOATS and CHLEO I. MOATS v. PROFESSIONAL ASSISTANCE, LLC, d/b/a SUMMIT TITLE SERVICES, KUZMA SUCCESS REALTY, and P. OLEN SNIDER, JR.,

Docket Number: S-13-0045

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

Appeal from the District Court of Laramie County the Honorable Thomas T.C. Campbell, Judge

Representing Appellant: J. Kent Rutledge and Shawnna M. Herron* of Lathrop & Rutledge, P.C., Cheyenne, Wyoming. Argument by Mr. Rutledge.

Representing Appellees Professional Assistance, LLC, d/b/a Summit Title Services and P. Olen Snider, Jr.: Kate M. Fox† and Amanda F. Esch of Davis & Cannon, LLP, Cheyenne, Wyoming. Argument by Ms. Esch.

Representing Appellee Kuzma Success Realty: Lindsay A. Woznick and Khale J. Lenhart of Hirst Applegate, LLP, Cheyenne, Wyoming. Argument by Mr. Lenhart.

Date of Decision: January, 2014

Facts: Appellants Alan and Chleo Moats (Moats) sold 850 acres of farm ground, intending to retain the mineral rights for themselves. The deeds prepared by Appellee Professional Assistance, L.L.C., d/b/a Summit Title Services did not reserve the minerals, even after the Moats were made aware of the omission at closing, insisted that it be rectified, and were assured by a Summit employee that the deeds had in fact been corrected. Approximately six years passed before the error was discovered, and the Moats sued Summit, its general counsel Appellee P. Olen Snider, Jr., and Kuzma Success Realty, the brokerage firm involved in the transaction. The district court granted summary judgment in favor of all Appellees, finding that the Moats failed to exercise due diligence to discover the error so as to extend the statute of limitation as a matter of law.

Issues: Are there genuine issues of material fact as to whether the Moats exercised reasonable diligence to discover their claims against Appellees under Wyo. Stat. Ann. § 1-3-107(a)(i)(B), and if not, were Appellees entitled to judgment as a matter of law under Wyoming Rule of Civil Procedure 56?

Holdings/Conclusion: We find that there are genuine issues of material fact as to whether the Moats exercised due diligence to discover errors allegedly made by Appellee Summit (Professional Assistance L.L.C.), and we therefore reverse the district court’s summary judgment. We also find that Appellee P. Olen Snider, Jr., failed to present a prima facie case that he was entitled to summary judgment, and we also reverse the district court’s summary judgment as to him. We find that the district court correctly found that there were no genuine issues of material fact as to the claims against Kuzma Success Realty, and we therefore affirm summary judgment against it. We remand for further proceedings consistent with this opinion.

* Order Allowing Withdrawal of Counsel Shawnna M. Herron filed on July 10, 2013
† Notice of Withdrawal of Kate M. Fox filed December 13, 2013

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 2008 WY 87

Summary of Decision issued July 29, 2008

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

Case Name: Daniel v. State

Citation: 2008 WY 87

Docket Number: S-07-0191

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

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

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

Facts/Discussion: Daniel was convicted of misdemeanor battery. He was later charged with felony aggravated assault and battery arising from the same incident after the State discovered that the victim’s injuries were more severe than it had originally believed.
The double jeopardy clause prohibits prosecution of a defendant for a greater offense when he has been previously convicted of the lesser included offense. Although the State conceded that Daniel’s second conviction was a lesser included offense of aggravated assault and battery they argued it was permissible because of a long-recognized exception to the double jeopardy rule. An exception may exist because the additional facts necessary to sustain the charge have not occurred or have not been discovered despite the exercise of due diligence. The Court reviewed the record and noted there was no evidence that the police or the State had any knowledge that the victim’s condition had deteriorated significantly after the officers left the hospital.
The Court disagreed with Daniel’s claim that his misdemeanor prosecution for battery firmly established the fact that he caused bodily injury to the victim and that the doctrine of collateral estoppel prevented the State from charging him with aggravated assault and battery. There was nothing about his first conviction for simple battery that was inconsistent with his subsequent conviction for aggravated assault and battery.

Holding: Based on the district court’s finding that the State exercised due diligence, the Court also agreed with its legal conclusion that the felony prosecution was not barred by principles of double jeopardy. The finding of bodily injury in the first prosecution does not preclude a finding of serious bodily injury in the second prosecution. Collateral estoppel doctrine does not preclude Daniel’s subsequent prosecution for aggravated assault and battery.

Affirmed.

J. Burke delivered the decision.

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

[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.]