Showing posts with label notice. Show all posts
Showing posts with label notice. Show all posts

Friday, May 10, 2013

Summary 2013 WY 58

Summary of Decision May 10, 2013


Justice Burke delivered the opinion for the Court. Reversed and Remanded.

Case Name: DANIEL B. WALKER v. THE STATE OF WYOMING

Docket Number: S-12-0195

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

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

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

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Meri V. Geringer, Senior Assistant Attorney General; Theodore R. Racines, Senior Assistant Attorney General. Argument by Ms. Geringer.

Date of Decision: May 10, 2013

Facts: Appellant, Daniel Walker, challenged his conviction for felony stalking, in violation of Wyo. Ann. Stat. § 6-2-506(e)(iv). He contended that the amended information did not allege facts sufficient to constitute the offense of felony stalking and did not adequately inform him of the charges against him. Appellant also claimed that the jury was not properly instructed with respect to the intent element of the crime, resulting in plain error.

Issues: Appellant presents the following issues:

1. Did the trial court abuse its discretion when it allowed the State to amend the felony information?

2. Was Mr. Walker denied his constitutional right to adequate notice of the charge he must defend against, as provided for under the federal and the Wyoming Constitutions, and the Wyoming Rules of Criminal Procedure?

3. Did plain error result when the trial court provided a confusing and misleading jury instruction which combined two of the elements of stalking and instructed the jury that both of those elements were met upon the State establishing a combination of certain actions by Mr. Walker?

The State phrases the issues in a substantially similar manner.

Holdings: The Court found no error in the district court’s decision permitting the State to amend the information and also conclude that Appellant was adequately informed of the charges. The Court agreed, however, with Appellant’s contention that the jury was not properly instructed regarding the elements of the crime. As a result, the Court reversed and remanded for a new trial.

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]

Thursday, February 16, 2012

Summaey 2012 WY 22

Summary of Decision February 16, 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:  Broderick v. Dairyland Insurance Company

Citation:  2012 WY 22

Docket Number: S-11-0096


Appeal from the District Court of Natrona County, The Honorable Catherine E. Wilking, Judge

Representing Appellant (Plaintiff):  Stephen R. Winship of Winship & Winship, P.C., Casper, Wyoming.

Representing Appellee Dairyland (Defendant): Richard G. Schneebeck & Amanda M. Good of Hirst Applegate, LLP, Cheyenne, Wyoming.  Argument by Mr. Schneebeck.

Representing Appellee Schrack (Defendant): Cameron S. Walker of Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming.

Date of Decision: February 16, 2012

Facts:  The appellant was physically injured as a result of an accident caused by an underinsured motorist.  Prior to the accident, the appellant purchased an insurance policy for his motorcycle from the appellee insurance company, through his insurance agent, also an appellee in this case.  Although the appellant requested “full coverage,” the policy did not include underinsured motorist coverage.  All parties acknowledge that neither the appellant nor his wife read the policy.  When the other driver’s insurance did not fully cover the appellant’s damages, the appellant sued the appellees, raising numerous theories as to why he should recover under the policy. 

After investigating the matter, the appellee insurance company filed a declaratory judgment action in federal district court seeking a determination that it was not required to pay the appellant under the terms of the policy.  The action in state district court commenced following the federal court’s dismissal of the lawsuit.  Subsequently, Appellees filed separate motions for summary judgment.  Following a hearing on the motions, the district court granted both the insurance company’s motion, and the insurance agent’s motion.  This appeal followed. 

Issues:  Did the district court properly grant summary judgment in favor of Appellees?

Holdings:  The court held that Wyoming’s uninsured motorist statutes unambiguously do not require insureds to obtain, or insurers to provide, underinsured motorist liability coverage.  The liability insurance policy the appellant obtained from the insurance company through the insurance agent unambiguously did not contain underinsured motorist coverage, and unambiguously disallowed changes in its terms except by policy endorsement. The appellant did not know these facts because he did not read the policy.  The appellant’s failure to read the policy is available as a defense to both appellees as to the appellant’s negligence and contract claims against them, and bars application of the doctrine of promissory estoppel.  Further, the doctrine of reasonable expectations was not available to alter the unambiguous terms of a policy that the insured did not read.  Neither could the policy be reformed to provide underinsured motorist coverage, because there was no antecedent mutual agreement that such would be provided in the policy.  The appellee agent did not have actual authority to bind the appellee insurance company to provide underinsured motorist coverage, and he did not have apparent authority to do so, given the unambiguous language of the policy to the contrary.  Finally, the appellant cannot pursue a private remedy for an uncured deceptive trade practice under the Wyoming Consumer Protection Act because the statutorily required notice of the alleged deceptive trade practice was not given.

The Court Affirmed.

J. VOIGT delivered the opinion for the court. 

Tuesday, December 20, 2011

2011 WY 166

Summary of Decision December 20, 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:  Excel Construction v. Town of Lovell

Citation:  2011 WY 166

Docket Number: S-11-0001

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464948

Appeal from the District Court of Big Horn County, The Honorable Steven R. Cranfill, Judge

Representing Appellant (Plaintiff):  Patrick J. Murphy of Williams, Porter, Day & Neville, P.C., Casper, Wyoming

Representing Appellee (Defendant):  Tracy J. Copenhaver of Copenhaver, Kath, Kitchen & Kolpitcke, LLC, Powell, Wyoming; Bradley D. Bonner of Bonner Stinson, P.C., Cody, Wyoming.  Argument by Mr. Copenhaver.

Date of Decision: December 20, 2011

Facts:  Appellant and Appellee town entered into a contract for Appellant to replace the town’s water and sewer system mains and service connections.  The parties disagree as to the date on which the project reached substantial completion and the date on which Appellant last performed work on the project, but they do agree that within the statutorily prescribed time, Appellant served a Notice of Claim on Appellee.  The Notice of Claim was a four page document that contained four identified categories of information: 1) “Time, Place and Circumstances of the Loss or Injury;” 2) “Claimant and Its Attorneys;” 3) “Compensation;” and 4) “Service this Notice of Claim.”  The “Compensation” paragraph of the Notice of Claim set forth the monetary damages that Appellant sought from the town and its officials.” However, when Appellant served its Notice of Claim on the town, its attorney inadvertently failed to attach the “Exhibit A” referred to in the compensation paragraph, which detailed Appellant’s damages.  The town mayor and town administrator both noticed and discussed with each other that the “Exhibit A” referenced in the Notice of Claim was not attached to the document they received.  The mayor did not attempt to obtain a copy of the missing exhibit or seek to have the claim audited, instead referring the claim to the town’s attorney for further handling.

Thereafter, Appellant filed its Complaint against Appellee. This complaint alleged compliance with  Beaulieu II. However, when Appellant later filed an amended complaint to add a party, the subsequent amended complaint, due to a drafting error, failed to plead compliance.

Only several months later did Appellant learn that the Notice of Claim it served on Appellee did not have the referenced “Exhibit A” attached to it.  On that same date, Appellant notified the town of the omission and served on it a First Amended Notice of Claim that included the previously omitted “Exhibit A.”

Subsequently, Appellee filed a summary judgment motion.  The town alleged it was entitled to summary judgment on three separate grounds: 1) Appellant failed to timely file the Notice of Claim with the required full itemization of damages; 2) Appellant failed to serve its Notice of Claim on the proper town officer, specifically, the town treasurer; and 3) Appellant’s first Amended Complaint failed to plead compliance with the Beaulieu II requirements.  In response, Appellant filed a Motion for Leave to File a Second Amended Complaint.

The district court concluded that because Appellant omitted “Exhibit A” from its original Notice of Claim, the Notice of Claim failed to provide a full itemization of damages as required by the Wyoming Constitution and the Governmental Claims Act.  It further concluded that Appellant’s attempt to amend its Notice of Claim failed because the First Amended Notice of Claim was not filed within two years of the alleged act, error or omission that gave rise to the claim, as required by the Governmental Claims Act.  The district court finally concluded that due to Appellant’s failure to comply with the Governmental Claims Act in its submission of its original Notice of Claim, the court had no subject matter jurisdiction and could not rule on Appellant’s Motion for Leave to File a Second Amended Complaint.  On these grounds, the district court granted Appellee’s Motion to Dismiss and/or Motion for Summary Judgment and dismissed Appellant’s claims against the town.

Issues: A) Whether the District Court erred when it found that Appellant did not present an “Itemized Statement” in its Notice of Claim, and 1) Whether Appellant needed to further categorize its claimed damages with the missing “Exhibit A Page?” and 2) Whether Appellant’s Notice of Claim contained all the information required by the Constitution, the Wyoming Governmental Claims Act, and the Wyoming Supreme Court (even without the “Exhibit A Page?”); B) Whether Appellant’s counsel’s clerical mistake should be corrected pursuant to Rule 60(a), W.R.Civ.P.; C) Whether Appellant timely presented its First Amended Notice of Claim to the town; D) Whether Appellant properly presented its Notice of Claim and First Amended Notice of Claim to the mayor and town administrator (instead of to the town treasurer)?; and E) Whether the District Court somehow “lost” its subject matter jurisdiction when Appellant filed its Amended Complaint without the Beaulieu II averments (after filing its original Complaint with the Beaulieu II averments).

Holdings:  The Court concluded that Appellant identified the precise dollar amount of damages it was seeking in its Notice of Claim, and held that Appellant’s Notice of Claim met the itemization requirements of Wyo. Stat. Ann. § 1-39-113(b)(iii) and Article 16, Section 7 of the Constitution.  Because the Court found Appellant’s Notice of Claim adequately itemized the damages it was demanding, the Court did not address Appellant’s W.R.C.P. 60(a) argument or the timeliness of its Amended Notice of Claim.

As to the presentation of claim issue, the Court concluded that Appellant complied with the service requirements of Article 16, Section 7 of the Wyoming Constitution when it served its Notice of Claim on the town mayor, town administrator, town attorney, and the town’s project engineer on the water and sewer project from which Appellant’s claims arose. The Court observed that the town had not in writing or by practice designated its town treasurer to be the official on whom governmental claims must be served.

As to the final issue, pursuant to its recent ruling in Brown v. City of Casper, 2011 WY 35, the Court found the district court has jurisdiction to rule on Appellant’s motion for leave to file a second amended complaint.

The Court reversed and remanded for further proceedings consistent with the opinion.

J. Golden delivered the opinion for the court.

Tuesday, November 30, 2010

Summary of Decision November 30, 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: King v. Board of County Commissioners of the County of Fremont

Citation: 2010 WY 154

Docket Number: S-09-0227, S-09-0228

URL: http://tinyurl.com/2ue3tkh

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

Representing Appellant (Plaintiffs and Intervening Plaintiff): Jason A. Neville and Keith J. Dodson, Williams, Porter, Day & Neville, Casper, WY for Edward & Janice King; and Steven F. Freudenthal of Freudenthal, Salzburg & Bonds, Cheyenne, WY for Hanson’s North Fork Ranch.

Representing Appellee (Defendant): Jodi A. Darrough, Deputy Fremont County Attorney, Lander, WY.

Date of Decision: November 30, 2010

Facts: These appeals arise from the district court’s determination of the status of a county road which fell under the jurisdiction of the Appellee. The Appellants alleged that the records concerning the existence of that road were not properly recorded or stored by Fremont County and, hence, the road had never been created as contemplated by the governing statutes. In addition, Appellants contended the road had been vacated or abandoned. As a matter of undisputed fact and law, the district court held the road had been created and further, that as a matter of law it still existed because it had not forthrightly and officially been vacated or abandoned.


Issues: Whether Appellants filed a timely notice of appeal after the entry of the partial summary judgment order. Whether the district court’s entry of summary judgment based upon its finding that the road was properly established was in error. Whether the district court erred when it dismissed the case in reliance on State ex rel. State Highway Commission v. Meeker, 294 P.2d 603 (Wyo. 1956). Whether Appellants were bona fide subsequent purchasers, and thus purchased their land without the road clouding their title. Whether Appellants filed a timely notice of appeal after the entry of that order.

Holdings: W.R.C.P. 54(b) allows a district court to certify orders that adjudicate fewer than all claims upon an express determination that there is no just reason for delay and upon the express direction for the entry of judgment. No such determination was sought or granted in this case. However, Appellants were not required to appeal the partial summary judgment until the remaining issues were decided.

The statutes in effect when the road was created are found in Wyoming Compiled Statutes 1910, §§ 2513-2531. Section 2523 requires that a survey and record of the road “be filed in the office of the county clerk.” The Appellants contend that this step was not perfected, although the documentation required to be assembled by the governing statutes was in the possession of Fremont County at the time this action arose, as well as at all times in the interim between 1913 and the present day. However, it is not disputed that the grantor/grantee index did not provide those examining property titles any information about the road. Further, unless a title examiner inquired of a county clerk employee about the existence and actual location of the records pertaining to county roads, then whether or not a particular parcel of land was burdened by a county road would not be evident. It is this flaw that is the mainstay of the Appellants’ contentions herein and on that basis, it is contended that the road should be declared not to have ever come into existence.

It is not the physical location of these records that create the ultimate issue in this case but whether or not they were made of record for purposes of providing constructive notice. The district court relied in significant part on the case of Lakewood v. Mavromatis, 817 P.2d 90 (Colo. 1991) in deciding to grant a partial summary judgment in favor of the Commission with respect to the validity, ab initio, of the road. Although that case differs from the present case on the facts because a road was never built on the tract of land in question, the Colorado Supreme Court concluded that placing the road petition and incorporated plat in the road book in the office of the county clerk was adequate to dedicate the tract as a public highway, but it did not provide constructive notice to bona fide subsequent purchasers of the governmental entity’s interest in the disputed parcel of land. Based on that case, the district court concluded that the remaining issues would be required to be tried; to wit: (1) whether or not Appellants had actual notice of the road and (2) whether or not they are bona fide subsequent purchasers of the property they now own that may be subject to the Commission’s interest in the road. The district court concluded that the Wyoming Legislature also intended to require the recording of the road petition in compliance with the Wyoming Recording Act. However, failure to do so did not void the established road, especially with regard to the parties in the initial road proceedings because they had actual notice of the road. The district court indicated that this case was complicated because it was unclear if the road was ever established on the ground. Moreover, while there was evidence that at least a faint “track” of the road could be found on the ground for most of its distance, it had been fenced over in places, it had been washed out in places, it was blocked by vegetation in places, a wellhead was in its course, and a building had been placed along its course so that it disappeared into, and then re-emerged on the other end of, the building.
However, based on the totality of the circumstances, the district court will be affirmed in its decision that there were no genuine issues of material fact as to whether the road had been created in the first instance.

The Appellee Commission subsequently filed a motion to dismiss on the basis that once a county road has been created, it can only be extinguished through formal vacation proceedings. Prior to a trial, the district court reconsidered its previous ruling in light of the case State ex rel. State Highway Comm’n v. Meeker, 294 P.2d 603 (Wyo. 1956). The failure to record an instrument which is not required to be recorded does not affect or vitiate the instrument as to anyone, and it is valid not only between the parties thereto, but also to subsequent purchasers and encumbrancers. Until 1953 Wyoming had no statute which required the transfer of title by eminent domain to be recorded in the ordinary and regular books of record kept for the transfer of property by conveyances. Based on that case, the wording of the statutes in place in 1913, the fact that the road had never been “formally vacated,” and the circumstance that the County Road Book gave constructive notice of the road had inquiry been made of the county clerk, the district court held that the motion to dismiss should be granted.

The heart of the controversy in this case lies in the tension between Wyoming’s long-standing “unrecorded conveyance” statute and those statutes that deal with the creation of county roads. The records of the road in question were maintained in the manner mandated by these statutes. Eventually, the “recorded” documents with respect to county roads were moved to the county planning office and later to the county roads/transportation department. However, at all times the records were available to the public had inquiry been made about them to the county clerk or to other county departments. Moreover, county roads, cannot be vacated except by official action of the county commissioners of a county. Appellants participated in an effort to vacate the road, but that was unsuccessful. Wyo. Stat. 24-3-201 et seq. authorize a county to remedy a problem such as the one that has arisen in the present action. However, these statutes do not mandate action on the part of counties and are not determinative of the issues raised herein. The existing statutes, as well as the cases interpreting them over the years, track closely with common law principles that have long played a key role in issues such as this. Two of the most important of those are: “Once a road, always a road;” and, where a road is created by a statutory procedure such as that in play here, such a road cannot be abandoned, vacated, or disestablished without there being clear action on the part of the governmental entity that created the road to vacate, abandon, or disestablish it. For these reasons, the district court was correct that there was no genuine issue of material fact as to whether the road had been created. In addition, the road has not been vacated, abandoned, or disestablished by Fremont County and, therefore, it is still a county road as a matter of law.

The district court’s partial summary judgment order is affirmed. The district court’s order dismissing the further claims of Appellants is also affirmed.

J. Hill delivered the opinion for the court.

J. Burke files an opinion concurring in part and dissenting in part, in which J. Voigt joins. I respectfully dissent from that part of the majority’s decision affirming the dismissal of the Appellants’ claims in reliance on State Highway Comm’n v. Meeker, 75 Wyo. 210, 294 P.2d 603 (Wyo. 1956). Mr. Meeker challenged the county’s ownership of a highway right-of-way across his property on the basis that there was “no instrument of record in the office of the county clerk showing the highway.” The right-of-way had been acquired through eminent domain, however, and the Court found “no statute which required the transfer of title by eminent domain to be recorded” in the public record. The Court said that “failure to record an instrument which is not required to be recorded does not affect or vitiate the instrument as to anyone, and it is valid not only between the parties thereto, but also to subsequent purchasers.” “Hence,” the Court wrote, “it is quite clear that the title the State acquired under the condemnation proceedings in 1950 is valid and good against any subsequent purchaser of the same property.” However, Meeker detours from a long line of Wyoming cases emphasizing that county road easements must be placed on the public record. These cases establish that the Wyoming Legislature and the Court have consistently, with the exception of Meeker, said that county roads must be placed on the public record.

This policy extends not to county roads only, but to all real property conveyances. “Public policy requires that subsequent purchasers be able to rely on the title shown in public records.” Applying Meeker to the case at hand, however, means that the Appellants cannot rely on their title as shown in the Fremont County Clerk’s property records. That seriously undermines “the purpose of our recording statutes, which entitle one to rely on public records and determine whether or not a certain property is subject to liens, prior encumbrances or other outstanding claims.

The Court in Meeker indicated that the proceedings of the Board of County Commissioners gave Mr. Meeker constructive notice of the Commissioners’ decision to acquire the highway right-of-way. As stated in a droll but persuasive argument offered by Appellants in the present action, if the ruling in Meeker is controlling in this case, then every conveyance of land would have to be accompanied by a review of all proceedings of the county commissioners back to 1890.

Because of its anomalous nature and impracticable result, the decision in Meeker should be limited to its peculiar facts. By the time of trial in the Meeker case, “construction of the highway was commenced and substantially completed. That is not true of the road in the present action. In addition, Mr. Meeker “was in possession of the land in question as lessee during all of the time the eminent domain proceedings were taking place and must have had notice thereof.” Appellants were not in possession of the land in question in 1913 when the County Commissioners undertook to establish the road.

More significantly, Meeker is distinguishable on legal grounds. That decision rested on the Court’s finding “no statute which required the transfer of title by eminent domain to be recorded” in the public record. In the current case, there is at least one statute requiring the road easement to be recorded. In 1919, the Wyoming Legislature enacted a statute requiring Boards of County Commissioners, within their respective counties determine what if any such roads now or heretofore travelled but not heretofore officially established and recorded, are necessary or important for the public use as permanent roads, and to cause such roads to be recorded, or if need be laid out, established and recorded, and all roads recorded as aforesaid, shall be highways. No other roads shall be highways unless and until lawfully established as such by official authority. The County Commissioners of Fremont County undertook to establish the road in question, but failed to record it. This statute imposed upon them the duty of rectifying that failure. Notably, this statute makes no distinction between roads acquired by eminent domain and those acquired by other means. Because this statute required the easement in question to be recorded, the ruling in Meeker is not controlling here.

Accordingly, the district court’s decision to dismiss the claims raised by the Appellants should be reversed and remanded to the district court with instructions to proceed to trial on the question of whether the Appellants are bona fide subsequent purchasers for value who took title to their properties without notice of the road easement.

Thursday, March 05, 2009

Summary 2009 WY 30

Summary of Decision issued March 5, 2009

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

Case Name: Hull v. D’Arcy

Citation: 2009 WY 30

Docket Number: S-08-0058

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

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

Representing Appellees D’Arcy and Dalton: Jack John C. Hoard, Casper, Wyoming.

Facts/Discussion: The appeal concerns the validity of a tax deed. Ms. Hull the former owner, contends that the tax deed is invalid because she did not receive the statutorily required notice prior to issuance of the deed. The district court granted summary judgment in favor of the tax deed grantee, Dalton, and the current owners of the property, D’Arcy.
Ms. Hull and her husband owned a residential property in Guernsey. They did not pay the property taxes for 1999 and in 2000 the Platte County Treasurer conducted a tax sale of the property. Dalton paid the delinquent taxes and obtained a certificate of purchase to the property. In 2006, Dalton applied for and received a tax deed. He subsequently conveyed the property to the D’Arcys. They are the current owners of the property and have made improvements to the property since obtaining ownership.
At the time that Dalton began the deed application process, the Hulls had separated and were living in different locations from one another. Ms. Hull contended she never received a copy of any of the letters sent by Dalton nor did she see the notice published in the paper. The district court appeared to conclude as a matter of law that Ms. Hull received actual notice of the forthcoming application for a tax deed based upon its finding that Mr. Hull was Ms. Hull’s agent for receipt of the mailed notice. The Court stated there was insufficient information indicating agency to justify the finding that Mr. Hull was Ms. Hull’s agent.
The Court determined that a genuine issue of material fact existed regarding whether Ms. Hull could be found within Platte County upon exercise of due diligence. In Thompson-Green, the Court addressed a similar situation and ordered summary judgment to the title owners because the tax sale buyer relied upon service to the father and that the son living within Laramie County could have been found upon diligent inquiry.

Conclusion: When the Court considered Ms. Hull’s affidavit in the light most favorable to her, it concluded that a genuine issue of material fact existed regarding whether she could be found within the county upon the exercise of due diligence. Summary judgment in favor of Appellees was inappropriate.

Reversed and remanded.

J. Burke delivered the decision.

Link: http://tinyurl.com/alzqad .

[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.]

Friday, January 30, 2009

Summary 2009 WY 12

Summary of Decision issued January 30, 2009

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

Case Name: Spagner v. State

Citation: 2009 WY 12

Docket Number: S-08-0105

Appeal from the District Court of Laramie County, the Honorable Nicholas G. Kalokathis, Judge.

Representing Appellant Spagner: 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, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny L. Craig, Interim Faculty Director and Eric Thompson, Student Director, Prosecution Assistance Program.

Facts/Discussion: Appellant was charged by Information with two counts of first-degree sexual assault and three counts of thirds-degree sexual assault. A jury found him guilty of all five crimes. The appellant contended below, and contends again on appeal, that the Information and its supporting affidavit afforded him insufficient notice of the charges against him, that the verdict form was flawed, and that the district court improperly allowed amendment of the Information to conform with the evidence.

Adequately inform appellant: An Information is required to contain the elements of the offense charged, to fairly inform a defendant of the charges against which he must defend and to enable a defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense. Wyoming follows the rule that the sufficiency of an information is determined from a broad and enlightened standpoint of right reason rather than from a narrow view of technicality and hairsplitting. The key is whether the defendant has been misled to his prejudice. The Court stated that the Affidavit and Information, although not models of clarity, did not fail to give the appellant adequate notice of the five crimes with which he was being charged.
Fatal Variance Between Charges Alleged and Charges Proven: A variance occurs when the evidence presented at trial proves facts different from those alleged in the information or indictment. A variance is not fatal unless the appellant could not have anticipated from the indictment or information what evidence would be admitted at trial, or the conviction would not bar subsequent prosecution. The Court stated that if they were to find a variance existed it would not have been materially prejudicial to the appellant because the charges remained the same, the nature of the charges remained the same, and the character of the evidence remained the same.
Right to Due Process or Notice: The Court reviews a district court’s decision to grant or deny a motion for leave to amend an information for an abuse of discretion, focusing upon the question of whether the district court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious. The Court stated that the issue was decided against appellant through its resolution of the first two issues. Appellant was not misled into believing that he actually was defending the allegation of a crime that took place in 2004. Rather, he was trying to take advantage of a mistake in a recitation of dates by the young victim. No additional or different offense was charged via the amendment and substantial rights of the appellant were not prejudiced.

Conclusion: The Appellant was adequately informed of the charges against which he would be required to defend at trial, there was no fatal variance between the facts alleged and the facts proven at trial, and substantial rights of the appellant were not prejudiced by amendment of the Information.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/bftdjd .

[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.]

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