Summary 2013 WY 144

Justice Hill delivered the opinion of the Court. Affirmed.

Case Name: RICHARD REYNOLDS v. CHRISTOPHER BONAR

Docket Number: S-13-0100

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: Ronald G. Pretty, Cheyenne, WY.

Representing Appellee: Sean W. Scoggin of McKellar, Tiedeken & Scoggin, LLC, Cheyenne, WY.

Date of Decision: November 21, 2013

Facts: In 2011, Richard Reynolds filed a complaint against Christopher Bonar claiming personal injuries arising from a motor vehicle accident. That complaint was dismissed without prejudice for failure to comply with discovery orders. In 2012, Reynolds re-filed his complaint against Bonar. Reynolds’ second complaint was dismissed for failure to comply with discovery, this time with prejudice.

Issue: Did the Court have authority to dismiss [Reynolds’] case with prejudice?

Holdings/Conclusion: We find no constitutional violation in the district court’s dismissal of Reynolds’ complaint for failure to comply with the court’s discovery orders, and we affirm that dismissal with prejudice. Additionally, we impose sanctions upon Reynolds. Bonar shall submit a statement of costs and attorney’s fees associated with responding to Reynolds’ appeal. Upon review, we will award an appropriate amount in the form of sanctions. We affirm.

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 quotation, 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 141

Justice Davis delivered the opinion of the Court. Affirmed.

Case Name: EVELYN DIFELICI, f/k/a EVELYN BARNES v. CITY OF LANDER

Docket Number: S-13-0046

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

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

Representing Appellant: Sky D Phifer, Phifer Law Office, Lander, Wyoming.

Representing Appellee: Thomas A. Thompson of MacPherson, Kelly & Thompson, LLC, Rawlins, Wyoming.

Date of Decision: November 12, 2013

Facts: Appellant Evelyn DiFelici was injured when she fell after stepping into a hole drilled in the gutter of a street in the City of Lander. She sued the City, claiming that it was negligent in the operation of a public utility or service, and also that she was entitled to recover under a specific statute rendering cities and towns liable for injuries resulting from excavations or obstructions which make streets or sidewalks unsafe. The district court granted the City’s motion for summary judgment.

Issues: 1. Did the City’s failure to replace a grate over the drain inlet fall within the waiver of immunity for negligence of public employees in the operation of public utilities and services under Wyoming Statute § 1-39-108(a)? 2. Does Wyoming Statute § 15-4-307 provide a statutory basis on which Appellant was potentially entitled to recover from the City?

Holdings/Conclusion: The term “liquid waste” in Wyoming Statute § 1-39-108(a) does not include runoff or storm water, and there is thus no exception to immunity available to the Appellant. We also find that the hole drilled in the gutter of Washakie Street to drain water into a privately-owned irrigation ditch was maintenance of a street to compensate for weather conditions, and that the specific immunity of § 1-39-120 therefore also bars her claim. Finally, we conclude that Wyoming Statute § 15-4-307 does not create a cause of action based on the negligence of public employees of cities and towns for excavations or obstructions of streets. We therefore affirm.

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 quotation, 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 2012 WY 62

Summary of Decision April 25, 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:  MARCIA BECKWITH v. KARL AND TINA WEBER, husband and wife, dba GROS VENTRE RIVER RANCH

Docket Number: S‑11‑0101, S-11-0245

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465471

Appeal from the District Court of Teton County, Honorable Timothy C. Day, Judge

Representing Appellant (Plaintiff/Defendant): Gerard R. Bosch of Law Offices of Jerry Bosch, LLC, Wilson, Wyoming

Representing Appellee (Plaintiff/Defendant): Katherine L. Mead of Mead & Mead, Jackson, Wyoming

Date of Decision: April 25, 2012

Facts: These consolidated appeals arise from a judgment on jury verdict in a case involving personal injuries suffered by Appellant Marcia Beckwith.  She fell from a horse while on a trail ride operated by the Gros Ventre River Ranch in Grand Teton National Park.  The jury found that Ms. Beckwith’s injuries were the result of an inherent risk of horseback riding as defined by the Wyoming Recreation Safety Act, and she therefore recovered no damages for her injuries.   In Case No. S-11-0101, Ms. Beckwith claims the district court erred in failing to instruct the jury as she requested.  In Case No. S-11-0245, she claims the district court erred in awarding costs to Appellees due to her indigence. 

Issues: In Case No. S-11-0101, the issues are:

1.                 Did the District Court err when it declined to instruct the jury that a duty of care could arise from a contract and in refusing a verdict form which would have asked the jury to determine if Appellees provided skilled guides?

2.                 Did the District Court err in declining to instruct the jury on the meaning of the terms “characteristic,” “intrinsic,” and “integral” as they are used to define the term “inherent risk” in the Wyoming Recreation Safety Act?

3.                 Did the District Court err in declining to instruct the jury that exculpatory clauses are to be strictly construed?

4.                 Did the District Court err in declining to instruct the jury that Appellant was exercising due care at the time she was injured?

In Case No. S-11-0245, the issue is:

1.         Did the District Court abuse its discretion in awarding costs to Appellees?

Holdings: The district court properly instructed the jury as to Appellant’s claims, and also provided an appropriate form of special verdict for the jury’s use.  The award of costs it made was not an abuse of discretion.  The judgment of the district court and its order awarding costs were affirmed. 

District Judge Davis delivered the opinion for the court.

Summary 2007 WY 120

Summary of Decision issued August 1, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Horn and Horn, PC. v. Wooster and Duddy

Citation: 2007 WY 120

Docket Number: 06-195

Certified Questions from the United States District Court, District of Wyoming, the Honorable Clarence A. Brimmer, Judge

Representing Appellants (Defendants): Weston W. Reeves and Anna R. Olson of Park Street Law Office, Casper, Wyoming. Argument by Mr. Reeves.

Representing Appellees (Plaintiffs): C.M. Aron of Aron & Henning, LLP, Laramie, Wyoming.

Questions: Should Client’s malpractice award be reduced by the contingent fee Attorney would have received absent his malpractice in the personal injury case? Can the Associated Attorney recover the agreed portion of the contingent fee, either as an offset against the contingent fee or as a separate claim against the Principal Attorney?

Facts/Discussion: The federal district court for the District of Wyoming certified two questions to this Court concerning how a negligent attorney’s contingent fee in the underlying personal injury action should be accounted for in a subsequent malpractice award to his former client.
Question One: The Court has never had occasion to address how a negligent attorney’s contingent fee should be treated in a subsequent malpractice action brought by the client. Historically, a negligent attorney had been entitled to deduct from a subsequent malpractice award the amount he would have been entitled to as a contingent fee in the underlying action. In the latter part of the twentieth century, some courts began to rule a negligent attorney was not entitled to such a deduction. Other courts simply stated that a negligent attorney should not benefit from shoddy or negligent work. In Jackson State Bank v. King, the Court stated that even though legal malpractice may be attributable to negligence on the part of the attorney, the right to recompense is based upon the breach of the contract with the client. Wyoming precedence established that in the absence of willful conduct, the damages recoverable for legal malpractice are those typically available for breach of contract and the award was designed to put the plaintiff in the same position as if the contract had been performed less the proper deductions. The Court noted that in the First Circuit case of Moores, the court stated that in a negligence action, the plaintiff is entitled to recover only those damages which were a foreseeable consequence of the defendant’s negligence. Concentrating on the question of what the client lost as a result of the attorney’s negligence requires the deduction of all expenses which the client would have incurred in order to successfully prosecute his claim, including the attorney’s fee expense. The well-accepted principles for calculation of damages in both contract and tort cases should be applied and the plaintiff should receive an award that would place him in the same position he would have enjoyed had the negligence not occurred.
The Court stated they have clear authority regarding a prevailing party’s right to collect attorney’s fees from his opponent. In Wyoming the American rule is applied. The Court saw no reason for creating an exception to the American rule when legal malpractice was involved.
Some courts have ruled that a negligence attorney is not entitled to a deduction of his contingent fee from a malpractice award against him but, utilizing a quantum meruit theory, may be entitled to a deduction for the value of his services which benefited the client. The Court stated that using the above approach to calculate damages would be difficult because the facts would present nearly unlimited opportunities for the client to second-guess the first attorney’s tactics and work product.
Question Two: The Court stated that plaintiffs did not cite any authority to support their position that an attorney should be allowed to maintain an action against his co-counsel for negligence in prosecuting the underlying personal injury action. To adopt a cause of action between co-counsel simply because the attorney proposed to give the client the benefit of any judgment in his favor would not square with the Court’s other precedent and could result in a case where the client’s best interests are compromised by the self interests of feuding attorneys.

Holding: The Court concluded that consistent with their damages jurisprudence in other areas of the law, a malpractice plaintiff is entitled to an award in the net amount he would have received under the contingent fee agreement had the underlying action been successful. The Court declined to recognize a cause of action by an attorney against his negligent co-counsel.

The first certified question was answered in the affirmative and the second in the negative.

J. Kite delivered the decision.

J. Burke, dissenting: The Justice dissented because he did not believe it was appropriate to adopt a rigid rule allowing deduction of the attorney’s contingent fee percentage in all legal malpractice cases. The deductibility of those fees should be tied to the benefit that the client received from the attorney’s efforts. Where the client has received no benefit, no deduction should be allowed. The Justice stated he believed that Moores supported a more flexible rule than the majority stated.
In the final analysis, it does not appear to the Justice that any court currently applies the rule adopted by the majority. The modern view regarding deductibility is appropriate and the reasoning supporting that view persuasive. He stated he felt the Court should adopt the general rule that the contingent fee should not be deducted. In those cases where it would be inequitable to disallow the deduction, as in Moores, a quantum meruit approach would be more appropriate. In the instant case, the certified question does not include any facts indicating any benefit. Accordingly, the Justice would have answered “No” to the first certified question.

Link: http://tinyurl.com/2jbk99 .