Summary 2011 WY 21

Order issued by the Court on February 9, 2011

[SPECIAL NOTE: This order uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the order, with a P.3d parallel citation. If you need assistance in putting together a citation from this, or any future order 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: Freeman v. State

Citation: 2011 WY 21

Docket Number: S-11-0033

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461741

Date of Order: February 9, 2011

ORDER DISMISSING APPEAL

This matter came before the Court upon its own motion following a review of recently docketed appeals. In his notice of appeal, Appellant indicates he is appealing from two district court orders: (1) an “Order Granting, In Part, and Denying, In Part, Motion to Correct Illegal Sentence,” which was entered on November 18, 2010, and (2) an “Order Denying Motion for Reconsideration,” which was entered on December 16, 2010. Appellant filed his notice of appeal on January 14, 2011.

With respect to the “Order Granting, In Part, and Denying, In Part, Motion to Correct Illegal Sentence,” the notice of appeal is clearly untimely as to that order. W.R.A.P. 2.01(a). An appeal from a trial court to an appellate court shall be taken by filing the notice of appeal with the clerk of the trial court within 30 days from entry of the appealable order.

The question becomes whether Appellant’s Motion for Reconsideration tolled the time for filing the notice of appeal. In a criminal case, pursuant to W.R.A.P. 2.03 there are certain post-judgment motions that toll the time for filing a notice of appeal. However, a Motion for Reconsideration is clearly not listed as the sort of motion that tolls the time for filing a notice of appeal in a criminal case.

The notice of appeal for the “Order Denying Motion for Reconsideration,” is timely as to that order. However, there is still the question of whether the motion could serve as an independent action. The Motion for Reconsideration did not create an independent action. The Court will not look at the substance of the motion for reconsideration but will declare it a nullity based upon its denomination. The obvious consequence of categorizing the motion for reconsideration as a nullity is that all judgments or final orders from said motion are a nullity. Thus, the Court lacks jurisdiction to consider an appeal from the ‘Order Granting, In Part, and Denying, In Part, Motion to Correct Illegal Sentence. Therefore, there being no final appealable order to review, the appeal must be dismissed.

Summary 2010 WY 54

Summary of Decision issued April 27, 2010

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

Case Name: Neidlinger, Sr. v. State

Citation: 2010 WY 54

Docket Number: S-09-0096

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

Representing Appellant Neidlinger, Sr.: Diane M. Lozano, 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; Leda M. Pojman, Senior Assistant Attorney General.

Facts/Discussion: Neidlinger, Sr. appealed the district court’s “Order Denying Defendants’ Motion to Withdraw No Contest Plea.” He contended that the district court abused its discretion in denying that motion.

The circumstances of the case are indistinguishable from those presented in Nixon and Brown. Neidlinger appealed his judgment and sentence on February 27, 2007. The court affirmed the conviction and sentence in all respects. His motion to withdraw the plea was filed nearly two years later which was untimely, therefore the district court did not have jurisdiction to entertain the motion. The district court only has jurisdiction to act if the case has been remanded or if a specific express exception conferring jurisdiction is created by a rule or statute.

Conclusion: The district court’s Order Denying Early Discharge from Probation and Order Revoking Probation and Imposing Sentence are affirmed in all respects. Neidlinger’s appeal of the district court’s Order Denying Defendant’s Motion to Withdraw No Contest Pleas was dismissed for lack of subject matter jurisdiction.

Dismissed.

J. Burke delivered the decision.

Link: http://tinyurl.com/26orzro .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 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 115

Summary of Decision issued September 17, 2009

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

Case Name: Boe v. State, ex. Rel., Wyoming Workers’ Safety and Comp. Div.

Citation: 2009 WY 115

Docket Number: S-08-0240

Appeal from the District Court of Sweetwater County, the Honorable Jere A. Ryckman, Judge.

Representing Appellant Boe: Ethelyn “Lynn” Boak, Cheyenne, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General; M. Kristen Doolittle Rieman, Assistant Attorney General.

Facts/Discussion: Boe appealed from the district court’s order affirming the OAH denial for his claim for worker’s compensation benefits for failure to timely file his application for temporary total disability (TTD.)
Boe contended he was not required to apply for benefits for the period from April 2006 through December 2006 while an earlier claim was pending. Boe relied on Gerdes where the Court held that § 27-14-404(d) did not apply to claims that accrue during the pendency of a contested case. The Division relied on Alcorn in which the Court affirmed the denial of TTD benefits on the ground that Alcorn did not file a timely claim properly certified by one of his healthcare providers for the time period at issue. The Court stated that neither Gerdes nor Alcorn controlled in the instant case. The plain language of the statutes was determinative. The Court stated that Boe’s claim was not an initial claim but rather a claim for additional benefits after a prior determination in his favor involving the same injury. Section 27-14-404(d) allows an employee who had received an earlier TTD award to apply for additional benefits under § 27-14-605.

Conclusion: The OAH’s order denying Boe’s claim on the ground that it was not timely filed was reversed with instructions to vacate the order and remand to OAH for entry of an order awarding TTD benefits from April 2006 through November 2006 on the ground of increased incapacity.

Reversed.

J. Kite delivered the decision.

J. Burke dissented: The Justice dissented because he was uncomfortable with the majority’s interpretation of §§ 27-14-404 and -605. The hearing examiner and the district court never considered whether the four-year limitation period applied and the Division was not provided with the opportunity to weigh in on the issue. He was also concerned that following its interpretation, an employee would have only sixty days to file an initial claim for TTD benefits but up to four years from the date of last payment for additional benefits to file a claim for additional TTD benefits.

Link: http://tinyurl.com/km9kcs .

[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 21

Summary of Decision issued February 19, 2009

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

Case Name: Cook v. Swires

Citation: 2009 WY 21

Docket Number: S-08-0075

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

Representing Appellant Cook: William D. Bagley, Frontier Law Center, Cheyenne, Wyoming.

Representing Appellee Swires: M. Gregory Weisz, Pence and MacMillan, LLC, Laramie, Wyoming.

Facts/Discussion: The district court confirmed the execution sale of Cook’s Albany County real property to satisfy two Colorado judgments. On appeal, Cook claimed that the filing of the foreign judgments was insufficient pursuant to the Uniform Enforcement of Foreign Judgments Act (UEFJA), the property was not available for execution, the district court did not allow him the proper redemption period and that he was entitled to seek contribution from his co-judgment debtors, including Swires. Swires contested Cook’s assertions and argued that the Court did not have subject matter jurisdiction.

Jurisdiction: Swires claimed that Cook did not file a timely notice of appeal of the district court’s determination that the Colorado judgments were filed correctly under the UEFJA. The Court ruled long ago that an order granting or refusing an injunction is a final appealable order as a petition for injunctive relief invokes a special proceeding. The Court concluded that the order denying the injunction was appealable, and because Cook failed to file a timely notice of appeal from the district court’s order, the Court did not have jurisdiction to review the district court’s decision on the validity of Mr. Claus’ filing under the UEFJA.
Expiration of Lien Under Section 1-17-336: Cook claims his real property was not available for execution by Swires because pursuant to § 1-17-336, the judgment lien expired one year after Claus’ 2000 filing of the Colorado judgments. In Dev-Tech the Court ruled that even though a judgment lien expires after one year and a judgment creditor may los his priority under § 1-17-336, the property still remained available for execution pursuant to § 1-17-301. thus, § 1-17-336 did not prevent Swires from executing against Cook’s Wyoming property.
Redemption Period: The Court concluded that although Cook’s property fell within the definition of agricultural real estate set out in § 1-18-103(c), the 12 month redemption period in subsection (b) was limited to mortgaged agricultural property. The district court ruled correctly that the general three month redemption period in subsection (a) governed in the case.
Contribution: Cook argued that he was entitled to contribution from Mr. and Mrs. Swires as they were also judgment debtors on the assigned Colorado judgments. The Court was perplexed by the argument because as far as the record showed, the district court ruled in Cooks’ favor on the issue. Under the current status of the record, Cook is entitled to contribution from the Swires if he has paid more than his proportionate share of the judgment debt.
Swires’ argument that Cook was not the real party in interest was not argued to the district court and so cannot be raised on appeal.

Conclusion: The Court concluded it did not have subject matter jurisdiction to consider the sufficiency of the foreign judgments filing because Cook did not appeal an earlier district court ruling on the issue. Even though a judgment lien expires after one year the property still remains available for execution pursuant to § 1-17-301. The redemption period of twelve months was limited to mortgaged agricultural property. As the district court stated, Cook is entitled to contribution for the Swires if he has paid more than his proportionate share of the judgment debt.

Dismissed in part and affirmed in part.

J. Kite delivered the decision.

Link: http://tinyurl.com/c7qcb8 .

[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 64

Summary of Decision issued June 10, 2008

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

Case Name: Concerned Citizens of Spring Creek Ranch v. Tips up, LLC

Citation: 2008 WY 64

Docket Number: S-07-0159

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

Representing Appellants (Applicants for Intervention): Abigail Susan Moore and Joseph F. Moore, Jr., Moore, Myers & Garland, LLC, Jackson, Wyoming.

Representing Appellee Tips Up (Plaintiff): David B. Hooper, Hoper Law Offices, PC, Riverton, Wyoming; Raymond E. Loughrey, Kirkpatrick & Lockhart Preston Gates Ellis, LLP, San Francisco, California.

Representing Appellees Spring Creek Homeowners’ Association, and Spring Creek Architectural Committee: Edward Frank Hess, Hess Carlman & D’Amours, LLC, Jackson, Wyoming; William H. Short, HindmanSanchez, PC, Arvada, Colorado.

Facts/Discussion: Appellants appeal the district court’s denial of their motion to intervene in a dispute between their homeowners’ association and another property owner.
In order for an applicant for intervention of right to be allowed to participate, they must meet four conditions. The conditions of the test are: the applicant must claim an interest related to the property or transaction which is the subject of the action; the applicant must be so situated that the disposition of the action may as a practical matter, impair or impede the applicant’s ability to protect that interest; there must be a showing that the applicant’s interest will not be adequately represented by the existing parties; and the application for intervention must be timely.
Timeliness is a threshold issue. After considering the history and nature of the case the district court held that the motion was not timely. The Court noted the Proposed Intervenors filed their application after the case had been going on for a number of months and that they filed only after they heard that the parties were discussing settlement.
Proposed Intervenors argued they had a significant protectable interest as land owners whose lands were benefited and burdened by the CC&Rs (Covenants, Conditions and Restrictions) and Architectural Controls and Design Guidelines. The underlying case involved Tips Ups’ claim against the Board of Directors and Architectural Committee regarding their denial of Tips Up’s Preliminary Architectural Plan. It did not strictly involve enforcement of the CC&Rs. The Proposed Intervenors had a significantly protectable interest in the enforcement of the CC&Rs but any impact on the property interest was contingent.
The applicant has the burden of showing that his or her interests are not adequately represented by the existing parties. The Proposed Intervenors vested the Homeowners Association and the Architectural Committee with the authority to represent them in the underlying litigation. They failed to demonstrate how the Association and the Committee did not adequately represent them.
Permissive intervention may be allowed in the district court’s discretion. Since the application for intervention was held to be untimely, the application for permissive intervention would also have been untimely.

Holding: Because Proposed Intervenors failed to meet any of the four conditions for intervention of right, the district court did not err in denying Proposed Intervenors’ Motion for Intervention of Right.

Affirmed.

D.J. Arnold delivered the decision.

Link: http://tinyurl.com/6zqfg3 .

[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.]