Summary 2013 WY 93

Summary of Decision July 31, 2013

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

Case Name: KELVIN BOURKE v. GREY WOLF DRILLING COMPANY, LP, now known as PRECISION DRILLING COMPANY, LP

Docket Number: S-12-0258

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

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

Representing Appellant: Hampton M. Young, Jr., Attorney at Law, Casper, Wyoming

Representing Appellee: Amanda W. Wiley of Taylor | Anderson, LLP, Denver, Colorado

Date of Decision: July 31, 2013

Facts: Appellant Kelvin Bourke sued his former employer Grey Wolf Drilling Company, LP, for fraud and wrongful termination in the Seventh Judicial District Court. Unbeknownst to Bourke, Grey Wolf had been sold to a foreign corporation, Precision Drilling,1 which affected the venue of this action under Wyoming Statute § 1-5-107. Precision Drilling was not a resident of Wyoming as Grey Wolf had been. Precision Drilling moved to dismiss the case for improper venue and failure to state a claim upon which relief could be granted. The district court granted the motion on both grounds. Bourke claims that the district court erred in dismissing his complaint for improper venue, and that his claims were summarily dismissed when he should have been granted leave to amend his complaint.

Issues: Appellant states the issues as follows: A. Whether the venue outlined in Wyo. Stat. § 1-5-107 is mandatory, requiring a case filed in the improper County be dismissed. B. Whether or not the Court abused its discretion by denying Plaintiff’s Motion to Amend.

We believe the issues are more aptly summarized as follows: 1. Was venue proper in Natrona County? 2. If venue was not proper, should the district court have transferred the case to a proper venue? 3. Did the district court err as a matter of law in reaching the merits of a motion to dismiss on W.R.C.P. 12(b)(6) grounds after it determined that the case had to be dismissed on venue grounds?

Holdings: We affirm the district court’s dismissal for improper venue, but we conclude that the court erred as a matter of law when it reached the merits of the case after determining that it had to be dismissed on venue grounds. We accordingly reverse and remand for entry of a dismissal without prejudice based only upon improper venue.

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 101

Summary of Decision June 29, 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: Kelly David Robinson v. State of Wyoming

Citation:  2011 WY 101

Docket Number: S-10-0234

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=463589

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

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; and Eric M. Alden, Senior Assistant Appellate Counsel.  Argument by Mr. Alden.

Representing Appellee (Plaintiff): Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Senior Assistant Attorney General.  Argument by Ms. Pojman.

Date of Decision: June 29, 2011

Facts: Appellant was convicted of three misdemeanors and one felony.  All of these crimes arose in a domestic violence context.  Appellant challenged one of those misdemeanor convictions, a violation of a protection order charged under Wyo. Stat. Ann. § 6-4-404.  The gravamen of the crime was that he mailed a letter from his jail cell in Oregon (where he was being held on a warrant for his other Wyoming crimes) to the victim who had obtained the protection order.  The posting and the eventual receipt of that letter by the victim was the basis for the violation of the protection order issued by the circuit court of Crook County.  Among other things, Appellant claimed that there was insufficient evidence to sustain a conviction for the crime charged. 

Issues: Whether the district court had subject matter jurisdiction to prosecute a violation of Wyo. Stat. Ann. § 7-3-510(c) under § 6-4-404.  Whether venue was proper where Appellant’s act occurred outside the county of prosecution.  Whether there was sufficient evidence presented to prove an act of violation of the protection order within Crook County. Whether the trial court abused its discretion by allowing the testimony of the “domestic violence” expert.

Holdings: If all had gone as it should, Appellant would have been charged under § 7-3-510(c).  However, given that the protection order was actually issued under Title 6, Appellant could have been prosecuted under § 6-2-506(d).  However, there appeared to be no basis to have charged and convicted Appellant under § 6-4-404(b), and there was no evidence in the record on appeal that relates to such a crime.  Because of this error, the Court was compelled to reverse that conviction.  Although it had the superficial appearance of being a harmless error as contemplated by W.R.A.P. 9.04 (in that all three of the punishment provisions are virtually identical), the Court concluded that the lack of evidence to support the conviction, as charged, mandated reversal.  Because of this disposition, the Court did not need to address the other issues raised.  The judgment of the district court was reversed as to the conviction entered pursuant to § 6-4-404, and the remainder of the judgment was affirmed.  The sentence imposed for the § 6-4-404 conviction was vacated, and the matter was remanded to the district court for adjustment of the sentence accordingly.

Although the decision was based upon grounds somewhat different from those raised in the briefs, the Court reversed that conviction and remanded the matter to the district court with directions that the conviction at issue be vacated and that Appellant be resentenced accordingly.

Justice Hill delivered the opinion for the court.

Summary 2009 WY 2

Summary of Decision issued January 13, 2009

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

Case Name: Smith v. Wyoming

Citation: 2009 WY 2

Docket Number: S-07-0267

Appeal from the District Court of Natrona County, the Honorable Keith G. Kautz, Judge.

Representing Appellant Smith: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Michael H. Reese, Appellate Counsel.

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

Facts/Discussion: A jury found Smith guilty of second degree murder and concluded he was a habitual criminal. The district court sentenced him to life in prison. On appeal, he claimed there was insufficient evidence to convict him; the State violated his Fifth Amendment rights and engaged in prosecutorial misconduct by referring to his refusal to voluntarily submit a sample for DNA testing; the district court erred by excluding evidence of alternative subjects; the habitual criminal statute as applied to him violated the constitutional prohibition against ex post facto laws; and he should have been granted a change of venue.

Sufficiency of the Evidence: The trial evidence showed that Smith was not truthful about his relationship with Ms. Dively, the victim. The DNA evidence established he had engaged in sexual contact with her. It was reasonable for the jury to infer from the medical evidence that the timing of the sexual activity between the victim and Smith was just prior to her death, strongly suggesting that he murdered her. That inference was supported by the trial evidence that the victim got into a pickup like one Smith owned, with a man that resembled him, shortly before her death. The Court noted that cases from other jurisdictions supported their decision that there was sufficient evidence. The Georgia case, Walker v. State, contained similar facts. The court in Walker ruled that the role of interpreting the evidence belonged to the jury and the jury’s decision would be reversed only if it was unsupportable as a matter of law. In the instant case, there was no question that the evidence was sufficient to support the jury’s conclusion that the homicide was committed purposely and with malice.
Prosecutorial References to Defendant’s Refusal to Submit Sample for DNA Testing: The prosecutor referred to Smith’s refusal to submit a DNA sample in his opening and closing and also elicited testimony about Smith’s refusal from the lead investigator. The United States Supreme Court has expressly ruled that the Fifth Amendment right against self-incrimination only extends to testimonial or communicative evidence. In Schmerber v. California, the Supreme Court explained that blood evidence obtained from a suspect’s body is not testimonial or communicative evidence and does not fit within the Fifth Amendment privilege. In South Dakota v. Neville the Supreme Court recognized that protecting the defendant from being compelled to testify against himself is the lynchpin of the Fifth Amendment protection. Smith was asked to voluntarily give a DNA sample, when he refused, the State obtained a warrant. The sample and the associated test results were not testimonial or communicative evidence. The State did not coerce him and the evidence of his refusal did not fall within the Fifth Amendment protection. The prosecutor did not violate Smith’s privilege against self-incrimination or commit prosecutorial misconduct.
Alternative Suspect Evidence: The district court conducted a pre-trial hearing pursuant to W.R.T. 104 and concluded that some of the evidence was inadmissible under W.R.E. 403, some was inadmissible hearsay and that some was not admissible under Rule 403 because its probative value was very small while the possibility of confusion of the issues and misleading the jury was high. In Bush, the Court recognized that the district court should apply Wyoming’s standard rules of evidence in determining whether alternative suspect evidence is “legal” and therefore, admissible. The Court stated that the proffered evidence must demonstrate a direct nexus between the alternative suspect and the crime charged.
The district court did not apply a more stringent or different standard to Smith than it did to the State for admission of its evidence. It applied Wyoming’s typical rules of evidence in ruling that Smith’s proposed alternative suspect evidence was not admissible.
Habitual Criminal: Smith claimed that the application of the habitual criminal statute in his case was unconstitutional because the jury was allowed to consider crimes he committed after the instant offense. The jury determined that Smith was a habitual criminal and because he had been convicted of three other felonies, he was sentenced to serve life in prison. Two of the crimes considered by the jury in the habitual criminal phase of the trial occurred after the murder in 1986. The instant case is not a classic ex post facto case because the statute was adopted in 1983 and the crime occurred in 1986. The Court noted that in Green v. State, that the statute does not require that a crime be previously committed, only that there is a previous conviction. Under the language of the statute the district court properly allowed consideration of Smith’s prior convictions, despite the fact that two of these offenses were committed after he committed the murder. The habitual criminal statute does not create a separate offense but is a sentence enhancement for the offense at issue. The statute does not retroactively increase the punishment for conduct committed before its passage nor does it retroactively increase the punishment for prior convictions.
Change of Venue: The Court has developed a two-part test to determine whether a change of venue should be granted on the basis of pre-trial publicity. First the Court considers the nature and extent of the publicity and secondly, the Court analyzes the difficulty or ease encountered by the district court in selecting a jury. The defendant usually has the responsibility of proving actual prejudice on order to obtain a change of venue. There was apparently only one article but it contained information which could have potentially tainted the jury pool. The district court dismissed those members of the jury who stated that they were aware of the prior conviction. The jury was seated without any significant problems and the record did not demonstrate that the jury panel was actually prejudiced by the pretrial publicity.

Conclusion: There was sufficient evidence for the jury to find Smith guilty of second degree murder. The evidence that he was the perpetrator of the crime and committed it purposely and with malice was adequate under Wyoming law. The prosecutor did not violate Smith’s Fifth Amendment right to remain silent by eliciting testimony and commenting on his refusal to voluntarily provide a sample for DNA testing. The Fifth Amendment protection does not apply to non-testimonial evidence such as the DNA sample and Smith was not coerced into refusing to give the sample.
The district court properly applied Wyoming’s rules of evidence to exclude Smith’s alternative suspect evidence. The evidence that Mr. Myers potentially killed Ms. Dively was more prejudicial than probative under W.R.E.403. Smith’s proposed evidence that Mr. Wentz was the killer was properly excluded as hearsay and under Rule 403.
The application of Wyoming’s habitual criminal statute to enhance Smith’s sentence by using two convictions which occurred after he committed the crime in this case did not violate his constitutional protections against ex post facto laws. The district court did not abuse its discretion by denying Smith’s motion for a change of venue. He was unable to demonstrate the jury panel was prejudiced against him to justify a change of venue.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/8vrj4f .

[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 71

Summary of Decision issued June 23, 2008

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

Case Name: State Farm Mutual Automobile Ins. Co. v. Kunz

Citation: 2008 WY 71

Docket Number: S-07-0177

Certified question from the District Court of Goshen County, the Honorable Keith G. Kautz, Judge.

Representing Appellant (Plaintiff): Billie Ruth Edwards, Edwards & Johnson, Cheyenne, Wyoming.

Representing Appellee (Defendant): No appearance.

Facts/Discussion: The question arose from an apparent conflict in statutory language governing subject matter jurisdiction of circuit courts and statutory language relating to service of process on non-resident motorists.

Answer: The circuit court has subject matter jurisdiction over a civil suit brought against a non-resident, where the prayer for recovery requests less than $7,000.00. Circuit courts’ subject matter jurisdiction over civil matters is governed by Wyo. Stat. Ann. § 5-9-128 and is not impacted by the method of service of process. The portion of Wyo. Stat. Ann. § 1-6-301(c) relied upon by State Farm addresses venue and does not confer subject matter jurisdiction on a district court in a civil action where the amount in controversy does not exceed $7,000.00.

J. Burke delivered the decision.

Link: http://tinyurl.com/56ljfa .

[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 58

Summary of Decision issued May 29, 2008

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

Case Name: Carothers v. State

Citation: 2008 WY 58

Docket Number: S-07-0240

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

Representing Appellant (Defendant): Nicholas H. Carter and Miles A. Jacoby of the Nick Carter Law Firm, PC, Gillette, Wyoming.

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

Facts/Discussion: Carothers was convicted of aggravated homicide by vehicle after she caused the death of a child in a motor vehicle collision in Gillette.

Juror Challenges: The Court reviewed the totality of the voir dire process and determined it had been a careful and deliberative process. The record showed that the district court did not ignore bias challenges and it clearly stated its decision making as to individual jurors based upon the perception by the court whether the juror could or would set aside any improper influences.
Change of Venue: A hearing on the motion for change of venue was held. The two-part test for determining whether there should be a change of venue includes the nature and extent of the publicity and the difficulty or ease in selecting a jury along with the amount of prejudice which actually appears during voir dire. The first part was not included in the record so the Court was unable to determine if the publicity was anything but factual. A sufficient number of jurors declared themselves to be able to determine the matter based solely upon the evidence they heard in court and the instructions given them by the judge.
Prosecutor’s Statements: Carothers contended that statements made by the prosecutor during closing argument violated her right to remain silent and that the prosecutor attempted to shift the burden of proof to the defendant. The State argued that the statements were legitimate responses to defense counsel’s arguments. The Court reviewed the comments within the context of the arguments and determined that the remarks were directed at refuting defense counsel’s allegations.
PSI: A PSI is mandated for all felony cases. After reviewing the record, the Court stated that there was no showing that the district court relied upon the comments in deciding upon the sentence; the comments repeated what was already contained in the victim impact portion of the report and in the mother’s comments; and the sentence imposed was less than that requested by the State, which suggested the court was not “inflamed” by the comments.

Holding: Sufficient evidence in the record supported the district court’s decision to not excuse certain jurors. A venue change was not necessary because a local jury was seated without undue difficulty. The prosecutor’s challenged statements were responsive to arguments made by defense counsel or were comments upon the evidence that was presented. It was not shown that the district court relied upon or that Carothers was prejudiced by the inclusion of the statements in the PSI.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/5os8gj .

[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 2007 WY 11

Summary of Decision issued January 19, 2007

[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.]

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

Case Name: Sundance Mountain Resort, Inc. & Cundy v. Union Telephone Co.

Citation: 2007 WY 11

Docket Number: 05-300

Appeal from the District Court of Crook County, the Honorable Gary P. Hartman, Judge

Representing Appellants (Defendants): Cecil A. Cundy of Cundy Law Office, Sundance, Wyoming.

Representing Appellee (Plaintiff): Paul J. Drew of Drew Law Office, PC, Gillette, Wyoming.

Issue: Whether or not the district court properly exercised jurisdiction by ordering Appellants/Defendants to appear and show cause in Weston County in contempt proceedings affecting an estate in real property in Crook County where Appellants/Defendants resided in Crook County, Wyoming. Whether or not the injunction sought to be enforced exceeded the rights granted Appellee in its Communication Site Lease.
Facts/Discussion: This appeal arises from facts previously considered in Cundy v. Range Tel. Coop., Inc. and Union Telephone Co. where the Court affirmed a district court order enjoining Sundance and Mr. Cundy from interfering with Union’s use of its leasehold on Sundance Mountain and access to it across lands belonging to Sundance. Appellants were held in contempt of court for violating the district court order enjoining them from interfering with Union Telephone Company’s (Union) access to its leasehold. Appellants appeal from the contempt order. Determinations concerning venue are within the district court’s discretion and the Court reviews the denial of a motion for change of venue only for abuse of discretion. The power to summarily punish for contempt is likewise vested in the district court. The Court will not overturn a district court contempt order absent an abuse of discretion.
Venue: Despite Appellant’s continued use of the word “jurisdiction” in his re-statement of the issues, the parties appeared to be in agreement that the issue did not concern the district court’s jurisdiction to hear and decide Union’s motion; rather, the issue was one of venue. Union brought the action in the county in which its leasehold was situated and all papers concerning the action were filed there and all proceedings were held in the proper county until the show cause hearing. Upon request of counsel, the district court vacated a scheduled telephone hearing and scheduled a hearing requiring personal attendance of counsel. The district court set the hearing in Weston County because no courtroom was available in Crook County. Venue normally is founded upon convenience to the parties. Appellants did not argue the Weston County forum was inconvenient. In the district court and the Court Appellants argued the district court violated the venue statute by convening the hearing in a venue other than Crook County. The Court found the district court’s action to be a reasonable decision based upon proper considerations of convenience and the allocation of judicial resources.
The Injunction: After careful review of the record on appeal, it appeared Appellants failed to raise the argument the injunction exceeded the rights granted in the lease in the district court. Because no transcript of the contempt hearing appears in the record, it was not possible for the Court to determine whether the argument was presented orally during the hearing. The Court will not consider arguments made for the first time on appeal.
Holding: The Court found the district court’s action setting the show cause hearing in an adjoining county with an available courtroom to be a reasonable decision based upon proper considerations of convenience and the allocation of judicial resources. The Court affirmed the district court decision regarding the injunction because the record designated by the parties provided no indication Appellants presented the argument in district court that the injunction went beyond the scope of the lease. Appellants had several opportunities to present the claim, so the Court declined to address the argument.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/3cl7gl .