Summary 2012 WY 69

Summary of Decision May 17, 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: TIMOTHY DAVID KRAMER v. THE STATE OF WYOMING

Docket Number: S-11-0043

http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465690
Appeal from the District Court of Carbon County, Honorable Wade E. Waldrip, Judge

Representing Appellant (Plaintiff/Defendant): Donna D. Domonkos, Domonkos Law Office, Cheyenne, WY.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; anJustin A. Daraie, Assistant Attorney General. Argument by Mr. Daraie.

Date of Decision: May 17, 2012

Facts: Timothy David Kramer was convicted of attempted first-degree murder and complains on appeal that the jury was improperly instructed, that he received ineffective assistance of counsel, and that a witness improperly testified by video conference.

Issues: Kramer listed three issues for consideration:

1) The jury was not properly instructed on the elements of first-degree murder as the instructions did not state the jury had to find unanimously that Kramer did not act in the defense of others and the verdict form did not give the jury a venue to make this finding.

2) Kramer received ineffective assistance of counsel when his counsel failed to investigate the case and failed to object to the proposed jury instructions.

3) The trial court erred when it allowed one of the main witnesses in the trial to testify via video conference.

Holdings: Plain error was not committed when instructing the jury. No clear rule of law obligated the district court to blend the elements instructions with the defense-of-others instructions and as a whole, the instructions effectively identified the issues that the jury needed to resolve. Furthermore, Kramer received effective assistance of counsel and counsel’s investigation was sufficient. Finally, the district court did not abuse its discretion or violate Kramer’s confrontation right when it allowed a witness to testify by video conference. Under the circumstances, presentation of his testimony in that manner was necessary to further an important public policy and the reliability of the testimony was otherwise assured. Affirmed.

Justice Hill delivered the opinion for the court.

Summary 2012 WY 68

Summary of Decision May 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: IN THE MATTER OF THE TERMINATION OF PARENTAL RIGHTS TO: ZMETS, ZCJS, ZPMS, and ZKMS, Minor Children, DMM, v. THE STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES

Docket Number: S-11-0212

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465689

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

Representing Appellant (Plaintiff/Defendant): Timothy C. Cotton, Timothy C. Cotton, PC, Casper, Wyoming

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Susan K. Stipe, Senior Assistant Attorney General. Argument by Ms. Stipe.

Guardian Ad Litem: Roxie Hensley, Hensley Law LLC, Laramie, Wyoming.

Date of Decision: May 16, 2012

Facts: Appellant, DMM, challenged the district court’s order terminating her parental rights pursuant to Wyo. Stat. Ann. §§ 14-2-309(a)(iii) and (a)(v). She claimed there was insufficient evidence to support the district court’s decision.

Issues: Appellant raised the following issues: Whether the Trial Court record contains clear and convincing evidence supporting termination under applicable Wyoming Statutes.

The Department of Family Services (DFS) presented the issues as follows: Can Mother, who failed to timely answer the petition to terminate parental rights, appeal the entry of a default judgment on the basis of sufficiency of the evidence?

Was there sufficient evidence presented in the default hearing and in the complaint to constitute clear and convincing evidence to support the termination of Mother’s parental rights?

The children’s guardian ad litem phrased the issue in a substantially similar manner.

Holdings: The district court’s order terminating Appellant’s parental rights was affirmed.

Justice Burke delivered the opinion for the court.

Summary 2012 WY 67

Summary of Decision May 15, 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: ALFRED LEE BALDES v. THE STATE OF WYOMING

Docket Number: S 11 0168

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465619

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

Representing Appellant (Plaintiff/Defendant): David Hooper and Katherine A. Strike, of Hooper-Strike Law Offices, LLC, Lander, WY. Argument by Ms. Strike.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; Terry L. Amitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Prosecution Assistance Program; Joshua B. Taylor, Student Director; and Gregory Asay, Student Intern. Argument by Mr. Asay.

Date of Decision: May 15, 2012

Facts: Alfred Lee Baldes (Baldes) appeals his conviction of two counts of third-degree sexual assault, contending insufficiency of the evidence and improper admission of W.R.E. 404(b) evidence.

Issues: Whether the evidence presented at trial was insufficient to sustain Alfred Baldes’ conviction, specifically there was insufficient evidence to prove that Mr. Baldes was in a position of authority and that sexual contact occurred, as required by W.S. § 6-2-303(a)(vi) and W.S. § 6-2-304(a)(iii), respectively. Whether the trial court erred and abused its discretion when, following an improper Gleason analysis, it allowed the introduction of W.R.E. 404(b) evidence, specifically the testimony of J.G., which was ultimately not offered for its proper purpose by the State.

Holdings: The Court concluded that ample evidence was presented to prove that Baldes was in a position of authority over and had sexual contact with the victim, K.S. Furthermore, the district court followed a proper Gleason analysis of the proffered Rule 404(b) evidence, and the evidence served the purpose for which it was admitted. Affirmed.

Justice Hill delivered the opinion for the court.

Summary 2012 WY 66

Summary of Decision May 10, 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: YALE PRESTON v. MARATHON OIL COMPANY and THOMAS SMITH

Docket Number: S-11-0166

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465579

Certified Question from the United States Court of Appeals for the Federal Circuit, The Honorable William C. Bryson, Circuit Judge

Representing Appellant (Plaintiff/Defendant): Philip A. Nicholas and Mitchell H. Edwards, Nicholas & Tangeman, LLC, Laramie, Wyoming. Argument by Mr. Edwards.

Representing Appellee (Plaintiff/Defendant): Mark R. Ruppert, Joanna R. Vilos and Tyler J. Garrett, Holland & Hart LLP, Cheyenne, Wyoming; Shane P. Coleman, Holland & Hart LLP, Billings, Montana. Argument by Mr. Ruppert.

Date of Decision: May 10, 2012

Facts: The United States Court of Appeals for the Federal Circuit certified a question regarding the validity of an assignment of intellectual property rights given by Yale Preston to Marathon Oil Company without any additional consideration other than continued at-will employment.

Certified Question: Does continuing the employment of an existing at-will employee constitute adequate consideration to support an agreement containing an intellectual property-assignment provision?

The answer to the question is “yes,” continuation of at-will employment is sufficient consideration for an agreement requiring assignment of intellectual property.

Chief Justice Kite delivered the opinion for the court.

Summary 2012 WY 65

Summary of Decision May 9, 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: RICKY D. MILLER and CHRISTOPHER L. GONZALEZ v. WYOMING DEPARTMENT OF HEALTH, TOM FORSLUND, Director, TOM JOHNSON, Chemical Testing Supervisor, JAMES L. MOORE, Laboratory Supervisor

Docket Number: S-11-0197

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465570

Appeal from the District Court of Laramie County, the Honorable Michael K. Davis, Judge
Representing Appellant (Plaintiff/Defendant): Cole N. Sherard, Wheatland, WY.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General, and Robin Sessions Cooley, Deputy Attorney General.

Date of Decision: May 9, 2012

Facts: After being separately cited and arrested for driving while under the influence of alcohol (DWUI) in violation of Wyoming law, Ricky D. Miller and Christopher L. Gonzalez petitioned the district court for review of agency inaction by the Wyoming Department of Health (WDOH). Miller and Gonzalez requested that the district court require the WDOH to retroactively decertify the chemical test operators (hereinafter “officers”) who had performed chemical tests of Miller’s and Gonzalez’s breath to determine the quantity of alcohol in their respective bodies. On motion by the WDOH, Tom Forslund, in his official capacity as director, Tom Johnson in his official capacity as chemical testing laboratory manager, and James L. Moore, in his official capacity as laboratory supervisor (collectively referred to as “Department”), the district court dismissed the “Petition for Judicial Review” on the grounds that Miller and Gonzalez lacked standing to bring the action and that the matter is not ripe for review. Miller and Gonzalez challenged the order dismissing their petition.

Issues: Miller and Gonzalez presented two issues for consideration: Is the Appellants’ Petition for Judicial Review, challenging the WDOH failure to decertify the officers’ certification to perform chemical analysis ripe for review by this Court? Do the Appellants have standing to petition the district court to order the WDOH to decertify these officers for failing to comply with [its] own administrative rules and regulations for chemical testing?

Holdings: Miller and Gonzalez lacked standing to bring the action set forth in their “Petition for Judicial Review.” Affirmed.

Justice Hill delivered the opinion for the court.

Summary 2012 WY 64

Summary of Decision May 4, 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: EARL D. WALLACE and NAWANA V. WALLACE v. PINNACLE BANK - WYOMING

Docket Number: S 11 0230

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465540

Appeal from the District Court of Hot Springs County, Honorable Robert E. Skar, Judge
Representing Appellant (Plaintiff/Defendant): Stephen R. Winship of Winship & Winship, P.C., Casper, Wyoming

Representing Appellee (Plaintiff/Defendant): Michael Messenger and Curtis Cheney of Messenger & Jurovich, P.C., Thermopolis, Wyoming. Argument by Mr. Cheney.

Date of Decision: May 4, 2012

Facts: Earl D. Wallace and Nawana V. Wallace (the Senior Wallaces) borrowed $15,789 from Pinnacle Bank - Wyoming (Pinnacle) to finance a vehicle the Senior Wallaces purchased for their son and his wife (the Junior Wallaces). Although the Senior Wallaces borrowed the money in their own names and agreed to make the payments on the loan, the collateral for the loan was the vehicle they bought for and titled in the Junior Wallaces’ names. To that end, the Junior Wallaces signed a Third Party Security Agreement pledging the vehicle as collateral.

The day following the loan transaction, the Junior Wallaces filed a bankruptcy petition. During the course of the bankruptcy, the bankruptcy trustee seized and eventually sold the vehicle to benefit the bankruptcy estate. The Senior Wallaces thereafter stopped making payments on the loan.

After making demand for payment, Pinnacle filed a complaint in district court seeking damages in the amount of the principal due on the note together with accrued interest, late fees, and attorney fees. The Senior Wallaces contended that because Pinnacle had not taken sufficient steps to protect the vehicle from seizure by the bankruptcy court, the Senior Wallaces no longer had any obligation to repay the loan. The district court rejected the defenses asserted by the Senior Wallaces and granted Pinnacle’s motion for summary judgment.

Issues: The Senior Wallaces presented the following issues on appeal:

1. Whether Appellee is barred from collecting from Appellants due to the application of the doctrine of avoidable consequences?

2. Whether Appellants’ loan obligation was discharged by a supervening frustration?

3. Whether Appellee’s impairment of the collateral securing the loan precludes it from collecting on the loan?

4. When Appellee transferred its lien to the Bankruptcy Trustee, was Appellee no longer the proper party in interest to collect on the loan obligation?

5. Whether the failure to provide Appellants with notice of the sale of the collateral should have barred Appellee’s suit?

Holdings: The Senior Wallaces are in default on their Loan Agreement with Pinnacle, and are not excused from performance by any of their asserted defenses. The Court affirmed the judgment of the district court in favor of Pinnacle and remanded for further proceedings consistent with this opinion, including a determination of the accrued interest and attorney fees and execution on the judgment.

Justice Golden delivered the opinion for the court.

Summary 2012 WY 63

Summary of Decision May 1, 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: FRANK J. JONES v. DAN ARTERY

Docket Number: S-11-0173

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465522

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

Representing Appellant (Plaintiff/Defendant): Frank J. Jones, pro se

Representing Appellee (Plaintiff/Defendant): Richard A. Mincer and Melissa R. Skorcz of Hirst Applegate, LLP, Cheyenne, Wyoming

Date of Decision: May 1, 2012

Facts: In June 2009, Dan Artery (Artery) was attacked by three Boston terriers that were under the care and responsibility of Frank Jones (Jones) and Amy Bates (Bates). Artery brought an action against Jones and Bates for injuries Artery sustained during the attack. On the morning of trial, Jones admitted one hundred percent liability for the injuries, and the district court dismissed Bates as a defendant. The remaining question of damages was then tried to a jury, and the jury awarded Artery damages in the amount of $13,059.83. Thereafter, the district court, over the objections of Jones, ordered Jones to pay Artery’s costs in the amount of $1,005.20. Jones appeals a portion of the awarded costs.

Issues: Whether the district court abused its discretion in awarding certain costs to Appellee.

Holdings: The Court affirmed in part and reversed in part. The district court abused its discretion in awarding $70.00 for witness subpoena service fees for the vacated November 2010 trial. The Court found no other abuse of discretion in the district court’s award, and remanded for entry of an order awarding costs consistent with this opinion.

Justice Golden delivered the opinion for the court.