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Summary 2008 WY 125

Summary of Decision issued October 10, 2008

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

Case Name: State ex rel., Wyoming Workers’ Safety & Comp. Div. v. Baldwin

Citation: 2008 WY 125

Docket Number: S-07-0284

Appeal from the District Court of Sweetwater County, the Honorable Nen R. James, Judge.

Representing Appellant: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; Kristi M. Radosevich, Assistant Attorney General.

Representing Appellee: Donna D. Domonkos, Cheyenne, Wyomng.

Facts/Discussion: Appellee Baldwin suffered a work-related injury and temporary total disability benefits were approved. After receiving a partial impairment rating, Baldwin applied for permanent partial disability (PPD) benefits. The Division denied benefits on the ground that he could return to his previous employment. The Division does not dispute that Baldwin was injured or that his injuries were work-related, rather the Division takes exception to the hearing examiner’s award of PPD benefits.

Actively Sought Suitable Work: The evidence presented at the contested hearing supports the conclusion that Baldwin sought employment since his injury. The hearing examiner cited to an older version of the definition of “actively seeking work.” However, his application of the rule was consistent with the proper definition.
Return to Work at 95% of Pre-injury Wage: Baldwin was earning $17.00 per hour when he was injured. To qualify for PPD, he was required to show that he was unable to secure employment at a wage equal to 95% of his pre-injury pay. There was conflicting medical evidence concerning Baldwin’s physical limitations. It was the finder of facts’ duty to weigh the evidence and resolve such conflicts. The hearing examiner addressed the conflicting evidence when he discounted one doctor’s opinion because of its lack of detail and accepted the restrictions imposed by a second doctor. The Division also asserted that the hearing examiner failed properly to consider the vocational evaluation. The Court’s review of the hearing examiner’s determination that Baldwin could not return to employment at 95% of his pre-injury wage was supported by substantial evidence.

Holding: The hearing examiner’s findings that Baldwin was actively seeking suitable employment and that he was unable to return to work at a job paying 95% of his pre-injury wage were supported by substantial evidence and in accordance with the law.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/3zuwa8

[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 124

Summary of Decision issued October 10, 2008

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

Case Name: Dean v. State

Citation: 2008 WY 124

Docket Number: S-08-0017

Appeal from the District Court of Laramie County, the Honorable Peter G. Arnold, Judge.

Representing Appellant Bush: Diane M. Lozano, State Public Defender, PDP; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan, Senior Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny Lynn Craig, Assistant Attorney General.

Facts/Discussion: Appellant Dean was convicted of committing a third or subsequent battery against a household member. Dean contended the district court erred in permitting an expert witness to vouch for the credibility and truthfulness (or lack thereof) of witnesses who have been victims of domestic violence (and thus, also Mrs. Dean) as well as in permitting that same expert witness to provide improper character evidence concerning Mr. Dean. The only issue raised in the appeal is whether or not the district court erred in allowing the admission of Thurin’s testimony.
A qualified expert witness may testify about scientific, technical, or specialized knowledge if such testimony will help the jury understand the case. Thurin’s testimony was relatively brief. She acknowledged that she did not know Mrs. Dean and that she was not familiar with any part of the instant case. She opined that victims of domestic abuse frequently suffer from low self-esteem and believe they need the abuser to function in their day-to-day life. On average victims will be abused seven times before they leave the relationship. Victims may be kept isolated and economically deprived. They are sometimes threatened with losing their children or finances. Thurin spoke in generalities about the “cycle of violence” and qualified her descriptions with the caveat that every relationship is different. Mr. Dean objected to questions that Thurin answered about “truth telling” by victims of abuse. The Court quoted liberally from State v. Yusuf where the court in Connecticut stated that expert testimony properly may be admitted to assist the jury in understanding not whether the victim was credible on the witness stand but whether the victim’s conduct was consistent with the pattern and profile of a battered woman. The Court also made note of the case State v. Borelli where the expert testimony was a description of battered woman’s syndrome. In Arcoren v. United States, the appellate court considered a related issue that involved a recantation by a victim. The expert in that case testified as to battered woman syndrome and again the court ruled that it was scientific, technical or other specialized knowledge that would assist the jury to understand the evidence.

Holding: Because Ms. Thurin’s expert testimony did not purport to vouch for the credibility of Mrs. Dean, nor did it impugn the character of Mr. Dean, the Court found no error requiring reversal of Mr. Dean’s conviction

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/4bu2tp

[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 123

Summary of Decision issued October 10, 2008

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

Case Name: Alloway v. RT Capital, Inc.

Citation: 2008 WY 123

Docket Number: S-08-0042

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

Representing Appellant: Pro se.

Representing Appellee: Larry W. Harrington, Harrington Law Firm, PC, Casper, Wyoming.

Facts/Discussion: Appellant Alloway appealed from the district court’s order granting summary judgment in favor of RT Capital on an outstanding credit card account balance.
Alloway argued that summary judgment was improper because RT Capital supplied only a copy of the standard cardholder agreement rather than providing the original contract he signed. The problem with Alloway’s argument was that he admitted in his answer to the complaint that he entered into an agreement with Metris and used the credit card. He also did not assert in his affidavit that the cardholder agreement did not accurately reflect the terms of his account. Alloway also contested the summary judgment in favor of RT Capital because he did not have an agreement with them. The cardholder agreement provided the account could be sold, assigned or transferred without notice. Wyoming law is clear that when a contract states it is assignable, the Court will honor that term. Alloway contended that Capital’s representative, Herndon, did not have the personal knowledge necessary to provide the foundation for the credit card statements which established the balance due. The statements were attached to the affidavit provided by Herndon. The Court noted the statements were admissible under Rule 803(6) as a report kept in the course of regularly conducted business.

Holding: RT Capital presented a prima facie case in support of its motion for summary judgment. The affidavit contained all of the foundational requirements necessary to establish the admissibility of the statements under the business records exception to the hearsay rule. Alloway did not come forward with competent evidence admissible at trial showing there were genuine issues of material fact. His assertions were general and conclusory. The district court correctly granted summary judgment in favor of RT Capital.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/54oszm

[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 122

Summary of Decision issued October 9, 2008

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

Case Name: Catamount Construction v. Timmis Enterprises

Citation: 2008 WY 122

Docket Number: S-08-0023

Appeal from the District Court of Laramie County, the Honorable Edward L. Grant, Judge.

Representing Appellant: Raymond W. Martin of Sundahl, Powers, Kapp & Martin, Cheyenne, Wyoming.

Representing Appellee: Julie Nye Tiedeken of McKellar, Tiedeken & Scoggin, LLC, Cheyenne, Wyoming.

Facts/Discussion: General contractor Catamount filed suit against several of its subcontractors, alleging defective work on a house in Cheyenne. The subcontractors filed motions to dismiss, asserting that Catamount had no standing to maintain its suit because it was defunct as the result of bankruptcy. The district court granted the subcontractors’ motions.

Standing: One of the primary cases that the district court relied upon in reaching its decision was Liberty Trust Co. Employees Profit Sharing Trust v. Holt. The federal district court considered the issue of whether a Chapter 7 corporate debtor had an existence or life outside the bankruptcy estate. NLRB v. Better Building Supply Corp. reached the opposite conclusion and stated that a corporation is not entitled to discharge its debt in a liquidation proceeding under Chapter 7. The Court agreed with NLRB and others to state that corporate existence is a matter of state law. Bankruptcy does nothing to change the existence of a corporation. Even if the bankruptcy in the instant case had triggered a de facto dissolution of the corporation and even though Catamount had been administratively dissolved by the Wyoming Secretary of State, it could still sue and be sued.
Justiciable Controversy: There must be a violation of a genuine, existing right; the Court will not issue advisory opinions addressing future speculative matters. Catamount claims that its subcontractors including Crayton are ultimately responsible for the Steeles’ damages if they are proven.

Holding: The Court concluded that corporate existence was a matter of state law and under Wyoming law a dissolved corporation may sue and be sued. Therefore Catamount has standing to maintain their action.

Reversed and remanded.

J. Kite delivered the decision.

Link: http://tinyurl.com/3ppxa6

[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 121

Summary of Decision issued October 9, 2008

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

Case Name: Reece v. State

Citation: 2008 WY 121

Docket Number: S-07-0296

Appeal from the District Court of Niobrara County, the Honorable John C. Brooks, Judge.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.

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

Facts/Discussion: Appellant Reece challenged his probation revocation, stating that the terms of his probation failed to specify the required and the prohibited conduct and that the district court did not make adequate findings to justify the revocation.

Due Process: Revocation of probation is largely governed by W.R.Cr.P. 39 under which the State is required to establish the violation of the conditions of probation alleged in the petition by a preponderance of the evidence. The Court discussed their recent decision in Edrington noting that the district court did not abuse its discretion when it revoked Edrington’s probation pursuant to Rule 39 and reinstated his full sentence. The main message from Edrington is that violating a main condition of one’s probation is enough for revocation. Conditions of probation can be written and must be read in a commonsense way. Reece was fully aware that his successful completion of the WYSTAR program was a valid and essential requirement of his continued probation.
Findings of Fact: The Court found clear support in the record that the revocation was based upon Reece’s failure to complete the WYSTAR program which was an explicit condition of his probation. The district court considered Reece’s admission that he did not complete the program and the Petition for Revocation of Probation. The Court concluded it was not an abuse of discretion for the district court to revoke Reece’s probation.

Holding: After finding that Reece willfully violated the rules of his probation by failing to complete his inpatient treatment program, it was not a violation of his due process rights, not was it an abuse of discretion for the district court to conclude that his probation should be revoked. The factual basis for revocation was more than sufficient.

Affirmed.

J. Hill delivered the decision.

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

[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.]