Summary 2012 WY 140

Summary of Decision November 1, 2012


Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: BJ HOUGH, LLC, LEO L. GARCIA, MARY D. GARCIA, FRANCIS SHIVE, RAWLEY D. MARRS, DONELLA L. MARRS, NORMAN PRING, MARY JANE PRING, KATHLEEN SHEEHAN, KENNETH J. RACINE, RENA J. RACINE v. CITY OF CHEYENNE, a Wyoming municipal corporation and SWAN RANCH, LLC.

Docket Number: S-11-0180

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

Appeal from the District Court of Laramie County, Honorable Michael K. Davis, Judge.

Representing Appellants: Gay V. Woodhouse and Teri Cassidy* of Woodhouse Roden, LLC, Cheyenne, WY. Argument by Ms. Woodhouse.

Representing Appellees: Daniel E. White, City Attorney, for Appellee City of Cheyenne. Argument by Mr. White. No appearance entered for Appellee Swan Ranch.

*Order Allowing Withdrawal of Counsel entered March 14, 2012.

Date of Decision: November 1, 2012

Facts: After Swan Ranch was annexed by the City of Cheyenne (“the City”) in 2009, the Appellants herein filed a declaratory judgment action against the City alleging that the annexation was invalid under Wyo. Stat. Ann. § 15-1-402(a). Ultimately, the district court granted the City’s responding summary judgment argument on two claims and conducted trial on the third and final claim. Following trial, the district court found the annexation was proper. This appeal followed.

Issues: The Court restates the Appellants’ issues as a single question: Did the district court err in finding the annexation ordinance valid?

Holdings: The Court concluded that the district court’s decision upholding the Swan Ranch annexation was not clearly erroneous. There was no reason to disturb the decision on the basis of the evidence presented. The district court’s decision upholding the validity of the annexation statute under the facts of this case was affirmed.

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 2012 WY 139

Summary of Decision October 31, 2012

Justice Hill delivered the opinion for the Court. Dismissed.

Case Name: IN THE MATTER OF THE ESTATE OF JOHN H. HIBSMAN, JR., Deceased: JASON HIBSMAN v. ROBERT “BOB” MULLEN and TRUDY HIBSMAN, REBECCA HIBSMAN and EMILY HIBSMAN

Docket Number: S-12-0036

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

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

Representing Appellant: M. Gregory Weisz and Jodi D. Shea of Pence and MacMillan, LLC, Laramie, WY. Argument by Mr. Weisz.

Representing Appellee: Robert Mullen, of Casper, WY. No appearances entered for Trudy, Rebecca, and Emily Hibsman.

Date of Decision: October 31, 2012

Facts: Jason Hibsman (Appellant) appealed an order issued by the district court finding prima facie evidence for the Personal Representative of John H. Hibsman, Jr.’s estate to proceed in recovering “not less than $137,566.46” from Appellant.

Issues: Appellant states one issue:

1. Whether there was sufficient evidence presented at the September 9, 2011, hearing to find that [Appellant] concealed, embezzled, conveyed away and/or disposed of monies and other property of the Estate and whether the evidence presented at the September 9, 2011 hearing supported the judgment entered against [Appellant] in an amount not less than $137,566.46.

Holdings: Although a special proceeding occurred, no substantial right of Appellant’s was affected by the district court’s decision, and thus the Court lacked jurisdiction to hear the instant case on appeal. Dismissed.

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 2012 WY 138

Summary of Decision October 31, 2012

Judge Price delivered the opinion for the Court. Affirmed in part. Reversed and remanded in part.

Case Names: BIG-D SIGNATURE CORPORATION, a Wyoming Corporation v. STERRETT PROPERTIES, LLC, 3 CREEK RANCHES, LLC, Utah Limited Liability Companies, and MORRIS R. STERRETT, an individual;

STERRETT PROPERTIES, LLC, 3 CREEK RANCHES, LLC, Utah Limited Liability Companies, and MORRIS R. STERRETT, an individual v. BIG-D SIGNATURE CORPORATION, a Wyoming Corporation

Docket Number: S-12-0046; S-12-0047

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

Appeal from the District Court of Teton County, Honorable Dennis L. Sanderson, Judge.

Representing Big-D Signature Corporation: David F. DeFazio and Sarah E. Tollison of DeFazio Law Office, LLC, Jackson, Wyoming. Argument by Ms. Tollison and Mr. DeFazio.

Representing Sterrett Properties, LLC, 3 Creek Ranches, LLC, and Morris R. Sterrett: Andrea L. Richard of The Richard Law Firm, P.C. Jackson, Wyoming.

Date of Decision: October 31, 2012

Facts: This case arose out of a home construction contract between the contractors, Big-D Signature Corporation (Big-D) and two LLCs, Sterrett Properties, LLC and 3 Creek Ranches, LLC (LLCs). Morris Sterrett is the owner of the property on which the home was built. Big-D filed suit against the LLCs and Mr. Sterrett, who then counterclaimed. The district court entered a partial summary adjudication which was later partially vacated. Then a jury trial commenced, but a mistrial was declared. A partial summary judgment order followed. The remaining issues were disposed of by the district court under a sua sponte dismissal with prejudice. Both sides appealed.

Issues: In their briefs, the parties present multiple issues for appeal, and there is conflict as to whether some of those issues are properly before this Court. Rather than quote the issues as put forward in the briefs, this Court finds it simpler to restate the issues. There are six separate issues that need to be decided in these appeals.

1. Does this Court have jurisdiction to consider the Order Granting Plaintiff’s Motion for Partial Summary Judgment and Order on Issues Remaining for Trial even though it was not specifically mentioned in the notice of appeal? In other words, is that order subsumed into the final order of the case?

2. Did the district court properly grant summary judgment in favor of Big-D as to the original contract and Prime Contract Change Order (PCCO) Nos. 1 and 2, or was there a genuine issue of material fact making that ruling inappropriate?

3. Was the partial summary judgment entered against Mr. Sterrett as an individual or only against the LLCs?

4. Did the district court properly dismiss Big-D’s unjust enrichment claim against Mr. Sterrett? Namely, was there an adequate remedy at law under the contract making the claim inappropriate?

5. Did the district court properly dismiss Big-D’s claims under PCCO Nos. 3 and 4? Specifically, were they barred by the contract because they were unsigned?

6. Did the district court properly dismiss the LLCs’ and Mr. Sterrett’s claim for delay damages? Simply put, were they barred by the consequential damages waiver in the contract or because contractual requirements were not met in bringing the claim?

Holdings: The Court found that the Order Granting Plaintiff’s Motion for Partial Summary Judgment and Order on Issues Remaining for Trial entered by the district court was properly before the Court because it was subsumed into the final Order of Dismissal with Prejudice. They also found that there were no genuine issues of material fact as to the original contract and PCCO Nos. 1 and 2. The Order Granting Plaintiff’s Motion for Partial Summary Judgment and Order on Issues Remaining for Trial entered by the district court was affirmed. Furthermore, the Court found that Mr. Sterrett was individually liable under the contract and the PCCOs because his counsel conceded the point after referring to his affidavit in which he admitted it was his project.

Next, the Court found that there were facts under which Big-D could obtain relief under PCCO Nos. 3 and 4. On this issue, the district court’s Order of Dismissal with Prejudice was reversed and the case is remanded. On remand, Big-D will have the burden of proving that there was an oral agreement as to PCCO Nos. 3 and 4, and that both parties took action consistent with the oral agreement. As to the contention of the LLCs and Mr. Sterrett that some of the items in PCCO Nos. 3 and 4 were consequential damages barred by the contract and not escalation costs, the Court will also remand that issue to the district court.

Finally, the Court found that the damages claims of the LLCs and Mr. Sterrett are barred by the contract’s waiver of consequential damages. The district court’s Order of Dismissal with Prejudice was affirmed on this issue. Affirmed in part. Reversed and remanded in part.

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 2012 WY 137

Summary of Decision October 30, 2012

Judge Campbell delivered the opinion for the Court. Affirmed.

Case Name: LUKE EDWARD MICKELSON v. THE STATE OF WYOMING

Docket Number: S-11-0285

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

Appeal from the District Court of Albany County, Honorable Wade D. Waldrip, Judge.

Representing Appellant: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; David Westling, Appellate Counsel; Wyoming Public Defender Program. Argument by Mr. Westling.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jeffrey Pope, Assistant Attorney General. Argument by Mr. Pope.

Date of Decision: October 30, 2012

Facts: Luke Edward Mickelson appealed his conviction for unlawful possession with intent to deliver a controlled substance, contending the Court improperly admitted lay opinion testimony concerning Mr. Mickelson’s level of intoxication, and that he was denied effective assistance of counsel.

Issues: Mr. Mickelson presented two issues for this Court’s consideration:

I. Was trial defense counsel ineffective?

II. Did the testimony of two bartenders about intoxication invade the province of the trier of fact?

Holdings: The testimony of Ms. Tonille and Mr. Groshart regarding Mr. Mickelson’s level of intoxication was properly admitted and considered by the trial court. Further, Mr. Mickelson was not denied effective assistance of trial counsel, and his conviction was affirmed.

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 2012 WY 136

Summary of Decision October 30, 2012

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: JUAN CARLOS VALDEZ VENEGAS v. THE STATE OF WYOMING

Docket Number: S-12-0025

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

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

Representing Appellant: Bert T. Ahlstrom Jr., Cheyenne, WY.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jeffrey Pope, Assistant Attorney General.

Date of Decision: October 30, 2012

Facts: After being charged with driving while under the influence, Juan Carlos Valdez Venegas (Venegas) appealed a district court’s denial of his motion to suppress based upon his contention that the officer’s stop was based upon an improper anonymous informant. Additionally, Venegas asserted that there was insufficient evidence for a jury to convict him.

Issues: Venegas states three issues:

1. Whether the decision of the lower court to deny the motion to suppress of the defendant was in error, or constituted an abuse of discretion, and/or was arbitrary and capricious under the facts and circumstances of this case.

2. Whether there was sufficient evidence to convict the defendant of the charge of driving while under the influence, as applied to him, and under the facts and circumstances of this case.

3. Whether the trial court erred in denying [Venegas’s] motion for new trial in light of the insufficiency of evidence adduced at trial.

Holdings: The district court’s denial of Venegas’s motion to suppress is affirmed. Furthermore, there was substantial evidence for a jury to convict Venegas at trial. Affirmed.

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 2012 WY 135

Summary of Decision October 19, 2012


Justice Burke delivered the opinion for the Court. Affirmed in part. Reversed in part.

Case Names: THE WYOMING DEPARTMENT OF ENVIRONMENTAL QUALITY and YATES PETROLEUM CORPORATION AND MARATHON OIL COMPANY v. WYOMING OUTDOOR COUNCIL;

YATES PETROLEUM CORPORATION AND MARATHON OIL COMPANY v. WYOMING OUTDOOR COUNCIL and THE WYOMING DEPARTMENT OF ENVIRONMENTAL QUALITY

Docket Number: S-12-0002, S-12-0003

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

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

Representing Wyoming Department of Environmental Quality: Gregory A. Phillips, Attorney General; Jay A. Jerde, Deputy Attorney General; Michael Barrash, Senior Assistant Attorney General; Christopher M. Brown, Senior Assistant Attorney General. Argument by Mr. Barrash and Mr. Jerde.

Representing Yates Petroleum and Marathon Oil Company: Eric L. Hiser and Matthew Joy, Jorden Bischoff & Hiser, PLC, Scottsdale, Arizona. Argument by Mr. Joy.

Representing Wyoming Outdoor Council: Steve Jones, Jones and Maxon Law Office, Jackson, Wyoming.

Date of Decision: October 19, 2012

Facts: This appeal involved the issuance by the Wyoming Department of Environmental Quality (DEQ) of two general permits for the discharge of produced water from coal bed methane operations in northeastern Wyoming. Yates Petroleum Corporation and Marathon Oil Company (Yates and Marathon) appealed the DEQ’s decision to the Environmental Quality Council (EQC), challenging certain conditions of the two general permits. The Wyoming Outdoor Council (WOC) also sought EQC review of the DEQ’s decision to issue the general permits.

WOC claimed that general permits were rules, and had to be promulgated through the rulemaking procedures set forth in the Wyoming Administrative Procedure Act. The EQC rejected WOC’s claim, and WOC sought judicial review of that decision. The district court reversed the EQC, determining that DEQ was required to promulgate the general permits as rules. Because DEQ had not followed the statutory rulemaking procedures, the district court ruled that the general permits were void.

The district court also rejected the argument by Yates and Marathon that WOC was not entitled to seek EQC review of the DEQ’s decision to issue the general permits, but was limited to judicial review. The district court ruled that the Wyoming Environmental Quality Act did allow WOC to seek administrative review by the EQC. Yates and Marathon appealed.

Issues: The parties present a variety of statements of the issues on appeal. We think the issues are appropriately stated as follows:

Whether DEQ must employ the statutory rulemaking procedures for the issuance of general permits.

Whether WOC was entitled to administrative review by the EQC of DEQ’s decision to issue the general permits.

Holdings: The Court reversed the district court ruling that the DEQ was required to promulgate general permits as administrative rules, because they agreed with the EQC’s decision that the two general permits in question were issued following appropriate procedures. The Court affirmed the district court’s ruling that WOC was entitled to EQC review of the DEQ’s decision to issue these general permits.

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 2012 WY 134

Summary of Decision October 18, 2012

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: IN THE MATTER OF THE WORKER’S COMPENSATION CLAIM OF: LANCE TALBOT v. STATE OF WYOMING, ex rel., WYOMING WORKER’S SAFETY AND COMPENSATION DIVISION.

Docket Number: S-12-0016

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

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

Representing Appellant: Bernard Q. Phelan, Phelan Law Offices, Cheyenne, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Brenda S. Yamaji, Assistant Attorney General.

Date of Decision: October 18, 2012

Facts: The appellant received disability benefits due to a work-related injury. Those benefits were terminated as a result of the appellant’s incarceration. Following his release, the appellant applied for reinstatement of the benefits. Although that application was initially denied, benefits were awarded following a contested case hearing. At that time, the appellant filed one application for retroactive benefits for the period during which his prior claim was contested and two additional applications for separate periods of prospective benefits. The Office of Administrative Hearings (OAH) denied all three claims for failure to comply with the Wyoming Worker’s Compensation Act. The district court affirmed the denial of two of those applications and the appellant appealed those denials.

Issues: Did the hearing examiner err as a matter of law in determining that the Wyoming Worker’s Compensation Act requires a separate examination for each period of certification of Temporary Total Disability benefits?

Holdings: The Wyoming Worker’s Compensation Act requires a separate physical examination prior to each certified period of disability. Because a health care provider did not perform a separate examination for each of the appellant’s applications for TTD benefits, the Court affirmed the district court’s decision to deny benefits to the appellant.

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]