Summary 2010 WY 76

Summary of Decision issued June 9, 2010

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

Case Name: Taylor v. State, ex. Rel., Wyo. Workers’ Safety & Comp. Div.

Citation: 2010 WY 76

Docket Number: S-09-0170

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

Representing Taylor: Donna D. Domonkos, Cheyenne, Wyoming.

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

Facts/Discussion: Taylor appealed the district court’s order affirming the Medical Commission’s (Commission) determination that he failed to meet his burden of proving his 2007 chiropractic treatment was related to a 1991 work related injury.

Taylor was injured in 1991 when he was emptying water buckets while working as a housekeeper for Hillhaven Nursing Home in Rock Springs. The Division concluded the injury was compensable and allowed payment of his medical claims including chiropractic care. The Division continued to pay for Taylor’s chiropractic treatments until 1998 when it denied some claims on the ground that the treatment was not related to his 1991 injury. The OAH held a contested case hearing and concluded that it was related and until further medical evidence would warrant a change, he was entitled to receive medical benefits for continuing chiropractic care. Taylor was involved in a number of accidents in 1999 and 2002. Taylor continued to receive treatment paid by the Division until 2007 when it denied further payments. The Commission ruled that Dr. Davidson was not a credible witness because he had a poor working knowledge of the mechanism of the 1991 injury and the prior care and treatment Taylor had received in the interim years. The Commission also considered the report of an independent medical evaluation which concluded the 2007 chiropractic treatment was not related to the 1991 injury.
Taylor asserted the Commission committed an error of law when it considered any evidence that was or could have been presented at the 1998 contested case hearing. He claimed that collateral estoppel barred consideration of such evidence. The issue determined in 1998 was whether Taylor’s chiropractic treatment was related to the 1991 work injury. Since the Commission did not re-analyze the propriety of the 1998 contested case ruling, the issues were not identical and collateral estoppel did not bar the Commission from considering any of the evidence presented at the hearing. The records showed that the intervening accidents affected the same areas of the body as were being treated by Dr. Davidson.

Conclusion: Dr. Davidson was the only medical provider who provided evidence relating Taylor’s 2007 chiropractic treatment to his original injury. The Commission rejected the doctor’s opinion because he had an insufficient understanding of the original injury and the intervening events. Moreover, in direct contradiction of Davidson’s testimony that he only treated the areas of the original injury, Taylor testified that Davidson actually treated his whole spine, both shoulders and hips. Taylor does not contest any of the Commission’s findings of fact about the intervening injuries and Davidson’s credibility. Those aspects of the Commission’s decision, without reference to Taylor’s preexisting condition, are sufficient to uphold its decision.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/294ycog .

[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 75

Summary of Decision issued June 9, 2010

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

Case Name: Lake v. D & L Langley Trucking, Inc.

Citation: 2010 WY 75

Docket Number: S-09-0094

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

Representing Lake: Bernie Q. Phelan, Cheyenne, Wyoming.

Representing D&L Langley Trucking: Scott E. Ortiz of Williams, Porter, Day & Neville, PC, Casper, Wyoming.

Facts/Discussion: This was an appeal from a personal injury negligence case. Lake was involved in a car accident with Whited, employee of D&L Trucking. Lake alleged that Whited negligently attempted to pass him as he was making a left hand turn thereby causing the collision. The case was tried to a jury where the jury found Lake eighty-six percent at fault for the accident.

Sufficiency of the evidence: The Court found substantial and competent evidence supporting the jury’s findings, including that Whited never saw a turn signal on Lake’s pickup; Lake’s testimony that he was not paying attention and began his left turn without checking his mirrors; and the physical evidence that Lake turned into the tractor-trailer when the front of the tractor was already more than fifteen feet past the front of the pickup. Lake argued the accident would not have happened if Whited had not passed in an intersection and that because passing in an intersection violated state statute, the majority of fault must be Whited’s. The Court stated that although Whited passed at an intersection, it does not make him strictly liable for the accident. Lake’s culpability must also be considered. The jury calculated both party’s culpability as instructed. It then determined the fault of each party in regard to causation of the accident. The jury concluded that Lake bore more responsibility for the accident. Sufficient evidence supported the jury’s allocation of negligence.
Alleged surprise in closing argument: Lake also suggested a new trial was warranted because the comments in the closing argument of defense counsel regarding the application of § 31-5-205(a)(ii) constituted a surprise which ordinary prudence could not have guarded against. Given the strength of the evidence, the Court stated it was doubtful any different result would be obtained from a new trial.
Jury misconduct: Lake argued the misconduct was the rendering of an impermissible quotient verdict based upon an affidavit suggesting the jury agreed to average individual estimated fault. The Court agreed with the district court’s determination that it could not consider the affidavit because it violated W.R.E. 606(b). The rule is a codification of a common law rule that the testimony of a juror cannot be received to impeach the verdict in which he has concurred. Legislative history explicitly contradicts Lake’s argument that the juror affidavit in the instant case was admissible.
Lake also argued that because the jury requested a calculator and it did not award any damages, the jury could only have been using the calculator to compute an averaged percentage of fault for the respective parties. The fact the jury may have used a quotient process for determining fault does not warrant the presumption the jury ultimately rendered an impermissible quotient verdict. The validity of a quotient verdict is determined by whether the jury agreed beforehand to be bound by the result reached.

Conclusion: The district court did not abuse its discretion in denying Lake’s motion for a new trial. The evidence was sufficient to support the verdict. If there was any error on the part of defense counsel in closing argument as alleged by Lake, such error was not prejudicial under the facts and circumstances of the case. There was no evidence supporting Lake’s presumption that the jury rendered an impermissible quotient verdict.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/2c48z8g .

[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 74

Summary of Decision issued June 3, 2010

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

Case Name: Gentilini v. State

Citation: 2010 WY 74

Docket Number: S-09-0078

Appeal from the District Court of Washakie County, the Honorable Robert E. Skar, Judge.

Representing Gentilini: Diane Lozano, Wyoming State Public Defender; Tina Kerin, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.

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

Facts/Discussion: Gentilini challenged his conviction of attempted first degree murder. He contended the district court erred when it denied his motion for a judgment of acquittal. He also asserted that the jury instruction specifying the elements of attempted first degree murder was erroneous. Gentilini had a loud argument with his girlfriend and Ellsworth intervened to ask them to stop. Then Ellsworth and Gentilini had a short but heated dispute. The next day, Ellsworth and Gentilini had an altercation which included Gentilini threatening with and attempting to run over Ellsworth with his car. Ellsworth called police who were talking to him when he saw Gentilini driving nearby. When the police stopped Gentilini, he had a loaded rifle in his vehicle.

Motion for judgment of acquittal: Gentilini contended that the State had not presented sufficient evidence of a “substantial step” as required by § 6-1-1301. Gentilini sought support from Reilly v. State, Guy v. State and Cohen v. State. The Court stated the cases were of limited value. It reviewed the context of the possession of the loaded rifle. Most damning to Gentilini was his statement to the police that he “lost it, went home, got his gun and came back to kill him.” That unequivocal statement of intent to kill was relevant in evaluating whether the conduct satisfied the substantial step requirement.
Jury instruction: Gentilini suggested the jury instruction should have included a statement reciting which of his actions fulfilled the elements of each crime. The Court has never required such a statement in a jury instruction and he did not request such an instruction at trial.

Conclusion: Taken as a whole, a jury could conclude that the acts that Gentilini completed before being apprehended constituted a “substantial step” toward the crime of committing first degree murder. The district court adequately informed the jury of the elements of each crime and the circumstances that had to exist in order to find Gentilini guilty of those crimes.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/2frkcpj .

[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 73

Summary of Decision issued June 3, 2010

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

Case Name: Endris v. State

Citation: 2010 WY 73

Docket Number: S-09-0188; S-09-0189

Appeal from the District Court of Sheridan County, the Honorable John G. Fenn, Judge.

Representing Endris: Diane Lozano, Wyoming State Public Defender; Tina Kerin, Appellate Counsel; Kirk A. Morgan, Assistant Appellate Counsel.

Representing State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General.

Facts/Discussion: Endris pleaded guilty to a charge of driving while under the influence of alcohol. Consistent with a plea agreement, the district court imposed a sentence that allowed him to be released from jail to participate in an alcohol treatment program. Endris was informed that during his release, he would be considered both on probation and in official detention. Endris was released but failed to enroll in the treatment program. His probation was revoked and in a separate case, he was convicted of escaping from official detention.
Endris was sentenced under the “split sentences” statute which provides that a court may impose a split sentence of incarceration followed by probation. If probation must follow incarceration, then a district court imposing a “split sentence” may not impose probation and detention at the same time. The sentence was illegal because it subjected Endris to probation and detention at the same time.

Conclusion: Endris’s sentence was illegal because it placed him on probation and in detention at the same time for the same crime. That illegal sentence could not serve as a proper basis for revoking his probation so the Court reversed that decision. In addition, the illegal sentence could not serve as a proper basis for convicting him of escape from official detention so the Court reversed that conviction. The Court vacated the illegal sentence in the underlying conviction of driving while under the influence of alcohol and remanded to the district court for resentencing.

Reversed and remanded.

J. Burke delivered the decision.

Link: http://tinyurl.com/2fnwxtj .

[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 72

Summary of Decision issued June 3, 2010

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

Case Name: Dwan v. Indian Springs Ranch Homeowners Assoc., Inc.

Citation: 2010 WY 72

Docket Number: S-09-0064

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

Representing Dwan: David G. Lewis, Jackson, Wyoming.

Representing Association: Edward F. Hess, Hess, Carlman & D’Amours, LLC, Jackson, Wyoming.

Facts/Discussion: Dwan contended that the Court’s previous decision in the case entitled her to summary judgment on her claims for damages and attorney’s fees.

Claim for damages: The district court correctly interpreted the Court’s previous decision in the case in which the Court ordered that Dwan’s application to build the addition on her home be approved by the Association. While restrictive covenants are contractual in nature that does not necessarily mean that a homeowner is entitled to recover contract damages against the homeowners association. Because Dwan failed to establish that her claim for damages stated a viable cause of action, the district court did not err in granting the Association’s motion for summary judgment on the issue.
Claim for attorney’s fees: Wyoming follows the American rule that each party in a lawsuit bears its own attorney’s fees in the absence of an expressed contractual or statutory provision. The Court has also recognized that restrictive covenants may provide contractual authority for the recovery of attorney’s fees. The language in the CCRs did not entitle Dwan to recover attorney’s fees from the Association. The sentences quoted by Dwan allow the Association to recover attorney’s fees when it enforces the CCRs. They do not allow a homeowner like Dwan to recover attorney’s fees against the Association.

Conclusion: Dwan failed to establish that her claim for damages stated a viable cause of action. The language in the CCRs did not entitle Dwan to recover attorney’s fees from the Association.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/2cxgsyt .

[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 71

Summary of Decision issued June 1, 2010

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

Case Name: Comeau v. Nash

Citation: 2010 WY 71

Docket Number: S-09-0075

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

Representing Comeau: Sharon M. Rose of Lavery & Rose, PC, Evanston, Wyoming.

Representing Nash: A. Anthony Vehar of Vehar Law Firm, Evanston, Wyoming.

Facts/Discussion: Comeau challenged the district court’s factual findings and legal conclusions to the effect that Comeau breached a fiduciary duty he owed to Kenneth McGrath (McGrath). McGrath is deceased and Comeau is one of his heirs.

The principal parties, Comeau and Nash, were once married to each other. Nash is McGrath’s granddaughter. Comeau and McGrath remained close after Comeau and Nash’s divorce. Eventually, McGrath came to live with Comeau and his wife as his health deteriorated. Comeau’s wife was a nurse experienced in caring for the elderly. McGrath lived modestly so his family did not know of his actual wealth (approximately $300,000 in cash and he owned property as well). By the time of McGrath’s death, Comeau had come into possession of almost all of McGrath’s assets except for land in Florida. Comeau’s possession did not reflect the testamentary intentions evinced by McGrath’s last Will and Testament.
Comeau had been appointed as McGrath’s guardian after his doctor determined he was unable to make his own determinations and sign his own authorizations and forms.
The Court has held that courts should zealously scrutinize deed transactions between people in confidential relationships. The Court made note of McGrath’s experience as a banker. Because McGrath lived with and was dependent upon the Comeaus, the district court found that they had the opportunity to “control” McGrath. The district court held that Nash’s evidence proved an opportunity to control; a condition permitting subversion; activity on the part of Comeau and a benefit to Comeau. To the extent that Comeau contended that McGrath had made a gift of his assets to him, the district court concluded that Comeau failed to bear his burden of proof.

Conclusion: The district court’s finding that McGrath was susceptible to undue influence was not clearly erroneous. The district court’s finding that Comeau exercised actual control and undue influence over McGrath was not clearly erroneous. The district court’s conclusion that Comeau breached a fiduciary duty was not clearly erroneous

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/2e6axg8 .

[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 70

Summary of Decision issued May 28, 2010

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

Case Name: Lauderman v. State of Wyoming, Department of Family Services ex rel. JEN

Citation: 2010 WY 70

Docket Number: S-09-0100

Appeal from the District Court of Park County, Honorable Steven R. Cranfill, Judge

Representing Appellant (Respondent): Wendy Press Sweeny, Worland, Wyoming

Representing Appellee (Petitioner): Bruce A. Salzburg, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Elisabeth B. Lance, Assistant Attorney General

Representing Appellee Russell Nomura: David M. Clark, of Worrall & Greear, Worland, Wyoming

Issues: Whether the district court abused its discretion in calculating the parties’ respective incomes. Whether the district court abused its discretion in admitting certain letters illustrating respondent father’s efforts to find employment into evidence.

Holdings: Mother first objects to the district court’s finding that she was voluntarily unemployed. The evidence supports this finding. Mother had worked as a welder in 2007. After she was let go from that job, she decided to be a stay-at-home mother. Mother testified that there were welding jobs currently available in her town, which she was physically capable of performing. She wasn’t applying for them because she didn’t want to be away from her children. Given this testimony, it was well within the district court’s discretion to find Mother voluntarily unemployed.
Mother next objects to the amount of income imputed to her. In 2007, when she was working as a welder, she was earning $16.00 per hour. Mother testified that jobs were available at the time of the hearing and were paying $16.00 per hour. Mother’s own evidence supports the district court’s decision to impute to her a salary of $16.00 per hour.
Mother’s objection continues that the district court abused its discretion when it did not subtract any amount for federal income tax. The district court’s calculations show that it considered federal income tax. It determined the tax credits available to Mother exceeded the amount of federal income tax owed based on the imputed salary. In making this determination, the district court adopted figures provided by the DFS indicating the amount of earned income credit and child tax credit would be more than the federal income tax due. The district court’s reliance on the DFS calculation is reasonable under the circumstances.
Mother contends Father should be found to be voluntarily underemployed. The evidence shows that Father worked as a drywaller for 18 years. He owned and operated a drywall business in the Jackson area. When business declined in the Jackson area Father relocated to Worland. Despite his attempts to keep the business going, Father testified there was simply no work available. Father even looked for jobs in the oil field sector but was unable to find anything. Given the evidence, there is no credence in Mother’s contentions that Father isn’t looking hard enough or in a wide enough geographic scope.
Mother next takes issue with the district court’s computation of Father’s income. First, she argues the district court should have included in-kind benefits Father received from his business as income. Mother does not, however, identify any in-kind benefits received by Father.
Mother also argues the district court erred in not including certain draws Father took from his business in 2008 as income. Father’s accountant, however, explained that draws are unrelated to business income. Draws come from money already in the business that could have been earned at any time during the business’s existence. Father’s future income, therefore, would be limited to amounts earned during the current year. Under the circumstances, the district court did not abuse its discretion in not factoring the draws into Father’s income for child support purposes.
Finally, Mother argues the district court abused its discretion in using Father’s 2008 income instead of his 2007 income. The district court explained its decision in its order. It did not use Father’s 2007 income because it did not accurately reflect current economic conditions. The district court determined Father was not likely to be able to earn the same amount in the future. Given the well-documented collapse of the construction industry, as well as Father’s testimony as to how the economic downturn is affecting him personally, the district court was within its discretion in relying on Father’s 2008 actual income as more appropriately indicative of Father’s future earning capacity.
During the hearing, to support his testimony that he had been actively looking for work, Father offered multiple letters from contractors stating they had no work available for him. The district court admitted the letters into evidence over Mother’s several objections including a hearsay objection. The decision of whether or not to admit evidence lies within the discretion of the trial court. A trial court’s ruling will not be disturbed absent abuse of that discretion. As always, even if it is determined that the trial court erred in ruling on the admissibility of evidence, errors which are harmless will be disregarded. In the present action, the court need not consider whether the admission of the letters constituted error because, even if it did, Mother was not prejudiced by such introduction. The district court listened to Mother’s objections and admitted the letters over the objections stating “[t]he Court can give them the weight that it determines, so I don’t think that it’s going to be prejudicial.” There is no further indication that the district court relied on the letters, nor was it necessary for the district court to do so. Father testified extensively as to his continuing job search. The letters did nothing more than corroborate that testimony.

There was no abuse of discretion in the district court’s calculation of the parties’ respective incomes for child support purposes. The decision is reasonable under the circumstances. There was also find no harm in the introduction of letters corroborating Father’s extensive testimony on his attempts to find work.

Affirmed.

J. Golden delivered the opinion for the court.

J. Hill dissented: The proceedings that are included in the record on appeal are insufficient to disturb the status quo.

Link: http://tinyurl.com/27d4wq4 .

[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.]