Summary 2012 WY 7

Summary of Decision January 18, 2012

[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:  Schlinger v. McGhee

Citation:  2012 WY 7

Docket Number:  S-10-0185

URL:  http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465027

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

Representing Appellants (Defendants):  Scott P. Klosterman and Patrick J. Murphy of Williams, Porter, Day & Neville, P.C., Casper, Wyoming.  Argument by Mr. Klosterman.

Representing Appellees (Plaintiffs):  J. Denny Moffett of Moffett & Associates, PC, Jackson, Wyoming; and Heather Noble, Jackson, Wyoming.  Argument by Ms. Noble.

Date of Decision: January 18, 2012

Facts:  Appellant, acting as President of his construction company, entered into an oral agreement to lease his business and all associated equipment and land to the appellees.  Appellees formed an LLC as the entity to lease and operate the business. After approximately eight months, Appellant determined the appellees were not properly managing the business and terminated the oral lease agreement.  The parties dispute the financial implications of the termination.  After a bench trial, the district court determined Appellants owed Appellees and their LLC $206,875.70. 

Issues:  I) Whether the district court erred when it found, based on incomplete and unreliable bookkeeping spreadsheets, that Appellants owed Appellees $206,875.70;  A)  Whether the district court erred in its judicial accounting when it failed to credit Appellants with $312,319.12 of business expenses Appellants paid for Appellees in March, April and May 2004 B) Whether the district court further erred when it accepted the bookkeeper’s unreliable and incomplete “tie out ending balance” number of $206,875.70 as its judicial accounting award;  II) Whether the district court erred when it awarded pre-judgment interest to Appellees where the underlying debt was unliquidated and Appellees provided no notice of that required sum to Appellants; III) Whether the district court abused its discretion when it denied Appellants’ unjust enrichment claims; A) Whether the district court incorrectly rejected Appellants’ $10,800 claim for reimbursement for Appellant’s individual time and help in running the business from March – August, 2004; B) Whether the district court incorrectly rejected Appellees’ $48,000 claim for reimbursement for bonding two projects for Appellants; C) Whether the district court erred when it rejected Appellees’ $26,475 claim for reimbursement of one-half of the salary and bonus paid to an employee; and lastly, IV) Whether the district court’s judgment for $206,875.70 for Appellees should be reversed, and judgment entered for Appellants in the amount of $190,718.42.

Holdings:  The Court affirmed in part and reversed in part. 

As to issues I and II, the Court concluded the district court made a mistake in awarding damages based on speculative and inaccurate accounting that lacked reasonable certainty.  The testimony of both employed accountants indicated likely gaps in the accounting that led to the ending balance.  The judgment in favor of the appellees on this claim was reversed, rendering issue II moot.

As to the unjust enrichment claims (issues III), the Court found that Appellants had the burden of presenting sufficient credible evidence to support a judicial determination in their favor, and they did not do so. No evidence was presented as to the salaried employee’s involvement with any particular project, and there was also no evidence as to the profit margin on any particular project.  The judgment on this claim was affirmed.

As to issue IV, The Court found Appellants conclusion was based on the arguments they made under Issues I and III regarding their contract and unjust enrichment claims. Given the Court rejected those arguments, the Court did not choose to further address this issue.

  

In conclusion, the Court reversed the district court’s judgment on the appellees’ breach of contract claim and rejected Appellants’ argument that they should be awarded breach of contract damages.  The district court judgment on the unjust enrichment claims was affirmed.

   

J. Golden delivered the opinion for the court.

Summary 2012 WY 6

Summary of Decision January 12, 2012

[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:  Davenport v. State of Wyo., ex. rel., Wyo. Workers’ Safety and Compensation Div.

Citation:  2012 WY 6

Docket Number: S-11-0121

URL:  http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465013

Appeal from the District Court of Carbon County, The Honorable Wade E. Waldrip, Judge

Representing Appellant (Petitioner/Claimant):  George Santini of Ross, Ross & Santini, LLC, Cheyenne, Wyoming.

Representing Appellee (Respondent):  Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General.

Date of Decision: January 12, 2012

Facts:  In 2008-2009, Appellant sought worker’s compensation benefits for medical care and surgery to fuse vertebrae in his lumbar spine, claiming that his surgery was a direct result of 1984/1985 work related injuries. Appellant had a long history of back problems, including various complaints and injuries between 1986 and 2008.  Appellee (Division) denied benefits on the basis that his 2008-2009 back problems were not caused by work related injuries he suffered in 1984 and 1985.  After a contested case hearing, the Office of Administrative Hearings (OAH) upheld the Division’s denial of benefits, ruling that the procedure was necessitated by a preexisting congenital defect in Appellant’s lumbar spine and not his prior work related injuries.  Appellant petitioned for judicial review and the district court affirmed the OAH decision.  He timely appealed to this Court claiming the OAH erred by failing to recognize that an aggravation of a preexisting congenital defect is compensable and misapplied the second compensable injury rule.

Issues:  Appellant presented the following issues: 1) Whether the Hearing Officer erred by not recognizing that a material aggravation of a preexisting or congenital condition is a compensable injury and that the delayed effects of such aggravation are also compensable; and 2) Whether the second compensable injury rule was misapplied by the Hearing Officer.  Appellee stated the issue more generally: Whether substantial evidence supported the OAH’s decision that Appellant failed to prove a causal connection between his 1984 and 1985 work injuries and his 2008 lumbar symptoms and bi-level fusion surgery.

Holdings:  Affirmed.  The Court found that even had Appellant suffered an aggravation of his preexisting congenital condition in 1984/1985, that does not necessarily mean the aggravation caused the condition which required surgery in 2009.  Appellant was obligated to establish that causal connection by a preponderance of the evidence.  The evidence that Appellant worked at various jobs, was involved in several quite serious accidents and did not seek medical attention for his lower back for many years after the work related injuries, together with expert opinion, supported the hearing examiner’s conclusion that Appellant did not meet his burden of proving that his 2008-2009 treatment was the result of his 1984/1985 work related injuries.  The OAH decision is not against the overwhelming weight of the evidence and is, therefore, supported by substantial evidence in the record.  

C.J. Kite delivered the opinion for the court.

Summary 2012 WY 5

Summary of Decision January 10, 2012

[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: Hirshberg v. Coon; Menolascino v. Coon

Citation:  2012 WY 5

Docket Number: S-11-0113 & S-11-0115, S-11-0114 & S-11-0116

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465007

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

Representing Appellants (Proposed Intervenors), William Hirshberg and Dr. Mark Menolascino: Stuart R. Day, Keith J. Dodson, and Brian J. Marvel, Williams, Porter, Day & Neville, P.C., Casper, Wyoming.

Representing Appellee (Petitioner), Debra Davis: Elizabeth Greenwood and Inga L. Parsons, Attorneys at Law, Pinedale, Wyoming.

Representing Appellees (Petitioners), David Coon, Gail Jensen, Russell Magarity, and Susan Magarity: Peter F. Moyer, Esq., Jackson, Wyoming.

Date of Decision: January 10, 2012

Facts:  The owners of four (4) lots of real property filed a “Parcel Boundary Adjustment Application” with the County Planning Board, proposing to develop a single family residence on each parcel.  The Planning Board approved the application on the condition that the property would be divided into three parcels, not four.  The County Commission affirmed the Planning Board’s decision.

Appellees sought judicial review of the Commission’s decision.  Later that year and early in the next, Appellants purchased their respective properties.  Appellants were aware of the pending judicial review, but neither sought to intervene in the judicial review proceedings.  Ultimately, the reviewing district court reversed the decision of the Commission, ruling that the four lots had merged into one. 

The parties to the original administrative proceedings, and the judicial review thereof, declined to appeal this ruling. Appellants, however, filed a notice of appeal with respect to the district court’s decision.  They contemporaneously filed a motion to intervene in the district court proceedings for the sole purpose of pursuing the appeal therefrom.  The district court denied their motion to intervene, and Appellants appealed from this decision as well.  All four appeals were consolidated before this Court. 

Issues:  Appellants presented the following issues, 1) Whether the District Court Erred When It Denied Appellant’s Motion to Intervene; 2) Whether A Non-Party May Appeal From a Judgment, i.e., The District Court’s Order Reversing and Remanding Decision of the Board of County Commissioners of Teton County, Wyoming; 3) Whether a Non-Party May Intervene, Post-Judgment, for the Purpose of Appeal; 4) Whether the Board of County Commissioners for Teton County’s Decision Was Supported By Substantial Evidence and in Accordance with Law; 5) Whether the District Court’s Order Reversing and Remanding Decision of the Board of County Commissioners of Teton County, Wyoming Was Not Supported by Substantial Evidence, Was Contrary to Law, or Was Arbitrary and Capricious; 6) Whether The District Court Failed to Apply the Appropriate Standard of Review; 7) Whether the District Court Erred in Applying the Merger Doctrine; 8) Whether the District Court Erred in Holding the Subject Parcels of Real Property Merged into One Parcel of Real Property; and 9) Whether an Exception to the Merger Doctrine Applies to the Subject Parcels of Real Property.  Appellees generally relied upon the same issues but addressed only the first three, given their position that those issues are dispositive of the outcome of this case.

Holdings:  The Court affirmed Appeal Nos. S-11-0115 and S-11-0116 and dismissed Appeal Nos. S-11-0113 and S-11-0114. 

Due to its potentially dispositive nature, the Court initially considered whether the district court appropriately denied Appellants’ motion to intervene in the district court’s judicial review of the Commission’s agency action. The Court found that the district court appropriately based its holding on a consideration that the request to intervene occurred only after the final order had been entered and only after Appellants learned that the Commission was not intending to appeal the court’s final order.  The district court’s Order Denying Motion to Intervene was affirmed.

The Court further held that pursuant to Wyoming Rule of Appellate Procedure 2.07, an appeal is limited to a “party,” and accordingly, Appellants had no “right,” or ability, as nonparties, to appeal the final order from the district court. The Court dismissed the appeals of the Order Reversing and Remanding Decision of the Board of County Commissioners for lack of standing. 

Having so concluded, the Court did not address the underlying substantive merits of those appeals.

District Judge Waldrip delivered the opinion for the court.

Summary 2012 WY 4

Summary of Decision January 6, 2012

[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:  Board of Professional Responsibility, Wyoming State Bar v. Melchior

Citation:  2012 WY 4

Docket Number: D-11-0005  

URL:  http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465006

Order of Public Censure

Date of Decision: January 6, 2012

Upon a “Report and Recommendation,” filed December 22, 2011 by the Board of Professional Responsibility for the Wyoming State Bar, the Court, after a careful review of the Board of Professional Responsibility’s Report and Recommendation and the file, finds that the Report and Recommendation should be approved, confirmed and adopted by the Court, and that Respondent should be publicly censured for violating Rules 4.2 and 8.4 (d) of the Wyoming Rules of Professional Conduct.

Summary 2012 WY 3

Summary of Decision January 5, 2012

[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: Castillo v. State of Wyoming

Citation:  2012 WY 3

Docket Number: S-11-0157

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465002

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

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel.

Representing Appellee (Plaintiff): Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Prosecution Assistance Program, Joshua B. Taylor, Student Director, and Benjamin J. Sherman, Student Intern.

Date of Decision: January 5, 2012

Facts: This is an appeal from a district court order reimposing sentence after the appellant’s probation was revoked.  The appellant was charged with three felony counts of interference with a peace officer.  He pled not guilty to all three counts at arraignment.  Subsequently, however, he entered into a plea agreement whereby two counts were dismissed, he pled guilty to the third count, and the State agreed to recommend suspension of incarceration in favor of supervised probation.  After receiving a Presentence Investigation Report, the district court held a sentencing hearing, at the end of which it sentenced the appellant to the custody of the Department of Corrections for incarceration for a period of not less than three years nor more than six years.  The prison sentence was suspended pursuant to the split sentencing provision of Wyo. Stat. Ann. § 7-13-107 (LexisNexis 2011), and the appellant was ordered to serve 180 days in the county jail, to be followed by four years of supervised probation.

After the appellant served his jail sentence, and after he had been on supervised probation for some time, the State filed a Petition for Revocation of Probation.  The petition recited five alleged probation violations, four involving alcohol consumption and one based upon a larceny conviction.  During a hearing on the petition, the appellant admitted the violations.  The district court heard from the appellant and counsel, and then reimposed the original sentence, giving credit for time served.

Issues:  Whether the district court abused its discretion in reimposing sentence upon revocation of the appellant’s probation.

Holdings: After admitting five separate violations of his probationary conditions, the appellant wanted the district court to return him to supervised probation, in the ISP program.  In rejecting that request, the district court exercised its conscientious judgment by considering the factual and procedural history of the case, by considering the probation violations, by comparing the appellant’s present situation with his situation when he was first sentenced, and by listening to the ISP recommendation.  Finding no abuse of discretion, the Court affirmed.

Justice Voigt delivered the opinion for the court. 

Summary 2012 WY 2

Summary of Decision January 5, 2012

[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: Kruger v. State of Wyoming

Citation:  2012 WY 2

Docket Number: S-11-0133

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464993

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

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

Representing Appellee (Plaintiff): Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin A. Daraie, Assistant Attorney General.

Date of Decision: January 5, 2012

Facts: The appellant was charged with: (1) felony child abuse in violation of Wyo. Stat. Ann. § 6-2-503(a) and (2) a misdemeanor count of endangering children in violation of Wyo. Stat. Ann. § 6-4-403(b)(iv).  After a mental evaluation found him competent, the appellant entered a plea of guilty to felony child abuse.  Although the appellant entered a guilty plea to the misdemeanor charge at the same time, it was later dismissed pursuant to a plea agreement.  Also, a criminal citation relating to being under the influence of a controlled substance involving the same series of events was dismissed as part of the plea agreement.  At the scheduled sentencing the appellant sought to withdraw the guilty plea.  The district court denied the motion. 

Issues:  The appellant raises one issue:  Whether the trial court abused its discretion by denying [Appellant’s] motion to withdraw his guilty plea. The State raises two issues:  Whether the district court arbitrarily applied the “assertion of innocence” factor of the seven-factor Frame test, in deciding that the appellant could not withdraw his guilty plea, and whether that decision was otherwise reasonable. Whether the district court, by its actions and oral pronouncements, accepted the appellant’s guilty plea and deferred only its acceptance of the plea agreement, so that the appellant was entitled to withdraw his plea only upon a showing of just cause.

Holdings: In deciding whether the district court abused its discretion, the Court concluded that the trial court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious. The Court concluded that the district court was extremely patient, deliberate, careful, and reasonable in its handling and consideration of the appellant’s motion to withdraw his guilty plea.  The Court also found that the district court could reasonably conclude as it did, and the Court concluded that the decision was not arbitrary or capricious. The appellant also failed to carry his burden as noted above.

The Court found that Wyoming has not chosen to follow the federal provision cited by the appellant, as Rule 11(d)(1) of the Federal Rules of Criminal Procedure is not found in the Wyoming Rules.  The Wyoming rule applies a standard of “any fair and just reason” to the withdrawal of a guilty plea before sentencing, as opposed to the federal standard of “any reason or no reason at all.”  The Court stated that a defendant has no absolute right to withdraw a plea of guilty before sentence is imposed, and where the strictures of W.R.Cr.P. 11 have been met, and the appellant intelligently, knowingly, and voluntarily entered into his plea of guilty, the district court’s decision to deny such a motion is within its sound discretion.

The Court affirmed the district court’s denial of the appellant’s motion to withdraw his guilty plea to felony child abuse.

Justice Hill delivered the opinion for the court. 

Summary 2012 WY 1

Summary of Decision January 4, 2012

[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:  Walker v. State of Wyoming

Citation:  2012 WY 1

Docket Number: S-11-0103

URL:  http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464983

Appeal from the District Court of Campbell County, The Honorable Michael N. Deegan, Judge

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

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

Date of Decision: January 4, 2012

Facts:  The appellant’s ex-wife was shopping at Wal-Mart with her daughter. She was talking to a sales clerk when her daughter noticed the appellant approaching.  The two then heard the appellant say something to the effect of, “Wow, you must be making a lot of money these days.”  He stood approximately four feet away from his ex-wife when he made this comment.  Mother and daughter quickly left the store.  As a result of this encounter, the appellant was charged with felony stalking in violation of Wyo. Stat. Ann. § 6-2-506(b)(e)(iv). 

Prior to trial, the district court ruled that fourteen incidents of alleged harassment by the appellant directed at his ex-wife over the previous four years would be admitted into evidence pursuant to W.R.E. 404(b).  At trial, the jury was given conflicting and misleading instructions with regard to the State’s burden of proof as to the elements of the crime.  After deliberating, the jury found the appellant guilty of felony stalking.  The appellant now appeals that conviction.

Issue: Did plain error result when the trial court instructed the jury that evidence of acts comprising a course of conduct of harassment admitted as W.R.E. 404(b) uncharged misconduct need only be proved by a preponderance of the evidence where a course of conduct of harassment is an element of the charged offense?

Holdings:  The Court found that the elements instruction correctly indicated that each element of the crime of stalking, including a course of conduct, must be proven beyond a reasonable doubt for conviction.  However, the district court admitted the incidents comprising the course of conduct as W.R.E. 404(b) uncharged misconduct evidence, rather than as evidence of the charged crime, and instructed the jury that to consider such incidents, the acts must be established by a preponderance of the evidence.  For that reason, the Court reversed and remanded for a new trial. 

J. Voigt delivered the opinion for the court.