Summary 2006 WY 39

Summary of Decision issued March 31, 2006

[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 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 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: Doherty v. State

Citation: 2006 WY 39

Docket Number: 05-24

Appeal from the District Court of Natrona County, Honorable W. Thomas Sullins, Judge

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Marion Yoder, Senior Assistant Public Defender.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Dee Morgan, Senior Assistant Attorney General.

Date of Decision: March 31, 2006

Issue: Whether the jury was properly instructed as to the elements of the crime of felony possession of methamphetamine and was the evidence sufficient to show Appellant intentionally and actually possessed methamphetamine. Whether the prosecutor committed misconduct during closing argument. Whether the district court abused its discretion when it denied Appellant’s motion for new trial. Whether Appellant received a fair sentencing hearing.

Holding: Sufficiency of the Evidence: Sufficiency of the evidence is reviewed according to whether a rational trier of fact could have found the essential elements of the crime were proven beyond a reasonable doubt. Three jury instructions and the verdict form were relevant to Appellant’s claim of error. Appellant did not object at trial to the instructions or the verdict form. The Court reviewed the record and found sufficient evidence from which the jury could have found beyond a reasonable doubt that Appellant possessed a controlled substance as charged. Methamphetamine was discovered inches away from Appellant after he made several unusual movements with his leg. The baggie containing the methamphetamine was warm to the touch. Appellant was under arrest and was aware he would be taken to jail giving him motive to dispose of the substance. Reasonable inferences from this evidence support the jury’s verdict.
Prosecutorial misconduct: Appellant claimed error occurred during closing arguments because the State: argued facts not in evidence; implied Appellant was a liar; misstated the law and impermissibly shifted the burden to Appellant to prove his innocence; and improperly testified to an ultimate fact. Appellant did not object to State’s closing argument at trial. A failure to impose a timely objection is treated as a waiver unless the prosecutor’s misconduct is so flagrant as to constitute plain error. The propriety of closing arguments are measured in the context of the entire argument and compared with the evidence produced at trial. The Court reviewed the prosecution’s closing argument and defense counsel’s efforts to utilize comments to benefit Appellant and was unable to find any prejudice to him and rejected his claim of plain error. The Court also rejected Appellant’s remaining allegations of prosecutorial misconduct because Appellant failed to properly cite to the record to enable the Court to identify the offending prosecutorial statements.
Motion for new trial: Decisions to grant or deny a motion for a new trial are reviewed under the abuse of discretion standard. During the hearing on the motion for a new trial, the district court determined that no prejudice resulted from the State’s question. The district court had instructed the jury to disregard any evidence that was ordered to be stricken. The Court presumed the jury followed the instructions. The trial judge was satisfied that no prejudice resulted and the Court did not second guess that determination on appeal.
Sentencing hearing: Sentencing decisions are reviewed under the abuse of discretion standard. The Court determined that Appellant was not deprived of a fair sentencing. The district court agreed to consider Appellant’s point of view regarding the comments in the PSI concerning the ASI. Appellant did not demonstrate that the district court based its decision upon that portion of the report to which he objected. Appellant failed to demonstrate that the PSI writer’s criticism of the ASI assessment impacted the sentencing decision. Appellant failed to demonstrate that the prosecutor’s comments amounted to manifest injustice. The district court is permitted to consider a defendant’s criminal background and his character when exercising its discretion in imposing a sentence. The district court did not ultimately accept the prosecutor’s recommended sentence of a lengthy prison sentence.

The decree of the district court was affirmed.

J. Burke delivered the opinion for the court.

Link to the case: http://tinyurl.com/mltln .

Shrink to Fit for Webpages, or How to Avoid the Right Margin Cutoff

The Wisconsin State Law Library sends out a monthly online newsletter with some great techie tips (in addition to lots of other good--but mostly Wisconsin-related--legal research information). Heidi Yelk wrote a particularly helpful tip for their April 2006 newsletter (http://wsll.state.wi.us/newsletter/0604.html) and has kindly given me permmission to re-post it for you all.

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Tech Tip in Brief -- Heidi Yelk
Shrink to Fit for Webpages, or How to Avoid the Right Margin Cutoff

Q: Printing from webpages should be easy, but lately I’ve been struggling with a problem I call, for lack of a better term, the right margin cutoff. This occurs when the page I am viewing looks normal on the screen, but when I print it, the last few characters of each line are missing, leaving incomplete words and phrases all the way down the right side of the page. Wasted paper and frustration ensue, usually in proportion to the size of the document. What can be done?

A: The most obvious solution is to comb the webpage for a “printer friendly” or “print this page” link. Many news outlets offer this option. It formats the text to fit an 8 1/2 x 11 page while also stripping away the banner ads and other unrelated content. But not all webpages have this feature.

Your next option might be to copy and paste the text from the webpage into a word processing program. And yet another option is to change the page setup to print using landscape, rather than portrait, orientation. But these last two solutions are really just workarounds that leave something to be desired.

There is something easier: “Shrink to Fit” for webpages. Several “alternative” web browsers, including Firefox and Netscape, currently offer this feature. As the name implies, text on webpages is scaled to fit the 8 1/2 x 11 page, completely eliminating the right margin cutoff. By accessing the “print preview” option in Firefox, users can easily control printing options and ensure that no text will be cut off the page.

This is an easy solution to a pesky problem, but it’s not yet available to the vast majority who use Internet Explorer. The good news is that the next version of IE (IE7) is currently in beta testing for Windows XP systems, and it will include Shrink to Fit printing as well as many other changes, presumably spurred by the success of Firefox.

Presentation Zen

The "Katie and Meg Road Show" is scheduled to be released in May on unsuspecting lawyers and librarians in Wyoming. Good presenters that we are, we've been researching how best to share our information. And, knowing that you must present too, we'd like to recommend Garr Reynolds' Presentation Zen blog for lots of great suggestions about how to deal with hecklers, PowerPoint prep and how/where to find quotes and great pictures. http://presentationzen.blogs.com/

Summary 2006 WY 38

Summary of Decision issued March 27, 2006

[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 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 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: Hoke v. Motel 6 Jackson and Accor North America, Inc.

Citation: 2006 WY 38

Docket Number: 05-132

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

Representing Appellant (Plaintiff): William R. Fix and Jenna V. Mandraccia of William R. Fix, PC, Jackson, Wyoming. Argument by Mr. Fix.

Representing Appellees (Defendants): James K. Lubing and Carter H. Wilkinson of James K. Lubing Law Office, Jackson, Wyoming. Argument by Mr. Lubing.

Date of Decision: March 27, 2006

Issues: Whether dismissal of Appellant’s cause of action and the setting aside of the default judgment against Appellees were proper where appellee Motel 6 was not properly served within the required statutory time period. Whether the dismissal of Appellant’s cause of action against Appellee Accor was proper where Accor was not served within the required statutory time period. Whether the dismissals with prejudice of Appellant’s causes of actions against Appellees’ Motel 6 and Accor were proper.

Holdings: A determination of the applicability of procedural rules and statutes including the statute of limitations, are questions of law and are reviewed de novo.
Appellant’s service to Motel 6: The summons filed by Appellant on Motel 6 was not signed by the Clerk of the Court or sealed by the Court as required by W.R.C.P. 4(b) and no complaint was attached to the summons. Motel 6 did not timely file its answer and default was entered. The district court entered a default judgment against Motel 6. The district court set aside the entry of default and default judgment against Motel 6 and dismissed Appellant’s claims against it because the summons did not comply with the requirements of W.R.C.P. 4(b). Any omissions of statements that are required under W.R.C.P. 4 are fatal and such omission prevents the trial court from obtaining jurisdiction of the defendant. At the hearing on the motions to set aside the default judgment and dismiss filed by Motel 6, Appellant acknowledged that the summons was defective and not in compliance and that the default judgment should be vacated. Appellant argued that despite the defective summons, Motel 6 chose to wait until after the time period set forth in W.R.C.P. 3(b) lapsed before challenging the summons. However, Appellant did not make this argument before the district court and on appeal it was not supported with citation or analysis of pertinent legal authority. With the exception of certain jurisdictional and fundamental issues, the Court does not consider arguments made for the first time on appeal, nor do they consider arguments not supported by citation to relevant legal authority.
Appellant’s service to Accor: The summons complied with the requirements of Rule 4(b), but Appellant was unable to effectuate service, so she filed a motion to enlarge the time for service of process pursuant to Rule 6(b). The district court granted that motion. The district court then granted Accor’s motion to dismiss based on the reasoning that Rule 6(b)(2) does not allow the Court to enlarge the sixty-day period set forth in W.R.C.P. Rule 3(b). The Court stated that the district court was correct to give effect to Rule 3(b) and to dismiss the suit against Accor because it was commenced outside the statute of limitations period. Appellant made an alternative argument that even if dismissal of her claims was proper the district court erred in doing so with prejudice predicated on the applicability of Wyo. Stat. Ann. § 1-3-118. The summons on Motel 6 was void and not just voidable. The action against Motel 6 was not commenced within the statute of limitations period and the saving statute is not applicable. Accordingly, the district court’s dismissal with prejudice was proper. Service upon Accor complied in all respects with the requirements of Rule 4. However it was accomplished 114 days after the filing of the complaint. Pursuant to Rule 3(b), when service is effectuated more than 60 days after the filing of the complaint, the action is deemed to have commenced on the date of service. Since the action against Accor was commenced after the expiration of the statute of limitations, it had not “commenced in due time” as required by the saving statute at Wyo. Stat. Ann. § 1-3-118.

The order of the district court dismissing Appellant’s claims against Appellees Motel 6 and Accor with prejudice was affirmed.

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

Link to case: http://tinyurl.com/kejd2 .

Summary 2006 WY 37

Summary of Decision issued March 24, 2006

[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 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 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: Reed v. Cloninger; Sheppard; Cox and Fisher, Inc.; Jones; Parker; Parker and Shoshone Irrigation District

Citation: 2006 WY 37

Docket Number: 05-74

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

Representing Appellants (Plaintiffs): Timothy M. Stubson of Brown, Drew & Massey, LLP, Casper, Wyoming.

Representing Appellees (Defendants): S. Joseph Darrah of Darrah, Darrah & Brown, PC, Powell, Wyoming for Appellees Cloninger and Sheppard, Co-trustees of the Carl M. Burgener Family Living Trust Fund; S.B. Freeman III of Bormuth & Freeman, LC, Cody, Wyoming, for Appellee Cox and Fisher, Inc.; Patrick J. Murphy and Jakob Z. Norman of Williams, Porter, Day & Neville, PC, Casper, Wyoming, for Appellee Jones; David B. Hooper of Hooper Law Offices, PC, Riverton, Wyoming, for Appellees Melvin C. and Janet L. Parker; and Michelle A. Pinkowski and Robert G. Busch of Godfrey and Lapuyade, PC, Englewood, Colorado, and Harriet M. Hageman of Hageman & Brighton of Cheyenne, Wyoming, for Appellee Shoshone Irrigation District. Arguments presented by Ms. Pinkowski and Messrs. Hooper and Freeman.

Date of Decision: March 24, 2006

Issue: Whether the district court erred in ruling that Appellants’ claims were time barred and finding that they had discovered their cause of action when they knew of water damage to their home, but did not have any knowledge of continuing seepage into their basement. Whether the district court erred by failing to recognize the continuing duty of Appellees and by refusing to hold that each new incident of water seeping into the property constituted a new cause of action for statute of limitations purposes.

Holding: When the Court reviews a summary judgment, they have before them the same materials as did the district court. The granting of a motion for summary judgment depends upon the dual finding that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. The record is examined from the vantage point most favorable to the party who opposed the motion, affording to that party the benefit of all favorable inferences that fairly may be drawn from the record.
The Court concluded that the district court erred in granting summary judgment because there were many genuine issues of material fact to be determined before the case could be finally resolved. These included: the identity of the source of the water which seeps into Appellants’ basement and the date of discovery. The record suggested the water could have come from leakage or seepage of water being delivered for irrigation from the irrigation works; waste water being collected and/or diverted by the irrigation mechanisms after irrigation; and a rise in the water table caused by the practice of irrigation. If the evidence indicates water invades the home as a result of a leakage or seepage from the Appellees’ irrigation system or their attempts to recapture or divert waste water, Appellants will be required to prove negligence in order to recover. If the evidence reveals that the original design is at fault, then there will be a question of fact as to when the cause of action was discovered. The discovery rule can have the effect of delaying the accrual of the cause of action in which the injury or damage is not immediately apparent. Appellants further claim a new trespass occurs each year during the irrigation season possibly constituting a continuing trespass or continuing tort.

The Court stated these numerous issues of material fact must be resolved before the appropriate statute of limitations may be applied. The order of the district court was reversed and remanded.

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

Link to the case: http://tinyurl.com/rozm9 .

Statutes at Large now available on GPO Access

The United States Statutes at Large (Volume 117, 108th Congress) is now available online from the U.S. Government Printing Office, with future volumes to follow as they become available. The Statutes at Large is the permanent collection of all laws and resolutions enacted during each session of Congress. Documents are available as ASCII text and Adobe Portable Document Format (PDF) files.

http://www.gpoaccess.gov/statutes/index.html

Summary 2006 WY 36

Summary of Decision issued March 22, 2006

[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 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 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: Knapp v. Landex Corp.

Citation: 2006 WY 36

Docket Number: 05-154

Appeal from the District Court of Campbell County, the Honorable Dan R. Price, III, Judge

Representing Appellant (Defendant): Kenneth DeCock, Plains Law Offices, LLP, Gillette, Wyoming.

Representing Appellee (Plaintiff): Tonia Hanson, Omohundro Law Office, Buffalo, Wyoming.

Date of Decision: March 22, 2006

Issue: Whether the district court erred in granting summary judgment in favor of Appellee.

Holding: Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The Court examines the record de novo, in the light most favorable to the party opposing the motion, affording the benefit of all favorable inferences to be drawn from the record.
The notice sent by Appellee to Appellant was not attached as an exhibit to Appellant’s answer or counterclaim and no other foundation was provided for the notice, so the Court could not properly consider its contents. The Court considered the pleadings, answers to interrogatories, and admissions on file, together with the affidavit filed by Appellee, to determine whether summary judgment was proper.
Appellee as the moving party was required to establish the absence of a genuine issue of material fact regarding the notice of default and the time provided to Appellant to cure the default. Appellee failed to meet that burden. Although its claim for relief depended on the contents of the notice, and it repeatedly referred to the notice, Appellee failed to provide a copy of the notice in support of its motion. In granting summary judgment, the district court did not directly address whether a genuine issue of material fact existed regarding the time provided to Appellant to cure the default. The district court held that the alleged May 21, 2003 extension of time to cure was void because it was not supported by consideration. The district court erred in reaching such a conclusion. The issue presented regarding the time to cure was whether Appellee waived its contractual right to hold Appellant in default on May 19, 2003, by the language it utilized in the April 17, 2003, notice.

The decree of the district court was reversed and remanded.

J. Burke delivered the opinion for the court.

Link to the case: http://tinyurl.com/johpf .