Summary 2007 WY 80

Summary of Decision issued May 11, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note 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.]

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

Case Name: WSP, Inc., Trefren and Trefren Trust v. Wyoming Steel Fabricators and Erectors, Inc.

Citation: 2007 WY 80

Docket Number: 06-192

Appeal from the District Court of Laramie County, the Honorable Nicholas G. Kalokathis, Judge

Representing Appellants (Plaintiffs): James R. Salisbury and Sean C. Chambers, of Riske, Salisbury & Kelly, PC, Cheyenne, Wyoming. Argument by Mr. Salisbury.

Representing Appellee (Defendant): Ryan J. Schwartz, of Williams, Porter, Day & Neville, PC, Casper, Wyoming; John E. Masters, of Hathaway & Kunz, PC, Cheyenne, Wyoming. Argument by Mr. Schwartz.

Issues: Whether the district court erred in finding a breach of the covenant not to compete. Whether the district court erred in awarding damages.

Facts/Discussion: WSP, Trefren and the Trefren Trust appealed from a judgment entered in favor of Wyoming Steel Fabricators and Erectors, Inc. (WSFE).
Standard of Review: The Court reviews the district court’s finding that WSP breached the non-compete covenant as a bench trial finding of fact, upheld unless it is clearly erroneous.
Breach: In addition to refraining from direct competition in a general sense, WSP expressly promised not use the Wyoming Steel Products name in any manner that directly competed with WSFE’s business. In purchasing the business, WSFE desired the goodwill of “Wyoming Steel Products” but WSP did not want to part with the name. This was the apparent basis for the non-compete agreement and the reason separate consideration of $10,000 was given. After further review of the Purchase Agreement and the record, the Court stated the district court’s finding that WSP breached the covenant not to compete was not clearly erroneous.
Damages: The district court determined that WSFE was entitled to $4200 as damages for WSP’s breach. In Wyoming, damages must be proven with a reasonable degree of certainty. The record was clear that WSFE did not prove the four elements of lost profits as listed in Hopper. However lost profits are only one measure of damages. The district court relied on WSFE’s expectation interest in performance of the agreement. The Court found there was sufficient evidence to value WSFE’s expectation interest in performance of the non-compete covenant.

Holding: WSFE paid an additional $10,000 for the non-compete agreement for a period of three years. The terms fairly reflect the value to WSFE of full performance of the non-compete covenant and provided the district court with a reasonable, ascertainable measure of the damage caused by WSP’s failure to meet that expectation.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/yu4rvv .

Summary 2007 WY 79

Summary of Decision issued May 11, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note 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.]

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

Case Name: Chevron, USA v. Dep’t of Revenue, State

Citation: 2007 WY 79

Docket Number: 06-56

W.R.A.P. 12.09(b) Certification from the District Court of Uinta County, the Honorable Dennis L. Sanderson, Judge

Representing Appellant (Petitioner): William J. Thomson II, Randall B. Reed, and Brian J. Hanify of Dray, Thomson & Dyekman, PC, Cheyenne, Wyoming. Argument by Mr. Thomson.

Representing Appellee (Respondent): Patrick J. Crank, Wyoming Attorney General; Michael L. Hubbard, Deputy Attorney General; Martin L. Hardsocg, Senior Assistant Attorney General; and Cathleen D. Parker, Senior Assistant Attorney General. Argument by Ms. Parker.

Issues: Chevron: Whether comparable processing agreements exist for Chevron’s Carter Creek plant that satisfy the statutory elements of Wyo. Stat. Ann. § 39-14-203(b)(vi)(B). Whether the selection of the comparable value method failed to determine the fair market value for Chevron’s Carter Creek production at the “point of valuation.” Whether Chevron was denied its right to equal and uniform tax treatment in violation of the Wyoming Constitution because the DOR allowed other similarly situated taxpayers to use the proportionate profits methodology which yielded a far lower taxable value for those other taxpayers. DOR: Whether the SBOE correctly affirmed the DOR’s selection of the comparable value method as the method which most accurately reflected the taxable fair market value of Chevron’s 2000-02 Carter Creek production. Whether the SBOE correctly affirmed the DOR’s application of a comparable value processing fee of 25% of the product paid in-kind, the maximum fee paid by any producer regardless of any circumstances to value Chevron’s 2000 and 2001 Carter Creek production. Whether the SBOE correctly determined that Chevron failed to carry its burden of proof when it failed to offer any evidence that its application of proportionate profits reflected the most accurate fair market value for taxation purposes as required by Wyo. Stat. Ann. § 39-14-203(b)(viii). Whether the SBOE correctly affirmed the DOR’s rejection of Chevron’s application of proportionate profits which resulted in processing deductions far in excess of the actual costs to process and which bore no relationship to actual processing costs. Whether the SBOE correctly determined that Chevron’s due process rights were not violated.

Facts/Discussion: The Department of Revenue (DOR) used the comparable value method set forth in Wyo. Stat. Ann., § 39-14-203(b)(vi)(B) to establish the value of natural gas produced by Chevron and processed at its Carter Creek processing plant in 2000 and 2001. The district court certified this case to the Court pursuant to W.R.A.P. 12.09(b). When an appellant challenges an agency’s findings of fact and both parties submitted evidence at the contested case hearing, the Court examines the entire record to determine if the agency’s findings are supported by substantial evidence. The Court reviews an agency’s conclusions of law de novo.
Comparable Value: The parties’ disagreement in applying the comparable value method is focused on determining an appropriate deduction for the processing fee. Chevron argues the Court must interpret the statutory term “comparable.” The Court’s rules on statutory construction focus on discerning the legislature’s intent. The Court noted there were many similarities between the instant case and BP America Co. v. Department of Revenue. The intent of the legislature was for the DOR to locate reliable information about processing fees paid by other taxpayers in similar situations and make reasonable inferences from that information to determine a particular taxpayer’s processing costs. The Court recognized that the maximum processing fee charged under any agreement was 25% which was the processing deduction used by the DOR in calculating the fair market value of Chevron’s Carter Creek gas. The record contains substantial evidence to support the DOR’s selection of the comparable value method and the 25% processing fee deduction.
Chevron failed to meet its burden of proving that the DOR’s valuations for production years 2000 and 2001 did not reflect the fair market value of its Carter Creek natural gas production. The Court’s duty was to determine whether substantial evidence existed to support the manner in which it was used. The record was more than sufficient to support the DOR’s choice and application of the comparable value method.
Equality and Uniformity in Taxation: The DOR directed all producers to use the comparable value method to value their production unless there were no comparables. Simply because the DOR was unable to apply the comparable value methods to a few producers does not mean it was inequitable to apply the method to Chevron where there were comparables for the Carter Creek plant.

Holding: Substantial evidence existed in the record to support the SBOE decision that the DOR properly chose the comparable value method for Chevron’s Carter Creek production for 2000 through 2002 and Chevron has not demonstrated any errors in application of the comparable value method for production years 2000 and 2001. Moreover, Chevron failed to demonstrate that it was subjected to inequitable or non-uniform taxation in violation of the equal protection rights guaranteed in the Wyoming and United States constitutions.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/ysbud9 .

Summary 2007 WY 78

Summary of Decision issued May 11, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note 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.]

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

Case Name: Ewing v. State

Citation: 2007 WY 78

Docket Number: 06-19

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

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel Argument by Ms. Domonkos.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Cathleen D. Parker, Senior Assistant Attorney General. Argument by Ms. Parker.

Issues: Whether the district court erred in refusing to give an instruction on the meaning of the word “drawn”. Whether there was sufficient evidence presented at trial on the charge of aggravated assault to support the jury’s guilty verdict.

Facts/Discussion: Ewing was convicted of interference with a peace officer under Wyo. Stat. Ann. § 6-5-204(a) and aggravated assault and battery with a drawn weapon under Wyo. Stat. Ann. § 6-2-502(a)(iii).
Ewing returned home on January 31, 2004 to learn that police had been at the house earlier that evening with a warrant for his arrest. His housemate became upset with him and called police to remove him from the home. Ewing went to a shed on the property. Police arrived, they approached the shed and ordered Ewing to come out, he refused and when the officers tried to open the shed, he warned them he would shoot them and then himself. Hours later, after pepper spray was launched into the shed by SWAT officers, Ewing emerged.
Jury Instruction: The Court will not find reversible error in a trial court’s instructions to the jury unless the instructions do not correctly state the law, or the instructions, taken as a whole, do not sufficiently cover the issues presented at trial. A trial court is under no obligation to define a statutory term unless the term carries a technical connotation different from its everyday meaning. Ewing did not show that the word “drawn” needed further definition.
Sufficiency of the Evidence: When there is a claim of insufficiency of the evidence, the Court determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In Hart v. State, the Court previously found that sufficient evidence existed to uphold a conviction for aggravated assault where a defendant did not point the gun at the victim. Ewing’s argument that he could not be convicted because no one saw him with the rifle failed because the law does not require direct proof. The jury could reasonably have inferred from the circumstantial evidence presented that the deadly weapon found with Ewings’ possessions at the end of the standoff had been “drawn” while the police were under threat.

Holding: The district court properly refused Ewing’s instruction defining the word “drawn” in the aggravated assault statute, and there was sufficient evidence to support his conviction under § 6-2-502(a)(iii).

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/yuoo76 .

Summary 2007 WY 77

Summary of Decision issued May 11, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note 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.]

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

Case Name: Plymale f/k/a Donnelly v. Donnelly

Citation: 2007 WY 77

Docket Number: 06-219

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

Representing Appellant (Defendant): Patrick M. Hunter, Casper, Wyoming.

Representing Appellee (Plaintiff): Devon O’Connell Coleman, Pence and MacMillan, Laramie, Wyoming.

Issues: Mother: Whether the district court improperly calculated the abatement allowable to Father. Father: Whether Mother failed to file a timely objection to the claim for abatement and as such should this appeal be dismissed. Whether the issue of proper abatement in this matter is barred by collateral estoppel and as such should this appeal be dismissed. Whether it was clearly erroneous for the district court to permit abatement in child support in the amount of $2,310.00 due to Father’s status as the summer custodial parent.

Facts/Discussion: Mother challenged an order granting Father’s claim for abatement following the summer of 2005.
Failure to Timely Object: Father argued the objection was untimely and the appeal should be dismissed. The Court disagreed. Father ignored the stipulated order which acknowledged that Mother had not yet filed a separate objection but indicated she was deemed to have objected.
Collateral Estoppel: Each time Father has physical custody of his children for more than 15 consecutive days, he is permitted by statute, to file a claim for abatement. Mother is permitted to object to the claimed abatement. An order is then entered granting or denying the abatement. The amount can be contested each time a new claim is made. It is inappropriate to apply the doctrine of collateral estoppel because a prior abatement for a different time period was approved. Mother timely appealed from the order granting Father’s 2005 claim. The contested matters have not been fully litigated and as a result, Mother is not estopped from challenging the 2005 order.
Calculation of Abatement: This case rests primarily on the proper interpretation of the child support abatement statute which presents a question of law, which the Court reviews de novo.
Wyo. Stat. Ann. § 20-2-305(a) sets forth the amount of time a non-custodial parent must have children in his care before a proper claim for abatement may be made. Father did not meet the requisite amount of time to properly claim abatement. It was therefore improper to abate his support after August 8, 2005. The Court has not previously construed the meaning of “unless otherwise ordered by the court” in the operation of Wyo. Stat. Ann. § 20-2-305(a). When the abatement statute is read in pari materia with the child support guidelines, it becomes clear that the discretion of the district court regarding the proper amount of abatement comes into play during the proceedings involving the establishment or modification of support. The proper interpretation of the statute is that child support shall abate by ½ of the daily support obligation unless otherwise ordered by the court in the original support order or a modification of that order. The district court retains discretion to abate support in an amount greater or lesser than ½ of the daily support obligation depending on what is deemed appropriate within proceedings establishing or modifying a support order. If a support order fails to address abatements, the default statutory provision applies.
The Court found unpersuasive Father’s argument that to give effect to the language that declares him custodial parent for the summer months, his full support obligation should be abated or in the alternative, Mother should pay support during that time. If the district court had intended to relieve Father of his support obligation for the summer months, it could have provided that relief in the original decree or in the subsequent modification.

Holding: The district court erred by abating Father’s child support obligation in contravention of the allowable time period contained in Wyo. Stat. Ann. § 20-2-05(a). The district court also erred by granting an abatement greater than ½ of the daily support obligation due. The Court reversed the district court’s order granting the abatement for the year 2005 and remanded for entry of an order consistent with the opinion.

Reversed.

J. Burke delivered the decision.

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

Summary 2007 WY 76

Summary of Decision issued May 10, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note 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.]

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

Case Name: Martin v. State

Citation: 2007 WY 76

Docket Number: 05-263

Appeal from the District Court of Campbell County, the Honorable John R. Perry, Judge

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Coounsel; Diane Courselle, Faculty Director, UW Defender Aid; Vincent P. Schutte and Daniel B. Kelley, Student Interns. Argument by Mr. Kelley.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and James Michael Causey, Assistant Attorney General. Argument by Mr. Causey.


Issues: Whether the district court erred by allowing hearsay accounts of uncharged misconduct evidence, when the victim was available and testified at trial. Whether the form of the evidence and the uses to which the court told the jury the evidence could be put improper. Whether the district court erred in allowing a mental health expert to invade the province of the jury and exceed her expertise by letting her testify to her semantic interpretation that Martin’s statements showed he intended to kill his wife.

Standard of Review: The district court’s ruling regarding the admission of evidence will not be disturbed absent a finding of a clear abuse of discretion. The burden is on the appellant to establish the district court abused its discretion. If the Court holds the district court erred then they must determine whether the error affected any of Martin’s substantial rights or whether the error was harmless.
Facts/Discussion: Martin was found guilty of attempted second-degree murder in violation of Wyo. Stat. Ann. §§ 6-2-104 and 6-1-301.
W.R.E. 801(d)(1)(B): The Court reviewed the four requirements that must be satisfied before a prior consistent statement will be properly admissible and applied them to the testimony given by Officer Hloucal and Officer West. The Court found that Officer Hloucal’s testimony was properly admitted. The testimony given by Officer West caused concern but the Court found the error to be harmless because the testimony was supplemented by the admissible testimony from Officer Hloucal.
Limiting Instruction: The district court ruled that some evidence of uncharged domestic violence would be admissible thus they determined that a limiting instruction was appropriate. The record also showed that defense counsel failed to object to the instruction that Martin claimed as error. The district court has wide latitude in instructing the jury and since the instruction correctly stated the law the Court found no reversible error. In addition, the doctrine of invited error prohibited Martin from raising error on appeal as a result of his defense counsel stating he had no changes or corrections after reviewing the instruction. The argument provided by Martin was only speculative about how he may have been prejudiced which was insufficient to establish prejudice or reversible error.
Expert Testimony: After an extensive review of the record, the Court agreed the testimony given by Dr. Buckwell was inappropriate and not presented to merely establish the facts she relied upon in evaluating Martin’s mental status. Although troubled by the testimony, the Court stated any error was harmless because the Court felt the jury considered all the expert testimony presented at trial and was instructed that it was not required to accept any expert’s opinion as conclusive.

Holding: The Court stated that while errors were made in the trial of the case, a review of the complete record convinced them that Martin received a fair trial and the verdict would remain unchanged had the errors not occurred.

Affirmed.

J. Hill delivered the decision.

C.J. Voigt, dissent: He expressed his concern that there were too many errors for the Court to know that Martin received a fair trial including: problems with the two defense theories presented by Martin; the district court’s limiting instruction concerning the uncharged misconduct evidence that ignored Gleason v. State; Officer White’s hearsay testimony that was admitted to prove that Martin specifically intended to kill his wife; and Dr. Buckwell’s testimony that Martin acted with specific intent to kill that was inadmissible.

Link: http://tinyurl.com/yqgcx5 .

Summary 2007 WY 75

Summary of Decision issued May 10, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note 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.]

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

Case Name: Colorado Casualty Ins. Co. v. Sammons

Citation: 2007 WY 75

Docket Number: 06-239

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

Representing Appellant (Defendant): John A. Coppede of Hickey & Evans, LLP, Cheyenne, Wyoming; and Brian J. Spano and Stephen E. Csajaghy of Rothgerber Johnson & Lyons LLP, Denver, Colorado. Argument by Mr. Spano.

Representing Appellee (Plaintiff): James W. Britt, Chris A. Mattison, Cathleen H. Heintz, and Alan Epstein of Hall & Evans, LLC, Denver, Colorado. Argument by Ms. Heintz.

Issues: Whether the policy provided an unambiguous method of calculating the amount Colorado Casualty owed Sammons. Whether there were genuine issues of material fact concerning the amount Colorado Casualty owed Sammons.

Facts/Discussion: The district court granted summary judgment to an insured on its contract claim against its insurer after a fire loss, granted summary judgment to the insurer on the insured’s emotional distress claim and denied summary judgment to both parties on the remaining claims.
Standard of Review: Summary judgment motions are governed by W.R.C.P. 56.
The confusion in the case arose from the fact the parties and the district court did not clearly follow the two-step process established in the policy for determining the amount Colorado Casualty was to pay Sammons. Once Casualty determined that it would pay Sammons the cost of replacing the lost or damaged property, then the policy provided alternative methods for valuing the lost or damaged property. Relying on language in the policy to pay the amount “actually and necessarily” expended in replacing the property, Casualty argues they have fulfilled their policy obligations. The Court agreed. The liability limitations in the policy clearly restricted the broad concept of “replacement cost coverage.” Casualty’s obligation was to pay the least of certain measured amounts which would have been either the RCV (replacement cost value) amounts upon replacement of the property “with new material of like kind and quality” or those actual and necessary amounts expended to replace the property – whichever was least. This was a question of fact which the fact finder must determine. The record does not clearly reflect as an established fact that some of Sammons’ expenditures were required by Wyoming law. Thus, a genuine issue of material fact existed.

Holding: The summary judgment granted to Sammons was reversed because genuine issues of material fact remained for determination by a fact finder. Casualty’s liability under the policy must be determined through the application of the two-part valuation and payment process described in the policy. Because Sammons did not replace the lost and damaged property according to the ACV (actual cash value) and RCV estimations, a fact finder must determine the value of that part of the new construction that was necessarily expended to replace the lost and damaged property.

Reversed and remanded.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/yu4nt5 .

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