A recent article on Law Technology News by Kim Walker provides the steps to using redaction tools in Adobe Acrobat (versions 8 or 9) and MS Word 2007. If you're using these tools, redaction can be a simple, safe process to prevent access to metadata or private information.
How to Keep Sensitive Data Blacked Out
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court
Case Name: Lovato v. State
Citation: 2010 WY 38
Docket Number: S-09-0073
Appeal from the District Court of Carbon County, Honorable Wade E. Waldrip, Judge
Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel.
Representing Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny Lynn Craig, Assistant Attorney General.
Facts: Appellant entered a conditional guilty plea to two drug-related charges, reserving his right to appeal the denial of the suppression motion.
Issues: Whether the trial court erred in finding that (1) there was "probable cause" to conduct a traffic stop of Appellant's car; and (2) the scope of the traffic stop was not exceeded by the trooper's actions.
Holdings: When district court's decision to deny a motion to suppress is reviewed, the appellate court will defer to the district court's findings of fact unless they are clearly erroneous.
In the present action, Appellant's initial contact with the trooper was an investigatory traffic stop, not an arrest. The distinction is significant because it takes less to justify a traffic stop than an arrest. Because of its limited nature, a law enforcement officer is only required to show "the presence of specific and articulable facts and rational inferences which give rise to a reasonable suspicion that a person has committed or may be committing a crime" in order to justify the detention.
The trooper in the present action readily admitted that this stop was prompted by the information provided by the confidential informant that Appellant was carrying illegal drugs. The trooper believed that this information, by itself, was insufficient to justify a stop. However, an officer is permitted to make a traffic stop if he personally observes a traffic violation, without regard to his subjective intent. The trooper testified that he observed two traffic violations. Almost as soon as he spotted Appellant's car, he "could see the sunlight glinting off of a crack on the windshield on the upper left side of the windshield." This, the trooper testified, suggested a possible violation of Wyo. Stat. 31-5-955(a). A short time later, the trooper observed that he was unable to read the car's rear license plate number because of "a dark-tinted license plate cover on the rear license plate." This suggested a possible violation of Wyo. Stat. 31-2-205(a)(i).
Appellant points out in that there were inconsistencies in the testimony about the location of the crack in the windshield and as to when the cracked window violation was added to the warning ticket issued Appellant for his traffic offenses. However, after considering conflicting evidence, the district court found the exact position of the windshield crack is immaterial in determining whether the trooper possessed the necessary level of suspicion to stop Appellant. The uncontroverted fact is that a windshield crack existed that was noticeable from both the interior and exterior of the vehicle. The finding of the district court is consistent with the trooper's testimony. Although Appellant's evidence to the contrary is sufficiently persuasive that the district court might reasonably have found in his favor, it did not, but that alone does not make the finding clearly erroneous.
Evidence about the license plate cover is also troublesome. According to the trooper, he could not read the license plate on the back of Appellant's car, but could read the one on the front "just fine." According to both Appellant and his wife, there were identical license plate covers on the front and the back of the car. In addition, the trooper described the license plate as "dark-tinted," and testified that the date sticker on the upper left corner of the license plate was "covered by the frame of the license plate protector." The actual license plate cover was accepted into evidence during the suppression hearing. It is the same translucent plastic material throughout, with no frame that could have blocked the trooper's view of the date sticker. While the plastic is not entirely transparent, it is a stretch to describe it as dark-tinted. The plastic is shiny, however, and it is conceivable that in some angles of sunlight, the combination of glare and tinting could make the license plate harder to read. The trooper did not mention the angle of the sunlight or any other such details, but he did testify unequivocally that the license plate cover obscured his view of the license plate on the rear of Appellant's car. The appellate court is not in a position to assess the credibility of this testimony, or to weigh it against the conflicting evidence. The district court was in that position. Based on its findings of fact, the district court concluded that the trooper possessed more than the necessary reasonable suspicion to stop Appellant because he personally observed Appellant driving in violation of two statutes. Having deferred to the district court's findings of fact, there was sufficient probable cause to provide the trooper with the reasonable suspicion necessary to stop Appellant. The initial stop was justified.
A traffic stop must be of reasonably short duration, and that there are limits to the questions that may be asked of the detained driver. An investigative detention must be temporary, lasting no longer than necessary to effectuate the purpose of the stop, and the scope of the detention must be carefully tailored to its underlying justification. During a routine traffic stop, a law enforcement officer may request the driver's proof of insurance, operating license, and vehicle registration, run a computer check, and issue a citation or warning. The officer may detain the driver and his vehicle only for the period of time reasonably necessary to complete these routine matters. Once the driver has produced a valid driver's license and proof that he is entitled to operate the vehicle, he must be allowed to proceed without further delay. During the stop, an officer generally may not ask the detained motorist questions unrelated to the purpose of the stop, including questions about controlled substances, unless the officer has reasonable suspicion of other illegal activities.
According to the dispatch records kept by the Wyoming Highway Patrol, the trooper initiated the traffic stop of Appellant at 11:01:23 a.m. and the canine unit arrived at the scene at 11:05:38, and reported by radio at 11:06:09 that the dog had alerted on Appellant's car. Appellant concedes that the drug detection dog's alert gave the troopers probable cause to detain him further, search his car, and subsequently search his person. Thus, the initial detention that Appellant challenges lasted only from the initiation of the traffic stop until the drug detection dog alerted, a total of four minutes and forty-six seconds. The limited amount of time that the trooper was in verbal contact with Appellant does not indicate that his initial detention was unreasonably prolonged. As to the subject matter of the questions, the trooper testified that he asked the driver several questions regarding his trip, as far as his origin - his origin and destination. Questions regarding travel plans are an acceptable area of inquiry during a traffic stop. There is no indication that the trooper used these questions to prolong Appellant's detention unreasonably. Appellant's detention was prolonged, and his car was searched, not because of his questioning by the trooper, but because the drug detecting dog alerted on his car. Having considered the totality of the circumstances, it cannot be said that the district court erred in concluding that the trooper's questioning of Appellant was reasonable.
The district court's denial of Appellant's suppression motion is affirmed.
J. Burke delivered the opinion for the court.
Link: http://bit.ly/9fyt8i.
[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 of Decision issued March 25, 2010
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Morris v. CMS Oil & Gas Co.
Citation: 2010 WY 37
Docket Number: S-09-0103; S-08-0104
Appeal from the District Court of Campbell County, the Honorable John R. Perry, Judge.
Representing Appellant Morris (Plaintiff): Patrick G. Davidson and Rebecca L. Winkler of Daly Law Associates, LLC, Gillette, Wyoming.
Representing Appellee CMS Oil & Gas Co. (Defendant): Thomas F. Reese, Drake D. Hill and Orintha E. Karns of Brown, Drew & Massey, LLP, Casper, Wyoming.
Facts/Discussion: Morris owns an overriding royalty interest in gas wells operated by CMS. Morris brought suit under the WRPA because she believed that CMS was not reporting production or paying her royalties properly.
Royalty payments: Morris failed to prove she was owed royalties or interest beyond what CMS had paid as of November 2002. She expressly testified she was unsure of the amount owed but that her expert would know. The expert testified that while there were some irregularities in the reports, they ultimately were resolved. Morris claimed she was unable to prove her damages because CMS refused to produce the necessary documentation during discovery. CMS’s expert testified he provided Morris’ expert with all the pertinent material he had in his possession and Morris’ expert acknowledged the same. Relying on an internal CMS memo, Morris asserted that the documentation provided was unreliable. The Court stated that while the memo disclosed that CMS had some initial problems with its reporting on some wells, it does not prove that the information ultimately provided was unreliable. Morris argued that CMS’s reported production numbers differed from those reported to the WOGCC as reflected on the website. The evidence suggested that the WOGCC numbers that Morris relied upon were not reliable. Morris’s expert testified he found thirty-three wells for which she had never received payment but he was never asked to calculate the royalty amount due on those wells. CMS’s expert testified only three such wells existed and testified the production numbers and volumes calculated by Morris’ expert were correct. No competent evidence on the sales price was presented. The Court upheld the district court’s conclusion that CMS ultimately paid Morris more than she was due.
Lack of reporting: The district court concluded that CMS failed to properly report for twenty-nine months. Neither party challenged the district court’s finding that CMS failed to report during the specified time period or argued that the finding was not supported by the record. The district court concluded that a producer who fails to submit a complete monthly report is liable to the interest owner in the amount of $100 per month. The clear intent of § 30-5-305(b) was that interest owners would receive all of the information identified in subparagraphs (i) through (xi) on a regular monthly basis. It authorizes the information to be provided by lease, property or well. Anyone who failed to do so would be liable to the interest owner for $100 for each month that a complete report was not provided. The district court correctly determined that CMS was liable to Morris in the amount of $100 for each month complete reporting did not occur. The evidence supported the district court’s determination that CMS failed to submit complete monthly reports from July 2000 through March 2002. The district court found CMS was required to report beginning December 1999. The Court noted the first sale was in December 1999 making the first payment and report due July 2000. On remand, the district court should consider the issue and determine the proper penalty.
Attorney’s fees and costs: The Court has defined whether a party is a prevailing party (for purposes of awarding costs of litigation) as one who improves his or her position by the litigation. Morris obtained payments she otherwise would not have, proved that CMS violated the WRPA and obtained a judgment requiring CMS to pay reporting penalties thereby improving her position. The Court upheld the district court’s determination that Morris was the prevailing party for the purposes of attorney’s fees. Morris claimed the district court erred in awarding fees to CMS. The district court’s award of attorney fees to CMS when Morris was the prevailing party cannot stand. The practical effect of the district court’s award of attorney’s fees to CMS was to punish Morris for not voluntarily dismissing her claim once CMS made some payment. This runs counter to the entire purpose of the WRPA as well as the express language of § 30-5-303(b) authorizing an attorney’s fee award to the prevailing party.
Application of the escrow provision: Morris asserted the district court erred when it held CMS was not in violation of the WRPA once it escrowed the funds in April 2002. She claimed the ruling failed to take into account that there were some wells for which she never received payment or reports so that CMS was continuing to violate the WRPA after it escrowed the funds. Therefore the calculation of the reporting penalty was incorrect. The testimony and evidence tended to show that upon paying Morris $38,657.41 as of November 2002, CMS had paid approximately $3,000 more than it owed. The ruling was supported by the evidence.
Conclusion: The district court’s conclusion that Morris received all the royalty payments she was due was supported by the evidence. The district court correctly concluded CMS failed to submit reports as required by WRPA. The district court’s conclusion that CMS violated the WRPA by failing to either pay Morris the royalties due or place them in escrow was supported by the evidence. Morris was the prevailing party and was properly awarded her attorney’s fees. The district court erred in awarding CMS attorney’s fees.
Affirmed in part, reversed and remanded in part.
J. Kite delivered the decision.
J. Golden, dissented: The Justice’s review of the record noted that attached to every payment made was a check detail containing the requisite statutory information. He would have reversed the district court’s ruling on reporting penalties. The Justice discussed the “catalyst theory” which the Court has never expressly commented upon. The theory runs directly contrary to the language and intent of § 30-5-303(b). The United States Supreme Court discussed the definition of “prevailing party” at length in Buckhannon. In order to be deemed a prevailing party, there must be a material modification in the legal relationship of the parties. The Justice would hold that a party can only be considered a “prevailing party” in a juridical action if the party receives some form of juridical relief such as judgment on the merits or a court ordered consent decree or court-approved settlement agreement. The Justice would follow the lead of the United State Supreme Court and adopt a bright-line rule defining a person who improves her position through litigation as a person who receives relief sought by means of some form of juridical action. Only juridical action can change the legal relationship between parties, the proper function of any legal action.
Link: http://tinyurl.com/yefmdqw .
[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 of Decision issued March 23, 2010
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court
Case Name: Ultra Resources, Inc. v. Hartman
Citation: 2010 WY 36
Docket Numbers: S-08-0258, S-08-0259, S-08-0260, S-08-0261, S-08-0262, S-08-0263, & S-08-0264
Appeal from the District Court of Sublette County, the Honorable Norman E. Young, Judge.
Representing Appellant Ultra Resources, Inc. and Williams Production Rocky Mountain Co. (Defendant): Douglas J. Mason of Mason & Mason, Pinedale, Wyoming; George W. Mueller of Burns, Wall, Smith and Mueller, P.C., Denver, Colorado.
Representing Appellant Arrowhead Resources (U.S.A.) LTD (Defendant): Nancy D. Freudenthal of Davis & Cannon, Cheyenne, Wyoming; Rebecca Hitchcock Noecker of Beatty & Wozniak, Denver, Colorado.
Representing Appellant Lance Oil & Gas Company, Inc. (Defendant): Paul J. Hickey of Hickey & Evans, Cheyenne, Wyoming; David W. Stark and Ezekiel J. Williams of Faegre & Benson, Denver, Colorado.
Representing Appellants Shell Rocky Mountain Production, LLC and SWEPI, LP (Defendants): David B. Hooper of Hooper Law Offices, Riverton, Wyoming; Phillip D. Barber of Phillip D. Barber, P.C., Denver, Colorado.
Representing Appellees Doyle and Margaret M. Hartman, John H. Hendrix Corporation, Michael L. Klein and Jeanne Klein, Ronnie H. Westbrook and Karen Westbrook (Plaintiffs): Michael J. Sullivan and John A. Masterson of Rothgerber, Johnson & Lyons, Casper, Wyoming; James M. Lyons and D. Elizabeth Wills of Rothgerber, Johnson & Lyons, Denver, Colorado; J.E. Gallegos and Michael J. Condon of Gallegos Law Firm, Santa Fe, New Mexico.
Facts: This case encompasses seven appeals and cross-appeals and involves seven plaintiffs and six defendants. The contest is over a net profits interest (NPI) granted by Malco Refineries, Inc., El Paso Natural Gas Company, and Continental Oil Company (referred to in the documents as “First Parties”) to Novi Oil Company (Novi) in the 1950s. The NPI was consideration for Novi’s assignment of certain oil and gas leases to First Parties. Generally, the district court concluded that the NPI continues to exist and is owned by the plaintiffs, who are successors to Novi, and the defendants, as successors to First Parties, are obligated to pay net profits to them. The district court also awarded statutory penalties, interest and attorney fees to the plaintiffs.
Issues: Whether the plaintiffs were entitled to summary judgment on the question of whether the NPI survived termination of the Pinedale Unit. Whether the plaintiffs were entitled to summary judgment on the question of whether they own the NPI and whether the defendants have standing to contest plaintiffs’ claim of ownership. Whether the district court erred by granting the defendants’ Rule 52(c) motion regarding the plaintiffs’ duty to provide proof of their ownership of the NPI under Section 5 of the Pinedale Unit Area Net Profits Contract (Unit NPI Contract) or by determining that the plaintiffs gave sufficient notice of their ownership. Whether the district court erred in granting the defendants’ Rule 52(c) motion on the plaintiffs’ claim for breach of the implied covenant of good faith and fair dealing. Whether the district court erred in granting the non-operator defendants’ Rule 52(c) motion on the plaintiffs’ Wyoming Royalty Payment Act, Wyo. Stat. §§ 30-5-301 through 305 (2009) (WRPA) claims. Whether the district court correctly determined that the non-operating defendants breached the Unit NPI Contract by failing to pay the NPI. Whether the district court erred by ruling that plaintiffs were entitled to be awarded WRPA interest and penalties against the operating defendants Shell and Ultra when the Unit NPI Contract provided that they could withhold payment of net profits, without interest, during the pendency of any dispute regarding ownership of the NPI. Whether the district court properly determined that State Lease 79-0645 was a “replacement lease” under the Unit NPI Contract. Whether the district court erred by ruling that plaintiffs’ claims were not time barred under either the statute of limitations or the equitable doctrine of laches. Whether the district court erred by refusing to exclude certain expenses from the net profits calculation. Whether the district court erred by holding all defendants jointly and severally liable for the entire judgment. Whether the district court properly granted credit to the defendants for plaintiffs’ settlement with Questar/Wexpro. Whether the non-operators were the prevailing parties and, therefore, entitled to an award of attorney fees under the WRPA. Whether the district court abused its discretion by awarding plaintiffs over $3.9 million in attorney fees.
Holdings: The district court properly granted summary judgment on the plaintiffs’ claim that the NPI continued to encumber the relevant leases after termination of the Pinedale Unit. To the extent that the district court’s second summary judgment order stated that the plaintiffs had provided a sufficient showing of their ownership of the NPI to entitle them to payment from the defendants, the decision is affirmed. However, to the extent that it was intended to quiet title in the plaintiffs against any claims by others who are not parties to this action, there was no justiciable controversy and the decision is reversed.
The district court properly granted the defendants’ Rule 52(c) motion regarding the plaintiffs’ obligation to give notice under Section 5 of the Unit Net Profits Contract and correctly ruled that plaintiffs’ letter was sufficient notice under the contract to obligate the defendants to start paying the NPI in March 2006. The district court also properly granted the defendants’ Rule 52(c) motion on the plaintiffs’ claim for breach of the implied covenant of good faith and fair dealing and the non-operator defendants’ Rule 52(c) motion on the plaintiffs’ WRPA claims.
After the bench trial, the district court correctly concluded that the non-operating defendants breached the Unit NPI Contract, although they did not violate the WRPA. Operating defendants Shell and Ultra were rightly found liable under the WRPA for interest and penalties for failing to pay or escrow the NPI payments after the plaintiffs’ gave notice of their ownership of the NPI. The district court also properly determined that State Lease 79-0645 is a “replacement lease” under the Unit NPI Contract and, therefore, burdened by the plaintiffs’ NPI and the plaintiffs’ claims were not time barred under either the statute of limitations or laches.
The district court, however, made some errors in its damages award. Although it properly interpreted the overhead expense provisions of the First Parties’ and Novi’s agreement, it incorrectly concluded that produced gas used on the lease was to be included as revenue for the net profits calculation. This aspect of the judgment is reversed and remanded for recalculation of the damages. The district court also erred by making the non-operators jointly and severally liable for the entire judgment, and the district court’s ruling is reversed in that regard. The district court properly granted credit to the defendants for plaintiffs’ settlements with Questar/Wexpro.
Finally, we conclude the district court properly determined that plaintiffs were the prevailing parties in this litigation and did not abuse it discretion in making its attorney fees award.
Affirmed in part; reversed and remanded in part.
J. Kite delivered the opinion for the court.
Link: http://tinyurl.com/ykawvn6 .
C.J. Voigt dissented: The state of the record is not such that the plaintiffs have given the defendants sufficient notice of their ownership of the NPI, if it exists at all, to require the plaintiffs to pay them millions of dollars to satisfy the NPI. Summary judgment should not have been granted to the plaintiffs on the ownership issue.
[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 in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]
Summary of Decision issued March 23, 2010
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Hamilton v. Hamilton
Citation: 2010 WY 35
Docket Number: S-09-0135
Appeal from the District Court of Sublette County, the Honorable Marvin L. Tyler, Judge.
Representing Appellant Pamela: W. Keith Goody, Cougar, Washington.
Representing Appellee Harry: John A. Thomas, Evanston, Wyoming.
Facts/Discussion: Pamela was adjudged in contempt of court for violating a temporary order entered by the district court in her divorce case. She claimed the ruling was null and void because the district court did not follow the procedures required in a criminal contempt hearing.
Contempt – civil or criminal: The type of punishment to be imposed is the factor that decides whether a civil or criminal contempt has been committed. The basic purpose of the contempt order was to remedy the harm done to Harry and not to protect the public. The fact that Pamela can purge her contempt by paying the amount spent in violation of the order into a joint account suggests it is civil as well. Pamela is also required to pay Harry’s attorney fees. In divorce cases, the allowance of attorney fees is an exercise of the district court’s equitable powers and not a penalty. The Court reviewed the financial documents submitted but without a record of the hearing, the Court was unable to determine whether the spending they reflect was in violation or compliance with the temporary restraining order.
Conclusion: No order had been issued imposing punishment on Pamela. There was no final appealable order in her case therefore the Court lacked jurisdiction.
Dismissed.
J. Burke delivered the decision.
Link: http://tinyurl.com/yaz649b .
[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 in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]
Summary of Decision issued March 23, 2010
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Excel Construction, Inc. v. HKM Engineering, Inc.
Citation: 2010 WY 34
Docket Number: S-09-0120
Appeal from the District Court of Big Horn County, the Honorable Steven Cranfill, Judge.
Representing Appellant Excel: Patrick J. Murphy of Williams, Porter, Day & Neville, PC, Casper, Wyoming.
Representing Appellee HKM: Matthew F. McLean of Crowley Fleck PLLP, Bozeman, Montana.
Facts/Discussion: This was an appeal from a summary judgment granted to HKM by the district court. The case involves a dispute between Excel and HKM related to a contract for the replacement and improvement of water and sewer lines in Lovell, Wyoming. HKM agreed to be Lovell’s representative during construction. Lovell entered into a separate agreement with Excel to serve as general contractor on the project.
Modify Rissler decision: In Rissler, the trial court granted summary judgment in favor of HKM based upon the economic loss rule which bars recovery in tort when a plaintiff claims purely economic damages unaccompanied by physical injury to persons or property. Excel argued that the Court should modify its ruling in Rissler to permit suit by a contractor against a professional project engineer like HKM on theories of negligence and negligent misrepresentation. It argues that other stated have permitted suit against design and construction management professionals in spite of the economic loss rule. The Court believes that parties to a construction project have the opportunity to allocate the economic risks associated with the work and that they do not need the special protections of tort law to shield them from losses arising from risks including negligence of a design professional, which are inherent in performance of the contract.
Tortious interference with contract: HKM was charged with determining compliance with the contract, approving change orders and otherwise serving as decision-maker for Lovell by the express terms of the agreement. HKM therefore acted as an agent and as an agent with the power to make decisions on behalf of the town. Its actions, if they breached the contract, may entitle Excel to recover against the town for that breach but Excel may not recover from HKM on a theory of intentional interference with a contract for actions taken as the town’s agent.
Misrepresentation: As already noted, the Court’s decision in Rissler, would bar claims against HKM based upon negligent misrepresentation. Excel argued that its claim of misrepresentation is really a claim of intentional misrepresentation or fraud. The claim can only be construed as one for negligent misrepresentation. Excel did not allege that HKM intentionally made representations which it knew to be false, even though fraud must be pled with particularity. In addition, Excel specifically described its claim as one for negligent misrepresentation. The record does not suggest that Excel ever sought to amend its claim to add allegations of fraud. Under the circumstances, the Court can only conclude that Excel made a claim for negligent representation and not for fraud. Under Rissler, this type of claim falls within the bar of the economic loss rule.
Good faith and fair dealing: The Court has recognized that all contracts contain an implied covenant of good faith and fair dealing. Excel did not contract directly with HKM, and therefore no implied covenant. The Court does not construe the clause as creating an obligation on the part of the engineer to act in good faith in all decisions affecting the contractor as might arguably be the case under an implied covenant of good faith and fair dealing. The exculpatory clause would just limit the engineer’s liability to claims that involve an element of bad faith. Excel may not maintain a claim of intentional interference with contract against the agent of a party to its contract, and it did not present a claim of intentional misrepresentation or fraud to the trial court on the pleadings in the case.
Conclusion: The Court declined to modify the economic loss rule in Rissler to permit actions against a design professional based on negligence. Although a party may be able to maintain an action for the intentional tort of interference with contract under Rissler, Excel may not maintain such a claim against HKM for actions taken in its capacity as Lovell’s agent under the Excel-Lovell contract. While a party may be entitled to maintain a claim for intentional misrepresentation or fraud under certain circumstances notwithstanding the economic loss rule enunciated in Rissler, HKM did not present such a claim to the district court, and Excel’s claim for negligent misrepresentation is barred by Rissler. The language of the HKM – Lovell contract did not impose a duty similar to that of the implied covenant of good faith and fair dealing on HKM, but rather limited the exculpatory language contained in that paragraph to claims not involving bad faith. The clause would not have barred tort claims involving an element of bad faith but Excel either could not maintain its intentional tort claims as a matter of substantive law or did not raise them in the trial court.
Affirmed.
D.J. Davis delivered the decision.
Link: http://tinyurl.com/yjq4vuc .
[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 in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]
Summary of Decision issued March 23, 2010
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Hernandez v. State
Citation: 2010 WY 33
Docket Number: S-09-0065
Appeal from the District Court of Carbon County, the Honorable Wade E. Waldrip, Judge.
Representing Appellant Hernandez: Diane Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; and Kirk Allan Morgan, Senior Assistant Appellate Counsel.
Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Jenny Lynn Craig, Assistant Attorney General.
Facts/Discussion: Hernandez challenged his convictions on four charges relating to illegal drugs.
Denial of motion to suppress: Hernandez did not dispute that the officers stopped him after he failed to signal a turn. He argued that the prosecution presented no evidence about the scope, duration, or intensity of the detention under all of the circumstances and thereby failed to meet its burden. Hernandez’s motion to suppress challenged only the validity of the initial stop and not the reasonableness of the detention or search. The record leaves no doubt that defense counsel made affirmative statements that induced the prosecutor not to present evidence about the detention and search and the district court not to consider the issue of their reasonableness. The Court applied the doctrine of invited error and did not address the issue further.
Irrelevant and prejudicial evidence: First, Hernandez characterizes as irrelevant the testimony of Agent Ford. The agent related that he interviewed two people who had been arrested on drug charges. They told him they had purchased drugs from Mr. Moxley and agreed to participate in a controlled purchase from him. Agent Ford testified about the arrest of Moxley. One of the men Moxley purchased drugs from was Hernandez. The testimony related directly to the events culminating in the arrest of Hernandez. A law enforcement officer’s testimony about the course of an investigation leading to a defendant’s arrest is not irrelevant evidence. Hernandez also challenged testimony about the amounts of methamphetamine purchased by Moxley. The evidence was about purchases made directly from Hernandez and his colleagues. Since Hernandez was charged with possession of illegal drugs with intent to deliver, the evidence of earlier deliveries tended to prove the element of intent to deliver. Hernandez also challenged the testimony that Moxley was selling a lot of drugs in Rawlins. That testimony was introduced during defense counsel’s cross-examination of Moxley. The court’s admission of evidence elicited by defense counsel cannot serve as a basis for reversal. The Court considered the testimony from Spec. Agent Bisceglia that “methamphetamine is a major problem” in Carbon County. The testimony was based on the Agent’s experience. Agent Bisceglia established his level of experience by testifying that he investigated drug-related crimes on a daily basis and that he had been involved with a large number of cases.
The prosecutor’s comments in closing arguments urged the jury to “take care of” Hernandez to help reduce the drug problem; to convict because the meth problem was so bad in Rawlins and not because of the evidence against Hernandez. After considering the comments in context, the Court stated they remained improper community outrage or protection arguments and they transgressed a clear and unequivocal rule of law. However, the Court was unable to say that the comments materially prejudiced Hernandez. Since the evidence was overwhelming, there was no reasonable probability that the improper comments changed the jury’s verdict.
The Court held there was no basis for reversing the convictions due to cumulative error.
Conclusion: The Court applied the doctrine of invited error to Hernandez’s arguments about the motion to suppress. The testimony that Hernandez complained was irrelevant directly related to the events culminating in arrest. Evidence of earlier deliveries tended to prove the element of intent to deliver and therefore was not irrelevant. Evidence elicited by defense counsel could not serve as a basis for reversal. Since the evidence was overwhelming, there was no reasonable probability that the improper comments changed the jury’s verdict. There was no basis for reversing the convictions due to cumulative error.
Affirmed.
J. Burke delivered the decision.
C.J. Voigt, dissenting: The Chief Justice would have reversed because the State’s community safety argument in the instant case was indistinguishable from the State’s community safety argument in Strange v. State which the Court found reversible.
Link: http://tinyurl.com/ye4sua4 .
[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 in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]
