If you are involved in the Juvenile Courts, Child Welfare and Juvenile Justice Systems in Wyoming, this is an absolute must-attend conference. This conference will be in Laramie at the Hilton Garden Inn UW Conference Center from June 2-4, 2010.
Registration is due by April 30, 2010, so act fast! Registration is quickly filling up.
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Summary of Decision issued April 23, 2010
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Fayard v. Design Comm. of Homestead Subdivision
Citation: 2010 WY 51
Docket Number: S-09-0145
Appeal from the District Court of Teton County, the Honorable Nancy J. Guthrie, Judge.
Representing Appellant Fayard and Galeforce: Paula A. Fleck and Susan L. Combs of Holland & Hart LLP, Jackson, Wyoming.
Representing Appellee Design Committee of the Homestead Div.: James K. Lubing of Law Office of James K. Lubing, Jackson, Wyoming; Douglas F. Schultz of Schultz Law Firm, LLC, Jackson, Wyoming.
Facts/Discussion: Fayard and Galeforce (Fayard) own lots in the Homestead Subdivision in Teton County. Fayard filed a declaratory judgment and injunctive action against the Design Committee and committee members, alleging the committee had improperly approved a special assessment to pave the common roads. Lots in the Homestead Subdivision are governed by a Declaration of Covenants, Conditions and Restrictions (CCRs.)
Restrictive covenants are contractual in nature and interpreted in accordance with principles of contract law. If the contractual language is clear, the court interprets it as a matter of law and summary judgment is appropriate. The committee argued that it acted within its authority to present the special assessment question to the lot owners because the unpaved roads presented an unusual condition that had arisen with regard to the access facilities or utilities which service the property. Fayard argued that summary judgment was inappropriate because the term “unusual” was broad and that there were genuine issues of material fact as to whether an “unusual condition” existed to justify paving the roads.
The fact that the covenants did not provide any limitations on what could be considered “unusual” indicated the declarant intended that the special assessment process apply to a wide variety of circumstances. The declarant’s use of the term did not mean the contract was ambiguous.
Conclusion: The “unusual condition” basis for imposing a special assessment under the CCRs was intentionally broad and the undisputed facts presented fell within that definition. There were no genuine issues of material fact and the contract was properly interpreted by the district court as a matter of law. The Design Committee acted within its authority under the CCRs in imposing the special assessment for paving the roads.
Affirmed.
J. Kite delivered the decision.
Link: http://tinyurl.com/2bspuma .
[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 April 22, 2010
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. William Daniel Elsom
Citation: 2010 WY 50
Docket Number: D-07-0004
Order Lifting Disciplinary Suspension and Order Denying Reinstatement to the Practice of Law
The matter came before the Court upon the “Supplemental Findings of Fact and Conclusions of Law” filed March 26, 2010, by the Board of Professional Responsibility for the Wyoming State Bar. In its supplemental findings, the Board of Professional Responsibility recommended that Elsom be reinstated to the practice of law. The Court agreed that Elsom satisfied the terms of his disciplinary suspension however, he has not resolved his CLE suspension.
The disciplinary action was lifted. Due to Elsom’s continuing suspension for failure to comply with the CLE requirements, he was restricted from being reinstated to the practice of law at this time.
The Orders can be found at the link below.
C.J. Voigt delivered the order for the court.
Link: http://tinyurl.com/263ea2r .
[SPECIAL NOTE: This opinion uses "Universal Citation" and 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 note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]
Summary of Decision issued April 22, 2010
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Elk Horn Ranch, Inc. v. Bd. of Cty Commissioners of Crook County, Wyoming
Citation: 2010 WY 49
Docket Number: S-09-0137
Appeal from the District Court of Natrona County, the Honorable David B. Park, Judge.
Representing Appellant Elk Horn Ranch, Inc.: John M. Daly and Matthew R. Sorenson, Daly, Davidson & Sorenson, LLC, Gillette, Wyoming.
Representing Appellee Bd of Crook Cty Commissioners: Joseph M. Baron, Crook County Attorney.
Representing Appellee/Intervenor Crago Ranch Trust: Mark L. Hughes, Hughes Law Office, Sundance, Wyoming.
Facts/Discussion: Elk Horn Ranch, Inc. appealed the district court’s sua sponte dismissal of its petition for review of a decision by the Crook County Board of Commissioners (Board.)
The single issue is whether the district court erred in dismissing the petition for review. There are procedures that must be followed when dismissing a case sua sponte. The leading federal decision is Tingler v. Marshall in which the court outlined a five-step procedure for dismissal of complaints sua sponte: allow service of the complaint upon the defendant; notify all parties of the court’s intent to dismiss; give the plaintiff a chance to either amend his complaint or respond to the reasons stated in the notice; give the defendant a chance to respond or file an answer or motions; and if the claim is dismissed, state the reasons for the dismissal. The Court stated that the five-step process outlined in Tingler and adopted in Osborn v. Emporium Videos are required for a sua sponte dismissal of an administrative appeal.
Conclusion: The district court did not follow the five-step process required when dismissing a case sua sponte. It did not notify the parties of its intent to dismiss, or give the parties a chance to respond.
Reversed and remanded.
J. Burke delivered the decision.
Link: http://tinyurl.com/2aracle .
[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 April 22, 2010
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Wyo. Dept. of Employment v. Jolley, Castillo, Drennon, LTD.
Citation: 2010 WY 48
Docket Number: S-09-0175
Appeal from the District Court of Natrona County, the Honorable David B. Park, Judge.
Representing Appellant Wyo. Dep’t of Employment: Bruce A. Salzburg, Wyoming Attorney General; Matthew J. Fermelia, Senior Assistant Attorney General; William L. Weaver, Senior Assistant Attorney General.
Representing Appellee Jolley, Castillo, Drennon, Ltd.: Stephenson D. Emory of Williams, Porter, Day & Neville, PC, Casper, Wyoming.
Facts/Discussion: The Department of Employment, Unemployment Insurance Commission (Commission) appealed the district court’s reversal of the Commission’s decision which found that Jolley, Castillo, Drennon, Ltd., d/b/a Sierra Engineering (Sierra) had payroll for services performed by employees subscribing it to unemployment tax under the Wyoming Employment Security Law (WESL).
The Commission’s decision incorporated many findings of fact made by the hearing officer and set forth dozens of its own, relating to many of the consultants in order to show that they were employees and not independent contractors because they did not meet the three prongs of the independent contractor test set forth in the statutes. The Court did not address all the findings because there were at least eight consultants who were undisputedly paid wages by Sierra for services performed in Wyoming between the years 2004 through 2006. There was no evidence in the record to support finding that they were independent contractors. In litigating the issue, Sierra treated its consultants as a class of workers however the statutes state it is the employer’s burden to prove that each individual consultant meets the elements of the statute.
Conclusion: The Court found the Commission’s decision that Sierra had payroll for services paid in Wyoming during the years 2004 through 2006 was supported by substantial evidence in the record and that Sierra failed to meet its burden of proving that all of its consultants were independent contractors. An audit remains to be performed by the UI Tax Division to determine precisely which consultants were in fact “employees” under the WESL and the amount of unemployment taxes Sierra owes for those “employees.” Having found that there was substantial evidence in the record to support the Commission’s decision, the district court was reversed, the Commission’s decision was affirmed and the case was remanded.
Reversed and remanded.
C.J. Voigt delivered the decision.
Link: http://tinyurl.com/2fd3ohm .
[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.]
Jim Calloway, Director of the Oklahoma Bar Association's Management Assistance Program, has posted an interesting article on faxing on his Law Practice Tips Blog. He proposes that you consider switching to Internet faxing (virtual faxing) to save time and money. It is especially recommended if you're trying to implement more paperless processes.
Are you still faxing?
For those of you who have Westlaw access, here's a free training opportunity from Westlaw. And if you don't have Westlaw access in your office or home, you can use the law library's free public Westlaw access!
