Law Library Letter

Summary 2009 WY 145

2009-11-24T15:47:00.001-07:00

Summary of Order issued November 24, 2009

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

Case Name: Eaton v. State

Citation: 2009 WY 145

Docket Number: S-08-0235

Order Lifting Stay of Execution and Order Closing Case

The matter came before the Court upon a “Petitioner’s Status Report” which was e-filed November 16, 2009, pursuant to the terms of the Court’s November 14, 2008 “Order Granting Petition for Writ of Review, Order Vacating Warrant of Execution, Order Setting Date of Execution and Order Staying Execution.” In the Status Report, Mr. Eaton’s counsel informed the Court that the state district court denied the petition for post-conviction relief. In the Court’s docket S-09-0220, Mr. Eaton filed a petition seeking review of the district court’s denial of post-conviction relief. Today, the Court denied that petition and remanded the matter to the district court for issuance of a new warrant of execution. Given the Court’s disposition of the petition Mr. Eaton filed in S-09-0220, the Court found it was no longer appropriate for the Court to continue the stay of execution of Mr. Eaton’s sentence. Instead the Court found that any request for a stay should first be directed to the district court, or any tribunal that Mr. Eaton deems appropriate.

The Court ordered the stay of execution of sentence under the Court’s order of November 14, 2008 was lifted and the captioned case was closed.

C.J. Voigt delivered the order for the court.

Summary 2009 WY 144

2009-11-24T15:44:00.001-07:00

Summary 2009 WY 143

2009-11-23T11:53:00.002-07:00

Summary of Decision issued November 23, 2009

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

Case Name: Horse Creek Conservation District and Phase 23, LLC v. State

Citation: 2009 WY 143

Docket Number: S-08-0200

Appeal from the District Court of Goshen County, the Honorable John C. Brackley, Judge.

Representing Appellant Horse Creek: Curtis B. Buchhammer, Buchhammer & Kehl, PC, Cheyenne, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Michael L. Hubbard, Deputy Attorney General; Ryan T. Schelhaas, Senior Assistant Attorney General; Brandi Lee Monger, Assistant Attorney General.

Facts/Discussion: The district court granted summary judgment in favor of the State ruling that pursuant to an agreement between Horse Creek Conservation District (HCCD) and the State, the public has a perpetual right of recreational use access to HCCD property adjacent to the Hawk Springs Reservoir.

Statutory Provisions Pertaining to Public Access: Wyo. Stat. Ann. §§ 41-2-216 through -218 provided State funding for the reconstruction of Hawk Springs Reservoir. It included a provision expressly pertaining to public access to the reservoir and adjacent lands for recreational purposes. The Court interpreted whether public access to HCCD land adjacent to the reservoir was required. On its face, the clear language of the statute requires HCCD to grant public access to all adjacent lands. HCCD and Phase 23 argue that the public access provision was ambiguous. The Court noted the term “or” follows the phrase “all adjacent lands.” Considering the entire act pertaining to the Hawk Springs Reservoir, it was obvious to the Court that the legislature appropriated a large sum of money and in order to get full public benefit in exchange for the funding, required public access for recreational purposes. By focusing on the public recreation potential and expressly identifying “hunting, fishing, and general recreation” as the purposes of the public access, the legislature clearly intended for HCCD to grant broad, as opposed to narrow or limited, public access to the area.
Contractual Provisions Pertaining to Public Access: The Court’s case law is clear that in interpreting contracts, the Court must take into account relevant statutes. The statutory agreement expressly referred to the statutes providing funding for the rehabilitation of the Hawk Springs Reservoir making the rationale for interpreting the agreement in the context of the statutes even stronger. Section 41-2-218(b)(ii)(G) required HCCD as a condition of receiving funding for the project to provide public access to all of its lands adjacent to the reservoir. The statutes had the practical effect of making HCCD lands adjacent to the reservoir “public lands” at least for recreation purposes. Thus the clear language of the agreement, when interpreted in accordance with the relevant statutes, provided that HCCD was required to grant public access to its lands adjacent to the reservoir. The Court recognized the potential for future problems resulting from the project agreement’s failure to mirror the statutory language. It therefore remanded to the district court for reformation of the project agreement language to conform more closely to the statutory language.
Legal Description: HCCD argued next that the public access provision was void because the area encumbered was not delineated by a specific legal description. The Court’s question was whether the description of the lands “adjacent” to the reservoir was sufficient to locate property encumbered by the public access interest. The plain and ordinary meaning of the words controls. The Court concluded that the plain meaning of “adjacent” was sufficiently definite to allow the encumbered property to be located. In addition, the Court noted that a basic tenet of statutory construction is that a specific statute will control over a general statute covering the same subject. In the instant case, if the Court were not to rule so, it would be undermining the legislature’s clear intent that by appropriating substantial funds for the rehabilitation of the Hawk Springs Reservoir, it required perpetual public access to all HCCD land adjacent to the reservoir.
Rule Against Perpetuities: The Rule does not apply when the interest has already vested as in the instant case. The public access interest vested upon adoption of the statutes and the project agreement.
Bona Fide Purchaser: Phase 23 claimed it should not be bound by the public access interest because the interest was not a matter of public record and it was a bona fide purchaser. The Court noted their decision in Bentley where it stated that § 34-1-120 does not apply to executory contracts because they do not fall within the applicable definition of a “conveyance” in § 34-1-120. Phase 23 simply has an equity interest in the property and will not receive a conveyance of the property from HCCD until the contract is fully performed. Because the contract was executory, there has been no conveyance of the property and § 34-1-120 provides no remedy to Phase 23.

Conclusion: The statutes providing for rehabilitation of the Hawk Springs Reservoir specifically required HCCD to grant public access to its lands adjacent to the reservoir. When the project agreement is interpreted in the context of the Statutes it unambiguously provides for public access. However, because the contractual language does not mirror the statutory language, the Court remanded for application of the equitable power of reformation to conform the contractual language to the statutes. The Court further concluded that as a matter of law, the rule against perpetuities did not apply to the public access interest because it was fully vested.
Phase 23 was also bound by the public access interest even though it was not recorded in the public record. Phase 23 is not entitled to relief under the recording statute because it had not received a conveyance of property from HCCD and it had actual notice of the public’s access interest precluding it from being a bona fide purchaser.

Affirmed and remanded.

J. Burke delivered the decision.

Link: Access is currently limited to the Judiciary website link here: http://www.courts.state.wy.us/Opinions.aspx .

[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 2009 WY 142

2009-11-19T14:38:00.003-07:00

Summary of Decision issued November 19, 2009

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

Case Name: Swain v. State

Citation: 2009 WY 142

Docket Number: S-08-0280

Appeal from the District Court of Laramie County, the Honorable Michael K. Davis, Judge.

Representing Appellant Swain: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel, Wyoming Public Defender Program.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.

Facts/Discussion: Swain appealed the district court’s order denying him credit for time served on three separate probation revocation actions. He also appealed his conviction for indirect criminal contempt arising from his failure to comply with the district court’s order requiring him as a condition of probation to attend and complete an inpatient substance abuse treatment program.

Sentencing credit: Swain contended that his sentence was illegal because the district court did not give him credit for the time he served on the three probation revocation actions. The Court relied on Jackson v. State where it held that time spent in custody awaiting disposition of probation revocation proceedings must be credited against the probationer’s underlying sentence if the incarceration is directly attributable to the underlying criminal conviction. Like Jackson, the sole basis for Swain’s detention in each of the revocation proceedings was the accusation he had violated one or more conditions of his probation. No additional criminal charges were filed against Swain based on the alleged violations, and the justification for revoking probation was basically that Swain absconded from supervision and failed to report to and complete the Cheyenne Transitional Center’s program and the Cheyenne Transitions Residential Program. The Court also concluded that the time spent in custody pending resolution of the three revocation proceedings was directly attributable to his underlying battery conviction and consequently, he was entitled to credit against the underlying three-five year prison sentence.
Criminal contempt conviction: The Court focused on a procedural error in the contempt proceeding. Wyoming endorsed the Gompers “independent and separate proceeding” rule for indirect criminal contempt actions in Garber v. United Mine Workers of America. Proceedings in criminal contempts are independent criminal actions and should be conducted accordingly. The criminal contempt against Swain was not pursued as an independent criminal action. It proceeded as an aspect of the underlying criminal case in which the contempt arose bearing the same docket number as that case. This procedural misstep mandated the conclusion that the jurisdiction of the district court was never properly invoked.

Conclusion: The Court held that Swain was entitled to credit against his penitentiary sentence for the time he was detained pending resolution of the three probation revocation proceedings. The Court also held that his conviction for indirect criminal contempt cannot be sustained because the district court lacked jurisdiction over the contempt action.

Reversed and remanded.

J. Golden delivered the decision.

Link: Access is currently limited to the Judiciary website link located here: http://www.courts.state.wy.us/Opinions.aspx .

[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.]

Google Provides Legal Research!

2009-11-19T10:04:00.004-07:00

On Tuesday Google officially entered the world of legal resources. You can now access full text legal opinions from U.S. federal and state district, appellate and supreme courts using Google Scholar. If you click on the Advanced Scholar Search link, you can choose to search only Wyoming cases. There are Pacific Reporter page numbers listed next to the corresponding case text and your search terms are highlighted throughout. In addition to being able to view the case, you can choose the "How Cited" tab and see "How this document has been cited", "Cited by", and "Related documents".

This blog post by Robert J. Ambrogi for the Law.com Legal Blog Watch provides an excellent overview and thoughts on how Google's entrance into the provision of legal research may or may not impact LexisNexis and Westlaw.

Summary 2009 WY 141

2009-11-17T15:01:00.002-07:00

Summary of Decision issued November 17, 2009

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

Case Name: Asherman v. Asherman

Citation: 2009 WY 141

Docket Number: S-09-0050

Appeal from the District Court of Park County, the Honorable Steven R. Cranfill, Judge.

Representing Appellant Richard Asherman: Michael A. LaBazzo of Law Offices of Michael A. LaBazzo, LLC, Cody, Wyoming.

Representing Appellee Robin Asherman: Jill Deann LaRance of LaRance & Syth, PC, Billings, Montana.

Facts/Discussion: In 2007, the district court entered a divorce decree, incorporating the parties’ Child Custody and Property Settlement Agreement. Later, Wife filed a motion asking the court to have funds from the sale of a property disbursed in accordance with the agreement. Specifically, she stated that three debts, including the remaining balance on a $155,000 debt on her residence, were to be paid from the proceeds of the sale, after which any remaining funds were to be split equally between the parties.
Several provisions of the settlement agreement address payment of the debt resulting from the purchase of the Alpine Avenue property. The provisions clearly established that the debt was to be paid out of the proceeds from the sale of the Logan Mountain property before the remainder was split equally between the parties. Husband argued that the settlement agreement was ambiguous concerning how the Alpine Avenue debt was to be paid and that the overall intent was to divide the parties’ assets according to their origin and the relative contributions of the parties. The Court has recognized that when the parties execute a detailed property agreement, it will enforce the plain language of the agreement even if argument can be made that a particular provision was not necessarily consistent with one of the parties’ interests. The Court concluded as it did in Brockway and Wunsch that the plain language of the agreement controlled. The settlement agreement was very detailed, addressing the parties’ assets and liabilities separately and with obvious care.
Husband also argued that there was an agreement to have Wife immediately reimburse Husband for all payments that he paid on the debt including principal and interest which meant that he could have paid off the loan prior to the closing of the Logan Mountain property sale and then required Wife to pay the entire amount out of her share. The Court agreed but noted it was simply a second procedure set out in the agreement. Although the two provisions might seem inconsistent, it did not render the agreement ambiguous. The provisions were not mutually exclusive. Wife reimbursed Husband out of her share of the sale proceeds for payments he had made on the Alpine Avenue debt prior to the Logan Mountain property sale.

Conclusion: The settlement agreement clearly stated that the outstanding balance on the $155,000 debt resulting from the purchase of Wife’s Alpine Avenue property would be paid out of the joint proceeds of the sale of the Logan Mountain property.

Affirmed.

J. Kite delivered the decision.

Link: Please visit the Judiciary website to see the full context of the opinion.

[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 2009 WY 140

2009-11-13T16:28:00.002-07:00

Summary of Decision Issued November 12, 2009

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

Case Name: Zaloudek v. Zaloudek

Citation: 2009 WY 140

Docket Number: S-09-0016

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

Representing Appellant (Defendant): William L. Combs, Combs Law Office, Evanston, Wyoming

Representing Appellee (Plaintiff): Richard J. Mulligan, Mulligan Law Office, Jackson, Wyoming; Heather Noble, Jackson, Wyoming

Issues: Whether the trial court abused its discretion in its divorce decree ordering an equitable division of the property.

Holdings: While the divorce was pending, Appellee sought permission from the district court to take some of the hay stored at the Evanston property to feed the two horses she was keeping. Appellant objected. After a hearing held by telephone, the district court denied Appellee’s request for permission to take the hay but, instead, ordered Appellant to pay for hay to be purchased from another source. Appellant filed a motion asking the district court to reconsider its ruling, claiming that the payment of money was relief that had not been sought by Appellee, and that the parties had presented no testimony or other evidence during the hearing to support the order. The district court apparently chose to deny Appellant’s motion to reconsider and, instead, issued the written order that had been prepared and submitted by Appellee. On appeal, Appellant claims that the district court’s decision was arbitrary and capricious, unsupported by the evidence, and contrary to law. The record does not support that assertion. In the motion, Appellee sought alternative forms of relief. First, she asked for permission to remove hay from the property. Alternatively, she requested payment for the costs of boarding the horses. The relief granted by the district court falls within this alternative request. Appellant had notice of this claim for relief and there was no error in the district court’s consideration of this issue.

In granting a divorce, the court shall make such disposition of the property of the parties as appears just and equitable, having regard for the respective merits of the parties and the condition in which they will be left by the divorce, the party through whom the property was acquired and the burdens imposed upon the property for the benefit of either party and children. The district court has discretion to determine what weight should be given each of these individual factors, and to divide the property as appropriate to the individual circumstances of each case. The justness and fairness of a marital property division cannot be gauged with a simple comparison of the amount of property awarded to each party. Rather, the disposition should be performed with regard to the respective merits of the parties, the condition in which they will be left by the divorce, the party through whom the property was acquired, and the burdens imposed upon the property for the benefit of either party.

Although one statutory factor to be considered in dividing property in a divorce is the party through whom the property was acquired, a party is not automatically entitled to all of that property. Under Wyoming law, all marital property is subject to equitable division upon divorce. In the present action, Appellant was not entitled to a larger portion of the couple’s retirement assets just because he had earned more money than Appellee.

Appellant also asserts that some of the retirement assets were acquired before the marriage, and therefore not part of the marital estate. This argument has merit, but the difficulty is that neither party provided any evidence of the value of the retirement assets at that earlier date. The record suggests that the parties were unsuccessful in obtaining this evidence, even though subpoenas were issued to the asset managers. Without evidence of the value of the retirement assets at the earlier date, the district court had no basis for excluding the pre-marital portion from division. The district court’s refusal to speculate was not unreasonable, and was not an abuse of discretion.

The divorce decree in the present action reflects that the district court considered the statutory factors. It found that “most of the assets have been acquired during the marriage and . . . that those assets have appreciated during the marriage.” The court determined that “an equitable distribution merits an equal distribution of the parties’ assets and liabilities.” It further found that “an equal division of the parties’ assets would adequately allow each party to have sufficient income with which to support his or her individual living expenses.” These findings and conclusions are sufficiently supported by the evidence of record, and are not so unfair or inequitable as to constitute an abuse of discretion.

Appellant also asserts that the district court did not follow proper procedure when it entered the divorce decree. He complains that the district court adopted the proposed divorce decree submitted by Appellee, without allowing Appellant an opportunity to approve the order as to form or to assert any objections. Appellant claims that this violated W.R.C.P. 58(a). W.R.C.P. 58(a) is the procedure used when the judge orally announces a decision and asks one of the parties, usually the prevailing party, to draft an order reflecting that decision. In the present action, the district court did not announce a decision at the end of the trial, and did not ask one of the parties to submit an order. Instead, it directed both parties to submit proposed divorce decrees. Both parties did so. In this way, the district court was reminded or made aware of the positions, arguments, and objections of both parties. Thus, there was no violation of W.R.C.P. 58(a).

Affirmed.

J. Burke delivered the opinion for the court.

Link: http://tinyurl.com/yavp38u .

[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 2009 WY 139

2009-11-13T16:19:00.002-07:00

Summary of Decision issued November 12, 2009

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

Case Name: Exxon Mobil Corp. v. The State of Wyoming, Dept. of Revenue

Citation: 2009 WY 139

Docket Number: S-08-0098

W.R.A.P. 12.09(b) Certification from the District Court of Sublette County, Honorable Norman E. Young, Judge

Representing Appellant (Petitioner): Patrick R. Day and Walter F. Eggers, III, Holland & Hart, Cheyenne, Wyoming; Brent R. Kunz, Hathaway & Kunz, Cheyenne, Wyoming

Representing Appellee (Respondent): Bruce A. Salzburg, Attorney General; Michael L. Hubbard, Deputy Attorney General; Martin L. Hardsocg, Senior Assistant Attorney General.

Issues: Whether the State Board of Equalization erred in determining that ExxonMobil’s Black Canyon facility is an “initial dehydrator” for point of valuation purposes under Wyo. Stat. Ann. § 39-14-203(b)(iv). Whether the State Board of Equalization correctly affirm the Department of Revenue’s method of deducting post-plant transportation costs and determination that post-plant transportation costs are not included in the direct cost ratio pursuant to Wyo. Stat. Ann. § 39-14-203(b)(vi)(D).

Holdings: The statutory terms initial dehydrator and processing facility, as used in Wyo. Stat. Ann. § 39-14-203(b)(iv), are ambiguous. Because the statute is ambiguous, the principles of statutory construction must be relied upon in order to ascertain the legislative intent.

Tax statutes are to be construed in favor of the taxpayer and are not to be extended absent clear intent of the legislature. In the interpretation of statutes levying taxes it is the established rule not to extend their provisions, by implication, beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out. In case of doubt they are construed most strongly against the government and in favor of the citizen. Thus, taxes may not be imposed by any means other than a clear, definite and unambiguous statement of legislative authority.

The severance tax is imposed at the point where “the production process is completed.” Wyo. Stat. 39-14-203(b)(ii). Historically, the term “production” refers to the severance of minerals from the ground. Accordingly, the severance tax was traditionally imposed on the value of the mineral at the point where it is severed from the ground. For natural gas, severance is generally considered to occur at the wellhead. The legislature may choose to adjust or clarify the precise point of valuation, and over the years it has enacted legislation to do that. But unless the statute includes a clear expression of legislative intent to shift the point of valuation away from the wellhead, the statutory language should be construed to conform as nearly as possible to the basic severance tax concept of valuation at the wellhead.

In the present action, the Black Canyon facility is separated, physically and functionally, from the wellheads. It does not play a part in removing the gas from the ground, but instead in handling the gas after it has been removed from the ground and gathered at the facility. On this basis, it seems inappropriate to consider Black Canyon part of the production process. It seems more appropriate to consider Black Canyon to be part of the post-production operations. Based on these considerations, the construction of Wyo. Stat. 39-14-203(b)(iv) must be that the legislature’s intent was not to classify Black Canyon as an initial dehydrator as that term is used in the first sentence, but rather to consider Black Canyon a processing facility as that term is used in the second sentence of the statute.

Thus, ExxonMobil’s Black Canyon is not an “initial dehydrator,” as that term is used in the first sentence of Wyo. Stat. 39-14-203(b)(iv), and the correct point of valuation for severance taxes is not the outlet of the Black Canyon facility. Black Canyon is instead a “processing facility” as that term is used in the second sentence of the statute, and the proper point of valuation is “at the inlet to the initial transportation related compressor, custody transfer meter or processing facility, whichever occurs first.”

ExxonMobil asserts that there is a custody transfer meter located at each wellhead, so the proper point of valuation is at the inlet to these custody transfer meters. The record, however, does not establish with sufficient certainty whether those meters are custody transfer meters or volume meters. If they are volume meters, they are not the proper points of valuation. The Court is unable to resolve this issue based on the record and will remand this case to the Board to determine the correct point of valuation in accordance with this opinion.

Under Wyoming law, the fair market value of natural gas production is determined at the point when the production process has been completed. Wyo. Stat. 39-2-208(a). Severance taxes are to be levied on the “fair market value” of the mineral “after the production process is completed.” Wyo. Stat. 39-14-203(b)(ii). If it is unusually expensive to transport a mineral from the point of production to the point of sale, then that mineral has a lower fair market value at the point of production. In the present action, if the carbon dioxide component of the raw gas stream is extremely expensive to transport, then the value of the carbon dioxide at the point of production is correspondingly low. If the value of the carbon dioxide is low, that reduces the value of the entire gas stream at the point of production.

The statutory formula for the proportionate profits method explicitly includes the “direct cost of producing, processing and transporting the minerals” in the denominator of the direct cost ratio. Wyo. Stat. Ann. § 39-14-203(b)(vi)(D). The use of the plural, “minerals,” indicates that the transportation costs for all components of the raw gas stream must be included in the formula. The statute does not allow the Department to include the direct costs of some minerals and exclude the direct costs of others. While the Department may be correct that including the high costs of post-processing transportation for carbon dioxide results in a lower taxable value for the entire gas stream, that result is not absurd but rather a reflection of the true market value of the gas stream at the point of production. The result is entirely consistent with the mandate of the Wyoming Constitution that “the product of all mines shall be taxed in proportion to the value thereof.” Wyo. Const. art. 15, § 3.

Wyo. Stat. Ann. § 39-14-201(a)(xv) explicitly provides that, “For the purposes of taxation, the term natural gas includes products separated for sale or distribution during processing of the natural gas stream including, but not limited to plant condensate, natural gas liquids and sulfur.” Methane, carbon dioxide, and sulfur are all products separated from the natural gas stream, and all are included within the definition of natural gas for purposes of taxation. Because the Department levies taxes on the value of each individual product, it must also consider the costs of transporting each individual product.

The key to resolving this dispute, is to determine whether post-processing transportation costs are part of the “direct cost of producing, processing and transporting the minerals.” If so, then Wyo. Stat. Ann. § 39-14-203(b)(vi)(D) directs that they be included in the denominator of the direct cost ratio. The statutes and regulations provide no definition of the term “indirect costs” as applied to natural gas. As applied to coal, however, indirect costs are defined to include “allocations of corporate overhead, data processing costs, accounting, legal and clerical costs, and other general and administrative costs which cannot be specifically attributed to an operational function without allocation.” Wyo. Stat. 39-14-103(b)(vii)(D). Applying this statutory definition, the costs of mining permits and environmental impact statements are indirect costs because they benefit the entire operation and cannot be specifically attributed to any coal mining or processing Although this statutory definition applies directly to coal, it is helpful in defining indirect costs of producing natural gas.

The post-processing transportation costs for methane, carbon dioxide, and sulfur are not general administrative costs that benefit the entire project. They are directly attributable to the function of transporting those mineral products. Reading this statutory definition of indirect costs together with the regulatory definition of direct costs, must be concluded that post-processing transportation costs are not indirect costs, but direct costs. Accordingly, post-processing transportation costs must be included in the denominator of the statutory formula for calculating the fair market value of the minerals using the proportionate profits method.

Even if these post-processing transportation costs were indirect costs, however, the Department has provided no case law support for the approach of subtracting them from total sales. The proportionate profits method adopted by the legislature recognizes that indirect costs occur proportionately over all functions, production, processing, and transportation, in the same ratio as direct costs.” Accordingly, Wyo. Stat. 39-14-203(b)(vi)(D) requires a calculation of the ratio of direct costs of production to the direct costs of production, processing, and transportation. It does not require a calculation of indirect costs in this formula, but instead presumes that indirect costs occur in the same ratio as direct costs. The statutory formula, does not mention indirect costs, and therefore cannot be interpreted to authorize the Department’s approach of subtracting indirect costs from total sales.

The Department has cited no statutory or regulatory authority for its approach of subtracting post-processing transportation costs directly from the amount received in sales. The applicable statute, Wyo. Stat. Ann. § 39-14-203(b)(vi)(D), is explicit about what is included in this step of the formula: “The total amount received from the sale of the minerals minus exempt royalties, nonexempt royalties and production taxes.” It does not indicate, in any way, that post-processing transportation costs are also subtracted from the sales amount.

Wyo. Stat. Ann. § 39-14-203(b)(vi)(D) is unambiguous on the correct way to account for post-processing transportation costs. Post-processing transportation costs are direct costs of producing, processing and transporting the minerals. They must therefore be included in the denominator of the direct cost ratio under the proportionate profits method.

Reversed and remanded.

J. Burke delivered the opinion for the court.

Link: http://tinyurl.com/yc5ar4h .

J. Hill dissented and would affirm the BOE’s order. The majority opinion accorded neither the Department of Revenue (DOR) nor the Board of Equalization (BOE) the full benefit of the applicable standards of review. Neither did it apply a complete statement of the applicable principles of statutory construction for revenue statutes such as those at issue here.

The fair market value of natural gas for severance and ad valorem tax purposes is determined “after the production process is completed.” Wyo. Stat. 39-14-203(b)(ii) (2009). Determining the point of valuation is of particular significance because “expenses incurred by the producer prior to the point of valuation are not deductible in determining the fair market value. Thus, because certain expenses “downstream” of the point of valuation are deductible, it is to the producer’s benefit to have the point of valuation determined “upstream” as far as possible. That is the instant case in a nutshell. Here Exxon seeks an “upstream” point of valuation instead of the “downstream” point of valuation determined by the DOR and confirmed by the BOE.

Questions of law are reviewed de novo. The majority bypassed the substantial evidence part of this standard of review by characterizing the issue here as one of “statutory construction” and, thus, a pure question of law.

The Department’s valuations for state-assessed property are presumed valid, accurate, and correct. This presumption can only be overcome by credible evidence to the contrary. In the absence of evidence to the contrary, it is presumed that the officials charged with establishing value exercised honest judgment in accordance with the applicable rules, regulations, and other directives that have passed public scrutiny, either through legislative enactment or agency rule-making, or both.

The petitioner has the initial burden to present sufficient credible evidence to overcome the presumption, and a mere difference of opinion as to value is not sufficient. If the petitioner successfully overcomes the presumption, then the Board is required to equally weigh the evidence of all parties and measure it against the appropriate burden of proof. Once the presumption is successfully overcome, the burden of going forward shifts to the DOR to defend its valuation. The petitioner, however, by challenging the valuation, bears the ultimate burden of persuasion to prove by a preponderance of the evidence that the valuation was not derived in accordance with the required constitutional and statutory requirements for valuing state-assessed property. Moreover, in examining the propriety of the valuation method, the Court’s task is not to determine which of the various appraisal methods is best or most accurately estimates fair market value; rather, it is to determine whether substantial evidence exists to support usage of the chosen method of appraisal.

J. Hill rejected the majority’s conclusion that because the industry and the DOR have different views as to what an “initial dehydrator” and a “processing facility” are that the statute is, therefore, ambiguous and the Court is at liberty to resolve the difference of opinion. His examination of the findings of the BOE, convinced him that the DOR correctly identified the Black Canyon facility as an “initial dehydrator,” even though it may also perform some other miscellaneous functions.

The majority also employed a very general rule to the effect that revenue statutes must be strictly construed in favor of the taxpayer. However, the revenue legislation must also be reasonably construed so that their underlying purpose is not destroyed. Where an interpretation places undue importance on words subordinate to the plainly apparent objective of a statute in order to reward persons who resort to some unusual or not reasonably to be expected procedure, the court should not accept that interpretation.

The long range objective of all tax measures is to promote a stable social order by providing financial support to cover the expenses of the government and its programs. Although different forms of taxation may sometimes produce individual hardships, an overly biased interpretation of tax laws for the benefit of the taxpayer may result in the loss of revenue at the expense of the government and operate to the disadvantage of others contributing to its support. The better rule is that statutes imposing taxes and providing means for the collection of the same should be construed strictly in so far as they may operate to deprive the citizen of his property by summary proceedings or to impose penalties or forfeitures upon him; but otherwise tax laws ought to be given a reasonable construction, without bias or prejudice against either the taxpayer or the state, in order to carry out the intention of the legislature and further the important public interests which such statutes subserve.

Finally, J. Hill did not agree with the majority’s conclusion that the DOR and the BOE applied the proportionate profits method incorrectly.

[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 2009 WY 138

2009-11-13T11:50:00.002-07:00

Summary of Decision issued November 10, 2009

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

Case Name: Burke v. State, DOH

Citation: 2009 WY 138

Docket Number: S-09-0022

Appeal from the District Court of Laramie County, the Honorable Michael K. Davis, Judge.

Representing Appellant Burke: Frank J. Jones, Wheatland, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Michael T. Kahler, Assistant Attorney General, Shaun Wilkerson, Assistant Attorney General.

Facts/Discussion: After an audit showed that Burke had been excessively reimbursed for services provided to Medicaid recipients, the Department sought reimbursement from him. Burke filed a request for an administrative hearing, but later withdrew the request and the Department dismissed the administrative action. The Department then filed an action in district court to recover the excess payments. The district court entered summary judgment against Burke finding that he was barred from disputing the claim because he failed to exhaust his administrative remedies.

Application of res judicata: Burke was entitled to an administrative hearing. The Department advised him that he was so entitled. Burke requested a hearing and then withdrew his request. His contention that the district court improperly applied res judicata when the Medicaid rules did not allow him to request an administrative hearing was without merit. The Department’s letters clearly informed Burke that the Department was seeking recovery of excess payments pursuant to Chapter 39 and that he had a right to request reconsideration of the decision to recover excess payments, and upon the Department’s issuance of a final decision, a contested case hearing.
Wyoming Medicaid rules: Burke claimed the Medicaid Rules were ambiguous and inconsistent because while the overpayment and excess payment provisions allow a provider to request an administrative hearing, both provisions also allow the Department to initiate a civil action to recover the payments even when the provider has requested a hearing. The problem with Burke’s argument was that there was no administrative proceeding at the time the civil lawsuit was filed. Consequently, there was no possibility of an administrative ruling in his favor and a simultaneous district court judgment in the Department’s favor.
Discovery: The issue before the district court was whether the Department was entitled to judgment as a matter of law on its complaint for money damages against Burke in the amount of the excess payments. The district court determined that the order dismissing the agency action was final. The district court further determined that the doctrine of res judicata applied to bar re-litigation of the claims raised in the administrative proceeding. The discovery Burke sought to pursue was not necessary to a determination of the issues before the district court.

Conclusion: The Department’s letters clearly informed Burke that the Department was seeking recovery of excess payments pursuant to Chapter 39 and that he had a right to request reconsideration of the decision to recover excess payments, and upon the Department’s issuance of a final decision, a contested case hearing. There was no administrative proceeding at the time the civil lawsuit was filed consequently; there was no possibility of an administrative ruling in his favor and a simultaneous district court judgment in the Department’s favor. The discovery Burke sought to pursue was not necessary to a determination of the issues before the district court.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/ykmvj5z .

[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 2009 WY 137

2009-11-13T11:49:00.002-07:00

Summary of Decision issued November 10, 2009

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

Case Name: Faber v. State, DOT

Citation: 2009 WY 137

Docket Number: S-09-0099

Appeal from the District Court of Sublette County, the Honorable Marvin L. Tyler, Judge.

Representing Appellant Faber: Elizabeth Greenwood and Inga L. Parsons of Pinedale, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Michael T. Kahler, Assistant Attorney General.

Facts/Discussion: Faber appealed from the district court’s Order Affirming Agency Order Upholding Implied Consent Suspension and Associate Agency Order Upholding Commercial Disqualification.
In reviewing findings of fact, the Court examines the entire record to determine whether there is substantial evidence to support the agency’s findings. In the instant case, the Court stated there was substantial evidence in the form of eye-witness testimony of Faber’s refusal to provide a breath sample for chemical analysis. In addition, Faber did not testify at the contested case hearing and he did not cite to cases or statutes supporting his contentions.

Conclusion: Substantial evidence supported the Hearing Examiner’s finding that the petitioner intentionally failed to provide the breath samples necessary for the breath test requested by the booking officer. Such intentional failure constituted a refusal to take the breath test, which refusal led to the statutory implied consent suspension of the petitioner’s driving privileges and the additional statutory disqualification from driving a commercial motor vehicle. The officer was not required to offer a blood or urine test.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/yh5ju75 .

[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 2009 WY 136

2009-11-10T16:41:00.005-07:00

Summary of Decision issued November 6, 2009

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

Case Name: Legarda-Cornelio v. State

Citation: 2009 WY 136

Docket Number: S-09-0083

Appeal from the District Court of Natrona County, Honorable David B. Part, Judge

Representing Appellant (Defendant): Esteban Cornelio LeGarda, Pro se.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin A. Daraie, Prosecution Assistance Program, Student Director and Intern.

Facts: The appellant was convicted and sentenced in state court and then in federal court for unrelated offenses. He subsequently filed a W.R.Cr.P. 35(b) motion with the state district court asking it to order that his state sentences run concurrently with his federal sentences, which motion the district court denied. The appellant appeals that denial.
Issues: Whether the district court abused its discretion in denying the appellant’s W.R.Cr.P. 35(b) motion.

Holdings: Although it appears that the district court was amenable to the appellant’s request that his state sentences run concurrently with his impending federal sentences, the district court never explicitly ordered that, nor could it. If a defendant is subject to prosecution in more than one court, the decision regarding how the sentences will run with respect to one another should be made by the last judge to impose a sentence. The underlying rationale for this theory is that a judge cannot require a sentence to be served consecutively to a sentence that has not yet been imposed. Moreover, a state district court cannot bind a federal court with such sentencing restrictions. Thus, the district court did not abuse its discretion in refusing to order the sentences to run concurrently.

With regard to the appellant’s claim that his good behavior justified a sentence reduction, it is clear from the record that the district court considered not only the appellant’s W.R.Cr.P. 35(b) motion, which included the certificates and documentation of the self-improvement courses, but it also considered additional material, such as the appellant’s Presentence Investigation Report. After considering everything as a whole, the district court denied the appellant’s motion. While it is commendable that the appellant has chosen to turn his life around and take a proactive role in completing self-improvement courses while he has been incarcerated, those facts alone do not require the district court to grant the appellant’s W.R.Cr.P. 35(b) motion. Nor do those facts alone provide grounds to find that the district court abused its discretion in denying the appellant’s motion. After reviewing the entire record and giving the required deference to the district court’s determination, it cannot be said that it abused its discretion.

The state district court did not have authority to determine whether the appellant’s state sentences were to run concurrently with or consecutive to the appellant’s impending federal sentences. The district court was not the last court to impose a sentence on the appellant. Moreover, the district court properly denied the appellant’s W.R.Cr.P. 35(b) motion because it was still without authority to issue an order that it could not have entered in the first instance. Also, the district court was not required to grant the appellant’s W.R.Cr.P. 35(b) motion simply because the appellant demonstrated commendable behavior and achievement while he had been incarcerated.

Affirmed.

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

Link: http://tinyurly9rehgx .

[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 2009 WY 135

2009-11-10T16:39:00.005-07:00

Summary of Decision issued November 6, 2009

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

Case Name: Collings v. Lord

Citation: 2009 WY 135

Docket Number: S-08-0225

Appeal from the District Court of Uinta County, Honorable Dennis L. Sanderson, Judge

Representing Appellant (Plaintiff): Mark W. Harris of Harris Law Firm, Evanston, Wyoming

Representing Appellee (Defendant): Raymond W. Martin of Sundahl, Powers, Kapp & Martin, Cheyenne, Wyoming

Issues: Whether the District Court erred in granting summary judgment and concluding that no genuine issue of material fact existed that Appellee’s negligence was not a cause of Appellant’s injuries.

Facts: Appellant seeks recovery for injuries sustained while using Appellee’s table saw during restoration of a home owned by Appellee.

Holdings: In order to maintain a claim of negligence, a plaintiff must prove: 1) the defendant owed the plaintiff a duty of reasonable care; 2) the defendant breached the duty; and 3) the defendant’s breach was the proximate cause of injury or loss to the plaintiff. In order for proximate cause to exist, “the accident or injury must be the natural and probable consequence of the act of negligence. In fact, the ultimate test of proximate cause is foreseeability of injury. In order to qualify as a legal cause, the conduct must be a substantial factor in bringing about the plaintiff’s injuries. Proximate cause is a question of fact in the usual case, reserved for the determination by the trier of fact, unless the evidence is such that reasonable minds could not disagree.

In the present case, the Appellant made no showing of neglect or failure to perform a duty by the Appellee. There is no substantial evidence in the record that shows that the accident was a foreseeable consequence of Appellee’s conduct. Rather, the evidence presented to the district court shows that neither party knows exactly what caused the saw blade to bind. Specifically, Appellant could not identify what Appellee did, if anything, to cause the kickback and resultant injury to Appellant. Appellee knew of Appellant’s prior experience with both table saws and dado blades. As to the particular task at hand, Appellant assured Appellee he understood what needed to be done. In fact, there is evidence on the record as to Appellant’s experience as a cabinet maker and carpenter – in the past, Appellant had actually taken precautions to eliminate and/or reduce the risk of the potential and obvious danger of using dado blades. He was familiar with and in the past had made and used “push sticks” when using dado blades. The purpose of a “push stick,” according to Appellant, is to prevent the operator’s hands from coming into contact with the dado blades – the exact scenario in the instant case. By Appellant’s own account, not keeping wood straight in alignment with the fence and blade on the table saw can cause a bind – the only “input” into keeping a piece of wood in alignment is the operator, who manually pushes the wood across the saw. Appellee was not pushing the wood with Appellant, and, accordingly, did not proximately cause his injuries.

Appellant fails on appeal to show any genuine issue of material fact on the element of causation, and, as such, Appellee is entitled to judgment as a matter of law.

Affirmed.

J. Hill delivered the opinion for the court.

Link: http://tinyurl.com/yflgjxc

[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 2009 WY 134

2009-11-10T16:33:00.002-07:00

Summary of Decision issued November 6, 2009

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

Case Name: Pond v. Pond

Citation: 2009 WY 134

Docket Number: S-08-0253

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

Representing Appellant (Defendant): Dwight F. Hurich, Hurich Law Office, Gillette, Wyoming

Representing Appellee (Plaintiff): Rex O. Arney and Vincent P. Schutte of Brown, Drew & Massey, LLP, Sheridan, Wyoming

Issues: Whether the Trial Court abused its discretion in making an equitable division of the assets and debts of the parties, when the Trial Court provided the marital estate should be equalized but then failed to consider the debts each party would take.
Holdings: The disposition of marital property is committed to the sound discretion of the district court and will not be disturbed absent a manifest abuse of that discretion. Abuse of discretion occurs only when the disposition shocks the conscience of the Court and appears so unfair and inequitable that reasonable persons could not abide it.

Dividing a marital estate is not necessarily a mechanical process but rather is guided by considering the factors in Wyo. Stat. § 20-2-114 (2009). The district court has the discretion to determine what weight should be given each of these individual factors and to form a distributive scheme appropriate to the peculiar circumstances of each individual case. The goal of marital property division is to reach an equitable result.

In the instant appeal, Appellant contends that, by using the term “equalize,” the district court intended both parties to receive roughly equivalent dollar amounts from the division of the marital estate. In Wyoming, the distribution of a marital estate is equalized within the context of the respective equities of the parties. In other words, in a divorce proceeding a district court is required to divide property equitably, not necessarily monetarily equally. Indeed, a just and equitable distribution is as likely as not to be monetarily unequal. There is nothing in the record or the district court’s final order to support Appellant’s assumption that the district court intended to order a 50/50 monetary split. Specifically, there is no evidence that the district court failed to take into account the debts of the parties in reaching its final distributive scheme. At trial, Appellant introduced an exhibit representing the marital debts. The district court, in its final order, expressly accepted the exhibit as accurately reflecting the debts. The final order explicitly divided the debt between the parties as the district court determined equitable. The district court then ordered Appellant to pay Wife to equalize the “marital estate,” not just the marital assets. It is extremely doubtful the district court neglected to take the marital debt into account in its decision when the final order so thoroughly discusses the debt. Since all existing indicators point to the district court’s final order “equalizing” the marital estate with both the assets and the liabilities in mind, when it used the term “equalize,” the district court intended to divide the property equitably but not equally.

While Husband’s appellate argument is marginal, as is his compliance with the rules, the appeal is not so egregious as to merit sanctions.

Appellant has failed to establish that the district court erred in dividing the marital estate. The district court’s division of the marital estate, even if not equal, is equitable. The decision of district court is affirmed. Sanctions will not be imposed on the Appellant.

Affirmed.

J. Golden delivered the decision of the Court.

Link: http://tinyurl.com/yapokem .

[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 2009 WY 133

2009-11-04T10:56:00.000-07:00

Summary of Decision issued November 4, 2009

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

Case Name: Bromley v. State

Citation: 2009 WY 133

Docket Number: S-08-0254

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

Representing Appellant Bromley: Jason M. Tangeman of Nicholas & Tangeman, LLC, Laramie, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.

Facts/Discussion: Bromley killed Jason Voss with a shotgun in 2007. He was charged with second-degree murder, but convicted by a jury of the lesser-included offense of manslaughter.
District court’s revision of the trial transcript: On its face, W.R.A.P. 3.04 allows the district court to settle the record whenever any difference arises as to whether the record is accurate; it does not require a motion from one of the parties. Bromley did not suggest that the district court engaged in intentional falsification which left the question of whether the district court’s determination was “plainly unreasonable.” The Court stated it would be hard-pressed to find plainly unreasonable the district court’s recollection of the testimony as having mentioned methamphetamine use when the appellant also stated that such was the testimony.
Admission of evidence of methamphetamine use: Bromley gave a statement to his cellmate while he was incarcerated in Carbon County jail indicating that he had been coming down from drug use at the time of the shooting. The Court stated that Bromley’s statements were clearly admissions by a party opponent under W.R.E. 801(d)(2) and were therefore not hearsay. While they also may have related to uncharged misconduct, they were relevant to prove his state of mind at the time of the shooting. The statements were more probative of his state of mind than any other available evidence and were not unduly prejudicial. The Court noted that even without the methamphetamine evidence, there was sufficient evidence presented for the jury to have found Bromley guilty beyond a reasonable doubt of involuntary manslaughter.
Constitutionality of Second-degree murder statute: In the district court, Bromley filed a motion alleging the second-degree murder statute to be facially unconstitutional. Because Bromley was acquitted of second-degree murder, the Court found the issue to be moot and declined to address it.

Conclusion: Bromley failed to prove that the district court acted unreasonably in ordering the trial transcript to be amended. Bromley also failed to prove that the district court abused its discretion in admitting the testimony about the appellant’s jailhouse confession, or the testimony of Evans as to methamphetamine. Once Bromley’s admission of methamphetamine use was admitted, there existed a foundation for Evans’ testimony about methamphetamine use. Bromley’s argument that Wyoming’s second-degree murder statute was unconstitutional was rendered moot when the jury acquitted him of that charge.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/ykpbo3x .

[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 2009 WY 132

2009-11-03T16:25:00.001-07:00

Summary of Decision issued November 3, 2009

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

Case Name: Werner Enterprises, Inc. v. Brophy

Citation: 2009 WY 132

Docket Number: S-08-0271; S-08-0272

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

Representing Werner Enterprises, Inc: Patrick J. Murphy, Jason A. Neville, Ryan Schwartz of Williams, Porter, Day & Neville, PC, Casper, Wyoming; urtis B. Buchhammer of Buchhammer & Kehl, PC, Cheyenne, Wyoming.

Representing Brophy: Gary J. Ceriani, Valeri S. Pappas of Davis & Ceriani, PC, Denver, Colorado; L. Eric Lundgren of Lundgren Law Offices, PC, Cheyenne, Wyoming.

Facts/Discussion: A jury awarded the Brophys damages in the amount of $18,069,257 for injuries they sustained as a result of a collision between Mr. Brophy’s vehicle and a semi-truck owned by Werner Enterprises, Inc. (Werner) and being driven by Werner employee, Cheryl R. Neal.
Jury instructions: Werner contended the instruction that was not given was critical because it created a statutory presumption that Brophy failed to yield the right of way which shifted the burden to the Brophys to prove that he did not fail to yield. The Brophys responded that Werner failed to object to the district court’s ruling on the proposed instruction and therefore, it waived the claim concerning instructional error absent plain error. It was clear from the record that Werner objected to the omission from the proposed instruction and Werner offered an instruction in its place containing the omitted language. The court’s question to decide was whether Werner’s objection was sufficient to preserve the issue it raised on appeal. The case most analogous to the present one was City of Cheyenne v. Simpson. The Simpsons sued the City for damages to their building by a truck bearing the City’s logo. The Court concluded the objection did not meet the Rule 51(b) requirements. As in Simpson, Werner’s argument that the statute created a presumption that shifted the burden of proof was not presented to the district court during the trial.
Werner’s counsel stated that this was a plain error issue conceding that trial counsel’s objection did not preserve the statutory presumption issue and that the review was not for abuse of discretion as it would have been had a proper objection been made. After reviewing the claimed instructional error for plain error, the Court concluded Werner had not established that the district court transgressed a clear rule of law when it declined to instruct the jury on its own initiative that § 31-5-222(c) created a statutory presumption that Brophy failed to yield and shifted the burden to the Brophys to show that he did yield. The Court further concluded that under the particular facts presented in the case, such an instruction may not have been appropriate; the question of fault was a factual one for the jury to decide based upon its assessment of the evidence presented and the witness’ credibility. The Court concluded the evidence was sufficient to support the jury’s verdict.
Questioning Ms. Neal concerning falsification of driver’s log: Prior to trial, Werner filed a motion seeking an order prohibiting the Brophy’s safety consultant from testifying that Ms. Neal falsified her logs. It did not appear from the record that the motion in limine included questions directed to or testimony elicited from Ms. Neal. Given that Werner did not seek preclusion of such testimony, the Brophys’ counsel did not violate the court’s order in his questioning of Ms. Neal.
Questioning expert witness about Werner’s safety record and accident history: The Court concluded the question by the Brophys’ counsel caused no prejudice. The Court stated the Brophys were correct that counsel phrased the question broadly as an inquiry into what information the expert considered, Werner objected promptly, the court sustained the objection and counsel moved on.
Testimony concerning future medical and attendant care expenses: The decision to admit or reject expert testimony is entrusted to the sound discretion of the district court. The ultimate issue was whether the district court’s decision was reasonable. The district court ruled that the witness would be allowed to testify that he relied on medical reports, records and consultations in preparing his report and as to the opinions he reached about the care needed in the future. The district court precluded the witness from testifying concerning the contents of the medical reports and statements made to him by the neurologist. From the evidence presented, the jury could have inferred with a reasonable probability that Mr. Brophy’s injuries were permanent and he would likely need care for the rest of his life.
Excessive verdict: When there is substantial evidence to support an award, the Court does not disturb the findings made by the fact finder unless the award is so excessive and unreasonable as to indicate passion or prejudice on the part of the jury. From the evidence presented, the jury was capable of inferring that Mr. Brophy experienced considerable pain, suffering, loss of enjoyment of life and inability to be the human being he was before the injury. The Court could not say the award was so excessive and unreasonable as to indicate passion or prejudice on the part of the jury.

Conclusion: The question of fault was a factual one for the jury to decide. The evidence was sufficient to support the jury’s verdict. Because Werner did not seek preclusion of testimony elicited from Ms. Neal, the Brophy’s attorney did not violate the court’s order in its questioning of her. From the evidence presented, the jury could have inferred with a reasonable probability that the injuries were permanent and that care would likely be necessary for the remainder of his life. The award was not so excessive or unreasonable as to indicate passion or prejudice on the part of the jury.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/ykherv6 .

[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 2009 WY 131

2009-10-30T12:10:00.001-07:00

Summary of Decision issued October 30, 2009

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

Case Name: Gose v. City of Douglas, WY

Citation: 2009 WY 131

Docket Number: S-09-0133

Order of Summary Affirmance

The matter came before the Court upon its own motion following a review of cases recently recommended to the Court’s expedited docket. After the Court’s review, it concluded that the “Brief of Appellants” should be stricken from the files due to Appellant’s repeated use of disrespectful language against the district court, the Supreme Court and others. Therefore, the Court concluded that the district court’s “Order Granting Defendant’s Converted Motion for Summary Judgment be summarily affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/yb3zm85 .

[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 2009 WY 130

2009-10-23T09:39:00.001-07:00

Summary of Decision issued October 23, 2009

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

Case Name: Cummings v. State

Citation: 2009 WY 130

Docket Number: S-08-0218

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

Representing Petitioner Cummings: Julie Nye Tiedeken of McKellar, Tiedeken & Scoggin, LLC, Cheyenne, Wyoming.

Representing Respondent State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Senior Assistant Attorney General.

Facts/Discussion: The case arose out of a motor vehicle accident that resulted in the death of Mary North. A Crook County Circuit Court found Cummings guilty of the traffic offense of improper passing for his role in the accident. Cummings was ordered to pay restitution, which included damages for wrongful death. Cummings appealed the propriety of the wrongful death restitution award to the district court. The district court vacated the award due in part to insufficient proof and remanded to the circuit court for further fact-finding proceedings. On remand, the circuit court again awarded restitution. In the following appeal, the district court upheld the order of restitution but sua sponte reduced the amount awarded.
The Court’s focus was on the initial appellate decision issued by the district court. It determined the State had not produced adequate evidence to support the ordered amount of restitution for lost earnings. The district court then remanded the case to the circuit court for a new determination of the amount of restitution to be charged against Cummings. The Court stated the law in Wyoming concerning restitution is clear cut. The amount fixed by a sentencing court should be supported by evidence sufficient to afford a reasonable basis for estimating the victim’s loss. The State bears the burden and when it fails, is not allowed a second chance. In light of this existing law, the initial remand by the district court was erroneous.

Conclusion: The proceedings should have ended when the district court vacated the challenged portion of the restitution order pertaining to the lost earnings of Mary North. The Court vacated the results of all proceedings occurring after the district court’s initial appellate decision.

Remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/yg6mfj9 .

[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 2009 WY 129

2009-10-22T09:53:00.001-07:00

Summary of Decision issued October 22, 2009

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

Case Name: Palmer v. State

Citation: 2009 WY 129

Docket Number: S-08-0252

Appeal from the District Court of Uinta County, the Honorable Dennis L. Sanderson, Judge.

Representing Appellant Palmer: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; and David E. Westling, Senior 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 Leda M. Pojman, Senior Assistant Attorney General.

Facts/Discussion: Palmer sought review of his four convictions for sexual abuse of a minor in the second degree. Palmer raised issues similar to those raised in May v. State and Crain v. State. The Court applied the same reasoning in the instant case and rejected both of Palmer’s challenges to the affected statutes.
Palmer also sought review of the trial court’s admission of uncharged misconduct evidence which had not been a part of the State’s original W.R.E. 404(b) notice. One of Palmer’s principle objections to the testimony was that it was developed for use at the hearing into a stalking/protection petition filed by the victim’s parents and was not generated by the criminal charges that Palmer faced.
Palmer was given notice that Maxfield would testify and what the gist of her testimony would be. The witness testified that Palmer and the mother of Palmer’s child recruited her to give Palmer an alibi. Palmer raised no pretrial objection below. The State did not perceive the testimony as coming under the umbrella of Rule 404(b) and the witness was not included in the State’s 404(b) notice to Palmer. The Rule is aimed at excluding character evidence when it is used for an improper purpose while at the same time providing for its admission within exceptions. One such exception is evidence which completes the whole story.

Conclusion: The Court concluded that the district court would have been correct in admitting the disputed evidence on the basis that W.R.E. 404(b) analysis does not apply to post-crime “guilty mind” evidence such as that offered by the State in the instant case.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/ykvq46w .

[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 2009 WY 128

2009-10-22T09:50:00.001-07:00

Summary of Decision issued October 22, 2009

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

Case Name: Crain v. State; May v. State

Citation: 2009 WY 128

Docket Number: S-08-0215; S-09-0002

Appeal from the District Court of Campbell County and Teton County, the Honorable Dan R. Price II, Judge and the Honorable Nancy J. Guthrie, Judge.

Representing Appellants Crain and May: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; and Eric Alden and Kirk A. Morgan, Senior Assistants 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 Graham M. Smith, Assistant Attorney General.

Facts/Discussion: Appellants challenge their convictions for sexual abuse of a minor under the comprehensive amendments to Wyoming’s sexual assault statutes. The statutes at issue in these cases are § 6-2-314 through § 6-2-317.
Statutory construction: Crain and May contend that the statutes under which they were convicted should be construed to mean that if the victim is one day or more past his/her 15th birthday, then the respective statutes do not criminalize the conduct at issue in these cases. The Court has a long-standing rule that it reads statutes relating to the same subject in pari materia so that inconsistencies in one statute may be resolved by looking at another statute on the same subject. When the Court looked at the statutes as a tightly structured scheme of statutory protections designed to effectuate a method of carefully crafted gradations within the subject of sexual assault crimes, it was evident that the Appellants’ argument was absurd.
Constitutionally – vague as applied: The appellants also contended that the statutes at issue were so uncertain in their meaning that persons of ordinary intelligence might be required to guess at their meaning and thus they were constitutionally vague as applied to the facts and circumstances of these two cases. The Court concluded that when the statute is read in pari materia with all the sexual assault statutes and giving the words their ordinary and usual meaning, there was no uncertainty as to the reach of the statutes.

Conclusion: The Court held that the statutes at issue were not ambiguous and did not require the Court to construe them beyond their plain language. In addition, the Court concluded the statutes were not unconstitutionally vague as applied to the two Appellants.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/ylm4k8c .

[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 2009 WY 127

2009-10-20T15:06:00.001-07:00

Summary of Decision issued October 20, 2009

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

Case Name: Blakely v. Blakely

Citation: 2009 WY 127

Docket Number: S-09-0020

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

Representing Mother: Christopher M. Wages of Goddard, Wages & Vogel, Buffalo, Wyoming.

Representing Father: Rick Erb of Richard A. Erb, Jr., PC, Gillette, Wyoming.

Facts/Discussion: Mother appealed from her divorce decree contending that the district court abused its discretion when it awarded Father primary residential custody of the parties’ two sons while the half-brother remained in Mother’s custody.
Custody, visitation, child support and alimony are all committed to the sound discretion of the district court. The one constant is that the resolution must be in the best interests of the children in that particular family. The Court noted their comment in Wilson v. Wilson that seldom does a divorce court have a choice between a parent who is all good on one side and a parent who is all bad on the other side. The burden is on the party asserting an abuse of discretion. Mother failed to meet the applicable burden and because the record includes sufficient evidence to support the district court’s decision, the Court found no abuse of discretion.

Conclusion: The district court did not err when it awarded Father primary residential custody of his two sons. The Court found no abuse of discretion by the district court.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/ygyhcva .

[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 2009 WY 126

2009-10-16T09:55:00.002-07:00

Summary of Decision issued October 16, 2009

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

Case Name: Tombroek v. State

Citation: 2009 WY 126

Docket Number: S-08-0015

Appeal from the District Court of Converse County, the Honorable John C. Brooks, Judge.

Representing Appellant Tombroek: Tina N. Kerin, Appellate Counsel; Diane E. Courselle, Faculty Director and Whitney L. Michak and Janae E. Ruppert, Student Interns, Defender Aid Program.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.

Facts/Discussion: Tombroek was tried and convicted by a jury of first-degree sexual assault of an adult woman with a mental disability. Tombroek appealed the conviction on the grounds that the district court abused its discretion by allowing witnesses to testify to prior statements made to them by the victim. He also argued the State failed to present sufficient evidence to prove an element of the crime charged.

Testimony about prior consistent statements: The district court admitted statements from the doctor, the sister, the mother and the investigating officer. Tombroek objected to the statements from the doctor admitted by the district court as a medical exception to hearsay under Rule W.R.E. 801(d)(1)(B). Four requirements must be met before a prior consistent statement will be properly admissible: the declarant testifies at trial; the declarant is subject to cross-examination; the prior statement is consistent with the declarant’s trial testimony and the prior statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. After applying the requirements to the facts in the instant case, the Court stated it was clear that all of the statements were properly admitted as prior consistent statements. The Court then considered whether the testimony could be used as substantive evidence or limited to rehabilitative evidence. Tombroek relied on Seward v. State and Wilde v. State. The focus of the Court’s concern in both cases was the vouching nature of the questioned testimony and its resultant prejudice. The Court noted the prosecutor carefully limited his use of the evidence in closing argument to rehabilitation of the victim, lessening any risk of prejudice. The Court found no abuse of discretion in the instant case where the appellant failed at trial to either identify when an alleged motive to fabricate arose or to request a limiting instruction.
Sufficient evidence: Tombroek claimed that the State failed to present evidence from which a jury could reasonably conclude beyond a reasonable doubt that the victim was incapable of appraising the nature of her conduct with regard to the sexual conduct that occurred as required by § 6-2-302(a)(iv). The Court has previously divided the subsection into two parts requiring that there was sufficient evidence of the victim’s mental deficiency or developmental disability to establish that the victim was incapable of appraising the nature of her conduct and that there was sufficient evidence that the defendant knew or reasonably should have known about the victim’s deficiency. Tombroek admitted knowledge of the victim’s situation, testimony was presented and the jury was able to observe the victim as well. It was reasonable to conclude the jury could have concluded as it did.

Conclusion: Appellant failed to demonstrate that the district court abused its discretion in admitting the prior consistent statements. Furthermore, the Court found there was sufficient evidence presented to the jury for it reasonably to conclude that the victim had a disability which made her incapable of appraising the nature of her conduct and that the appellant was aware of both the disability and its effect upon the victim.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/yz4kus3 .

[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 2009 WY 125

2009-10-13T10:33:00.002-07:00

Summary of Decision issued October 13, 2009

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

Case Name: Miller v. State

Citation: 2009 WY 125

Docket Number: S-08-0190; S-08-0191

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

Representing Appellant Miller: Michael H. Reese, PC, Cheyenne, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric Alan Johnson, Director Prosecution Assistance Program; Eric K. Thompson, Student Director; Cortney Kitchen, Student Intern.

Facts/Discussion: Miller challenged his conviction for several counts of illegal possession of controlled substances. He contended the district court erred in its denial of his motion to suppress evidence in each case. He also claimed a violation of his right to speedy trial in both cases.

Motions to Suppress: Miller contended the sweep of his home violated his Fourth Amendment rights because officers entered his home without a warrant. The district court determined the information received from the informant was sufficient to establish probable cause. Information received from an informant must be evaluated under the totality of the circumstances. The witness’s statements were based upon firsthand knowledge, were against his penal interests, and were close in time to the events he described. The district court recognized that the presence of evidence that is easily destroyed (methamphetamine and marijuana) combined with phone calls from Miller to the informant and the close proximity of Miller’s and the informant’s homes created exigent circumstances justifying the sweep of the residence prior to receiving the warrant. It was undisputed the challenged evidence was obtained during execution of the search warrant. On appeal, Miller did not identify any evidence or information that was found during the sweep or his detention that was used to obtain the warrant.
Miller sought to suppress evidence found as a result of the search of his fiancée’s vehicle. The district court denied the motion on the basis that he lacked standing to challenge the search. It was undisputed Miller did not own the vehicle and was not present at any time during the search. The Court distinguished both United States v. Soto and United States v. Rubio-Rivera from the instant case. Neither defendant owned the cars in those cases but both had standing because each was in possession of the vehicle at the time of the search.
Speedy Trial: Miller did not assert a speedy trial defense in the district court and did not reserve his right to assert the issue on appeal in docket no. 6192. In docket no. 6171, Miller signed two waivers of speedy trial. In his appeal, Miller did not contend that his trial was delayed more than 180 days after each waiver or that the delay violated W.R.Cr.P. 48(b). The Court then considered the four-factor test set out in Barker v. Wingo that requires the Court to evaluate the length of delay, the reason for delay, defendant’s assertion of the right and prejudice to the defendant. Miller was arrested in 2006 and not brought to trial until 2008, a delay of 504 days. The Court stated it previously found that such a delay was presumptively prejudicial. A review of the record revealed that most of the delay was attributable to Miller’s six changes in defense counsel and the requests by defense to allow adequate time for new counsel to prepare for trial. Miller signed two waivers but did not otherwise bring any speedy trial claims to the attention of the district court. Miller made no argument that his pretrial incarceration was oppressive. A bare assertion will not suffice. The possibility that the defense was impaired by the delay is the most serious factor in determining prejudice. Miller failed to demonstrate that he was prejudiced by the delay.

Conclusion: Miller failed to establish the required nexus between the alleged misconduct and the evidence that he sought to suppress. Miller did not have a reasonable expectation of privacy in the vehicle and therefore lacked standing to challenge the search. Miller was not denied his statutory or constitutional right to a speedy trial in either case.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/yl4k6so .

[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 2009 WY 124

2009-10-09T09:11:00.000-07:00

Summary of Decision issued October 9, 2009

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

Case Name: Weiss v. Weiss

Citation: 2009 WY 124

Docket Number: S-09-0030; S-09-0068

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

Representing Gary A. Weiss: L. Kimberly Weiss of Law Offices of L. Kimberly Weiss, Wilson, Wyoming.

Representing Kathryn B. Weiss: Kenneth S. Cohen of Cohen Law Office, PC; and Heather Noble of Jackson, Wyoming.

Facts/Discussion: These combined appeals arise out of post-divorce proceedings. In S-09-0030, Father appeals the district court’s order that he pay Mother $135,000 for the attorneys’ fees and costs she incurred in defending his motion to modify custody and in S-09-0068, Mother appeals the district court’s order changing child custody in a subsequent proceeding.
Award of attorneys’ fees: Although Wyoming generally subscribes to the American rule regarding the recovery of attorney’s fees, a prevailing party may be reimbursed for attorney’s fees when provided for by contract or statute. In determining the reasonableness of the fees requested, the trial courts are to follow the federal lodestar test which requires a determination of whether the fee charged represents the product of reasonable hours times a reasonable rate and whether other factors of discretionary application should be considered to adjust the fee. The Court stated the district court’s decision to award Mother her attorneys’ fees and costs was not unreasonable. Mother’s motion was lengthy and detailed and included an affidavit from her attorney detailing the work done, the complexities of the case and the reasonableness of the rate charged. The Court felt the case more nearly resembled Breitenstine rather than Hinckley.
Jurisdiction for child custody: Divorce is purely a statutory process with courts having no authority other than that provided by statue. The limit extends to the court’s power to modify a divorce decree. A party or parent may seek modification of a custody order. No statute authorizes a child or a guardian ad litem to initiate a petition for change of custody. In the instant case, the district court modified custody despite the absence of any petition to modify filed by either party/parent. It was without jurisdiction to do so.

Conclusion: The district court did not abuse its discretion in awarding Mother statutory attorneys’ fees and costs for her defense of Father’s 2006 motion to modify custody. The district court was without jurisdiction to modify custody based upon a report of the guardian ad litem, where no petition to modify had been filed by either party/parent. Because the case involved the custody of children with the imminent potential for a residential relocation, the Court noted that the decision does not prevent the district court from hearing an appropriately filed petition regarding custody.

Affirmed S-09-0030. Remanded S-09-0068.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/yk7kcwk .

[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 2009 WY 123

2009-10-07T09:11:00.001-07:00

Summary of Decision issued October 7, 2009

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

Case Name: Wyoming State Bar v. John Craig Abraham

Citation: 2009 WY 123

Docket Number: D-09-0002

Order of Public Censure

The matter came before the Court upon a “Report and Recommendation for Public Censure” filed August 27, 2009, by the Board of Professional Responsibility for the Wyoming State Bar. The Court, after a careful review of the Board’s report and recommendation finds that the Report and Recommendation should be approved, confirmed and adopted by the Court; and that Respondent should be publicly censured in the manner set forth in the Report and Recommendation.

Respondent shall receive a public censure for his conduct in a manner consistent with the recommended censure contained in the Report and Recommendation for Public Censure; Respondent will be mentored by C. John Cotton and Michael K. Shoumaker during a probationary period that will last until January 1, 2012 and agrees that he will be suspended from practice for any further rules infractions that occur within that probationary period; Respondent shall reimburse the Wyoming State Bar the amount of $525.00 to the Clerk of the Board of Professional Responsibility on or before January 1, 2010. The order shall be docketed as a public record and published in the Wyoming Reporter and the Pacific Reporter, served upon the Respondent and transmitted to the members of the Board of Professional Responsibility and the appropriate clerks of court.

The Report and Recommendation for Public Censure can be found at the link below.

C.J. Voigt delivered the order for the court.

Link: http://tinyurl.com/ye3ushj .

[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 2009 WY 122

2009-10-06T15:33:00.003-07:00

Summary of Decision issued October 6, 2009

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

Case Name: Anderson v. Bd. of County Comm’r of Teton County, WY

Citation: 2009 WY 122

Docket Number: S-08-0102

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

Representing Appellants Anderson: Andrea L. Richard and Jennifer A. Golden, the Richard Law Firm, PC, Jackson, Wyoming.

Representing Appellee, Board of County Commissioners: James L. Radda, Deputy County Attorney, Teton County, Jackson, Wyoming.

Representing Appellees Baltensperger: William R. Fix, William R. Fix, PC, Jackson, Wyoming.

Facts/Discussion: The Baltenspergers applied for and were granted the necessary permits allowing them to construct a barn/equestrian center on their property in Teton County, Wyoming. The Andersons objected to the construction permits and appealed to the Board. After the Board affirmed the grant of the permits, the Andersons petitioned the district court to review the final administrative action. The district court affirmed the Board’s decision.

Accessory residential structure: The Board determined that the barn was an accessory residential structure because it was incidental, subordinate or secondary to the residence on Lot 4A and devoted primarily to the residence and that it did not change the character of the premises. The Andersons claim the record does not support that finding primarily because the proposed barn at 6,750 sq. ft. will be much larger than the residence at 1,056 sq. ft. The Andersons pointed to no authority that stated the barn must be smaller than the residence in order for its use to be considered subordinate to the residential use of the premises. The record was clear that the residential structure was in place when the Baltenspergers applied for the construction permits.
Whether approving the construction permits violated the LDRs: The Andersons relied upon Section 5120.N.1 of the LDRs to support their contention that Teton County was required to impose restrictions on the Baltenspergers’ development to minimize adverse impacts on the neighborhood. The Court stated that the Section provides authority to Teton County to impose restrictions or conditions upon approved permits, but does not mandate it. Additionally, the LDRs only require the County to assess potential injury to the neighborhood when considering applications for variances but not when considering applications for building permits or Grading and Erosion Control (GEC) permits as in the instant case. The Board was correct when it determined that consideration of private covenants was not within the scope of the LDRs and that Teton County was correct in not imposing restrictions based upon the alleged violations of private covenants.

Conclusion: The Court would not consider the Andersons’ claim that the approval of the construction permits was based on conclusory findings as that issue was not adequately raised below. After reviewing the record, the Court found substantial evidence to support the Board’s finding that the center was an accessory residential structure. Additionally, Teton County’s approval of the Building Permit and the GEC Permit did not violate the LDRs and was in accordance with law.

Affirmed.

D.J. Waldrip delivered the decision.

Link: http://tinyurl.com/ydvwc8f .

[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.]