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wyo/10314989.json

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+"{\"id\": \"10314989\", \"name\": \"Betty Lou Frances PAWLOWSKI, Appellant (Plaintiff), v. Lawrence Harry PAWLOWSKI, Appellee (Defendant)\", \"name_abbreviation\": \"Pawlowski v. Pawlowski\", \"decision_date\": \"1996-10-22\", \"docket_number\": \"No. 95-275\", \"first_page\": \"240\", \"last_page\": \"244\", \"citations\": \"925 P.2d 240\", \"volume\": \"925\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T19:28:56.318043+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN, and LEHMAN, JJ.\", \"parties\": \"Betty Lou Frances PAWLOWSKI, Appellant (Plaintiff), v. Lawrence Harry PAWLOWSKI, Appellee (Defendant).\", \"head_matter\": \"Betty Lou Frances PAWLOWSKI, Appellant (Plaintiff), v. Lawrence Harry PAWLOWSKI, Appellee (Defendant).\\nNo. 95-275.\\nSupreme Court of Wyoming.\\nOct. 22, 1996.\\nWilliam D. Hjelmstad, Casper, for Appellant.\\nLarry R. Clapp of Clapp and Associates and Keith R. Nachbar, Casper, for Appellee.\\nBefore TAYLOR, C.J., and THOMAS, MACY, GOLDEN, and LEHMAN, JJ.\\nChief Justice at time of oral argument.\", \"word_count\": \"1697\", \"char_count\": \"10494\", \"text\": \"LEHMAN, Justice.\\nIn a divorce action filed in a multi-judge district, the parties learned of the assigned judge only when the case was set for trial. Four days later, appellant filed a motion for peremptory disqualification, which was denied by the assigned judge as untimely.\\nWe reverse.\\nISSUE\\nWhile appellant sets forth numerous alleged errors during the course of this divorce action and trial, there is but one determinative issue:\\nDid the court commit error in denying the Motion for Peremptory Disqualification of judge under W.R.C.P. 40.1(b)(1)?\\nFACTS\\nAppellant filed a divorce complaint in Wyoming's Seventh Judicial District, which is served by two district court judges. The day after the complaint was filed, one of the judges signed two ex parte orders based on the allegations in the verified complaint. Following appellee's answer being filed, the second judge signed two stipulated orders, as well as an order for mediation. Eventually appellant requested a trial setting; and, by the Notice of Setting signed by the district court's administrative assistant, the parties were advised which judge would preside at the trial. Four days later, appellant properly filed and served a Motion for Peremptory Disqualification pursuant to W.R.C.P. 40.1(b)(1) with a proposed order granting the motion.\\nThe sole response to the Motion for Peremptory Disqualification was the judge's handwritten notation attached to the proposed order advising the appellant that the motion was \\\"not timely.\\\" No formal order was entered until after this appeal was filed. Discovery continued and a trial was held. After the trial, appellant filed a Motion for New Trial and Motion to Amend Judgment, which was denied without hearing. This timely appeal followed.\\nSTANDARD OF REVIEW\\nThe dispositive question for our review is whether the district court judge had subject matter jurisdiction after appellant filed the Motion for Peremptory Disqualification. We conduct a de novo review of jurisdictional questions pursuant to \\\"the inherent power, and the duty, to address jurisdictional defects on appeal....\\\" Gookin v. State Farm Fire & Cas. Ins. Co., 826 P.2d 229, 232 (Wyo.1992); see also Global Shipping & Trading, Ltd. v. Verkhnesaldincky Metallurgic Co., 892 P.2d 143, 146 (Wyo.1995). If a lower court acts without jurisdiction, \\\"this court will notice the defect and have jurisdiction on appeal, not on the merits, but merely for the purpose of correcting the error of the lower court in maintaining the suit.\\\" Goo-kin, at 232. In this case, our initial inquiry must be whether the requisites of W.R.C.P. 40.1(b)(1) were met and whether such compliance appears on the record. Id., at 234-35. If so, we must then determine whether appellant waived her right to invoke the rule.\\nDISCUSSION\\nThe provision setting forth the mandatory procedures to exercise a peremptory disqualification of a judge in a civil case is W.R.C.P. 40.1(b)(1). The portions of that rule which govern the procedures for plaintiff (appellant herein) provide as follows:\\n(b) Change of judge.\\n(1) Peremptory Disqualification. \\u2014 A district judge may be peremptorily disqualified from acting in a case by the filing of a motion requesting that the judge be so disqualified. The motion designating the judge to be disqualified shall be filed by the plaintiff within five days after the complaint is filed; provided, that in multi-judge districts, the plaintiff must file the motion to disqualify the judge within five days after the name of the assigned judge has been provided by a representative of the court to counsel for plaintiff by personal advice at the courthouse, telephone call, or a mailed notice.\\n(Emphasis added.)\\nThe undisputed record clearly reflects that the mandates of the rule were followed. The notice of setting was the first notification to the parties' counsel, by a representative of the court, naming the judge assigned to preside over the case. Just as clear is that the motion for peremptory disqualification was properly filed with the court within five days after the notice of trial setting and was served upon appellee. The position of appel-lee, however, is that appellant waived her right to peremptorily disqualify the judge both before and after filing her motion.\\nWe first address the assertion that appellant's failure to comply with procedural rules after filing her motion constitutes a waiver of her jurisdictional claim. Appellee argues that appellant failed to request a hearing, pursuant to W.R.C.P. 6(e)(2) and \\\"local practice,\\\" and failed to provide notice of the denial of the peremptory challenge pursuant to W.R.C.P. 5 and 58. Appellee further contends that appellant's failure to comply with W.R.A.P. 2.07(b)(2) and 7.01 precludes consideration of jurisdictional issues by this court. Appellee's procedural claims, however, do not withstand the jurisdictional reality of a motion for peremptory disqualification.\\n[0]nee a proper motion for change of judge has been filed, the district judge concerning whom the motion is made is divested of all jurisdiction except for residual authority to assign the case to another district judge.\\nOsborne v. District Court of Ninth Judicial Dist., 654 P.2d 124, 127 (Wyo.1982) (emphasis added). The record reflects that a proper motion for change of judge was filed. This is the triggering event which divested the district court of subject matter jurisdiction.\\nThe failure by appellant to memorialize the district court's handwritten denial of the motion by way of formal order is unfortunate and would have provided a more precise record. However, it is well established that, unlike personal jurisdiction, subject matter jurisdiction cannot be waived. Cotton v. Brow, 903 P.2d 530, 531 (Wyo.1995); Brunsvoid v. State, 864 P.2d 34, 36 (Wyo.1993).\\nThe first and fundamental question on every appeal is that of jurisdiction; this question cannot be waived; it is open for consideration by the reviewing court whenever it is raised by any party, or it may be raised by the court of its own motion.\\nGookin, 826 P.2d at 232 (quoting Gardner v. Walker, 373 P.2d 598, 599 (Wyo.1962)). Consequently, even though appellant's procedural omissions may be cause for comment, they did not confer subject matter jurisdiction on the district court judge after a proper motion for peremptory disqualification was filed.\\nWe turn now to appellee's contention that appellant waived her right to file a peremptory disqualification when she accepted the judge's jurisdiction to sign ex parte orders immediately after the complaint was filed. Appellee appears to contend that once appellant recognized the judge's authority to act on any matter in the case, she waived her right to peremptorily disqualify the same judge for any other part of the proceeding. We perceive several problems with this argument.\\nFirst, appellee ignores the fact that the other district judge also signed several orders prior to notice of assignment of the case. In essence, appellee seeks approval of a rule which would require an attorney to speculate as to which of two judges eventually will be assigned to a ease, and then to immediately file a motion for peremptory disqualification based on that speculation. This we will not do. As noted by the Montana supreme court: \\\"It is for circumstances such as these that this Court requires that an attorney of record have knowledge of the judge assigned to the case . before the right to disqualify the judge is lost.\\\" In re Marriage of Peabody, 179 Mont. 98, 586 P.2d 304, 306 (1978) (emphasis added). No litigant has the authority to assign a judge to a case in a multi-judge district, and the court's failure to timely assign a judge as contemplated under the rule should not operate as a vehicle to deprive a litigant of a right to a peremptory challenge.\\nOf more interest is appellee's reference to the possibility of mischief when the language of W.R.C.P. 40.1(b)(1) is applied to a litigant who has permitted, without challenge, a judge to hear and rule on evidence substantially material to the subsequent trial and then, after formal assignment, attempts to disqualify that judge on the basis of the prior ruling. See State v. Neil, 102 Ariz. 110, 425 P.2d 842 (1967). In Osborne, we noted the legal principle that \\\"a party cannot utilize a motion to change a judge as a means of picking and choosing between judges after he or she is given an impression of the court's view on the matter in dispute.\\\" 654 P.2d at 127. We recognize that there are legitimate concerns regarding the potential for abuse of the rule. Therefore, balancing these concerns with the realities of practice, we hold that a party may waive the right to invoke a peremptory disqualification before notice by the court of an assignment when a party allows a judge to determine substantive material issues in the case to be set for trial.\\nEven so, these circumstances are not present in this case. The record does not disclose any contested hearings having been held or evidence otherwise presented which resulted in a decision made by either judge regarding substantive material issues in the case to be set for trial. As result, appellant did not waive her right to invoke the peremptory disqualification of the district judge pursuant to W.R.C.P. 40.1(b)(1).\\nCONCLUSION\\nIndividualized practices in the assignment of judges in multi-judge districts do not alter a litigant's right to intelligently and knowingly exercise peremptory challenges. In this case, the assignment of the judge was made pursuant to the requirements of W.R.C.P. 40.1(b)(1) when the litigants received the notice of a trial setting naming the presiding judge. While ex parte orders were issued by more than one judge in pretrial matters, none involved the consideration of evidence material to the issues to be determined at trial. Appellant timely filed the motion for peremptory disqualification within five days after learning of the judge who would preside at trial. Therefore, we reverse the decision of the district court and remand this case for disposition in accordance with our ruling.\"}"

wyo/10333787.json

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+"{\"id\": \"10333787\", \"name\": \"John GRONSKI, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff)\", \"name_abbreviation\": \"Gronski v. State\", \"decision_date\": \"1996-01-22\", \"docket_number\": \"No. 95-23\", \"first_page\": \"561\", \"last_page\": \"566\", \"citations\": \"910 P.2d 561\", \"volume\": \"910\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T23:53:18.738159+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before GOLDEN, C. J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.\", \"parties\": \"John GRONSKI, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"John GRONSKI, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\\nNo. 95-23.\\nSupreme Court of Wyoming.\\nJan. 22, 1996.\\nSylvia Lee Hackl, State Public Defender; Gerald M. Gallivan, Director, Defender Aid Program; Bob L. Ring, Student Intern, for Appellant.\\nWilliam U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Sr. Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; John Harjehausen, Student Director, Prosecution Assistance Program, for Appellee.\\nBefore GOLDEN, C. J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.\", \"word_count\": \"2574\", \"char_count\": \"16007\", \"text\": \"GOLDEN, Chief Justice.\\nAppellant John Gronski (Gronski) appeals the district court's denial of his motion to suppress incriminating evidence found during a warrantless search of the trunk of his car and a duffle bag found in the trunk of his car.\\nWe affirm.\\nISSUES\\nGronski states the following issues:\\nI. Whether a warrantless search with probable cause of a vehicle is not authorized where the vehicle is no longer mobile because the police had effectively seized and immobilized the car by the arrest of the driver and seizure of the keys?\\nII. Assuming that the warrantless search of the car based on probable cause was lawful, was the subsequent warrantless search of the duffel bag found in the trunk of the ear lawful under Article I, Section 4 of the Wyoming Constitution?\\nThe State of Wyoming cites the issues as:\\nI. Did the warrantless search of a vehicle and its containers violate the Fourth Amendment of the United States Constitution where the vehicle was stopped and searched upon probable cause that it contained contraband?\\nII. Does Article I, Section 4 of the Wyoming Constitution afford additional protection beyond that provided by the Fourth Amendment of the United States Constitution, against warrantless searches of containers within a vehicle searched upon probable cause that it contains contraband?\\nFACTS\\nThe facts in this case are not disputed. On July 21, 1994, a reliable informant notified Detective Barrett (Barrett), a Laramie County Sheriffs Department detective, that someone named \\\"John,\\\" later identified as Gron-ski, had about eight pounds of marijuana at an apartment on Myers Court. The informant told Barrett that a woman named Jennifer Carroll (Carroll) showed him a greenish duffle bag with bags of marijuana in it and that Gronski and his girlfriend discussed leaving town while the informant was in the apartment. The informant told Barrett he saw Gronski put the duffle bag in a blue Lincoln Continental and gave Barrett a par tial license plate number of the car. Based on this information, Barrett believed he had probable cause to obtain a search warrant. Barrett asked other deputies to maintain surveillance on the apartment and the car while he obtained a search warrant for the apartment and the ear.\\nBefore Barrett reached the station to prepare the paperwork for the warrant, however, he received notice that two people were driving away from the apartment in the car. Officers followed the car in unmarked vehicles. The officers were going to stop the car as soon as a marked patrol car arrived to assist them. Before a marked patrol car could arrive, however, Gronski parked the car in a store parking lot, got out of the car and locked it. When Gronski and his passenger (Carroll) left the ear, officers stopped them, separated them, questioned them and took Gronski's car keys and driver's license. Officers asked Gronski for permission to search the ear, but Gronski refused to give them permission. An officer told Gronski to sit in a patrol ear while police questioned Carroll. During questioning, Carroll told officers there was marijuana either in the ear or in the trunk of the ear. Barrett decided to search the ear and the trunk for the duffle bag without a search warrant. The duffle bag was found in the trunk and searched. Officers found approximately eight pounds of marijuana in the duffle bag.\\nGronski filed a motion to suppress the evidence obtained in the car during the war-rantless search. After an evidentiary hearing on the issue, the district court made findings of fact, determined the warrantless search was reasonable under the circumstances, and denied the motion to suppress. Gronski entered a conditional plea of guilty pursuant to Wyo.R.CRIM-P. 11 and this appeal of the denial of his motion to suppress followed.\\nDISCUSSION\\nOn review, the findings of the trial court regarding the motion to suppress are binding on this court unless clearly erroneous. Neilson v. State, 599 P.2d 1326, 1330 (Wyo.1979), cert. denied, 444 U.S. 1079, 100 S.Ct. 1031, 62 L.Ed.2d 763 (1980). The issue of law, whether an unreasonable search or seizure occurred in violation of constitutional rights, is reviewed de novo. Wilson v. State, 874 P.2d 215, 218 (Wyo.1994). The trial court found:\\n[T]he officers had probable cause to believe that Gronski's vehicle contained the duffle bag of marijuana. The informant's tip, along with the officers' own verification and observations, provided that probable cause. Even if exigent circumstances were to be required, they are present. The officers had reason to believe that Gronski and his passenger were preparing to leave the jurisdiction with the marijuana. Detective Barrett was on the way to obtain search warrants when Gronski and his passenger left the Myers Court residence. Once the vehicle was in motion, there was no time to obtain a warrant. The search was reasonable under the Fourth Amendment and the Wyoming Constitution.\\nGronski contends that a finding of probable cause is not sufficient to search a seized vehicle. He claims he was under arrest before the warrantless search and that, as a result of his arrest, the vehicle was immobilized. Thus he raises the specific issue of whether a warrantless search of an immobilized vehicle is authorized under current case law. Analyzing federal precedent, Gronski concludes that the warrantless search was not authorized under the \\\"automobile exception\\\" to the warrant requirement of the Fourth Amendment because that exception requires probable cause and exigency. In his view, United States Supreme Court decisions apply the automobile exception to the warrant requirement because exigent circumstances exist preventing an opportunity to obtain a warrant. Since he believes the car was \\\"immobilized,\\\" no exigency supported the need for an immediate search and the police should have obtained a warrant.\\nIn response, the State asserts that the United States Supreme Court's decisions of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); and United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), permit warrantless searches of automobiles and closed containers in them upon probable cause. In this case, the State argues the police had probable cause to believe the car held marijuana, probably in the duffle bag, and their war-rantless search of both was justified and constitutional.\\nThe warrant clauses of the Fourth Amendment to the United States Constitution and Art. 1, \\u00a7 4 of the Wyoming Constitution prohibit searches conducted outside the judicial process without prior approval by judge or magistrate. Roose v. State, 759 P.2d 478, 481 (Wyo.1988). Warrantless searches and seizures are unreasonable per se under both the Fourth Amendment and Art. 1, \\u00a7 4. Hunter v. State, 704 P.2d 713, 715 (Wyo.1985). This rule is subject to only a few specifically established and well-delineated exceptions. Id. The search and/or seizure of an automobile upon probable cause is one of the recognized exceptions. Id. In an earlier decision, this court recognized that differences exist between motor vehicles and other property, which permit warrantless searches of automobiles in circumstances in which warrantless searches would not be reasonable in other contexts. Neilson, 599 P.2d at 1330. The Fourth Amendment to the United States Constitution and Art. 1, \\u00a7 4 of the Wyoming Constitution prohibit unreasonable searches and seizures. Id. Reasonableness is determined by all the circumstances of each case. Id.\\nIn Hunter, the claimant challenged the warrantless search of a car held by police and known to be stolen and the warrantless search of containers in that car. This court found that officers had probable cause to believe that contraband, in the form of personal belongings which were stolen along with the car, could be in the car or containers and held that probable cause existed justifying a warrantless search of the car and any closed containers found within the car. Hunter, 704 P.2d at 715-717. The court's holding resulted from a determination that the scope of a warrantless search of a vehicle is defined by the object of the search and the places in which there is probable cause to believe it may be found. Hunter, 704 P.2d at 717. Hunter relied upon United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), which held that, on the basis of probable cause to search a car, the automobile exception permits a search of the entire car and anything in it that could contain the items being searched for. Hunter, 704 P.2d at 717.\\nIn this case, the district court found that the officers had probable cause to believe marijuana was in the duffle bag which had been placed in the car. On that factual basis, conducting a warrantless search of the duffle bag was reasonable and constitutional. In his appeal, Gronski does not take issue with the scope of the search, but instead insists that no exigency existed requiring an immediate search. In his view, the automobile exception is defined as probable cause and exigency; it is constitutional only because of the mobility of the vehicle. If the vehicle is immobilized, the exigency ceases to exist and the constitution prohibits a war-rantless search.\\nThis court's decision in Neilson thoroughly explained the exigency presented by automobiles as identified in Carroll and Chambers. Part of that explanation bears repeating here:\\n\\\"Neither Carroll, supra, nor other cases in this Court require or suggest that in every conceivable circumstance the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords. But the circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting since a car is readily movable. Where this is true, as in Carroll and the ease before us now, if an effective search is to be made at any time, either the search must be made immediately without a warrant or the car itself must be seized and held without a warrant for whatever period is necessary to obtain a warrant for the search.\\nArguably, because of the preference for a magistrate's judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the 'lesser' intrusion is permissible until the magistrate authorizes the 'greater.' But which is the 'greater' and which the 'lesser' intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.\\nOn the facts before us, the blue station wagon could have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search. The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car's immobilization until a warrant is obtained.\\nNeilson, 599 P.2d at 1332, quoting Chambers, 399 U.S. at 50-52, 90 S.Ct. at 1980-81.\\nOur Neilson decision recognized this rationale as valid and adopted this federal precedent when considering the reasonableness of a warrantless automobile search. Neilson, 599 P.2d at 1382. This rationale is applicable to the case at hand on the question of reasonableness. In this case, the district court's factual determination that probable cause existed justifying the warrantless search for contraband in a container is confirmed by the evidence in the record. Further, the record supports the district court's finding that at the time there was probable cause to believe the duffle bag contained contraband and the vehicle was not immobilized. As a matter of law, the car was properly searched when it was stopped since at the time of the stop there was probable cause to search and it was a fleeting target for a search. The choice presented to officers was either an immediate warrantless search or a seizure until a warrant could be obtained. Either course would have been reasonable. Id.; see Hunter, 704 P.2d at 717. The trial court's denial of the motion to suppress is affirmed.\\nGronski's next argument is that a separate analysis is required under the Wyoming Constitution's search and seizure provision because it offers greater protection to a citizen than the federal constitution. He asserts that greater protection permits the duf-fle bag to be seized but prohibits a search of it without a warrant. The State, relying on Saldana v. State, 846 P.2d 604 (Wyo.1993), argues that Gronski has not proffered the proper constitutional analysis or cogent argument to warrant this court's concluding the provision offers greater protection as recommended by this court. Saldana, 846 P.2d at 622 (Golden, J., concurring).\\nIn Saldana, the appellant relied exclusively upon the state constitution to appeal a search and seizure of his telephone records. This court ruled that, on the facts of that case, the state constitution did not afford increased protection. Saldana, 846 P.2d at 612. At oral argument, Gronski asserted that the recommended technique in Justice Golden's concurring opinion in Saldana was inapposite in this case because information on factors concerning constitutional history, pre-existing state law or matters of particular state or local concern at the time of ratification did not exist. In Gronski's view, the only available analytical technique was to determine whether Wyoming values required a judicial interpretation that this provision afforded more protection than its federal counterpart.\\nThis assertion, unaccompanied by authority or argument, is insufficient to persuade us to consider whether the Wyoming Constitution's Art. 1, \\u00a7 4 should be independently interpreted as offering greater protection than its federal counterpart. Our approach in the search and seizure area has usually employed the method of reading the state and federal constitutional provisions together and treating the scope of the state provision the same as the scope of the federal provision. Parkhurst v. State, 628 P.2d 1369, 1374 (Wyo.1981), cert. denied, 454 U.S. 899, 102 S.Ct. 402, 70 L.Ed.2d 216 (1981), Hunter, 704 P.2d at 715; Neilson, 599 P.2d at 1380. In recent cases, invitations to independently interpret the state provision, unaccompanied by appropriate constitutional analysis, have been rejected. Guerra v. State, 897 P.2d 447, 451 (Wyo.1995); Saldana, 846 P.2d at 612; Goettl v. State, 842 P.2d 549, 557 (Wyo.1992). Until appropriate state constitutional analysis is presented, an invitation that we should expand the rights protected by the state constitution beyond the protection provided by the federal constitution will not receive the court's attention. Goettl, 842 P.2d at 557.\\nAffirmed.\"}"

wyo/10334919.json

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+"{\"id\": \"10334919\", \"name\": \"Glenn Rocky GARCIA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff)\", \"name_abbreviation\": \"Garcia v. State\", \"decision_date\": \"1995-12-15\", \"docket_number\": \"No. 95-101\", \"first_page\": \"413\", \"last_page\": \"414\", \"citations\": \"908 P.2d 413\", \"volume\": \"908\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T20:15:21.222917+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.\", \"parties\": \"Glenn Rocky GARCIA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"Glenn Rocky GARCIA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\\nNo. 95-101.\\nSupreme Court of Wyoming.\\nDec. 15, 1995.\\nGlenn Rocky Garcia, pro se.\\nWilliam U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General, for Appellee.\\nBefore GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.\", \"word_count\": \"412\", \"char_count\": \"2604\", \"text\": \"TAYLOR, Justice.\\nAppellant asserts that the district court imposed an illegal sentence and appeals the district court's denial of his motion to correct an illegal sentence. Appellant's sentence falls within the parameters of the statutory guidelines set by the legislature and is not otherwise defective. We affirm.\\nI. ISSUES\\nIn his pro se brief, appellant states the issue:\\nDid the trial judge misapply the Wyoming Supreme Court's decision?\\nIn reply, the State of Wyoming posits the issue:\\nWhether the trial court properly denied appellant's motion to correct an illegal sentence?\\nII. FACTS\\nAppellant, Glenn Rocky Garcia (Garcia), plead guilty to aggravated assault on December 3, 1993. On February 18, 1994, he was sentenced to serve a minimum of eight years and a maximum of ten years in the Wyoming State Penitentiary. On October 3,1994, Garcia filed a motion for reduction of sentence which was denied. Garcia then filed a motion to correct an illegal sentence. That motion was also denied. Garcia now appeals the denial of his motion to correct an illegal sentence.\\nIII.DISCUSSION\\nA sentence which falls within the minimum and maximum terms set by the legislature will not be reversed absent a clear abuse of discretion. Wilson v. State, 896 P.2d 1327, 1328 (Wyo.1995). Garcia complains that his sentence fails to satisfy the \\\"spirit\\\" of the indeterminate sentencing scheme. We disagree.\\nGarcia was sentenced to serve a minimum of eight years and a maximum of ten years in the Wyoming State Penitentiary for the crime of aggravated assault. Wyo.Stat. \\u00a7 6-2-502(b) (1988) establishes ten years as the maximum term for aggravated assault. Wyoming's indeterminate sentencing statute provides, in pertinent part:\\nThe maximum term shall not be greater than the maximum provided by law for the statute violated, and the minimum term shall not be less than the minimum provided by law for the statute violated, nor greater than ninety percent (90%) of the maximum term imposed.\\nWyo.Stat. \\u00a7 7-13-201 (1995). Garcia's sentence clearly falls within the guidelines set forth by the legislature and is not otherwise defective.\\nIV.CONCLUSION\\nThe district court's denial of the motion to correct an illegal sentence is affirmed.\"}"

wyo/10346104.json

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+"{\"id\": \"10346104\", \"name\": \"Joseph B. BOWEN, Appellant (Petitioner), v. STATE of Wyoming, WYOMING REAL ESTATE COMMISSION, Appellee (Respondent)\", \"name_abbreviation\": \"Bowen v. State, Wyoming Real Estate Commission\", \"decision_date\": \"1995-08-04\", \"docket_number\": \"No. 94-219\", \"first_page\": \"1140\", \"last_page\": \"1143\", \"citations\": \"900 P.2d 1140\", \"volume\": \"900\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T19:01:03.868826+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.\", \"parties\": \"Joseph B. BOWEN, Appellant (Petitioner), v. STATE of Wyoming, WYOMING REAL ESTATE COMMISSION, Appellee (Respondent).\", \"head_matter\": \"Joseph B. BOWEN, Appellant (Petitioner), v. STATE of Wyoming, WYOMING REAL ESTATE COMMISSION, Appellee (Respondent).\\nNo. 94-219.\\nSupreme Court of Wyoming.\\nAug. 4, 1995.\\nFrank J. Jones, Wheatland, for appellant.\\nJoseph B. Meyer, Atty. Gen.; Bill Hibbler, Sr. Asst. Atty. Gen.; and Dona Playton, Asst. Atty. Gen., for appellee.\\nBefore GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.\", \"word_count\": \"1776\", \"char_count\": \"11218\", \"text\": \"MACY, Justice.\\nAppellant Joseph Bowen appealed to the district court from the order in which Appel-lee Wyoming Real Estate Commission suspended his real estate license for a period of one year. The district court certified the case to this Court pursuant to W.R.A.P. 12.09(b).\\nWe reverse.\\nIssues\\nBowen presents three issues for our consideration on appeal:\\n1. Did the Wyoming Real Estate Commission have jurisdiction to conduct the contested hearing and enter its order suspending the license of Petitioner Joseph B. Bowen when it failed to follow its own rules of practice and procedure?\\n2. Was the action of the Wyoming Real Estate Commission in failing to follow its own rules of practice and procedure arbitrary and capricious?\\n3. Did the Wyoming Real Estate Commission have jurisdiction to decide contract disputes between itself and the Petitioner Joseph B. Bowen?\\nFacts\\nOn February 25, 1993, Bowen, who was a licensed real estate broker, and the Commission entered into a stipulation which settled claims against Bowen for his violations of the statutory and regulatory provisions applicable to real estate brokers and sales persons. In that stipulation, Bowen agreed to be put on probation for a six-month period. The stipulation stated:\\nIf Bowen is found to have violated any provisions of the Real Estate Licensing Act of 1971 or Real Estate Commission Rules and Regulations during the probationary period, he shall immediately and voluntarily surrender his license to the Commission and shall cease performing any actions as a real estate broker or salesman]?]\\nThe stipulation also provided that the Commission would retain continuing jurisdiction \\\"to take any action deemed proper\\\" in the matter.\\nIn an August 31, 1993, letter addressed to Bowen's attorney, the Commission demanded that Bowen immediately surrender his license. The Commission alleged that Bowen had breached the terms of the stipulation when he advertised property for sale without first obtaining a written listing agreement from the property owner. When Bowen failed to surrender his license, a notice was sent to him, advising him that a hearing had been scheduled for January 14, 1994, so that the possible revocation of his license could be considered. The notice stated: \\\"It is alleged that Broker Bowen has violated W.S. 33-28-lll(a)(xx) or violated the terms of the Stipulation, Docket No. 92-019, entered February 25,1993.\\\" Bowen responded to the notice by filing a motion to dismiss on the grounds that the Commission had failed to follow its procedural rules in instituting the disciplinary matter against him. The Commission did not rule on Bowen's motion to dismiss.\\nA hearing was held on March 23 and 24, 1994, before a hearing examiner and the Commission. After considering the hearing examiner's recommendations, the Commission suspended Bowen's real estate broker's license for a one-year period. The Commission specified that Bowen's license was being suspended under \\u00a7 33-28-lll(a)(xx) because he had failed to obtain a -written listing agreement. The Commission did not state that Bowen's license was being suspended because he had allegedly breached the terms of the stipulation.\\nBowen appealed to the district court, and that court certified the case to us pursuant to W.R.A.P. 12.09(b).\\nDiscussion\\nWhen we are reviewing cases which have been certified to us pursuant to W.R.A.P. 12.09(b), we apply the appellate standards which are applicable to the reviewing court of the first instance. Hepp v. State ex rel. Wyoming Workers' Compensation Division, 881 P.2d 1076, 1077 (Wyo.1994).\\nWe review an administrative agency's findings of fact by applying the substantial evidence standard. Wyo.Stat. \\u00a7 16-3-114(c)(ii)(E) (1990). Our task is to examine the entire record to determine whether substantial evidence supported the hearing examiner's findings. Romero v. Davy McKee Corporation, 854 P.2d 59, 61 (Wyo.1993). We will not substitute our judgment for that of the hearing examiner when substantial evidence supports his decision. Bearden v. State ex rel. Wyoming Workers' Compensation Division, 868 P.2d 268, 269 (Wyo.1994). Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions. Jackson v. J.W. Williams, Inc., 886 P.2d 601, 603 (Wyo.1994). With regard to an agency's conclusions of law, we rectify that agency's errors when the agency has not invoked and correctly applied the proper rule of law. Thunder Basin Coal Company v. Study, 866 P.2d 1288, 1291 (Wyo.1994).\\nBowen argues that, because the Commission failed to follow its own procedural rules in bringing the charges against him, the Commission acted arbitrarily and capriciously and failed to perfect jurisdiction over him. Specifically, Bowen maintains that the Commission violated its procedural rules by failing to require that a written complaint be filed against him and served upon him and by failing to preliminarily consider his case before scheduling it for a hearing. The State concedes that the Commission did not follow its own procedural rules when it initiated the disciplinary action against Bowen but argues that the Commission properly disregarded the rules because they were in contravention of the Wyoming Administrative Procedure Act.\\nThis Court has stated:\\nUnderlying our often repeated statement that \\\" '[i]n determining whether the action of an agency is arbitrary, capricious, or an abuse of discretion, the court ascertains whether the decision is supported by the record,\\\"' Cook [v. Zoning Board of Adjustment for the City of Laramie], 776 P.2d [181,] 185 [ (Wyo.1989) ] ( . quoting Holding's Little America v. Board of County Com'rs of Laramie County, 670 P.2d 699, 703-04 (Wyo.1983)), is the assumption that an agency will abide by the rules it promulgates. The failure of an agency to abide by its rules is per se arbitrary and capricious.\\nState ex rel. Wyoming Workers' Compensation Division v. Brown, 805 P.2d 830, 835 (Wyo.1991). The State did not provide us with any pertinent authority for its assertion that the Commission acted properly by disregarding its rules. That statement, in and of itself, suggests that the Commission acted arbitrarily and capriciously by choosing, in an individual case, whether or not to follow its rules of procedure. The question of whether the rules were in compliance with the Wyoming Administrative Procedure Act is not properly before the Court in this appeal. In accordance with our holding in Brown, we must reverse the Commission's order because the Commission acted arbitrarily and capriciously by failing to follow its own rules. Wyo.Stat. \\u00a7 16-3-114(c)(ii)(A) (1990).\\nBowen further contends that the Commission improperly relied on \\u00a7 33-28- lll(a)(xx) as being the statutory authority for suspending Bowen's license. We agree.\\nThe Commission found that Bowen had failed to obtain a written listing agreement from the property owner before he advertised the property for sale in a written publication. Under \\u00a7 33-28-lll(a)(xx):\\n(a) The commission shall upon a written sworn complaint or may upon its own motion investigate the actions of any broker, associate broker or salesman and may censure the licensee, suspend or revoke any license issued under this act [\\u00a7\\u00a7 33-28-101 to -206] for any of the following:\\n(xx) Failing to obtain written listing agreements identifying the property and containing all terms and conditions under which the property is to be sold including the price, the commission to be paid, the signatures of all parties concerned and a definite expiration date[.]\\nThe Commission interpreted the statutory provision as requiring that a broker must obtain a written listing agreement prior to advertising the property for sale. Section 33-28-lll(a)(xx) does not, however, expressly state when the written listing agreement must be obtained.\\nDetermining the lawmakers' intent is our primary focus when we are interprets ing statutes. Christensen v. Oedekoven, 888 P.2d 228, 230 (Wyo.1995). Initially, we make \\\" 'an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection.'\\\" Parker Land and Cattle Company v. Wyoming Game and Fish Commission, 845 P.2d 1040, 1042 (Wyo.1993) (quoting Rasmussen v. Baker, 7 Wyo. 117, 133, 50 P. 819 (1897)). We construe the statute as a whole, giving effect to each word, clause, and sentence, and we construe together all parts of the statute in pari materia. 845 P.2d at 1042. Similarly, we refuse to enlarge, stretch, expand, or extend a statute to matters which do not fall within its express provisions. Wyrulec Company v. Schutt, 866 P.2d 756, 759 (Wyo.1993).\\nThe statute does not contain any language which states that the written listing agreement must be obtained before a broker may advertise the property, although the \\\"is to be sold\\\" language indicates that a written listing agreement should be obtained before the property is actually sold. See Wyoming Realty Company v. Cook, 872 P.2d 551 (Wyo.1994). In Cook, this Court recognized a special statute of frauds applicable to real estate listings when it held that Wyoming's statutes and the Commission's rules contemplate the use of written listing agreements by brokers. 872 P.2d at 552-53. That decision was not, however, made in the context of a disciplinary action brought against a real estate broker for failing, under the provisions of \\u00a7 33-28-lll(a)(xx), to obtain a written listing agreement. Additionally, we did not specify in the Cook decision when the written listing agreement must be obtained. The Legislature recognized the possibility that brokers and property owners may initially enter into oral listing agreements when it forbade brokers from offering property for sale without the owners' knowledge or consent, but it did not require that such consent be memorialized in writing. Wyo.Stat. \\u00a7 33-28-lll(a)(viii) (1987).\\nThe Legislature has the duty to determine the disciplinary standards applicable to real estate brokers and sales persons. This Court will not expand the provisions of \\u00a7 33-28-lll(a)(xx) by requiring a broker to obtain a written listing agreement before he advertises the property for sale. The Commission, therefore, erred when it relied on \\u00a7 33-28-lll(a)(xx) to suspend Bowen's license.\\nConclusion\\nWe hold that the Commission acted arbitrarily and capriciously by failing to follow its rules of procedure and that it improperly relied upon \\u00a7 33-28-lll(a)(xx) to suspend Bowen's license. The Commission's order is, therefore,\\nReversed.\\n. Since the Commission did not rely on the stipulation in entering its suspension order, we have no reason to consider Bowen's third issue which questions whether the Commission, as a party to the stipulation contract, could rule on a dispute over the terms of the contract.\"}"

wyo/10350171.json

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+"{\"id\": \"10350171\", \"name\": \"Alan James SULIBER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff)\", \"name_abbreviation\": \"Suliber v. State\", \"decision_date\": \"1993-12-30\", \"docket_number\": \"No. 92-248\", \"first_page\": \"85\", \"last_page\": \"91\", \"citations\": \"866 P.2d 85\", \"volume\": \"866\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T18:03:10.210501+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.\", \"parties\": \"Alan James SULIBER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"Alan James SULIBER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\\nNo. 92-248.\\nSupreme Court of Wyoming.\\nDec. 30, 1993.\\nLeonard D. Munker, State Public Defender, and Deborah Cornia, Appellate Counsel (argued), for appellant.\\nJoseph B. Meyer, Atty. Gen., Sylvia Lee Haekl, Deputy Atty. Gen., Barbara L. Boyer, Sr. Asst. Atty. Gen., and Mary Beth Wolff, Asst. Atty. Gen. (argued), for appellee.\\nBefore MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.\", \"word_count\": \"3108\", \"char_count\": \"18680\", \"text\": \"CARDINE, Justice.\\nAlan James Suliber appeals from his conviction for the murder of his stepson, seven year-old Adam Franklin. Appellant asserts that the trial court erred by admitting prior bad acts testimony and by admitting appellant's statements to the police which were given after he made an equivocal request for counsel. Appellant also challenges the sufficiency of the evidence to sustain the second degree murder conviction.\\nWe affirm.\\nAppellant raises the following issues:\\nISSUE I\\nDid the trial court err in allowing the introduction of evidence concerning the character and prior bad acts of the appellant?\\nISSUE II\\nDid the admission of appellant's statements to the police after an equivocal request for counsel violate appellant's rights under the Fifth Amendment of the United States Constitution and Article One, Section 11 of the Wyoming Constitution?\\nISSUE III\\nWas there sufficient evidence to support the conviction of second degree murder?\\nFACTS\\nThis tragic tale begins in March of 1991 when Katie Franklin (Franklin) and her then six year-old son, Adam Franklin (Adam), moved to Rock Springs, Wyoming. Franklin went to work for the Rock Springs post office, where she met a customer, Alan Suli-ber (appellant). They began dating shortly thereafter, and a serious relationship quickly developed between the two. They were married in October of 1991.\\nThroughout the time they were married, Franklin noticed various injuries to Adam. These included scratches, bruises and blisters. There was also an incident in July of 1991, which occurred prior to the marriage, where appellant slapped Adam so hard that he left a bruise on Adam's face in the shape of a hand. These injuries were also noticed by several other persons at various times.\\nOn February 18, 1992, Franklin drove her son and appellant to a boy scout meeting. She then went to her job at the post office, where she worked from 5:00 pm to 8:80 am. Meanwhile, appellant and Adam attended the scout meeting; and after it was over, they walked to a friend's house to get a ride home. The friend, however, was not home, so appellant and Adam began to walk home. After they had walked awhile, a passerby stopped and gave them a ride. They arrived home around 6:30 p.m. that night.\\nAdam went to bed that night around 8:00 p.m., and appellant testified that he went to bed around 10:00 p.m. Franklin arrived home from work around 4:00 a.m. the morning of February 14. She turned on the tele vision and read the mail for about ten minutes. She noticed that appellant was not sleeping on the couch or in his art room. She thought it was unusual because he usually did that when she worked late. After Franklin went to bed, she remembered that she had not kissed Adam goodnight, which was her habit. Appellant awoke, held her tight, and told her not to worry about it; it was not important.\\nThe next morning, Franklin was awakened by appellant who said that something was wrong with Adam. She ran down to Adam's room where she found him lying on his back on the floor next to his bunk bed. Adam was not breathing, and his skin felt cool. Franklin immediately attempted to resuscitate Adam by performing CPR.\\nAppellant called 911, and an ambulance was sent to the scene. The EMTs attempted to revive the boy, but they were unsuccessful; and Adam was declared dead by a doctor at the hospital emergency room. Both the EMTs and the doctor noticed bruising on Adam that was inconsistent with any type of accidental death. They also noticed other bruises on his body, including on his buttocks. An autopsy subsequently confirmed that Adam died from injuries that were the result of a beating with a blunt object.\\nAppellant was charged with second degree murder in the beating death of Adam Franklin. A jury convicted appellant, and he was sentenced to life in prison. He now appeals that conviction.\\nDISCUSSION\\nA. W.R.E. 404(b)\\nAppellant challenges the admissibility of prior bad acts testimony by the State's witnesses. These witnesses testified about the relationship between appellant and Adam. Several of those witnesses testified about the July 1991 slapping incident and the resulting bruise on Adam's face. Three of the witnesses testified about instances of emotional abuse, such as when appellant bathed Adam and soap was in Adam's hair, and appellant told Adam not to open his eyes or they would bum, then watched Adam walk around the house for several hours and eat a meal with his eyes closed.\\nAppellant claims that this testimony was irrelevant and constituted an improper attack on his character. He points out that the testimony was elicited during the prosecutor's case-in-chief; and he argues, as a consequence, it was used to show he had the propensity to commit the crime charged. Appellant further asserts that the testimony was not admissible to show identity under W.R.E. 404(b) because the acts testified to were not peculiar or unique enough to show a personal \\\"signature.\\\" Finally, appellant complains that the admission of this testimony violated W.R.E. 403 because it put him on trial for who he was, not for the crime charged.\\nW.R.E. 404(b) provides:\\n(b) Other crimes, wrongs, or acts. \\u2014 Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.\\nIn reviewing Rule 404(b) evidence, we give great deference to the trial court's determination of admissibility. Longfellow v. State, 803 P.2d 848, 851 (Wyo.1990). We will not find abuse of discretion as long as there is a legitimate basis for the court's decision. Pino v. State, 849 P.2d 716, 719 (Wyo.1993); Pena v. State, 780 P.2d 316, 318 (Wyo.1989). The trial court's discretion does have some limits, and to that end we have established a five-part test to determine the admissibility of evidence under Rule 404(b). The five factors to be considered are:\\n1. The extent to which the prosecution plainly, clearly, and convincingly can prove the other similar crimes.\\n2. The remoteness in time of those crimes from the charged offense.\\n3. The extent to which the evidence of other crimes is introduced for a purpose sanctioned by W.R.E. 404(b).\\n4. The extent to which the element of the charged offense, that the evidence is introduced to prove, is actually at issue.\\n5. The extent to which the prosecution has a substantial need for the probative value of the evidence of the other crimes.\\nLongfellow, at 851; Bishop v. State, 687 P.2d 242, 246 (Wyo.1984), cert. denied 469 U.S. 1219, 105 S.Ct. 1203, 84 L.Ed.2d 345 (1985). Not all five of these factors need to be satisfied for 404(b) evidence to be admissible. Longfellow, at 851; Pena, at 318. Usually, however, when 404(b) evidence has been properly admitted, all five factors will be found. Longfellow, at 851. Finally, the probative value of the evidence must outweigh any unfair prejudice or confusion of the issues as a result of its admission. W.R.E. 403; Wehr v. State, 841 P.2d 104, 109 (Wyo.1992).\\nThe determination of whether prior bad acts testimony is admissible under W.R.E. 404(b) necessarily includes the determination of relevancy. Coleman v. State, 741 P.2d 99, 103 (Wyo.1987). Thus the question of relevancy is considered at the same time the admissibility of the evidence under Rule 404(b) is determined. Longfellow, at 850 n. 2.\\nThe State offered the evidence as probative of intent, identity and malice. At trial there was no dispute that Adam was beaten to death; according to the defense's opening statement to the jury, the only question was who did it. The night of Adam's death only two people had been with him \\u2014 Franklin and appellant. The defense theory was that Franklin had beaten her son to death as stated in his closing argument. Therefore, the identity of Adam's killer was a critical issue in dispute at trial.\\nThis case is very similar to what occurred in Longfellow. There the question was whether the mother or her boyfriend beat a baby to death. We held that prior bad acts evidence which showed the mother had abused her other child was admissible to prove intent and identity. Longfellow, at 853-54. The evidence in this case, as in Longfellow, was needed by the prosecution to establish whether appellant or Franklin beat Adam to death. Id. The testimony of the prior bad acts was circumstantial evidence from which the identity of Adam's killer could be inferred. Barnes v. State, 858 P.2d 522, 532 (Wyo.1993).\\nAlso, the evidence was relevant as proof of intent. As we pointed out in Longfellow, even though second degree murder is a general intent crime, the prosecution must still prove that the defendant undertook the prohibited conduct voluntarily. Longfellow, at 853; see also Crozier v. State, 723 P.2d 42, 52 (Wyo.1986). Appellant denied committing the act at all, thus intent was at issue at trial.\\nFinally, the evidence was admissible to establish malice. Appellant was charged with second degree murder. In order to establish that charge, the prosecution must prove:\\n1) appellant\\n2) purposely and maliciously\\n3) without premeditation\\n4) killed Adam Franklin\\nW.S. 6-2-104. The jury was also instructed on manslaughter as a lesser included offense. Malice is not an element of manslaughter. W.S. 6-2-105. Whether a person acted maliciously (second degree murder) or in the \\\"sudden heat of passion\\\" (voluntary manslaughter) is a question for the jury. Smith v. State, 564 P.2d 1194, 1197-98 (Wyo.1977). Thus the question of malice was in dispute at the trial. The prior bad acts evidence was admissible as evidence from which malice could be inferred.\\nHaving found the third and fourth factors of the Bishop test present, we conclude that the first, second and fifth factors are present also. The prosecution \\\"plainly, clearly, and convincingly\\\" proved the acts through witnesses who saw the acts' or observed their effects. All of the acts testified to occurred within a year of appellant being charged with murdering Adam, which is sufficiently close in time. See Pena, at 319 (acts seven years before charged offense not too remote). The circumstantial nature of the prosecution's case and the existence of two suspects gave the prosecution a substantial need for the evidence. See Longfellow, at 854. Thus all five of the factors have been met in this case.\\nThe decision under Rule 403 of whether the probative value of the evidence is outweighed by unfair prejudice or confusion is within the trial court's discretion. Wehr, at 109. The evidence was substantially probative of identity and malice. The trial court did not abuse its discretion.\\nB. REQUEST FOR COUNSEL\\nAppellant was interviewed four times by the police. The first two were at the hospital immediately following the victim's death. The third was at the police station on the same day. The fourth was also at the station, but it took place on the following day, February 15.\\nAppellant does not challenge the propriety of the first three interviews, only the fourth one. At the start of the fourth interview, the police showed appellant a rights-waiver form and asked him to sign it. A police officer testified that the following then occurred:\\n[defense attorney] No. Right after you asked him about it [the waiver form], did he not say, \\\"Do I need a lawyer\\\"?\\n[officer] Yes, sir.\\n[defense attorney] And then he's told he's not under arrest. It's a continuation of questioning, and then he goes ahead and signs off, but he asked if he needed a lawyer?\\n[officer] Yes, sir.\\nAppellant argues that his statements from the fourth interview should have been suppressed because they were given after he had made an equivocal request for counsel. Appellant made statements about Adam's bruises which were conflicting with prior accounts he had given, and he admitted to spanking the child two days before his death. Appellant claims that the admission of these statements violated his rights against self-incrimination under the Fifth Amendment to the United States Constitution and Art. 1, \\u00a7 11 of the Wyoming Constitution.\\nThe Fifth Amendment provides:\\nNo person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall he be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.\\nArticle 1, \\u00a7 11 of the Wyoming Constitution provides:\\nNo person shall be compelled to testify against himself in any criminal case, nor shall any person be twice put in jeopardy for the same offense. If a jury disagree, or if the judgment be arrested after a verdict, or if the judgment be reversed for error in law, the accused shall not be deemed to have been in jeopardy.\\nAt the trial court, appellant challenged the interviews in the context of Black v. State, 820 P.2d 969 (Wyo.1991) (continued interrogation by police was coercive where pregnant suspect was emotionally distraught and police already had a case against her). Appellant has raised the question of an equivocal request for counsel for the first time on appeal. Therefore, we examine his claim for plain error. Ramos v. State, 806 P.2d 822, 827 (Wyo.1991). In order for plain error to be found, appellant must show that:\\n(1) the record clearly shows what occurred at trial, (2) transgression of a clear and unequivocal rule of law, and (3) which adversely affected one of [appellant's] substantial rights. Failure to establish each element of this three-part test precludes a finding of plain error.\\nGeiger v. State, 859 P.2d 665, 668 (Wyo.1993) (citations omitted); Ramos, at 827.\\nOnce a person makes a request for counsel, no further interrogation is allowed unless counsel has been made, available or the person voluntarily chooses to communicate. Best v. State, 736 P.2d 739, 742 (Wyo.1987) (quoting Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 reh'g denied 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981)). If the request for counsel is equivocal, however, the police can con tinue to talk with the person in order to \\\"resolve the question of the suspect's desire for counsel.\\\" Best, at 748; see also Cheatham v. State, 719 P.2d 612, 619 (Wyo.1986). The police may not question the suspect on the offense until they determine whether he desires counsel or not. Id. If he does not, the police must obtain a voluntary written waiver for interrogation to continue. Best, at 743-14.\\nThe purpose behind this rule is to protect a person's constitutional right against compelled self-incrimination. U.S. Const.Amend. V; Wyo. Const. Art. I, \\u00a7 11; Best, at 742; see also Edwards, 451 U.S. at 482, 101 S.Ct. at 1883; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, reh'g denied 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966).\\nThroughout the fourth interview, appellant repeatedly denied killing Adam. Even if we assumed that appellant was improperly questioned after requesting counsel, we fail to see how those statements rise to the level of plain error. Appellant did make inconsistent statements during the interview about how Adam received his injuries, however, the statements do not incriminate appellant in the sense that he admitted to the crime. To the contrary, he emphatically denied killing Adam throughout the interview.\\nIn his brief, appellant provides no argument as to what effect, if any, the suppression of his statements would have had on the trial. There is abundant evidence in the record that appellant did in fact kill Adam. Thus even if we suppressed his statements, the outcome of appellant's trial would likely be the same. Consequently, no substantial right of appellant was adversely affected by the admission of the statements and there was no plain error.\\nC. SUFFICIENCY OF THE EVIDENCE\\nAppellant, in his final issue, questions the sufficiency of the evidence to sustain his second degree murder conviction. In reviewing sufficiency of the evidence claims we examine the evidence to determine\\nwhether all of the evidence presented is \\\"adequate to support a reasonable inference of guilt beyond a reasonable doubt to be drawn by the finder of fact, viewing the evidence in the light most favorable to the state.\\\" We do not substitute our judgment for that of the jury in applying this rule, and our only duty is to determine if a quorum of reasonable and rational individuals would, or even could, have come to the same result the jury actually did.\\nTaul v. State, 862 P.2d 649, 657 (Wyo.1993) (citations omitted) (quoting Saldana v. State, 846 P.2d 604, 619 (Wyo.1993)). In order to sustain appellant's conviction for second degree murder, the evidence must be sufficient to show that he killed Adam purposely and maliciously without premeditation. W.S. 6-2-104.\\nIt is undisputed that Adam was beaten to death. There is evidence from eyewitnesses and from the autopsy of the extensive injuries \\u2022 that Adam suffered. There was evidence of the physical and emotional abuse that permeated appellant's relationship with Adam. The appellant had ample time and access to Adam on the night of his death. While this evidence is circumstantial, it was sufficient for a reasonable jury to conclude that appellant was guilty of second degree murder in the beating death of Adam Franklin.\\nCONCLUSION\\nThe prior bad acts evidence, which related to appellant's relationship with the victim, was admissible under W.R.E. 404(b) as tending to prove intent, identity and malice. The admission of appellant's statements from his fourth interview with the police did not rise to the level of plain error. Finally, there was sufficient evidence to sustain appellant's second degree murder conviction. Therefore, appellant's conviction and sentence are affirmed.\"}"

wyo/10356800.json

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+"{\"id\": \"10356800\", \"name\": \"Margaret Mary WOOD, Appellant (Plaintiff), v. Ernest Lee WOOD, Appellee (Defendant)\", \"name_abbreviation\": \"Wood v. Wood\", \"decision_date\": \"1993-12-17\", \"docket_number\": \"No. 93-67\", \"first_page\": \"616\", \"last_page\": \"618\", \"citations\": \"865 P.2d 616\", \"volume\": \"865\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T18:13:42.524681+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.\", \"parties\": \"Margaret Mary WOOD, Appellant (Plaintiff), v. Ernest Lee WOOD, Appellee (Defendant).\", \"head_matter\": \"Margaret Mary WOOD, Appellant (Plaintiff), v. Ernest Lee WOOD, Appellee (Defendant).\\nNo. 93-67.\\nSupreme Court of Wyoming.\\nDec. 17, 1993.\\nRehearing Denied Jan. 12, 1994.\\nPatrick M. Hunter, Casper, for appellant.\\nLawrence E. Middaugh, Casper, for appel-lee.\\nBefore MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.\", \"word_count\": \"738\", \"char_count\": \"4512\", \"text\": \"TAYLOR, Justice.\\nThis appeal, from an unreported hearing, follows a decision adverse to appellant in a dispute over allegedly delinquent child support payments. We dismiss because of the failure to settle the record on appeal as required by the Wyoming Rules of Appellate Procedure.\\nAppellant, Margaret Mary Wood (Margaret), filed a petition on October 1, 1992 seeking to hold her former husband, appellee, Ernest Lee Wood (Ernest), in contempt of court for allegedly being delinquent in the payment of $7,400.00 for child support. The district court conducted a hearing and found that Margaret had failed to prove her allegations by a preponderance of the evidence. The hearing was unreported.\\nMargaret brought this appeal claiming error in the allocation of the burden of proof at the hearing. In an attempt to create a record on appeal, Margaret filed a \\\"Statement of Evidence and Proceedings\\\" under W.R.A.P. 3.03. The statement included an account of testimony at the hearing and documents, some of which had apparently been received into evidence. Ernest filed a number of proposed amendments to the statement of evidence.\\nThe record on appeal is fundamental to the exercise of appellate review because this court does not act as a fact finder. Gifford v. Casper Neon Sign Co., Inc., 618 P.2d 547, 551 (Wyo.1980). See W.R.A.P. 3.01 (defining contents of record on appeal). When a proceeding is reported and transcribed, the appellant may assert error in the findings or conclusions of the district court. W.R.A.P. 3.02. The Wyoming Rules of Appellate Procedure specify a means of providing a record on appeal to support claims of error when a proceeding is unreported:\\nIf no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, appellant may prepare a statement of the evidence or proceedings from the best available means including appellant's recollection. The statement shall be served on appellee, who may serve objections or propose amendments within 15 days after service. The statement and any objections or proposed amendments shall be submitted to the trial court for settlement and approval and as settled and approved shall be included by the clerk of the trial court in the record on appeal.\\nW.R.A.P. 3.03 (emphasis added).\\nAppellant bears the burden to bring a sufficient record to this court upon which a decision can be based. Scherling v. Kilgore, 599 P.2d 1352, 1357 (Wyo.1979). Appellant has failed in this instance to follow the dictates of our procedure. The statement of evidence and the proposed amendments offered by the parties were not settled and approved and included in the record on appeal. W.R.A.P. 3.03.\\nWithout a settled record of the proceedings at the hearing, we are unable to consider this appeal and order it dismissed. Korkow v. Markle, 746 P.2d 434, 435 (Wyo.1987); Sharp v. Sharp, 671 P.2d 317, 318 (Wyo.1983); Matter of Parental Rights of SCN, 659 P.2d 568, 572 (Wyo.1983).\\nDismissed.\"}"

wyo/10358904.json

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+"{\"id\": \"10358904\", \"name\": \"In the Matter of the Workers' Compensation Claim of John H. TAFFNER, an Employee of the City of Buffalo. STATE of Wyoming, ex rel., WYOMING WORKERS' COMPENSATION DIVISION, Appellant (Objector-Defendant), v. John H. TAFFNER, Appellee (Employee-Claimant)\", \"name_abbreviation\": \"State ex rel. Wyoming Workers' Compensation Division v. Taffner\", \"decision_date\": \"1991-11-22\", \"docket_number\": \"No. 91-71\", \"first_page\": \"103\", \"last_page\": \"108\", \"citations\": \"821 P.2d 103\", \"volume\": \"821\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T21:43:05.933583+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before URBIGKIT, C.J., THOMAS, CARDINE, and GOLDEN, JJ., and RAPER, J. (Retired).\", \"parties\": \"In the Matter of the Workers\\u2019 Compensation Claim of John H. TAFFNER, an Employee of the City of Buffalo. STATE of Wyoming, ex rel., WYOMING WORKERS\\u2019 COMPENSATION DIVISION, Appellant (Objector-Defendant), v. John H. TAFFNER, Appellee (Employee-Claimant).\", \"head_matter\": \"In the Matter of the Workers\\u2019 Compensation Claim of John H. TAFFNER, an Employee of the City of Buffalo. STATE of Wyoming, ex rel., WYOMING WORKERS\\u2019 COMPENSATION DIVISION, Appellant (Objector-Defendant), v. John H. TAFFNER, Appellee (Employee-Claimant).\\nNo. 91-71.\\nSupreme Court of Wyoming.\\nNov. 22, 1991.\\nJoseph B. Meyer, Atty. Gen., Joe MacGuire, Asst. Atty. Gen., for appellant.\\nGreg L. Goddard of Goddard, Perry & Vogal, Buffalo, for appellee.\\nBefore URBIGKIT, C.J., THOMAS, CARDINE, and GOLDEN, JJ., and RAPER, J. (Retired).\", \"word_count\": \"2660\", \"char_count\": \"16227\", \"text\": \"RAPER, Justice, Retired.\\nThis is an appeal by the Workers' Compensation Division (Division) from the order entered by the district judge which reversed the hearing examiner who held in favor of the Division and denied Workers' Compensation benefits to employee/appel-lee herein.\\nThe Division sets out the issues to be:\\n1. Whether substantial evidence existed to support the administrative hearing officer's decision to deny the Workers' Compensation coverage to the employee-claimant.\\n2. Whether the appellee failed to prove each and every element necessary under W.S. \\u00a7 27-14-603(b) for compensated benefits at the trial level.\\n3. Whether the district court erred as matter of law by accepting jurisdiction to hear the appeal after it was improperly filed and perfected by petitioner (employee-claimant).\\nEmployee, as an issue, only states that: \\\"The trial court correctly ruled in favor of the claimant.\\\"\\nHowever, in the body of his brief, employee states that this appeal primarily involves the issue: \\\"Was there sufficient evidence of medical causation to enable the Claimant to be entitled to receive benefits?\\\" We agree that this is the real issue to be determined by this court.\\nWe will remand to the district court to follow the precedent hereinafter cited.\\nEmployee, in his brief, has captured a correct reflection of the record, about which there is really no dispute. We will paraphrase it to fit this opinion.\\nEmployee is a sixty-one-year-old male who, at the time of his heart attack, had worked for the Buffalo, Wyoming, Police Department for a period of thirty-seven years, including some twenty-five years as Chief of Police.\\nIn late December of 1989, Buffalo received a substantial snowfall in excess of three feet, which remained on the city streets into March of 1990. On January 5, 1990, the residential streets remained clogged with heavy snow with only one lane of traffic open for travel and that lane was covered with a heavy layer of ice.\\nOn the afternoon of January 5, 1990, employee was called upon to assist in the arrest of an extremely large and violent man who had been located in a residential area of Buffalo. As employee was responding to the location, his patrol car became stuck in the deep snow. Employee then proceeded on foot, in bitterly cold temperatures, to the location where another officer had the fugitive's vehicle stopped. At that point, the fugitive was placed under arrest and two other officers and employee attempted to remove the man from his vehicle. An extended struggle ensued in which glasses and watches were broken and there was a very physical confrontation. The fugitive was finally subdued and transported to jail while employee was left at the location to inventory the fugitive's vehicle. Employee subsequently returned to his vehicle and attempted to push it from the deep snow. He was unsuccessful in removing the vehicle from the snowbank and a wrecker had to be summoned to assist.\\nAt that time, employee began experiencing chest pains, shortness of breath and general nausea. He completed his shift on that date but continued feeling ill. He was unable to lie in a prone position that evening because of the chest pains. These symptoms continued throughout the following week. Finally, on January 11, 1990, while on shift, he went to the emergency room at the hospital complaining of the same symptoms. The physicians at the Johnson County Hospital admitted him and began a series of tests. On the morning of January 12,1990, while being tested on the treadmill, employee became extremely ill and it was determined that he was in fact suffering from a myocardial infarction. He was then medicated and placed on a life flight to Casper where he was received, treated, and underwent an angioplasty (balloon) procedure.\\nEmployee's claim for worker's compensation benefits was duly filed and heard as a contested case before a hearing examiner. The hearing examiner, in an opinion letter attached as part of his order, found that employee had established by a preponderance of the evidence:\\n(1) That there was a direct causal connection between the condition under which the work was performed and the cardiac condition.\\n(2) The causative condition occurred during an actual period of employment stress clearly unusual to or abnormal for employees in that particular employment.\\n(3) That the acute symptoms of cardiac condition were currently manifested not less than four hours after the alleged causative exertion.\\nHowever, the hearing examiner ruled that employee had failed to meet his burden with respect to medical causation and, therefore, denied benefits. The trial court, on the other hand, determined that employee had met his burden with respect to medical causation and awarded benefits accordingly.\\nWyo.Stat. \\u00a7 27-14-603(b) (1991) provides:\\n(b) Benefits for employment-related coronary conditions except those directly and solely caused by an injury, are not payable unless the employee establishes by competent medical authority that:\\n(i) There is a direct causal connection between the condition under which the work was performed and the cardiac condition; and\\n(ii) The causative exertion occurs during the actual period of employment stress clearly unusual to or abnormal for employees in that particular employment, irrespective of whether the employment stress is unusual to or abnormal for the individual employee; and\\n(iii) The acute symptoms of the cardiac condition are clearly manifested not later than four (4) hours after the alleged causative exertion.\\nWe are inclined to believe that the only issue is whether the medical testimony is adequate to establish direct causal connection between the work activity and the heart condition. Only one expert medical doctor, a board certified cardiologist, testified, so we must look to his testimony for the answer. Matter of Injury to Taylor, 718 P.2d 63 (Wyo.1986). Taylor sets out the rule to be that the causal connection is established if a medical expert testifies that it is more probable than not that the work exertion contributed in a material degree to the precipitation, aggravation, or acceleration of a myocardial infarction. In Taylor, the doctor testified that there was an equal possibility that either the work activity caused the heart condition or that there was no connection between the work and the heart condition. This court held that testimony was inadequate to meet the rule enunciated in Taylor.\\nWe see the testimony somewhat differently in the case now before us. The cardiologist here did testify such connection to be the case with this employee. There are nuances to the rule.\\nThe following testimony was developed:\\nQ. [H]e said he noted that he felt shortness of breath, a general nausea, subsequently started having chest pains, had to stay up that entire night in an upright position because whenever he laid down the chest pains bothered him too much, and that that continued for a period of time through January 11th, and on that date while he was on duty, again, the pains and the general feeling became so much that he checked himself into the emergency room, and he was admitted.\\nNow given all of those facts as I have given them, assuming that that is his testimony or will be his testimony, how do you interpret that with regard to his condition that he found himself in on January 12th?[ ]\\nA. Well, I think we can say he very clearly developed an unstable angina picture and that appears to have started on the 5th of January. Unstable angina meaning that it came on with either less activity, or minimal activity, or even at rest.\\nSo, he has gone from, apparently, stating that he did not have any symptoms to now having pain much of the night following this exposure to a great deal of cold \\u2014 you said he had to get his patrol car out of the snow and had to wrestle with an individual to incarcerate him.\\nSo all of those factors were there and were an unusual stress for him, and then that night he has a great deal of discomfort which causes him to be up a great deal of the night, and throughout the week after that he remained having episodes of pain, and finally, he takes himself to the hospital a week later.\\nDuring that time, he has what looks like an unstable angina picture.\\nQ. Can we relate the one condition with the unusual series of circumstances at least as he has testified about them?\\nA. Well, we can now say that he has given us a history that after having gone through unusual activities for him he has now become unstable.\\nQ. So, based upon that, can we assume or can we connect the two based upon a reasonable medical certainty? Based on his history and the signs and symptoms as you found them, can we say that the two are, to a reasonable degree of medical certainty, related?\\nA. Well, Mr. Taffner clearly developed symptomatology following the episode of extreme exposure in the very deep snow that we all remember in this part of the state, and then following that, he had to help incarcerate somebody, and then, he had pain all night. Following that, he does develop an occlusion of the artery.\\nSo, I think we can say that that artery \\u2014 the instability of that artery appears to have developed at that point in time and progressed to the point that it occluded.\\nLater in the testimony of the cardiologist, this exchange took place:\\nA. I could not say that his extreme activity, at this time, physically made the crack in the plaque occur. I can conjecture that, because of what ultimately happened a week later, sometime around this time he did have his plaque become unstable, because of the symptomatology that persisted and seemed similar all of the way through to the point of myocardial infarction, that something made his plaque unstable at that time and, ultimately, the myocardial infarction a week later.\\nQ. I take it that's conjecture and speculation and not within a reasonable degree of medical probability?\\nA. I think it is within a reasonable degree of medical probability that that occurred. You know our medical probabilities are different than legal probabilities because we have to work back from the symptomatology. (Emphasis added.)\\nHere we have a man that did develop a myocardial infarction. The symptomatol-ogy was fairly consistent through the preceding week, and ultimately, the same symptoms were associated with the narrowing. In fact, that make[s] it fairly likely that he did become unstable the week preceding that.\\nQ. Let me ask it like this then, Doctor. Did the heart attack occur within four hours of the activity on January 5th, 1990?\\nA. The heart attack did not occur within four hours.\\nQ. Yes, sir.\\nA. But, the unstable angina appears to have occurred within four hours.\\n#\\nQ. And, see, that's the difficulty I have with you saying or testifying within a reasonable degree of medical probability that the causative exertion on the 5th actually resulted in the heart attack.\\nA. What I said was that following that exertion, the gentleman did develop the unstable angina pectoris, utilizing the fact that the symptomatology was consistent up to the time of the myocardial infarction, including at the time of the myocardial infarction, and the fact that the chest pain was similar to what he had had a week before.\\nThe cardiologist consistently stuck to his testimony that the stressful events created a condition called \\\"unstable angina pector-is\\\" which a week later resulted in a myocardial infarction (heart attack).\\nFrom the totality of the cardiologist's testimony here, it is gathered that \\\"it is more probable than not that the work exertion or stress contributed in a material degree to the precipitation, aggravation or acceleration of a myocardial infarction.\\\" Kaan v. State ex rel. Wyoming Workers' Compensation Division, 689 P.2d 1387, 1389 (Wyo.1984) cited favorably in Matter of Injury to Kemp, 711 P.2d 1142 (Wyo.1986).\\nOne other question with respect to procedure should be mentioned before we close. The Division asserts the district court did not have jurisdiction to hear an appeal and relies on W.R.A.P. 12.06 which provides that \\\"[t]he petition for review shall include a concise statement showing jurisdiction and venue and the specific ground or grounds upon which petitioner contends he is entitled to relief.\\\" W.R.A.P. 12.03 declares that proceedings for judicial review shall be instituted by filing a petition for review with the district court. Employee filed a \\\"Notice of Appeal\\\" which did not include such statement.\\nThe statutes in regard to worker's compensation cases adopted by the legislature in 1986 provided that \\\"appeals\\\" may be taken from the decisions of a hearing examiner to the district court \\\"as provided by the Wyoming Administrative Procedure Act.\\\" Wyo.Stat. \\u00a7 27-14-602 (1991). The Wyoming Administrative Procedure Act, Wyo. Stat. \\u00a7 16-3-114 (1990) (emphasis added), provides in pertinent part:\\n(b) The supreme court's authority to adopt rules governing review from agencies to the district courts shall include authority to determine the content of the record upon review, the pleadings to be filed, the time and manner for filing the pleadings, records and other documents and the extent to which supplemental testimony and evidence may be taken or considered by the district court. The rules adopted by the supreme court under this provision may supersede existing statutory provisions.\\n(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:\\n*\\n(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:\\n(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;\\n*\\n(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.\\nWhile employee did not conform to W.R.A.P. 12 in that only a \\\"Notice of Appeal\\\" was filed without a \\\"statement showing jurisdiction and venue and the specific ground or grounds upon which petitioner contends\\\" \\u2014 and that was error \\u2014 W.R.A.P. 7.04 sets out that \\\"[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.\\\"\\nAn appellant to this court has the burden of establishing that error is prejudicial or injurious and warrants reversal. Spilman v. State, 633 P.2d 183 (Wyo.1981). The Division set out no reason here why it was prejudiced or even concluded that it had been prejudiced by the error we acknowledge. The parties were directed by the district court to file briefs, which the Division did. The Division was accorded every right to be heard. We find no prejudice.\\nWe hold that employee has met all the requirements to allow benefits for an employment-related coronary condition and the award of benefits is supported by sub-stantia] evidence.\\nWhile we agree with the district court that the conclusion of the hearing examiner is unsupported by substantial evidence appearing in the record of the agency hearing, we are unable to affirm its disposition and must remand to the district court with instructions to follow the concept of State ex rel. Wyoming Workers' Compensation Division v. Hollister, 794 P.2d 886 (Wyo.1990) and remand to the administrative agency.\\n. The facts of employee's exertion were correctly stated as previously set out in this opinion.\"}"

wyo/10369650.json

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+"{\"id\": \"10369650\", \"name\": \"FERGUSON RANCH, INC., a Wyoming Corporation, Appellant (Defendant), v. Edward F. MURRAY, Jr., and William J. Edwards, Appellees (Plaintiffs)\", \"name_abbreviation\": \"Ferguson Ranch, Inc. v. Murray\", \"decision_date\": \"1991-05-16\", \"docket_number\": \"No. 90-166\", \"first_page\": \"287\", \"last_page\": \"293\", \"citations\": \"811 P.2d 287\", \"volume\": \"811\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T17:50:04.014486+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before THOMAS, CARDINE, MACY and GOLDEN, JJ., and TAYLOR, District Judge.\", \"parties\": \"FERGUSON RANCH, INC., a Wyoming Corporation, Appellant (Defendant), v. Edward F. MURRAY, Jr., and William J. Edwards, Appellees (Plaintiffs).\", \"head_matter\": \"FERGUSON RANCH, INC., a Wyoming Corporation, Appellant (Defendant), v. Edward F. MURRAY, Jr., and William J. Edwards, Appellees (Plaintiffs).\\nNo. 90-166.\\nSupreme Court of Wyoming.\\nMay 16, 1991.\\nCharles E. Graves of Graves, Santini and Villemez, Cheyenne, for appellant.\\nJohn B. Rogers, Cheyenne, for appellees.\\nBefore THOMAS, CARDINE, MACY and GOLDEN, JJ., and TAYLOR, District Judge.\", \"word_count\": \"4238\", \"char_count\": \"24777\", \"text\": \"CARDINE, Justice.\\nThis was an action by appellees Edward F. Murray, Jr. and William J. Edwards (M & E) against Ferguson Ranch, Inc. to obtain a right of way, termed a common law way of necessity, across Ferguson lands, Ferguson appeals the judgment granting M & E the right of way.\\nThe question we must answer is this: Where a grantee takes title to a parcel of property which has no adequate means of ingress/egress (is landlocked), is the grant- or obligated to provide his grantee with a common law way of necessity without compensation therefor, or must the grantee obtain a private road in accordance with W.S. 24-9-101 et seq. We address also the question of whether the owner of a landlocked parcel must look to his grantor for relief from his landlocked condition before seeking a right of way across the lands of third parties.\\nWe reverse the decision of the district court. Appellees' source of relief, under the circumstances of this case, is an action for a private road pursuant to W.S. 24-9- 101. They may not demand a common law way of necessity over the lands of the appellant, Ferguson Ranch, Inc. (Ferguson).\\nFerguson raises these issues:\\n\\\"I. Did the Trial Court err, as a matter of law, in granting a 'way of necessity'?\\n\\\"II. Did the Declaration of a Statutory private road extinguish common law easements to the same property?\\n\\\"A. Is the Appellee barred due to abandonment of any implied easement?\\n\\\"B. Was the issue of necessity previously litigated and therefore barred by the doctrine of collateral estoppel/issue preclusion?\\n\\\"C. Was the Appellee barred by the Doctrine of Judicial Estoppel?\\n\\\"D. Did necessity cease with the Declaration for Appellee in the Statutory private way of necessity proceeding?\\n\\\"HI. Did the Trial Court err in failing to bar the easement across Defendant's [Ferguson] lands by adverse possession for the statutory period?\\\"\\nM & E state this outline of the issues:\\n\\\"A. Did the trial court err, as a matter of law, in granting a 'way of necessity'?\\n\\\"B. Did a commenced but uncompleted statutory proceeding for the establishment of a private road operate to extinguish the way of necessity as a result of:\\n\\\"1. Abandonment?\\n\\\"2. Collateral estoppel/issue preclusion?\\n\\\"3. Judicial estoppel?\\n\\\"4. Termination of the element of necessity?\\n\\\"C. Did the trial court err in failing to bar the easement across Defendant's [Ferguson] lands by adverse possession for the statutory period?\\\"\\nFACTS\\nFerguson owns section 18. M & E own section 19 which is landlocked \\u2014 that is, there is no easement or right of way providing access known to law as ingress and egress. M & E seek a common law way of necessity over Ferguson's section 18.\\nAt one time Ferguson owned both sections 18 and 19. On October 19, 1984, Ferguson conveyed section 19 to a third party. No easement or right of way to section 19 was provided at the time of conveyance, although appellee alleges an existing road across section 18 was used for that purpose. On March 1, 1987, the third party sold and conveyed section 19 to M & E. M & E commenced a proceeding before the Laramie County Commissioners to obtain a private road pursuant to W.S. 24-9-101. M & E were successful in this proceeding which culminated with entry of an order August 15, 1988, establishing a surveyed private road across the lands of John and Gladys Lindt conditioned upon payment of damages for the taking in the amount of $33,600. M & E were dissatisfied with the results of the proceeding and filed a petition for review in the district court alleging that the damages awarded for establishment of the private road were excessive, speculative, and arbitrary. The respondents, John and Gladys Lindt, also filed a petition for review in the district court which alleged that the action of the county commissioners was arbitrary, capricious, and an abuse of discretion and M & E were not entitled to a private road because they had a common law way of necessity over the lands of Ferguson. M & E obtained dismissal of the appeal and commenced this action for a common law way of necessity over the Ferguson section 18.\\nM & E alleged that use of the old roadway over section 18, claimed abandoned by Ferguson, was \\\"an absolute necessity\\\" if they were to be able to enter and leave their lands and enjoy the rights of ingress and egress for themselves and their heirs, assigns, guests, invitees and licensees. We emphasize at this point that M & E pled, and attempted to prove, facts which would have established a common law way of necessity. There is a significant difference between a common law way of necessity and an implied easement. We are satisfied that M&E sought the former rather than the latter. The distinction between the two will be addressed later in the opinion.\\nDISCUSSION\\nThe concept of a common law way of necessity serves several purposes, the most important of which was to ensure that land could be used for productive purposes. 2 Thompson on Real Property \\u00a7 362-368 (1980 Repl.). Another very important facet of the doctrine was that, because the grantee of such lands had no common law right to claim a way across the land of third parties, the way of necessity was the only method by which ingress/egress could be obtained. Id. Opposed is a policy that recognizes that it is unfair or inequitable to permit a landlocked landowner to claim, without compensation, a way of necessity across the lands of his grantor which could have been provided for at the time of purchase and conveyance and which may have resulted in a reduced final cost of the land. Id. The competing policy questions were resolved by enactment of W.S. 24-9-101 which says that the solution to access is to allow a landlocked landowner to condemn a best-location right of way across the lands of a stranger upon payment of damages rather than to require a grantor, in an arm's-length real estate transaction, to provide his grantee with a right-of-way that is free of compensation therefor. The grantee at the time of real estate acquisition is well able to figure out that the property is landlocked and to negotiate a right-of-way as a part of the purchase.\\nIn this case a statute, W.S. 24-9-101, provides a means and procedure for obtaining access to the landlocked property. The statute eliminates the problem. It states as follows:\\n\\\"Any person whose land has no outlet to, nor connection with a public road, may apply in writing to the board of county commissioners of his county for a private road leading from his premises to some convenient public road. At least sixty (60) days prior to applying to the board, the applicant shall give notice in writing to the owner, resident agent or occupant of all lands over which the private road is applied for, of his intent to apply for a private road. If the owner of the land is a nonresident, and there is no resident agent upon which personal service can be had, then the notice may be published once a week for three (3) weeks in a newspaper published in the county. The last publication shall be at least thirty (30) days before the hearing of the application. At the hearing, all parties interested may appear and be heard by the board as to the necessity of the road and all matters pertaining thereto. Upon the hearing of the application, whether the owner or others interested appear or not, if the board finds that the applicant has complied with the law and that the private road is necessary, the board shall appoint three (3) disinterested freeholders and electors of the county, as viewers and appraisers, and shall cause an order to be issued directing them to meet on a day named in the order on the proposed road, and view and locate a private road according to the application therefor, and to assess damages to be sustained thereby. If for any reason the viewers and appraisers are unable to meet at the time set by the board to view the proposed road, they may fix some other date, but shall give notice in writing to the owner, resident agent or occupant of the lands over which the road is proposed to be laid of the time and place where the viewers will meet, at least ten (10) days before viewing the road, at which time and place all persons interested may appear and be heard by the viewers. Before entering upon their duties the viewers shall take and subscribe to an oath that they will faithfully and impartially perform their duties under their appointment as viewers and appraisers. The viewers shall then proceed to locate and mark out a private road in accordance with the application or in such other manner and location they deem appropriate, provided the location of the road shall not be marked out to cross the lands of any person whose lands were not described in the application and who has not given notice of the application. The proposed road shall not exceed thirty (30) feet in width from a certain point on the premises of the applicant to some certain point on the public road, and shall be located so as to do the least possible damage to the lands through which the private road is located. The viewers shall also at the same time assess the damages sustained by the owner over which the road is to be established and make full and true returns, with a plat of the road to the board of county commissioners.\\\"\\nTo the extent any ambiguity may exist in our previous decisions, we make clear now that a civil action for a common law way of necessity is not available because of the existence of W.S. 24-9-101. Walton v. Dana, 609 P.2d 461, 463-64 (Wyo.1980); Snell v. Ruppert, 541 P.2d 1042, 1046 (Wyo.1975); and see Leo Sheep Co. v. United States, 440 U.S. 668, 680, 99 S.Ct. 1403, 1410, 59 L.Ed.2d 677 (1979).\\nThe decision in Snell is quite clear. We held that the concept of a common law way of necessity is theoretically incompatible with Art. I, \\u00a7 32 of the Wyoming Constitution, which provides:\\n\\\"Private property shall not be taken for private use unless by consent of the owner, except for private ways of necessity, and for reservoirs, drains, flumes or ditches on or across the lands of others for agricultural, mining, milling, domestic or sanitary purposes, nor in any case without due compensation.\\\"\\nIn addition, we also held that if a statute covers a whole subject matter, the abrogation of the common law on the same subject will necessarily be implied. Our terse and rather clear conclusion was that W.S. 24-9-101, et seq., \\\"offers complete relief to the shut-in landowner and covers the whole subject matter.\\\" Snell, 541 P.2d at 1046. Footnote 4 of the Snell opinion does detract from the clear language used in the body of the opinion, and footnote 1 of the Dana opinion does not serve to clarify the ambiguity created in Snell. Nonetheless, we conclude the time has come to announce that anything said in these decisions, or our decisions which have followed Snell and Dana, such as Miller v. Stovall, 717 P.2d 798, 807, 72 A.L.R.4th 113 (Wyo.1986) and Bush v. Duff, 754 P.2d 159, 163 (Wyo.1988) which may suggest the existence of a common law way of necessity, is specifically overruled and is dicta. This construction of W.S. 24-9-101, i.e., that it obviates the need for recognition of the common law way of necessity, serves to clarify this area of the law and will also eliminate the confusion and complications that will undoubtedly arise out of the rule that a common law way of necessity lasts only as long as the necessity. See, e.g., Joines v. Herman, 89 N.C.App. 507, 366 S.E.2d 606, 607-08 (1988); Dulaney v. Rohanna Iron and Metal, Inc., 344 Pa.Super. 45, 495 A.2d 1389, 1391 (1985); Oyler v. Gilliland, 382 So.2d 517, 519, 10 A.L.R.4th 443 (Ala.1980); Badura v. Lyons, 147 Neb. 442, 23 N.W.2d 678, 683-85 (1946); Roediger v. Cullen, 26 Wash.2d 690, 175 P.2d 669, 673 (1946). A private road established in accordance with W.S. 24-9-101, provides a more permanent as well as a more equitable solution.\\nMoreover, as has been noted in several of our decisions, e.g., Dana and Snell, forcing a landlocked landowner to choose a wholly illogical, uneconomic, and unproductive road makes no sense at all. If that were to be the case, our state would soon be riddled with roads which waste space and money and create road development problems that would eventually have to be paid for by taxpayers who are truly strangers to the roadways.\\nWe reemphasize that a landlocked landowner is not entitled to seek whatever road he desires or is most convenient to him. He still must seek, and the county commissioners are bound to approve, only such means of access to landlocked property as are reasonable. In the instant case, if the most practical and reasonable route is across the lands of third parties, rather than across the Ferguson lands, then that is a factual question to be resolved by the county commissioners.\\nAs a result of this holding, we conclude that the district court was without jurisdiction to entertain M & E's suit for a common law way of necessity. McGuire v. McGuire, 608 P.2d 1278, 1290-91 (Wyo.1980). Our holding that the existence of W.S. 24-9-101 precludes an action for a common law way of necessity serves to clarify and, perhaps, extends somewhat previous holdings of this court. Therefore, in the interests of fairness, and because the parties to First Judicial District Court, Civil Docket 117, Page 463, were very likely misled by the district court having purported to dismiss that action, as well as the underlying proceedings before the county commissioners, we will further direct that the parties to that action may pursue their respective appeals to the district court from the decision of the county commissioners. Such action must be commenced within thirty (30) days of the date of this opinion, or the decision of the county commissioners will be final, with the only further action required being that M & E must fulfill the remaining requirements of the governing statutes if they wish a private road. We emphasize again, that the concept of a common law way of necessity should, in any event, play no part in the review of the county commissioners' decision by the district court.\\nIt is suggested that, by this opinion, we legislate. The suggestion is patently incorrect. The critical decision which is the foundation for this opinion is Snell v. Rup-pert, 541 P.2d 1042. The United States Supreme Court read Snell just exactly as it is read in the majority opinion of this court. Leo Sheep Co. v. United States, 440 U.S. at 680, 99 S.Ct. at 1410. Thus, it cannot accurately be said that the result is \\\"strained.\\\" It is unfortunate that subsequent decisions of this court failed to fully recognize the holding of Snell v. Ruppert, but none of those decisions employ the \\\"way of necessity\\\" as a remedy, and the discussion of it amounts to nothing more than dicta. This probably resulted because it was not necessary to fully explore the concept of the \\\"way of necessity\\\" in those eases.\\nBecause of this disposition, we need not address the other issues raised by the parties.\\nReversed and remanded to the district court with directions that the district court dismiss the complaint for lack of jurisdiction. Further, the order of the district court dismissing the petitions for review in the related matter arising before the county commissioners is reversed and the district court is instructed to vacate that order. The parties to the petitions for review of the order of the Laramie County Commissioners may continue their appeals in the district court in accordance with the directions provided in this opinion.\\n. We note that the reference to a common law way of necessity was dicta in the Miller case. The distinction between a common law way of necessity and an implied easement is an extremely important one. 2 Thompson on Real Property \\u00a7 362 (1980 Repl.).\\n. The discussion of the common law way of necessity in Bush is also largely dicta, because the court was really concerned with an implied easement, rather than a common law way of necessity. As noted by Professor Thompson, the confusion between the two is not uncommon. 2 Thompson on Real Property \\u00a7 362 (1980 Repl.). Upon close analysis, we agree with the United States Supreme Court that Wyoming no longer recognizes a common law way of necessity. Bush, 754 P.2d at 163 fn. 3; Leo Sheep Co. v. United States, 440 U.S. 668, 680, 99 S.Ct. 1403, 1410, 59 L.Ed.2d 677 (1979).\\nWe note here also that some states treat all such easements by statute which does add clarity to this area of the law. See Parham v. Reddick, 537 So.2d 132, 135-36 (Fla.App.1988).\"}"

wyo/10375319.json

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+"{\"id\": \"10375319\", \"name\": \"DEPARTMENT OF EMPLOYMENT, LABOR STANDARDS DIVISION, State of Wyoming, Appellant, v. ROBERTS CONSTRUCTION COMPANY, Appellee\", \"name_abbreviation\": \"Department of Employment, Labor Standards Division v. Roberts Construction Co.\", \"decision_date\": \"1992-11-20\", \"docket_number\": \"No. 92-26\", \"first_page\": \"854\", \"last_page\": \"861\", \"citations\": \"841 P.2d 854\", \"volume\": \"841\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T18:43:20.157473+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before THOMAS, CARDINE, URBIGKIT and GOLDEN, JJ., and BROWN, J. (Retired).\", \"parties\": \"DEPARTMENT OF EMPLOYMENT, LABOR STANDARDS DIVISION, State of Wyoming, Appellant, v. ROBERTS CONSTRUCTION COMPANY, Appellee.\", \"head_matter\": \"DEPARTMENT OF EMPLOYMENT, LABOR STANDARDS DIVISION, State of Wyoming, Appellant, v. ROBERTS CONSTRUCTION COMPANY, Appellee.\\nNo. 92-26.\\nSupreme Court of Wyoming.\\nNov. 20, 1992.\\nJoseph B. Meyer, Atty. Gen., Michael L. Hubbard, Sr. Asst. Atty. Gen., and Robert L. Lanter, Asst. Atty. Gen., for appellant.\\nGeorge E. Powers, Jr. of Godfrey & Sun-dahl, Cheyenne, for appellee.\\nBefore THOMAS, CARDINE, URBIGKIT and GOLDEN, JJ., and BROWN, J. (Retired).\\nChief Justice at time of oral argument.\", \"word_count\": \"3981\", \"char_count\": \"25734\", \"text\": \"BROWN, Justice\\n(Retired).\\nThe trial court set aside and reversed a decision by appellant, the Department of Employment, Labor Standards Division, State of Wyoming (Department), which had revoked the certificate of residency possessed by appellee Roberts Construction Company, Inc. (Roberts).\\nAppellant argues a single issue:\\nWas there sufficient evidence to support the Division of Labor Standards' decision that a certified resident contractor was using its certificate of residency primarily as a device to obtain benefits of residency for a nonresident contractor, in violation of W.S. \\u00a7 16-6-102(d).\\nWe affirm.\\nIn 1984, all of the stock in Roberts Construction Company was purchased by McCormick, Inc. In 1987, Roberts received from the Department a certificate of resi dency status. The certificate of residency allowed Roberts to bid public contract projects as a resident contractor and thus enjoy a five percent preference on its bids over those of nonresident contractors.\\nThis dispute arose when the owner of Nucor Drilling, Inc., filed an oral complaint with the Department complaining about the residency status of Roberts. The complaint was formally made in writing and received by the Department on March 14, 1991.\\nAt the time of the complaint by Nucor Drilling, Inc., Roberts was the low bidder on two construction projects planned by the Department of Environmental Quality. Nucor Drilling, Inc., was the second lowest bidder on these projects, its bid being $115,-460 higher than Roberts' bid.\\nAs a result of the complaint by Nucor Drilling, Inc., David Crowlie, a compliance officer with the Department, did an on-site investigation of Roberts' business office in Sundance, Wyoming. The on-site inspection disclosed material which caused Crow-lie to believe that Roberts was using the certificate of residency primarily as a device to obtain benefits of residency for its nonresident corporate parent, McCormick, Inc. (McCqrmick), a North Dakota corporation. David Simonton, Compliance Supervisor for the Department of Labor Standards, wrote a letter to Roberts on March 25, 1991, informing Roberts of the residency certification audit and his preliminary findings. In his letter, David Simonton requested that Roberts respond to the preliminary findings and produce documentation to demonstrate that it was not in fact using its residency certificate primarily as a device to obtain the residency five percent bid preference for McCormick, a nonresident.\\nRoberts responded to David Simonton's March 25, 1991 letter with a letter from its attorney dated April 9,1991. After reviewing Roberts' response, Mr. Simonton concluded that Roberts was in violation of Wyo.Stat. \\u00a7 16 \\u2014 6\\u2014102(d) (1990) and was using its certificate of residency primarily as a device to obtain benefits of residency for McCormick, a nonresident. Mr. Simonton revoked Roberts' resident contractor certificate in his April 16, 1991 letter.\\nRoberts requested a hearing to review the decertification decision as provided by Chapter XI, Section 10(a) of the Departments' Rules of Practice and Procedure. The hearing was held on May 17, 1991, with the Commissioner of Labor, Michael J. Sullivan, sitting as hearing officer. On May 30, 1991, the Commissioner issued his determination and order upholding the Department's decision to revoke Roberts' residency certification.\\nRoberts filed a petition for review on June 3, 1991. Roberts' motion for stay of enforcement of the administrative decision was denied on June 26,1991, by the district court. The contracts were then awarded to Nucor Drilling, Inc., at a cost of an additional $115,460 to the state. On December 13, 1991, the district court reversed the Commissioner of Labor's order revoking Roberts' residency certification. The district court held that the Department's decision to revoke Roberts' certificate of residency was unsupported by substantial evidence, and, therefore, must be set aside in accordance with Wyo.Stat. \\u00a7 16-3-114(c)(ii)(E) (1990) of the Administrative Procedures Act. The Department filed its notice of appeal to the supreme court on December 24, 1989.\\nThe Wyoming Administrative Procedures Act sets the legislative standard for reviewing an administrative decision. Wyo. Stat. \\u00a7 16-3-114(c) (1990) provides in pertinent part:\\nTo the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determination, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:\\n(i) Compel agency action unlawfully withheld or unreasonably delayed; and\\n(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:\\n(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;\\n(B) Contrary to constitutional right, power, privilege or immunity;\\n(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;\\n(D) Without observance of procedure required by law; or\\n(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.\\nThis court has developed further standards of review with respect to agency decisions that tilt in favor of the agency determination. When reviewing an agency decision, we must examine the entire record as if it came directly to the court from the agency. The district court's determination should not be afforded any deference. Mekss v. Wyoming Girls' School, State of Wyoming, 813 P.2d 185, 200-01 (Wyo.1991). After a careful review of the record, the court must determine whether the agency's findings were supported by substantial evidence. Id. at 200.\\nSubstantial evidence is defined by this court as \\\"relevant evidence which a reasonable mind might accept in support of the conclusions of the agency.\\\" Dougherty v. J.W. Williams, Inc., 820 P.2d 553, 555 (Wyo.1991) (quoting Trout v. Wyoming Oil and Gas Conservation Commission, 721 P.2d 1047, 1050 (Wyo.1986)). The substantial evidence standard also requires that there be more than a scintilla of evidence. Knight v. Environmental Quality Council of State of Wyoming, 805 P.2d 268, 274 (Wyo.1991). It is not required that the proof attain such a degree of certainty as to support only one conclusion to the exclusion of all others. Marathon Battery Company v. Kilpatrick, 418 P.2d 900, 917 (Okla.1965). Once the measure of evidence has surpassed the scintilla threshold, the possibility of drawing two inconsistent conclusions from the entire record does not mean that the conclusion drawn by the administrative agency is not supported by substantial evidence. Knight, 805 P.2d at 274. Even where this court, after reviewing the record, arrives at a different conclusion, the court cannot substitute its judgment for that of the agency's as long as the agency's conclusion is supported by substantial evidence. Kloefkorn-Ballard Construction and Development, Inc. v. North Big Horn Hospital District, 683 P.2d 656, 660 (Wyo.1984).\\nWyoming Rules of Evidence 401 defines relevant evidence as \\\"evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\\\" Relevant evidence can be either direct or circumstantial in nature. Circumstantial evidence, like direct evidence, is relevant if it tends to prove or disprove some matter in issue or to make a fact in issue more or less probable. Jozen v. State, 746 P.2d 1279, 1283 (Wyo.1987); Petricevich v. Salmon River Canal Company, 92 Idaho 865, 452 P.2d 362 (1969).\\nIn developing our standards of review we have used some imprecise terms such as \\\"scintilla of evidence,\\\" \\\"weight of the evidence,\\\" \\\"great weight of evidence,\\\" \\\"overwhelming weight of evidence,\\\" and \\\"substantial evidence.\\\" How these terms are applied often depends on the context in which they are used, but more likely, as a practical matter, it depends on \\\"the eye of the beholder.\\\" To paraphrase the late United States Supreme Court Justice Potter Stewart [pornography case], substantial evidence is difficult to define, but one knows it is not present when one does not see it.\\nThe administrative hearing officer, Michael J. Sullivan, wrote voluminously in support of his \\\"Determination and Order.\\\" He purported to make seventy-one findings of fact; however, sixty-three of these entries are really a summary of the evidence. The so-called conclusions of law mostly state the parties' contentions and set out some findings of fact. Although the hearing officer did not actually make conclusions of law as required by the statute, we can glean from his \\\"Determination and Order\\\" that he concluded that Roberts was using the certificate of residency primarily as a device to obtain benefits of residency for a nonresident. Most likely, the hearing examiner's findings of fact and conclusions of law do not satisfy the requirements of Wyo.Stat. \\u00a7 16-3-110 (Wyo.1990). However, we will decide this case on the merits.\\nIn the first paragraph of his \\\"Determination and Order,\\\" the hearing officer, Michael J. Sullivan, said, \\\"The decertification was based on a violation of Wyoming Statute 16-6-102(d).\\\" This statute provides in pertinent part:\\n(d) The department of employment shall deny or revoke a certificate of residency even if the applicant or certificate holder is in compliance with W.S. 16-6-101(a)(i), if the department finds the applicant or certificate holder will use or is using the certificate of residency primarily as a device to obtain benefits of residency for a nonresident. Evidence that a certificate might be or is'being utilized as such a device includes, but is not limited to, the following none of which create a presumption that the certificate is being so utilized:\\n(i) The applicant or certificate holder:\\n(A) Contracts with a nonresident parent corporation, partnership, individual or any subsidiary thereof for any goods or services;\\n(B) Utilizes equipment, supplies and materials from any nonresident source unless they are not economically available from resident sources.\\nSection 16-6-102(d) was added by 1989 Wyo.Sess.Laws, eh. 156 after the decision of this court in Kloefkorn-Ballard Construction, 683 P.2d 656.\\nIn that portion of the hearing officer's \\\"Determination and Order\\\" at paragraph 19, he states: \\\"The Objector [Roberts] has a special relationship with its parent corporation [McCormick]. We do know from the record that the objector has the following business activities with the parent corporation[.]\\\" He then lists eight of these activi ties. Paragraph 19 of the \\\"Determination and Order\\\" is in some respects a summary of the factors that the agency considered in decertifying Roberts. In Finding No. 35, the hearing examiner stated:\\nWitness [Labor Standards Supervisor David Simonton] testified that any one fact does not constitute a violation of Wyoming law but the combination of these factors does give the appearance of gaining benefits for a nonresident (see case file letter of April 16, 1991).\\nSimonton also testified:\\nThere are some of those factors that I think if that one factor alone, say, the commingling of funds issue, in my opinion, if that's all we had, that might be enough to decertify a corporation.\\nWe think it fair to say that the agency considered multiple factors in de-certifying Roberts as a resident. We do not believe, however, that the agency's Findings of Fact and Conclusions of Law are supported by substantial evidence.\\nWe will not discuss all of the numerous findings of fact and conclusions set out in the hearing officer's \\\"Determination and Order,\\\" but only those that seemed most significant to the agency.\\nThe hearing examiner assumed that Roberts improperly maintained a joint bank account with its parent corporation at the American National Bank of St. Paul, Minnesota. The evidence is to the contrary. Alan Roberts testified that Roberts had never maintained a checking account at American National Bank of St. Paul, Minnesota. Further, the minutes of the Annual Meeting of the Board of Directors of Roberts Construction held on April 1, 1991, reflected that any prior Board of Directors' minutes suggesting a bank account in St. Paul, Minnesota, was in error. Margaret Mary Yanez, Vice President of American National Bank, in an affidavit, stated: \\\"Roberts Construction Company maintains no checking accounts, savings account, or other deposits with American National Bank and Trust Company, nor has it ever maintained such deposits.\\\" All of this uncontradicted evidence clearly established that Roberts did not, and never had, maintained an account at the American National Bank in St. Paul, Minnesota. Mr. Sullivan impermissibly speculates, in the face of evidence to the contrary, that Roberts' past activities may have included maintaining a joint out-of-state bank account with its parent corporation.\\nThe hearing officer was concerned about Roberts leasing equipment from the parent company. In Paragraph 8 of the Department's conclusions, the hearing officer noted that Roberts submitted documents pertaining to the purchase, as opposed to leasing equipment from the parent company, together with checks showing four separate equipment transactions. The hearing officer found this evidence insufficient, noting that \\\"it failed to show the reverse side of each check reflecting deposit or cash.\\\" The hearing officer apparently ignored the uncontroverted testimony of Alan Roberts that the checks were used to purchase equipment. Roberts presented evidence that the equipment it did lease from its parent corporation was at favorable rates. Mr. Sims and Mr. Olsen, both presidents of resident construction companies, testified that the rates Roberts received on leased equipment from McCormick were very favorable. Furthermore, these two individuals testified regarding the difficulty in leasing equipment from Wyoming suppliers. Mr. Roberts substantiated the testimony of both Mr. Sims and Mr. Olsen by stating, in his experience, the rates Roberts received from McCormick, were very favorable. Mr. Simonton, of the Department, agreed that the rates Roberts received from McCormick, were more favorable than those available within the state of Wyoming. In his findings, Mr. Sullivan complained that no other supplier rates were submitted for comparison. However, the testimony regarding the favorable rates came from individuals knowledgeable about construction lease equipment and rates. The Department did not produce evidence to contradict the testimony elicited at the hearing. Furthermore, Mr. Sullivan complains that no documentation or testimony was presented regarding McCormick renting or leasing equipment to other contractors. No evidence or testimony was presented to establish that these lease agreements were improper or contrary to law. This court found that it was not unusual for a contractor to lease equipment from a parent corporation. Kloefkorn-Ballard Construction, 683 P.2d at 661. Roberts' equipment leases from its nonresident source were at rates more economically advantageous than were available in Wyoming. It does not seem reasonable to conclude that Roberts was not in compliance with Wyo.Stat. \\u00a7 16 \\u2014 6\\u2014 102(d)(i)(B).\\nMr. Sullivan found that Roberts maintains contracts with its parent corporation for goods and services including \\\"equipment, yard facilities, preparation of bids, personnel, Wyoming project information, and some administrative tasks.\\\" The evidence presented at the hearing regarding any transactions for goods and services between Roberts and its parent corporation supports a conclusion that such transactions were conducted at an arm's length. While Roberts does lease equipment from its parent corporation, it does so because it receives favorable rates which it would not receive in Wyoming. Roberts does lease yard facilities to store the leased equipment; however, the yard facilities leased by Roberts are leased from entities not associated with Roberts' parent corporation. All of the yard facilities are leased strictly for purposes of Roberts' business in Wyoming. No evidence was presented that Roberts' parent corporation shared its Wyoming yard facilities.\\nIn Paragraph Nos. 9 and 19(a) of the Department's Conclusions of Law, Mr. Sullivan found that Roberts used a McCormick estimator when preparing bids on public projects. Roberts hired and paid the estimator for part-time services. Alan Roberts specifically stated that he knew of no such part-time estimator service available in Wyoming. Mr. Sullivan complains that no evidence was produced to \\\"collaborate\\\" [sic] Mr. Roberts' testimony from the other con tractor witnesses. Mr. Olsen and Mr. Sims, both owners of construction companies in Wyoming, do their own estimating work. Further, Mr. Sullivan complains that the estimator services employed by Roberts from its parent corporation were not available to other contractors. Mr. Sullivan states that no payroll documents to substantiate the payment of the estimator's salary or benefits by Roberts were admitted into evidence. However, Alan Roberts testified that the estimator he hired, Don Earl, was paid a salary and other benefits by Roberts. No testimony or evidence was presented by the Department rebutting Mr. Roberts' testimony. His testimony was unchallenged and must be accepted as true.\\nIn Paragraph Nos. 14 and 19(h) of the Department's Conclusions of Law, Mr. Sullivan finds that Roberts used supervisory personnel from its parent corporation to manage and control its field operations. No evidence in the record supports this conclusion. Alan Roberts testified that he controls all aspects of the business, including any supervisors he employs for such projects. While a number of the supervisors that are or were employed by Roberts were, at one time, employed by McCormick, the evidence indicates that Roberts subsequently employed and controlled the supervisors.\\nMr. Sullivan also raises concerns over a loan agreement between Roberts and McCormick Roberts had loaned its parent corporation money at an interest rate of at least eleven percent (11%) per annum. In Paragraph No. 15, Mr. Sullivan complains that no documentation or evidence was presented at the hearing regarding how the loan agreement actually worked between Roberts and McCormick and where McCormick, kept the funds loaned from Roberts. Mr. Sullivan concluded that the parent corporation would have to be gaining from such an agreement and that the transfer of funds from Roberts to its parent corporation demonstrated a failure to adequately capitalize. To the contrary, Roberts is a financially sound business. Furthermore, this loan agreement, which carried interest, between Roberts and McCormick represents an arm's-length transaction. We have previously said that loan agreements which carry interest between a construction company and its nonresident parent were arm's-length transactions. Kloefkorn-Ballard Construction, 683 P.2d at 661.\\nThe Department scatter-gunned numerous complaints against Roberts as reflected by the numerous findings of fact and conclusions of law. We have addressed the matters that seemed most important to the hearing examiner such as the factors set out in Wyo.Stat. \\u00a7 16-6-102(d)(i)(A) and (B) and commingling of assets. With respect to these factors and others not addressed, there was, in some instances, a disregard of uncontradicted evidence, drawing unwarranted conclusions from facts found and unsubstantial evidence to support the conclusions drawn.\\nWe affirm the determination by the district court.\\n. The court's use of a \\\"substantial evidence\\\" review of agency actions was developed by Justice Blume in Howard v. Lindmier, 67 Wyo. 78, 214 P.2d 737 (1950). The court first stated the limited review provided under \\\"substantial evidence\\\" and then defined the concept in this manner: \\\"[T]he term 'substantial evidence' does not include the idea of weight of evidence, although it is more than a mere scintilla and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\\\" Id. at 740. See also Clements v. Board of Trustees of Sheridan County School District No. 2, 585 P.2d 197, 202 (Wyo.1978).\\nVariations of the same language have appeared in other cases. In Laramie River Conservation Council v. Industrial Siting Council, 588 P.2d 1241, 1249 (Wyo.1978), the court modified the language:\\nIn applying [the substantial evidence] standard for purposes of review we recognize that it may be less than the weight of the evidence, but it cannot clearly be contrary to the overwhelming weight of the evidence. More is required than a mere scintilla of evidence or suspicion of existence of a fact to be established.\\nSee also Mountain Fuel Supply Co. v. Wyoming Public Service Commission of Wyoming, 662 P.2d 878, 882 (Wyo.1983).\\nIn Burlington Northern Railroad Co. v. Public Service Commission of Wyoming, 698 P.2d 1135, 1138-39, (Wyo.1985) (citations omitted), the court phrased the standard in this way:\\nSubstantial evidence has been defined \\\"as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\\\" Substantial evidence may indeed be less than the great weight of evidence, but is more than a mere scintilla of evidence.\\nThe author of the opinion in Burlington Northern Railroad Co. did not contribute anything to a better understanding of the illusive term \\\"substantial evidence.\\\" In fact, his contribution was counterproductive and only added another slippery term. A Philadelphia lawyer would be hard-pressed to sort out what this court has said about \\\"substantial evidence.\\\"\\n. An agency's duty to support its action with sufficient factual findings is set out in Wyo.Stat. \\u00a7 16-3-110, which reads in pertinent part:\\nA final decision or order adverse to a party in a contested case shall be in writing or dictated into the record. The final decision shall include findings of fact and conclusions of law separately stated. Findings of fact if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.\\n. Paragraph 19 of the Determination and Order reads in pertinent part:\\n(a) parent corporation estimator does all bid estimates on public works projects for the Objector. Even though he is paid by the Objector, his services as an estimator are provided to no other contractor except the Objector and the parent corporation. There were no payroll documents to substantiate the payment of his salary or benefits by the Objector.\\n(b) The assertion by the Public Body that the Objector and the parent corporation were jointly using an out-of-state bank was based on the April 2, 1991 minutes of the Board of Directors. The evidence refuting this issue was not submitted during the investigation because the error in the 1990 Board minutes was not noted until April 1, 1991 which is after the fact. Also, the Affidavit of Margaret Mary Yanez does state that the Objector currently has no checking account which leaves the past activities unclear to the hearing officer.\\n(c) Objector has contracts with the parent corporation for goods and services to be shared and used such as equipment, yard facilities, preparation of bids, personnel Wyoming project information, and some administrative tasks.\\n(d) The agreement to transfer excess funds to the parent corporation each month demonstrates a failure to adequately capitalize the resident corporation regardless of the terms of the agreement.\\n(e) The Objector failed to provide payroll documents, banking statements, purchase of goods or services required in each project, accounts receivable documents, bonding documents, prequalification package for projects, and documents to show that the Objector does in fact stand separate from the parent corporation. This lack of documentation of the above activities demonstrates a failure to maintain adequate corporation records. Even the April 1, 1991 corporation minutes were prepared in the North Dakota office since they were faxed to Wyoming.\\n(f) The Objector has failed to demonstrate and maintain an arm's length distance from its parent corporation. In each business activity discussed, the Objector continues to use its parent corporation for each and every endeavor discussed in the Findings of Fact and the Conclusion of Law. The very nature of the excess funds agreement allows a commingling of excess money made on each and every Wyoming project with the parent corporation.\\n(g) The Objector has had no general construction equipment evidenced by equipment lease agreements with the parent corporation or real property located in Wyoming evidenced by the yard lease agreement and the office rental exhibit since its acquisition by the parent corporation in 1984.\\n(h) Since the Objector testified that it does not work in the field operation for each project, the parent corporation's supervisors must control the public works projects.\"}"

wyo/10375783.json

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+"{\"id\": \"10375783\", \"name\": \"Shirley DAVIDSON; Kimberly Pauli; and Melissa Baxter, a minor, by and through her next friend, Gloria Shore, on behalf of themselves and all others similarly situated, Appellants (Plaintiffs), v. Gary SHERMAN, and/or his successor, in his official capacity as Director of the Wyoming Department of Family Services, and/or its successor, Appellee (Defendant)\", \"name_abbreviation\": \"Davidson v. Sherman\", \"decision_date\": \"1993-03-18\", \"docket_number\": \"No. 92-63\", \"first_page\": \"1341\", \"last_page\": \"1349\", \"citations\": \"848 P.2d 1341\", \"volume\": \"848\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T23:23:26.328084+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MACY, C.J., THOMAS, CARDINE and GOLDEN, JJ., and URBIGKIT, J. (Retired).\", \"parties\": \"Shirley DAVIDSON; Kimberly Pauli; and Melissa Baxter, a minor, by and through her next friend, Gloria Shore, on behalf of themselves and all others similarly situated, Appellants (Plaintiffs), v. Gary SHERMAN, and/or his successor, in his official capacity as Director of the Wyoming Department of Family Services, and/or its successor, Appellee (Defendant).\", \"head_matter\": \"Shirley DAVIDSON; Kimberly Pauli; and Melissa Baxter, a minor, by and through her next friend, Gloria Shore, on behalf of themselves and all others similarly situated, Appellants (Plaintiffs), v. Gary SHERMAN, and/or his successor, in his official capacity as Director of the Wyoming Department of Family Services, and/or its successor, Appellee (Defendant).\\nNo. 92-63.\\nSupreme Court of Wyoming.\\nMarch 18, 1993.\\nJ. Duane Myres (argued), and H.B. Harden, Jr., Casper, for appellants.\\nJoseph B. Meyer, Atty. Gen., Michael L. Hubbard, Barbara L. Boyer (argued), Sr. Asst. Attys. Gen., and D. Stephen Melchior, Asst. Atty. Gen., for appellee.\\nBefore MACY, C.J., THOMAS, CARDINE and GOLDEN, JJ., and URBIGKIT, J. (Retired).\", \"word_count\": \"4783\", \"char_count\": \"29670\", \"text\": \"CARDINE, Justice.\\nShirley Davidson, Kimberly Pauli, and Melissa Baxter, appellants, filed suit seeking a declaratory judgment that the Wyoming Department of Family Services, as administrator of the Aid to Families with Dependent Children Program, must set the standard of need at a level commensurate with actual need. Appellants also, for themselves and others similarly situated, sought to recover the amount of child support payments wrongfully retained by the State when it employed the incorrect standard of need. The district court, citing its lack of authority because of separation of powers, refused to correct the standard of need and entered summary judgment in favor of the State.\\nWe reverse and remand for further proceedings.\\nAppellants state the issues as follows:\\nI. Whether the trial court committed reversible error by granting Appellee/De-fendant's (hereinafter Defendant) Motion for Summary Judgment that dismissed Appellant/Plaintiff (hereinafter Plaintiff), Shirley Davidson's, individual claim when the Court's Decision Letter stated \\\"The Plaintiffs ask for a finding of amounts due for the named Plaintiffs, however, the Court finds that the amount due, if any, turns upon question of fact and Summary Judgment is denied.\\\"\\nII. Whether the trial court committed reversible error by failing to grant Plaintiff, Shirley Davidson's, individual claim for $1000 in underpaid AFDC grant payments from October, 1984 through January, 1987 pursuant to stipulated agreement of the parties.\\nIII. Whether the trial court committed reversible error by failing to declare the stipulated remaining issue in Plaintiff, Shirley Davidson's, individual claim. The sole issue for the court's determination is whether federal and state laws 42 U.S.C.A. \\u00a7 657, 45 CFR \\u00a7 302.51, W.S. \\u00a7 20-6-106(n) and W.S. \\u00a7 20-6-215(b) require Defendant to account for all child support collected and held in trust as current month's child support first and only after payment of current child support obligations can Defendant treat the child support collected as against the back child support obligation and/or Judgment. If the money collected from John's father is to be credited against current child support obligation first then Defendant has stipulated that they owe Plaintiff, Shirley Davidson, child support benefits and $50 child support disregard benefits in the amount of $3,069.20.\\nIV. Whether the trial court committed reversible error by finding that the Court has no legal right or authority to correct the Standard of Need (hereinafter SON) from August 4, 1986 to October 1, 1990 to the correct and accurate SON amount of $654 for an AFDC family size three.\\nV. Whether the trial court committed reversible error in failing to find that Plaintiffs' rights were violated by Defendant's confiscating and using the children's child support trust funds without accurate accounting in accordance with Federal and State laws is a violation of the State and Federal Laws Amendment XIV of the Constitution of the United States and the Wyoming Constitution Article 1, \\u00a7 6.\\nVI. Whether the trial court committed reversible error in finding that Plaintiffs had failed to timely certify the alleged Class action claim when all evidence is that the parties hereto agreed not to certify the class until after the SON issue was resolved. Clearly, it is premature for the Court to limit this action to the three named-Plaintiffs when Defendant has already stipulated in two other filed cases that they are members of the class that is yet to be certified, if the certification step even becomes necessary.\\nSTANDARD OF REVIEW\\nWhen reviewing the trial court's grant of summary judgment, we examine the case in the same manner as the trial court. Moncrief v. Harvey, 816 P.2d 97, 102 (Wyo.1991). Our task requires that we make a dual finding that no genuine issue of material fact exists, and that the prevailing party was entitled to judgment as a matter of law. Id. When considering questions of law, we accord no special deference to the district court's determination. Id.; Matter of North Laramie Land Co., 605 P.2d 367, 373 (Wyo.1980).\\nBACKGROUND\\nThe Aid to Families With Dependent Children (AFDC) program is one of three major categorical public assistance programs established by the Social Security Act of 1935. King v. Smith, 392 U.S. 309, 313, 88 S.Ct. 2128, 2131, 20 L.Ed.2d 1118 (1968). 42 U.S.C. \\u00a7 601 outlines the program's goals:\\nFor the purpose of encouraging the care of dependent children in their own homes or in the homes of relatives by enabling each State to furnish financial assistance and rehabilitation and other services, as far as practicable under the conditions in such State, to needy dependent children and the parents or relatives with whom they are living to help maintain and strengthen family life and to help such parents or relatives to attain or retain capability for the maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection, there is hereby authorized to be appropriated for each fiscal year a sum sufficient to carry out the purposes of this part.\\nThe AFDC program is based on a scheme of cooperative federalism under which the states provide monthly or bimonthly cash grants for basic maintenance to needy families with dependent children and the federal government reimburses fifty to eighty percent of the states' program costs. King, 392 U.S. at 316, 88 S.Ct. at 2133; Adele M. Blong & Timothy J. Casey, AFDC Program Rules for Advocates: An Overview, 23 Clearinghouse Rev. 802 (Nov. 1989). States freely elect whether to participate in the federally funded program, but once a state decides to participate, it must comply with the federal laws governing the program. King, 392 U.S. at 316\\u201417, 88 S.Ct. at 2133; Rosado v. Wyman, 397 U.S. 397, 408, 90 S.Ct. 1207, 1216, 25 L.Ed.2d 442 (1970). Federal law requires a state to designate a single state agency to administer the AFDC benefits program or to supervise agencies of local government, usually county agencies, who administer the program. 42 U.S.C. \\u00a7 602(a)(3), 45 C.F.R. \\u00a7 205.100, 205.101.\\nTwo basic factors enter into the determination of what AFDC benefits will be paid to a family. First, a standard of need must be established to provide a yardstick for measuring who is eligible for public assistance. Rosado, 397 U.S. at 408, 90 S.Ct. at 1216. Second, it must be decided what level of benefits will be paid to families in need of assistance. Id. Congress has granted the states a great deal of discretion in making both of these determinations. Id. Thus, diversity exists among the states both in their standards of need and their levels of benefits actually paid. Id.\\nThe standard of need and the benefit level are separate considerations. The level of benefits aspect of the program is subject to different limitations than is the state's determination of the standard of need. State of Minn. by Humphrey v. Heckler, 739 F.2d 370, 374 (8th Cir.1984). The standard of need is intended to reflect the actual cost of a subsistence level of existence; accordingly, the states' discretion in establishing this standard stems from the recognition of the variations among the states in what qualifies as an item of need, as well as the valuation of those items. Id. A state may not obscure the standard of need by arbitrarily establishing a standard of need that does not reflect actual need. Rosado, 397 U.S. at 413, 90 S.Ct. at 1218.\\nThe states' discretion in setting their level of benefits, however, is much broader; it is intended to allow states to factor in budgetary and policy concerns. Rosado, 397 U.S. at 413, 90 S.Ct. at 1218; Heckler, 739 F.2d at 374. Therefore, while a state must set its standard of need at a level reflecting actual need, it may, to accommodate budgetary realities and policy considerations, reduce accordingly the level of benefits actually paid. Rosado, 397 U.S. at 413, 90 S.Ct. at 1218.\\nIn concluding that 42 U.S.C. \\u00a7 602(a)(23) requires states to set their standards of need at levels reflecting actual need, the United States Supreme Court ascribed the following purpose to that provision:\\nIt has the effect of requiring the States to recognize and accept the responsibility for those additional individuals whose income falls short of the standard of need as computed in light of economic realities and to place them among those eligible for the care and training provisions. Secondly, while it leaves the States free to effect downward adjustments in the level of benefits paid, it accomplishes within that framework the goal, however modest, of forcing a State to accept the political consequence of such a cutback and bringing to light the true extent to which actual assistance falls short of the minimum acceptable. Lastly, by imposing on those States that desire to maintain \\\"m\\u00e1xi-mums\\\" the requirement of an appropriate adjustment, Congress has introduced an incentive to abandon a flat \\\"maximum\\\" system, thereby encouraging those States desirous of containing their welfare budget to shift to a percentage system that will more equitably apportion those funds in fact allocated for welfare and also more accurately reflect the real measure of public assistance being given.\\nRosado, 397 U.S. at 413-14, 90 S.Ct. at 1218.\\nThe AFDC program provides aid to families whose \\\"countable income\\\" falls below the standard of need. 42 U.S.C. \\u00a7 602(a)(7)(A); Quarles v. St. Clair, 711 F.2d 691, 694 (5th Cir.1983). Before 1975, monthly countable income included child support payments the AFDC parent received from the divorced or otherwise absent parent. Id. In 1975, the federal law was amended to provide that child support payments would no longer be included in countable income. 42 U.S.C. \\u00a7 602(a)(26); Quarles, 711 F.2d at 694. Instead, the state could provide that, as a condition of eligibility for aid, each applicant or recipient must assign to the state their rights to child support payments. 42 U.S.C. \\u00a7 602(a)(26)(A). The child support payments assigned to the state are then distributed according to 42 U.S.C. \\u00a7 657.\\nThe first fifty dollars of any monthly payment is to be paid to the family without affecting its eligibility for assistance. 42 U.S.C. \\u00a7 657(b)(1). This fifty dollar payment is referred to as the \\\"fifty dollar disregard.\\\" Adele M. Blong & Timothy J. Casey, AFDC Program Rules for Advocates: An Overview, 23 Clearinghouse Rev. 802, 808 (Nov. 1989). Amounts re maining after the fifty dollar disregard are allocated among the state and federal governments and the AFDC family according to 42 U.S.C. \\u00a7 657(b)(2) through (4).\\nIn 1975, when Congress enacted these amendments, twelve states, including Wyoming, were \\\"gap\\\" states. Quarles, 711 F.2d at 702. Gap states were those states which could not afford to fund the entire need of a family; a gap existed between the standard of need and the amount of assistance the state provided. Id. Prior to 1975, these gap states permitted AFDC families to fill this gap (up to the standard of need) with private income, including child support payments, without affecting their eligibility for AFDC assistance. Id. After the 1975 amendments, the child support payments were to be assigned to the state with as little as fifty dollars (the fifty dollar disregard) being returned to the AFDC family, an amount insufficient to fill the gap. Thus, the family suffered a loss in income.\\nCongress recognized this problem when it considered the 1975 amendments, and it therefore included an additional provision intended to ameliorate the harsh effect of the child support assignment and reimbursement provisions. Quarles, 711 F.2d at 695. Thus, 42 U.S.C. \\u00a7 602(a)(28) provided that:\\nany portion of the amounts collected in any particular month as child support . which [prior to the 1975 amendments] would not have caused a reduction in the amount of aid paid to the family if such amounts had been paid directly to the family, shall be added to the amount of aid otherwise payable to such family....\\nThis payment is termed a \\\"supplemental payment.\\\" Adele M. Blong & Barbara Leyser, An Explanation of Fill the Gap Budgeting as Used in the AFDC Program, 23 Clearinghouse Rev. 153, 156 (June 1989).\\nWYOMING'S AFDC PROGRAM\\nWyoming has participated in the AFDC program since the Wyoming Legislature first authorized the state's participation in 1937. See W.S. 42-2-104. The Wyoming Department of Family Services is the single state agency charged with administering the state's AFDC program. See W.S. 42-1-101 and 9-2-2006. Although the Department of Family Services administers the program, W.S. 42-2-104(c) provides that the legislature shall establish the standard of need and the payment levels within the department's budget appropriation.\\nPrior to the implementation of the 1975 amendments to the Social Security Act outlined above, Wyoming was a gap state. Shortly after the 1975 amendments to the Act, Wyoming began setting its standard of need and payment levels at the same level, thereby eliminating the gap. It is from this practice that this dispute arises.\\nAppellants challenge this practice for the years 1986 to 1990. In 1986 appellee requested that the Wyoming Department of Fiscal Control conduct a study to determine the actual standard of need for Wyoming. The Department completed the study reporting $654.00 as the accurate standard of need amount for a family of three. Appel-lee reported this finding to the legislature who, nonetheless, set the standard of need at $360.00, a level equal to the state's benefit level. This practice of disregarding the actual standard of need, and instead setting it at a level equal to the benefit level, continued until 1990, when the legislature increased the standard of need to $734.00, with the benefit level set at $360.00. By eliminating the gap between the standard of need and the benefit level, the state eliminated the need to make supplemental payments to the AFDC families. It also reduced the number of families eligible for benefits.\\nWe hold that appellee's practice of administering the AFDC program with the standard of need arbitrarily set equal to the benefit level violates federal law and must be discontinued. Federal law, specifically 42 U.S.C. \\u00a7 602(a)(23), requires that states set their standard of need at a level commensurate with actual need. When the state arbitrarily established a standard of need at other than actual need, it violated the requirement of the federal law.\\nThe state, in administration of its AFDC program in violation of this federal law, abrogated its responsibilities under the program. As noted earlier, when Congress enacted 42 U.S.C. \\u00a7 602(a)(23) requiring states to update their standards of need, it intended that participating states assist families who lacked income and resources sufficient to provide a subsistence level of existence. Rosado, 397 U.S. at 413, 90 S.Ct. at 1218. To fulfill this mandate of assisting truly needy families, the state must determine eligibility on the basis of an accurate standard of need. If the state can arbitrarily choose a figure to represent its standard of need, it can effectively exclude families actually in need of assistance, i.e., those whose income and resources fall below the subsistence level of a correctly determined standard of need.\\nThe second goal of 42 U.S.C. \\u00a7 602(a)(23), that of forcing a state to accept the political consequences of its failure to fund the entire need of AFDC families and that of illuminating the true extent to which actual assistance falls short of the minimum acceptable, clearly remains unachieved if a state establishes its standard of need at a level lower than actual need. If a state can arbitrarily set its standard of need at the level it intends to fund, it can camouflage the extent to which it fails to fund the need of AFDC families. For example, in 1986 the actual standard of need, calculated after study, was $654.00. The legislature disregarded this figure and arbitrarily set the standard of need at the benefit level of $360.00. With the standard of need set at $360.00 and the benefit level also set at $360.00, the state could report that it had funded the entire need. This obviously paints a distorted picture. Not only did the state not fund the entire need of those families eligible for benefits, it excluded families who should have received assistance \\u2014 those whose income fell between $360.00 and the subsistence level of $654.00.\\nIn addition to its failure to achieve the goals outlined above, the state wrongfully retained child support dollars in violation of 42 U.S.C. \\u00a7 602(a)(28). If, during the years in dispute, Wyoming had set its standard of need at the actual level of subsistence, a gap would have existed between the standard of need and the state's benefit level. For those families whose rights to child support had been assigned to the state pursuant to 42 U.S.C. \\u00a7 602(a)(26), Congress intended this gap to be filled by the assigned child support payment in the form of a supplemental payment. 42 U.S.C. \\u00a7 602(a)(28); Quarles, 711 F.2d at 695. Wyoming deflected the requirement to make supplemental payments by artificially closing the gap; it arbitrarily lowered its standard of need to the level of benefits to be paid. Consequently, several AFDC families were wrongfully deprived of much needed child support payments.\\n42 U.S.C. \\u00a7 602(a)(28) requires the supplemental payment; 45 C.F.R. \\u00a7 232.21 provides for the computation of the payment. The following hypothetical example illustrates the effect of Wyoming's failure to set an accurate standard of need and hence its failure to make appropriate supplemental payments. For purposes of this illustration, we assume total child support payments to be $250.00 per month, earned income to be $0.00 per month, standard of need to be $654.00 and an AFDC benefit level of $360.00. It is helpful to first define relevant terms. They are:\\nStandard of Need: The dollar amount representing a subsistence level of assistance for a family unit.\\nAFDC Benefit Level: The maximum dollar amount of assistance available under the program.\\nAFDC Maximum Grant: The lesser of either the AFDC benefit level or the standard of need minus countable income.\\nPre-1975 Countable Income: Earned income less statutory deductions plus child support less the $50.00 disregard.\\nPost-1975 Countable Income: Earned income less statutory deductions. Post-1975 countable income does not include child support payments.\\nDisposable Income: Pre-1975 countable income plus AFDC maximum grant.\\nThe steps in calculating the supplemental payment are as follows:\\nStep 1: Determine disposable income: Pre-1975 countable income plus AFDC maximum grant.\\nEarned Income $ 0.00\\nChild Support ($250.00-50.00) 200.00\\nTotal $200.00\\nAFDC Maximum Grant: The lesser of:\\nAFDC Benefit Level $360.00\\nor\\nStandard of Need $654.00\\nMinus countable income 200.00\\n$454.00\\n$360.00 is less than $454.00, therefore, disposable income is $360.00 plus $200.00 or $560.00.\\nStep 2: Determine the AFDC Maximum Grant using post-1975 countable income:\\nPost-1975 countable income: '\\nEarned Income $ 0.00\\nChild Support (post-75 don't count it) 0.00\\nTotal $ 0.00\\nAFDC Maximum Grant: The lesser of:\\nAFDC Benefit Level $360.00\\nor\\nStandard of Need $654.00\\nMinus countable income 0.00\\n$654.00\\n$360.00 is less than $654.00, therefore, the AFDC Maximum Grant from step 2 is $360.00.\\nStep 3: Calculate the supplemental payment: subtract the figure in step 2, the AFDC Maximum Grant using post-1975 income, $360.00, from the figure in step 1, disposable income, calculated at $560.00.\\nStep 2: AFDC Maximum Grant 360.00\\nSupplemental Payment $200.00\\nThis hypothetical family unit is entitled to $610.00 [AFDC Grant: $360.00, plus child support disregard: $50.00, plus supplemental payment: $200.00]. As Wyoming administered its AFDC program for the years 1986-1990, the family would have been denied the supplemental payment of $200.00, receiving only $410.00 [AFDC Grant: $360.00, plus child support disregard: $50.00].\\nWe wish to emphasize that the $200.00 payment (to continue with our above illustration) is not money which originated in the state treasury. The $200.00 is that portion of the $250.00 child support payment, paid by the absent parent and assigned to the state, which should have been refunded to the family in the form of a supplemental payment.\\nAppellants allege that the child support payments which should have been paid to the family in the form of supplemental payments have instead been used to cover the state's administrative expenses. The record does not clearly reveal how the state used the money. However, to whatever expenses the state applied the assigned child support payments, it did so incorrectly. The child support payments cannot be used to reimburse the state and federal governments for their expenses until all appropriate payments have been made to the family in accordance with 42 U.S.C. \\u00a7 602(a)(28) and 657. Appellants are entitled to recover child support payments wrongfully withheld.\\nAppellee essentially admits the above-outlined defects in Wyoming's AFDC program, but asserts several defenses. Appel-lee first argues that it lacks the authority to alter the standard of need or the benefit level because W.S. 42-2-104(c) reserves this determination to the legislature. The department contends that it fulfilled its statutory obligation when it reviewed the standard of need and recommended the appropriate level of need to the legislature.\\nAppellee may have fulfilled its obligation under the state statute, but that is not at issue in this dispute. The mandate at issue in this case is the federal requirement that a state set its standard of need at a level reflecting actual need. As noted earlier, once a state elects to participate in the AFDC program, it must comply with the federal mandates. If a conflict exists between the state plan and federal law, the federal law preempts the state statute. King, 392 U.S. at 333, 88 S.Ct. at 2141; Rosado, 397 U.S. at 420, 90 S.Ct. at 1222.\\nFederal law requires that a single state agency administer the AFDC program. In Wyoming, that agency is the Department of Family Services. The Department of Family Services must administer the AFDC program in accordance with federal law, including the requirement that the standard of need reflect actual need. If the agency, in administering the pro gram, finds a conflict between state and federal requirements, the agency must choose the course of action mandated by federal law. In this instance, it means the department must employ an accurate standard of need when determining eligibility of AFDC applicants and when calculating supplemental payments, making adjustments elsewhere to accommodate the state legislature's budget appropriations.\\nFederal and state courts have routinely held that neither budget impasses nor the absence of state funding appropriations justifies a state in delaying or withholding AFDC benefits owed to eligible families. Sandra Hauser, Securing Continued AFDC Benefits During a State Budget Crisis, 26 Clearinghouse Rev. 411 (August 1992). See also Coalition for Basic Human Needs v. King, 654 F.2d 838 (1st Cir.1981); Pratt v. Wilson, 770 F.Supp. 539 (E.D.Cal.1991); Knoll v. White, 141 Pa. Cmwlth. 188, 595 A.2d 665 (1991); Coalition for Economic Survival v. Deukmejian, 171 Cal.App.3d 954, 217 Cal.Rptr. 621 (1985); Alabama Nursing Home Ass'n v. Califano, 433 F.Supp. 1325 (M.D.Ala.1977). These courts have reasoned that a state's election to participate in the AFDC program obligates it to comply with the federal statutes, and inadequate funding does not excuse failure to comply. As one court emphasized:\\nIf a state could evade the requirements of the [Social Security] Act simply by failing to appropriate sufficient funds to meet them, it could rewrite the congres-sionally imposed standards at will. The conditions which Congress has laid down . would be utterly meaningless.\\nAlabama Nursing Home Ass'n, 433 F.Supp. at 1330.\\nThis same reasoning can be extended to the requirement that the standard of need reflect actual costs. If the department can bypass this requirement by simply citing the legislature's failure to act on its recommendations, the state can effectively rewrite this congressionally imposed standard. As long as the state continues to participate in the federal AFDC program and continues to accept federal monies for its program, federal law controls, and the department must make eligibility determinations and supplemental payment calculations using the appropriate standard of need.\\nAppellee next contends that appellants' claims have been rendered moot by the 1990 Legislature's adoption of an accurate standard of need. We reject this contention. We have many times held that we will dismiss a case when, pending appeal, an event occurs which renders a cause moot and makes a determination of the issues unnecessary. Mari v. Rawlins Nat'l Bank of Rawlins, 794 P.2d 85, 89 (Wyo.1990); Gulf Oil Corp. v. Wyoming Oil and Gas Conservation Comm'n, 693 P.2d 227, 233 (Wyo.1985). We recognize an exception to this principle, however, when the case presents a controversy capable of repetition yet evading review. Natrona County School Dist. No. 1 v. Ryan, 764 P.2d 1019, 1031 (Wyo.1988); Arland v. State, 788 P.2d 1125, 1126 (Wyo.1990). One need look no further than the comments of state legislators reported in a Wyoming newspaper with state-wide circulation, the Casper Star-Tribune, to discern that this controversy is exceedingly capable of repetition. See, e.g., Casper Star-Tribune, January 6, 1993 p. Bl; January 16, 1993 p. Cl; February 10, 1993 p. Al.\\nState lawmakers consistently target the standard of need when searching for ways to accommodate budgetary constraints. This manipulation of the standard of need evades review because the legislature can always establish the appropriate standard just prior to this court's review. For this reason, and because this case involves questions of compelling public interest, we will not dismiss for mootness.\\nAppellee next argues that the separation of powers provision of the Wyoming Constitution, Article 2, \\u00a7 1 as well as Article 3, \\u00a7 33, prohibits this court from interfering with the legislature's determination of the standard of need. Article 2, \\u00a7 1 provides:\\nThe powers of the government of this state are divided into three distinct departments: The legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.\\nArticle 3, \\u00a7 33 concerns revenue raising. Since the standard of need is not a revenue raising device, but rather may affect appropriations, we assume appellee intended to cite Article 3, \\u00a7 35 which reads:\\nExcept for interest on public debt, money shall be paid out of the treasury only on appropriations made by the legislature, and in no case otherwise than upon warrant drawn by the proper officer in pursuance of law.\\nIn holding that the Department of Family Services must employ an accurate standard of need in administering the AFDC program, we do not invade the provinces of either the executive or legislative branches. We have not ordered the state to participate in the federal program; we have not ordered the department to set its standard of need at a particular level; nor have we even ordered the department to employ a particular methodology in determining the accurate standard of need. Finally, we have not ordered the state to maintain a particular benefit level, and therefore do not order an increase in appropriations. We have reviewed the federal law, and we have determined that appellee has failed to comply with that law. Interpreting law and reviewing compliance with the law are both functions committed to the judicial branch.\\nWe next address the dispute surrounding the certification of the plaintiff class. The record provides no evidence of what the parties agreed to concerning the identification and certification of the class. We reverse the district court's summary denial of class certification and remand for a determination of the propriety of certification of the class.\\nIn summary, we reverse the decision of the district court and hold that the standard of need must be set at a level reflecting actual need. We remand for findings of fact to determine the actual standard of need for the years 1986 to 1990 and for a determination of the monetary relief in the form of back supplemental payments to which the named plaintiffs, and their class, if certified, are entitled. Because we are reversing the district court's order, we need not address the questions regarding the validity of the amended order.\\nReversed and remanded.\"}"

wyo/10377180.json

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+"{\"id\": \"10377180\", \"name\": \"Steve Allen WELDON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff)\", \"name_abbreviation\": \"Weldon v. State\", \"decision_date\": \"1990-11-08\", \"docket_number\": \"No. 90-116\", \"first_page\": \"513\", \"last_page\": \"515\", \"citations\": \"800 P.2d 513\", \"volume\": \"800\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T02:10:27.126005+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.\", \"parties\": \"Steve Allen WELDON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"Steve Allen WELDON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\\nNo. 90-116.\\nSupreme Court of Wyoming.\\nNov. 8, 1990.\\nLeonard D. Munker, State Public Defender and David M. Gosar, Asst. Public Defender, for appellant.\\nJoseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., Theodore Lauer, Director, Pros. Assistance Program, and Georgia Tibbets, Student Intern, for appellee.\\nBefore URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.\", \"word_count\": \"1028\", \"char_count\": \"6400\", \"text\": \"URBIGKIT, Chief Justice.\\nThis case presents another presen-tence confinement issue; a subject with which this court has found much appellate activity during the past year. The issue here is presentence confinement time of 358 days applied to a life sentence to be followed by concurrent term sentences consecutively following the life sentence. We are asked to determine to what, if any, presentence confinement is to be credited under the Renfro principle, Renfro v. State, 785 P.2d 491 (Wyo.1990), where after 358 days in jail the appellant enters a plea resulting in a life sentence with consecutive term sentences then to follow.\\nAppellant Steve Allen Weldon, entered a bargained guilty plea to first degree murder, conspiracy to deliver a controlled substance and aggravated assault and battery. The crime resulted from his entry into a residence where he deliberately shot the victim in an execution type circumstance as the fall-out from drug dealing relationships.\\nThe trial court imposed a life sentence for murder (which under Wyoming law, except for commutation by the Governor, is a life sentence without eligibility for parole) and two five to ten year term sentences, each to be served concurrently, for the drug conspiracy and aggravated assault and battery convictions, but consecutive to the life sentence. The trial court granted credit for presentence confinement only against the life sentence.\\nWe modify that portion of the sentence by determining that presentence credit cannot be applied to a life sentence and should be applied to the consecutive two concurrent term sentences.\\nThe structure of Wyoming law creates a total life sentence which is unaffected by parole or good time reductions. Consequently, only the Governor's constitutional authority under Wyo. Const. art. 4, \\u00a7 5, as recognized by W.S. 7-13-801 through 7-13-806, can serve to release the incarcerated individual before he dies in prison. Therefore, under present and long existent Wyoming law, the only remission except death that can be provided from the life sentence is by action through the executive power of commutation.\\nUndoubtedly, if and when any consideration might in the future be given to commutation for the appellant, the Governor and the recommending body of the parole board can and would take into account pre-sentence confinement, but the commutation should be fixed in numbers to the total sentence which would then remain. Consequently, no credit will be applied judicially to the executive entry of commutation.\\nWe are logically served in another regard in this decision to deny credit on the life sentence and to apply it to the consecutive (or concurrent) term sentences. The historical Wyoming structure of indeterminate sentencing has excluded a straight life sentence from indeterminacy in establishing a mandatory limit. That status is detailed in the provisions of W.S. 7-13-201:\\nExcept where a term of life is required by law, , when a person is sentenced for the commission of a felony, the court imposing the sentence shall not fix a definite term of imprisonment but shall establish a maximum and minimum term within the limits authorized for the statute violated.\\nSimilarly, W.S. 7-13-301 and 7-13-302 involving probation exclude the life sentence conviction as does W.S. 7-13-402 relating to general powers and duties of the board of parole which provides a specific exception of the life sentence.\\nRenfro, with Weedman v. State, 792 P.2d 1388 (Wyo. 1990) and the other presen-tence confinement credit cases, were based upon the constitutional concept that the wealth or poverty of the accused and consequent ability to post bond should not affect the resulting total time to be served upon conviction. That .philosophy and constitutional criteria has no application within the mandatory life sentence. The life sentence becomes a permanent obligation only rem-ittable by executive clemency.\\nAt that same time, although the application of presentence confinement credit may prove in the future to be ephemeral for appellant since the further decisions of governors and legislators can only provide a benefit, appellant did get a term sentence. We hold that he is entitled to Renf-ro credit upon that sentence which would be a benefit to him if he should ever reach a circumstance where the credit could be utilized for his release from confinement. Obviously, first required would be some future commutation of the life sentence to a term for years. If it does happen and he lives long enough to be serving the present term sentences, he should get a Renfro credit for presentence confinement time.\\nThe second, third and fourth paragraphs of the judgment and sentence are modified to provide that appellant will be given 358 days to be applied to the five to ten year term sentences and no credit will be given against time which he may serve under the life sentence or any commuted term to which it may be reduced.\\nThe sentence, as modified, is affirmed.\\nTHOMAS, J., concurs in part and dissents in part.\\n. By last report for the men's prison, Wyoming has sixty-seven men now serving a life sentence. Two women in the state are now under the same confinement status.\"}"

wyo/10380592.json

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+"{\"id\": \"10380592\", \"name\": \"Patricia A. BROOKS and First Interstate Bank, N.A., Casper, Co-Trustees of the Brooks Marital Trust, Appellants (Plaintiffs), v. John A. ZEBRE, d/b/a John A. Zebre, P.C., a Wyoming Corporation, Appellee (Defendant)\", \"name_abbreviation\": \"Brooks v. Zebre\", \"decision_date\": \"1990-05-17\", \"docket_number\": \"No. 88-263\", \"first_page\": \"196\", \"last_page\": \"243\", \"citations\": \"792 P.2d 196\", \"volume\": \"792\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T00:14:21.437055+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before CARDINE, C.J., THOMAS, URBIGKIT, and MACY, JJ., and ROONEY, J., Retired.\", \"parties\": \"Patricia A. BROOKS and First Interstate Bank, N.A., Casper, Co-Trustees of the Brooks Marital Trust, Appellants (Plaintiffs), v. John A. ZEBRE, d/b/a John A. Zebre, P.C., a Wyoming Corporation, Appellee (Defendant).\", \"head_matter\": \"Patricia A. BROOKS and First Interstate Bank, N.A., Casper, Co-Trustees of the Brooks Marital Trust, Appellants (Plaintiffs), v. John A. ZEBRE, d/b/a John A. Zebre, P.C., a Wyoming Corporation, Appellee (Defendant).\\nNo. 88-263.\\nSupreme Court of Wyoming.\\nMay 17, 1990.\\nWesley A. Roberts and Donald P. White of White, White & Keenan, P.C., Riverton, for appellants.\\nW.W. Reeves of Reeves & Murdock, Cas-per, for appellee.\\nBefore CARDINE, C.J., THOMAS, URBIGKIT, and MACY, JJ., and ROONEY, J., Retired.\\n. Crutchley v. First Trust and Savings Bank, 450 N.W.2d 877 (Iowa 1990) is similar but involves a real estate broker. The transaction involved a non-recourse real estate sales contract which plaintiff alleged was inadequately explained before execution, resulting in a large loss after default. Both contract and negligence claims were based upon (1) inadequate and incomplete explanation of the contractual provisions; (2) failure to affirmatively recommend use of independent counsel by the sellers; (3) \\\"in discouraging plaintiffs from seeking legal counsel,\\u201d the realtor\\u2019s code of ethics provisions were admitted into evidence as proof of the violation of the ethical standard as evidence upon which a finding of fact of negligence could be made. Id. at 880. With disputed evidence of what had been said about independent counsel, a trial resulted in judgment against the realtors of $536,250, which the Iowa Supreme Court affirmed on both a breach of listing contract theory and a tort professional negligence theory. Id. at 879. Except what was done to Patricia Brooks is more egregious since independent counsel existed, she was a court officer as personal representative (administratrix) and the defendant was an attorney, this case provides a very comparable factual comparison.\", \"word_count\": \"30275\", \"char_count\": \"184137\", \"text\": \"THOMAS, Justice.\\nIn this case, we address the question of whether John A. Zebre, a practicing attorney d/b/a John A. Zebre, P.C. (Zebre), owed a duty to Patricia A. Brooks (Brooks) and First Interstate Bank, N.A., Casper (Bank), the co-trustees of the Brooks marital trust, who were not clients of Zebre. The claims against Zebre had their genesis in his representation of members of the Arambel family in connection with a contract to lease, and an option to purchase, a ranch. Zebre's clients were the lessees and optionees under the contract. The claims against Zebre are asserted by Brooks and the Bank, with Brooks being the lessor and grantor of the option under the contract while acting as the personal representative of the estate of her deceased husband. After the contract was rescinded by the court because it was found to be unconscionable, Brooks and the Bank sought damages from Zebre. In the assertion of the claim for damages, theories of negligence, gross negligence, and fraud were pleaded. The district court granted a summary judgment to Zebre on the ground that no duty was owed by Zebre to Brooks that would permit recovery under the theories of negligence or gross negligence and on the ground that there was no fraud demonstrated on the record. We affirm the grant of summary judgment by the district court.\\nIn the Appellants' Brief, Brooks and the Bank submit the following statement of issues:\\n\\\"1. Does an attorney owe a duty to a non-client who he knows to be represented by an attorney when he undertakes to conduct negotiations, advises both parties as to the legal consequences of the transaction, and presides over the execution and closing of the transaction?\\n\\\"2. Is there a genuine issue as to any material fact so as to preclude Summary Judgment as a matter of law in this case?\\n\\\"3. Assuming, arguendo, that there exists no genuine issue as to any material fact, could reasonable minds reach different conclusions from those undisputed facts on the issues of negligence, gross negligence and fraud so as to preclude Summary Judgment as a matter of law?\\\"\\nThose issues then are afforded additional substance by the Summary of Argument, which we quote:\\n\\\"I. Zebre owed a duty to the Brooks estate, and the heirs thereof, in connection with the lease and option to sell the Brooks Ranch, notwithstanding the absence of privity between them, because;\\n\\\"A. The ethical duty imposed on attorneys in Wyoming by the Code of Professional Responsibility creates a legal duty and a legal standard of care.\\n\\\"B. Zebre was not only acting as an attorney, but was performing functions of a real estate agent or broker in closing the Brooks Ranch transaction and should be held to at least that legal standard of care imposed upon the real estate profession.\\n\\\"C. Zebre's conduct, when considered under the 'balancing of factors' test established in recent court decisions, clearly gives rise to an independent duty of care to the Brooks estate and the heirs thereof.\\n\\\"D. Once Zebre spoke to the issue of imputed interest, he thereafter had a duty to make a full and fair disclosure thereof.\\n\\\"II. The district court erred in granting summary judgment because there exist genuine issues as to material facts in this case.\\n\\\"HI. Assuming, arguendo, that there exist no genuine issues as to any material facts, the district court erred in granting summary judgment because reasonable minds could reach different conclusions and inferences from the undisputed facts on the issues of negligence, gross negligence and fraud on the part of Ze-bre.\\\"\\nIn the Brief of Appellee, John A. Zebre, the issues are articulated in this fashion:\\n\\\"1. Whether current theories which impose liability on an attorney for harm to non-clients resulting from the attorney's negligence in performing professional services for a client, can apply where the non-client had interests adverse to those of the attorney's client and where the legal services were performed to the client's satisfaction;\\n\\\"2. Whether violation of ethical rules of conduct adopted by the Supreme Court creates a private right of action, where no right of action for the conduct complained of otherwise exists;\\n\\\"3. Whether appellants have adequately plead and established in the evidence a viable claim of fraud;\\n\\\"4. Whether appellants' claims of fraud have been conclusively adjudicated against it, that is, may appellants maintain an action against Mr. Zebre on the contention that he participated in his client's scheme to defraud, when appellants tried and lost the same fraud claims against the clients; and\\n\\\"5. Whether having obtained the equitable remedy of rescission and restitution from Mr. Zebre's clients, appellants may now use the same facts to pursue a claim for the legal remedy of damages against the lawyer, Zebre.\\\"\\nIn a Reply Brief of Appellants, the issues are not expanded, but the following Summary of Argument is submitted in response to points raised in the brief of the appellee:\\n\\\"I. There is no issue of judicial estoppel in this case.\\n\\\"II. Claims for fraud have never been litigated in this matter, and, therefore, appellants cannot be foreclosed from litigating those claims now.\\n\\\"III. Appellants are entitled to recover damages that are a direct and proximate result of Mr. Zebre's tortious conduct.\\\"\\nThis dispute centers upon the lease of a ranch in Sweetwater County that included an option to purchase. The ranch, a viable livestock raising enterprise, was developed by Isaac Brooks who died in the spring of 1983, leaving a substantial estate that included the ranch. Isaac Brooks's wife, Patricia, was appointed the personal representative of the estate, and she, of course, was among the heirs. In addition to his wife, Isaac Brooks was survived by their four natural children and a daughter of Mrs. Brooks whom Isaac had adopted. One son was in quite delicate health, having already had a colostomy and a brain shunt at a relatively early age.\\nAbout two months after Isaac Brooks's death, members of the Arambel family, neighbors and long-time friends, began a series of almost daily visits with Mrs. Brooks. In the course of these visits, she expressed an interest in leasing the ranch. She also manifested an overriding concern for the future of her ill son. The record demonstrates that the additional duties required of her as personal representative, which included management of the ranch, when added to her usual responsibilities as the mother of five young children, created an extremely difficult burden for Brooks, who had not received much formal education and had little business experience. She exhibited indications of stress including drinking as much as a case of beer per day.\\nNot long after she expressed an interest in leasing the ranch, the Arambels arranged a meeting with Brooks in the law offices of Zebre for the purpose of discussing and arranging a possible lease. Zebre was acquainted with Brooks, and the record discloses he visited in her home during Isaac Brooks's last illness. At that time, he reviewed Isaac Brooks's will, in her presence, and offered some suggestions as to improvement of the dispositive scheme. Despite this earlier acquaintance, however, and despite whatever knowledge Zebre possessed of the Isaac Brooks will and estate, there is no question on the part of any party that Zebre represented only the Arambels.\\nAt the meeting in Zebre's office, Brooks advised him that another attorney was handling the probate of the estate of her deceased husband, and she suggested to all who were present that the estate attorney be involved in the negotiations. Later, she testified that, in response to this suggestion, John Arambel told her, \\\"[y]ou don't need to talk to [the attorney] because he won't let you do it because he wants all the money.\\\" She further testified that Zebre said to her, \\\"[d]on't tell [the attorney] because he'll just tell you not to lease that ranch.\\\" Zebre claims to have made several attempts to contact the attorney for the Brooks estate, but the record does not demonstrate that any contact ever was made or that the estate attorney was informed of these matters until after all negotiations had been completed and the agreement had been executed. The meeting at which the contract provisions were agreed upon was conducted with neither Brooks, nor her children, nor the estate being represented by an attorney or any other person knowledgeable in either business or law.\\nThis meeting, which lasted about an hour, is exemplified only by reports of the conversation. No records were kept, and no documents were reviewed, discussed, or created. The parties testified that Mike Zebre, Zebre's brother, was summoned to the meeting at one point to explain the tax consequences of the imputation of interest by the Internal Revenue Service with respect to periodic payments that did not include an interest factor. Brooks asked no questions of Mike Zebre although he admitted in his deposition that he, in fact, did give her advice.\\nBrooks's testimony with respect to this meeting was that she was not able to comprehend much of the discussion. Her recollections of the meeting, and the discussion relating to the lease and the option, were extremely vague. She testified that she did not remember any conversation concerning an option to purchase the ranch, a forty-year lease, a sale of all the cattle and sheep, or other essential terms and conditions of the agreement finally reached. Ze-bre recalls, on the other hand, that Brooks was \\\"very poised, confident\\\" and that \\\"she was very certain and very positive, confident about what she was there about, what was happening.\\\"\\nFollowing the meeting, Zebre prepared the contract encompassing the lease, the option, and the sale of livestock as well as the other aspects of the agreement reached at the meeting in his office. On the next day, Brooks and the Arambels again met at Zebre's office and proceeded to review, for the first and only time, the proposed contract, the drafting of which was attributable to the joint efforts of Zebre and the Arambels. Zebre asserts that he did attempt to reach the attorney for the Brooks estate at that time, but was unsuccessful. Even though he was unable to contact the other attorney, he returned to the conference room and presided over the execution of the agreement, assuring Brooks, all the while, that he was going to get in touch with the attorney for the estate the first thing the following Monday morning to make sure that the attorney had appropriate copies of everything. Zebre did follow through, and he delivered a fully executed copy of the agreement to the attorney for the estate, demanding that the attorney seek court confirmation of the transaction because the property still was involved in the probate proceedings. Upon his review of the agreement, the attorney for the estate recommended to Brooks that she return any consideration she already had received and that she seek rescission of the contract. Brooks did not, at that time, follow through on that advice.\\nSubsequently, an action was instituted by the Arambels for a declaration of their rights under the agreement. Brooks and the estate counterclaimed for rescission of the contract, and they caused Zebre to be named as a \\\"third-party defendant.\\\" The product of that action was that the court ruled that the agreement was unconscionable and ordered rescission and appropriate restitution. The claims against Zebre were not resolved at that time. Later, all parties agreed to a mutually satisfactory arrangement to settle the matter except for the claims against Zebre. Zebre then moved for, and was granted, a summary judgment by the court. This appeal is taken by Brooks and the Bank, claiming that the district court erred in granting summary judgment because Zebre, even though representing the Arambels, is responsible for damages on the tort theories of negligence, gross negligence, and fraud.\\nIn order to recover for negligence or gross negligence, the plaintiff is required to demonstrate all necessary elements of the tort including the element of a legal duty owed by the defendant to the plaintiff. Guinand v. Atlantic Richfield Company, 485 F.2d 414 (10th Cir.1973); Thomas by Thomas v. South Cheyenne Water and Sewer District, 702 P.2d 1303 (Wyo.1985); Hughes v. Housley, 599 P.2d 1250 (Utah 1979). The issue of whether a duty is owed is strictly a question of law. McClellan v. Tottenhoff 666 P.2d 408 (Wyo.1983); Moewes v. Farmer's Insurance Group, 641 P.2d 740 (Wyo.1982); Distad v. Cubin, 633 P.2d 167 (Wyo.1981); Medlock v. Van Wagner, 625 P.2d 207 (Wyo.1981); Beard v. Brown, 616 P.2d 726 (Wyo.1980); Maxted v. Pacific Car and Foundry Company, 527 P.2d 832 (Wyo.1974). With respect to questions of law, we do not defer to the decision of the lower court. Matter of North Laramie Land Company, 605 P.2d 367 (Wyo.1980). When we determine, however, that no legal duty exists from a defendant to the plaintiff, a summary judgment with respect to claims of negligence is appropriate and must be affirmed. See Fiscus v. Atlantic Richfield Company, 773 P.2d 158 (Wyo.1989); Matter of Larsen, 770 P.2d 1089 (Wyo.1989); Farr v. Link, 746 P.2d 431 (Wyo.1987); Johnson v. Soulis, 542 P.2d 867 (Wyo.1975).\\nFrom the record, it is indisputable that Zebre owed his professional duty to the Arambels. They were his clients, and an attorney assumes the very highest of duties with respect to zealous representation of his clients. Sowerwine v. Nielson, 671 P.2d 295 (Wyo.1983). Brooks's interests with respect to the transaction were adverse to those of the Arambels, and it is fundamental that Zebre could not have assumed a duty to Brooks without violating his primary duty to the Arambels. Hughes. The situation emphasizes scriptural wisdom. \\\"No servant can serve two masters. For he will either hate the one and love the other, or he will cling to the one and despise the other.\\\" Luke 16:13 (Richmond Lattimore Translation). In this instance, there is no suggestion of any dissatisfaction by the Arambels with Ze-bre's services, nor do they claim that he was negligent in performing his duties to them or that he provided anything less than entirely exemplary service on their behalf.\\nBrooks does not claim that Zebre was representing her or that he was negligent in performing his services for the Aram-bels. Brooks and the Bank insist that Ze-bre was directly negligent in his treatment of Brooks as an adverse party. A specific allusion is made with respect to advice con cerning the imputed interest rules of the Internal Revenue Service.\\nBrooks and the Bank premise their contentions upon precedent from other jurisdictions. Having considered those asserted authorities carefully, we agree with the district court and hold that an attorney owes no actionable duty to an adverse party emanating from the zealous representation of his own client. Friedman v. Dozorc, 412 Mich. 1, 312 N.W.2d 585 (1981). Cf. Chicago Title Insurance Company v. Holt, 36 N.C.App. 284, 244 S.E.2d 177 (1978) (claims of attorney malpractice or negligence generally sound in contract law and not in tort). Any infringement upon this proposition, in our judgment, results in an irreconcilable conflict of interest working extreme violence to the adversarial process as we know it. See Friedman. Because it is undisputed in the record that Zebre was representing only the Arambels, Brooks and the Bank present no genuine issue of material fact germane to this rule. Consequently, the claims of negligence and gross negligence against Zebre must fail, as a matter of law, and the summary judgment as to those issues must be affirmed.\\nCases which apparently have followed the balancing rule articulated in Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16 (1958), are distinguishable because the facts in those instances assume a third-party beneficiary whom the client clearly intended to favor by employing the services of the attorney. Even so, not all jurisdictions have opted to follow the suggestion of Biakanja. See, e.g., Simon v. Zipperstein, 32 Ohio St.3d 74, 512 N.E.2d 636 (1987). The rule with respect to attorneys representing buyers of real property is that no duty is owed to a seller. Fox v. Pollack, 181 Cal.App.3d 954, 226 Cal.Rptr. 532 (1986); Clause v. Manuel, 442 So.2d 905 (La.App.1983), cert. denied 448 So.2d 106 (La.1984). Cases from a number of jurisdictions invoking the rule of privity are cited in Annotation, Attorney's Liability, to One Other Than Immediate Client, for Negligence in Connection with Legal Duties, 61 A.L.R. 4th 615 (1988), \\u00a7 8 at 634. In the same Annotation, \\u00a7 9 at 645, authorities are cited establishing the proposition that no cause of action for negligence exists against an attorney for an adversary.\\nWe turn then to the contention of Brooks and the Bank that they are entitled to a cause of action arising out of an asserted violation of the rules adopted by this court relating to ethical conduct of attorneys. The clear rule is that no private cause of action in favor of a non-client can be found attributable to violations of the disciplinary rules relating to attorneys. Brody v. Ruby, 267 N.W.2d 902 (Iowa 1978); Hill v. Willmott, 561 S.W.2d 331 (Ky.App.1978); Spencer v. Burglass, 337 So.2d 596 (La.App.1976), cert. denied 340 So.2d 990 (La.1977); Friedman; Drago v. Buonagurio, 46 N.Y.2d 778, 413 N.Y.S.2d 910, 386 N.E.2d 821 (1978). Cf. Hawkins v. King County, Department of Rehabilitative Services, Division of Involuntary Treatment Services, 24 Wash.App. 338, 602 P.2d 361 (1979) (duty of zealous representation of a client's interest overriding unsupported claim of ethical violation). We hold that no claim will lie on behalf of Brooks and the Bank founded upon any violation of the disciplinary rules relating to attorneys.\\nA contention also is present that Zebre was performing the functions of a real estate agent, or broker, and should be held to the legal standard of care imposed upon that profession. In our view, the only basis for liability against Zebre is his conduct in his professional role as an attorney, and the rules relating to the conduct of real estate brokers and agents have no perti-nency here. While the record seems clear that Zebre, through his brother, did offer information with respect to the imputed interest rules of the IRS, we can discern no way in which that information would be material to this dispute in light of the fact that the transaction was rescinded. That advice, good or bad, could not have had any impact upon the rights of Brooks or the Bank.\\nIn addition to the negligence claims, Brooks and the Bank claim that fraud was perpetrated on them by Zebre. This claim also is appropriately disposed of as a mat ter of law on summary judgment because Brooks and the Bank do not provide anything other than conclusive allegations to support their claim. Despite numerous contentions of wrongdoing, Brooks and the Bank are not able to establish on the record any actual misrepresentations or statements allegedly made by Zebre with knowledge that they were false and with the intent that Brooks should rely upon them. The omission is fatal in an instance such as this because our rule is that claims of fraud must be plead with particularity. Rule 9(b), W.R.C.P.; Johnson v. Aetna Casualty & Surety Company of Hartford, 608 P.2d 1299 (Wyo.1980), cert. denied 454 U.S. 1118, 102 S.Ct. 961, 71 L.Ed.2d 105 (1981), reh. denied 455 U.S. 1039, 102 S.Ct. 1743, 72 L.Ed.2d 157 (1982).\\nIt well may have been more appropriate to dispose of this aspect of the case by granting a dismissal to Zebre. Nevertheless, in light of this record, we address it in the context of a summary judgment. While we are reluctant to decide a matter on anything other than the merits, we have recognized that the entire beneficial purpose of a summary judgment could be defeated if cases could be forced to unnecessary trial by the mere assertion that a genuine issue of material fact exists. Fiscus, 773 P.2d 158; Noonan v. Texaco, Inc., 713 P.2d 160 (Wyo.1986); Johnson; Maxted, 527 P.2d 832. When the movant for summary judgment has made a prima fa-cie showing entitling him to relief, as Zebre did in this case by demonstrating to the court that there were no specific allegations of fraud, the burden must shift to the party opposing the motion to present admissible evidence of material facts sufficient to refute the prima facie showing. Connaghan v. Eighty-Eight Oil Company, 750 P.2d 1321 (Wyo.1988). In this instance, without regard to the admissibility of the evidence presented, Brooks and the Bank have failed to assert any facts necessary to establish the elements justifying a cause of action for fraud. Consequently, the district court correctly granted summary judgment as to this claim as a matter of law.\\nSince the record, and the law, establish that no legal duty flowed from Zebre to Brooks in this instance, the claims for recovery for negligence and gross negligence must fail. Furthermore, in the absence of any evidence of fraud, the claim of Brooks and the Bank to recover for fraud must fail. We affirm the summary judgment entered by the trial court in Zebre's favor.\\nURBIGKIT, J., files a dissenting opinion.\"}"

wyo/10384863.json

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+"{\"id\": \"10384863\", \"name\": \"John Arthur ESPONDA, Jr., Appellant (Defendant), v. Brenda K. ESPONDA, Appellee (Plaintiff)\", \"name_abbreviation\": \"Esponda v. Esponda\", \"decision_date\": \"1990-08-24\", \"docket_number\": \"No. 90-71\", \"first_page\": \"799\", \"last_page\": \"802\", \"citations\": \"796 P.2d 799\", \"volume\": \"796\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T20:28:28.408285+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before THOMAS, URBIGKIT and MACY, JJ., and ROONEY and BROWN, Retired JJ.\", \"parties\": \"John Arthur ESPONDA, Jr., Appellant (Defendant), v. Brenda K. ESPONDA, Appellee (Plaintiff).\", \"head_matter\": \"John Arthur ESPONDA, Jr., Appellant (Defendant), v. Brenda K. ESPONDA, Appellee (Plaintiff).\\nNo. 90-71.\\nSupreme Court of Wyoming.\\nAug. 24, 1990.\\nRichard H. Peek, Casper, for appellant.\\nLawrence A. Yonkee of Redle, Yonkee & Toner, Sheridan, for appellee.\\nBefore THOMAS, URBIGKIT and MACY, JJ., and ROONEY and BROWN, Retired JJ.\", \"word_count\": \"2101\", \"char_count\": \"12690\", \"text\": \"ROONEY, Justice, Retired.\\nThis appeal is from a determination by the district court that there was not a material and sufficient change in the circumstances of the parties to warrant a modification of the child support provisions of the court-approved stipulation entered into by the parties in connection with their divorce.\\nWe affirm.\\nWith reference to child support, the stipulation required payment by appellant of $250 per month for each of the two minor children of the parties. In his Petition for Modification, appellant sets forth the basis upon which he relies for a change in the required amount of child support as follows:\\n\\\"5. Since the divorce Decree was entered between the parties, there has been a material and substantial change of circumstances which would warrant a modification of the same pertaining to the payment of child support.\\n\\\"6. Said material and substantial change of circumstances consists of the Defendant's change of employment and substantial reduction in gross and net month income.\\\" (Emphasis added.)\\nActually, there was very little change in appellant's income between the time of the divorce decree and the time at which the Petition for Modification was filed. When the decree was entered, appellant was working at the family ranch (in which he had part ownership) for a monthly income of $1,000 plus room, board and use of a vehicle. When the Petition for Modification was filed, he was employed by the School District as a custodian at a monthly salary of $1,200.\\nHowever, appellant argues that the change in conditions should be based on income from a comparatively short-term employment by Hood Communications from March 1988 to September 2, 1988. He testified that his income from this employment was $3,000 per month. The hearing on the divorce (at which time the original stipulation was amended) occurred during appellant's employment by Hood Communications. The original stipulation (requiring higher payment for the present period) was agreed to before such employment, and the divorce decree was entered after the termination of such employment. Excepting the income received by appellant from Hood Communications, his income during the course of these proceedings has been approximately half of that received from Hood Communications. The following chronology reflects the dates of appellant's pertinent employments as reflected in the record and as they pertain to dates of pertinent court proceedings:\\nDate Employment Court Proceeding\\n9/3/87 Complaint filed\\n1/88 Hood Corporation ($l,790/month)\\n1/23/88 Original Stipulation entered into\\n2/19/88 Original Stipulation filed\\n3/88 Started Hood Communications\\n($3,000/month)\\n8/26/88 Hearing \\u2014 Stipulation amended in open court\\n9/2/88 Terminated with Hood Communications\\n10/15/88 Started at Ranch ($l,000/month plus board, room and auto use)\\n11/15/88 Decree filed (incorporated stipulation)\\n6/89 Ranch employment terminated\\n7/89 Started with School District ($l,200/month)\\n8/16/89 Petition for Modification filed\\n12/12/89 Hearing on Petition to Modify\\n12/29/89 Judgment signed\\n1/04/90 Judgment entered\\n2/90 To be promoted by School District to bus driver ($1,560/month)\\nAt the conclusion of the hearing, the district judge commented in part:\\n\\\"I don't find there's been any change of circumstances in this situation. There was no real employment history of any income level for Mr. Esponda at the time this agreement was entered into. He had a job that he had had for a very brief period of time, but there's been no basis given to this Court from the evidence presented here as to what, you know, what he anticipated his real income level was other than just testimony that he had started to work just a short time before this divorce thing at that job that he was making $3,000 a month. I assume before that he was on the ranch doing something else, you know. He had several other things that are involved here with land and livestock.\\n\\\"I don't find anything that is a sufficient change of circumstances for this Court to reduce the amount of support,\\nIn this appeal, appellant contends that the trial court abused its discretion. Appellant words the issue on appeal:\\n\\\"Did the trial Court abuse its discretion in finding that there was not a sufficient change in circumstances since the divorce proceeding and the entry of the decree to warrant a modification by reducing the child support to be paid by the Appellant?\\\"\\nIn Martinez v. State, 611 P.2d 831, 838 (Wyo.1980), we stated:\\n\\\"A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. An abuse of discretion has been said to mean an error of law committed by the court under the circumstances. Eager v. Derowitsch, 68 Wyo. 251, 232 P.2d 713 (1951); Anderson v. Englehart, 18 Wyo. 409, 108 P. 977 (1910); DiPalma v. Wiesen, 163 Conn. 293, 303 A.2d 709 (1972); In re Estate of Horman, 265 Cal.App.2d 796, 71 Cal.Rptr. 780 (1968).\\\"\\nIn Martin v. State, 720 P.2d 894, 897 (Wyo.1986), this court stated:\\n\\\"We have usually alluded to abuse of discretion in general terms and have not made an exhaustive list of circumstances constituting abuse of discretion, nor do we care to. Each case must be determined on its peculiar facts.\\\"\\nThe district court could reasonably conclude as it did under the evidence in this case, i.e., it could conclude that there was not a material and substantial change in appellant's average income since he stipulated to the amount for child support as contained in the decree \\u2014 he agreed to an even greater amount in the original stipulation. Recognizing the considerations necessary in fixing the amount of child support, the trial court did not here act in a manner which exceeded its bounds of reason under the circumstances. It did not abuse its discretion.\\nAppellant himself accurately sets forth some of the considerations for the trial court in instances such as this:\\n\\\"Appellant filed his petition for modification pursuant to the provisions of W.S., Section 20-2-113(a). The indicated section allowed the court to revise the decree concerning the maintenance of the children as the circumstances of the parties and benefit of the children required. The change in the circumstances must be substantial or material in order to outweigh society's interest in applying the doctrine of res judicata to a final decree of divorce. There must be an end to litigation at some point, or the judicial system would become bogged down. Kreuter v. Kreuter, Wyo., 728 P.2d 1129 (1986); Mentock v. Mentock, Wyo., 638 P.2d 156 (1981). Appellant had the burden of proof to show that a substantial or material change of circumstances had occurred subsequent to the divorce proceedings. Nuspl v. Nuspl, Wyo., 717 P.2d 341 (1986); Cubin v. Cubin, Wyo., 685 P.2d 680 (1984); Kreuter v. Kreuter, supra.\\n\\\"Decisions regarding child support rest largely with the district court, and this Court will not disturb the trial court's decision in the absence of a grave abuse of discretion or in violation of some legal principle. Kreuter v. Kreuter, supra; Nuspl v. Nuspl, supra; Manners v. Manners, Wyo., 706 P.2d 671 (1985). This Court has repeatedly held that an abuse of discretion has been said to mean an error of law committed by the court under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. The reviewing Court cannot substitute its judgment for that of the trial court, whose judgment must be sustained unless clearly erroneous, manifestly wrong, or totally against the evidence. Roberts v. Vitos, Wyo., 776 P.2d 216 (1989).\\\"\\nThe district court considered the financial condition of the appellee: monthly salary of $1,000 as secretary at First United Methodist Church, extra work when available for $4.00 to $5.00 per hour at the Water Hole Bar, the Moose, and at a concession stand. She worked \\\"60 to 70 to 80 hours a week most of the summer.\\\" The children are taken care of by her parents after school. She and her children eat at her parents' home regularly. Her itemized expenses exceed her income.\\nThe district court commented in part at the conclusion of the hearing for modification:\\n\\\"What I find here is Mrs. Brenda Es-ponda seems to make ends meet because she's willing to work 60, 70 to 80 hours a week, and that if Mr. Esponda has to work 60, 70 to 80 hours a week to pay, I guess he's going to have to do it.\\\"\\nThus, the district court obviously took the welfare of the children into consideration. Appellee properly refers to Broyles v. Broyles, 711 P.2d 1119 (Wyo.1985); Bereman v. Bereman, 645 P.2d 1155 (Wyo. 1982); and Mentock v. Mentock, 638 P.2d 156 (Wyo.1981), to note the necessity for the court to consider the resources and circumstances of both parents as well as the needs and interests of the children, with the paramount concern being the welfare of the children, in connection with child support proceedings.\\nApplying such established law to this case, the district court did not abuse its discretion or act totally against the evidence in a clearly erroneous fashion.\\nAppellant contends on appeal that the amount for child support exceeds that authorized by W.S. 20-6-303 and W.S. 20-6-304. W.S. 20-6-303 provided:\\n\\\"The basic child support obligation may be apportioned between the parents in proportion to their incomes. Four hundred fifty dollars ($450.00) income per month per parent shall be considered to be a minimum living allowance and shall not be subject to child support obligation.\\\"\\nW.S. 20-6-304 provided:\\n\\\"Child support for each child shall not exceed twenty percent (20%) of the balance of the gross income of the obligor after the deduction of the minimum living allowance established in W.S. 20-6-303. Total child support shall not exceed fifty percent (50%) of the gross income of the obligor after the minimum living allowance has been deducted.\\\"\\nHowever, a computation based upon appellant's gross income (including that from all sources and not only that received from the school district) reflects the award to be well within the statutory guidelines. This issue was not presented to the trial court, and, normally, we will not consider matters raised for the first time on appeal unless they go to jurisdiction or are otherwise of a fundamental nature. Dennis v. Dennis, 675 P.2d 265 (Wyo.1984); Gore v. John, 61 Wyo. 246, 157 P.2d 552 (1945). We note the inapplicability of the statutes to this case because they may be said to establish a fundamental right or limit jurisdiction \\u2014 all without a determination by us that such is done and without otherwise ruling on any aspect of the statutes.\\nAffirmed.\\n. The original stipulation required payment of $350 per month for each child. It was amended in open court to require payments of $250 per month per child from September 10, 1988 to September 10, 1992; $300 per month per child from September 10, 1992 to September 10, 1995; and $325 per month per child from September 10, 1995 until one of the children was no longer in appellee's care and custody after which it was agreed that the payment be $400 per month for the other child.\\n. There was evidence of income from sources other than employment, e.g., sale of sheep, mineral royalty, trustee fee, but there was no evidence of a change therein.\\n. Appellant testified on cross-examination:\\n\\\"Q Now, when did you go to work for Hood Communications?\\n\\\"A In March of \\u2014 or, no, November of '87.\\n\\\"Q And you were employed by that company in January of 1988, and at that time, your salary or your income from Hood was $396 a week. Is that \\u2014 I'll tell you, what I'm looking at is your Answers to Interrogatories.\\n\\\"A Yes. That was Hood \\u2014 the Hood Corporation.\\n\\\"Q Hood Communications, 21214 Center Place, Anaheim, California; that's correct?\\n\\\"A I was not employed by them at that time. I was employed by Hood Corporation at that time.\\n\\\"Q But anyway, your rate of pay was $396 a week?\\n\\\"A Yes.\\n\\\"Q And that was the time that you signed the first stipulation in the case whereby you agreed to pay $350 a month child support for each of the children?\\n\\\"A Yes.\\\"\\n. Repealed effective July 1, 1990.\\n. Amended effective July 1, 1990.\"}"

wyo/10387497.json

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+"{\"id\": \"10387497\", \"name\": \"Richard and Chrisanne MEDLOCK, Appellants (Plaintiffs), v. John MERRICK, Appellee (Defendant)\", \"name_abbreviation\": \"Medlock v. Merrick\", \"decision_date\": \"1990-02-08\", \"docket_number\": \"No. 89-5\", \"first_page\": \"881\", \"last_page\": \"886\", \"citations\": \"786 P.2d 881\", \"volume\": \"786\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T23:52:33.436445+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.\", \"parties\": \"Richard and Chrisanne MEDLOCK, Appellants (Plaintiffs), v. John MERRICK, Appellee (Defendant).\", \"head_matter\": \"Richard and Chrisanne MEDLOCK, Appellants (Plaintiffs), v. John MERRICK, Appellee (Defendant).\\nNo. 89-5.\\nSupreme Court of Wyoming.\\nFeb. 8, 1990.\\nRobert T. Moxley and Jack Gage of Whitehead, Gage & Davidson, P.C., Cheyenne, for appellants.\\nRodger McDaniel and Julie Nye Tiedeken of McDaniel and Tiedeken, Cheyenne, for appellee.\\nBefore CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.\", \"word_count\": \"2660\", \"char_count\": \"16038\", \"text\": \"MACY, Justice.\\nAppellants Richard Medloek and Chri-sanne Medloek appeal the adverse jury verdict and subsequent denial of a motion for a judgment notwithstanding the verdict or alternatively for a new trial of their negligence action arising from a vehicle accident with appellee John Merrick.\\nWe affirm.\\nThe Medlocks state the issues as:\\nI. Did the trial court commit an error of law or an abuse of discretion in refusing to set aside the jury verdict which found that the defendant John Merrick was not negligent in operating his vehicle when he struck the Plaintiffs' stopped vehicle while the Plaintiffs' vehicle was entirely in its own lane of traffic?\\nII. Was there sufficient evidence to support the jury's verdict?\\nIII. Did the trial court err in failing to give the Plaintiffs' tendered instruction relating to the Defendant's duty?\\nIV. Was the jury's finding that the Defendant had not been negligent a conclusion, as a matter of law, that could not be reached by a reasonable man under the evidence?\\nThe respective parties offer extremely different versions of the circumstances leading to this lawsuit. Both agree that on July 26, 1987, Merrick's vehicle collided with the Medlocks' vehicle on a gravel road near Granite Reservoir in western Laramie County, Wyoming. The parties' contentions diverge at that point.\\nMerrick's evidence reveals that he consumed two cans of beer while he was engaged in strenuous physical activity. Just before the accident occurred, Merrick was driving his vehicle in a westerly direction near the center of the road which was washboarded and had a hill dropping into a curve. He was traveling at a speed of approximately thirty miles per hour. Before approaching the hill, Merrick noticed the Medlocks' vehicle approaching from the other direction. When Merrick pulled his vehicle over to the right to allow the Med-locks' vehicle to pass, his vehicle came in contact with some gravel and became \\\"unstable.\\\" Merrick then allowed his vehicle to enter the ditch on his right to avoid a collision with the Medlocks' vehicle. As Merrick attempted to slow his vehicle, something in the ditch forced his vehicle back out into the rear fender of the Med-locks' vehicle. The collision was slight and barely moved the Medlocks' vehicle. Merrick moved his vehicle before the accident scene was investigated. Both the Laramie County sheriff's deputy, who investigated the accident, and a state game warden, who came upon the scene of the accident, testified that, from observing and talking to Merrick, they did not detect any signs of intoxication.\\nThe Medlocks' evidence came primarily from the testimony of Richard Medloek and their accident reconstruction expert. They attempted to show that the impact moved their truck roughly three feet and that Merrick's vehicle bounced about thirty feet upon impact. Both Richard Medlock and Chrisanne Medlock testified that they smelled alcohol on Merrick's breath. Richard Medlock remarked that Merrick did not appear to be concerned about the accident. The accident reconstruction expert, on the basis of the Medlocks' account of the accident, testified he thought that Merrick's vehicle was traveling on the road at a speed of between forty and fifty miles per hour and that it struck the Medlocks' vehicle at a speed of between twelve and seventeen miles per hour.\\nIn October 1988, a six-member jury heard the case. The jury was given a three-question' special verdict form on which to record its decisions in the case. Question number one stated:\\n1. Do you find that the defendant, John Merrick, was negligent?\\nYes_ No_\\nThe jury checked \\\"No\\\" to this question, and the court polled the jury at the Med-locks' request. On October 27, 1988, the court entered a judgment in favor of Merrick.\\nOn October 31, 1988, the Medlocks moved for a judgment notwithstanding the verdict or alternatively for a new trial on the basis of insufficient evidence. On November 4, 1988, the court heard arguments on the motion and denied it, finding that the jury verdict was sustained by sufficient evidence. This appeal followed.\\nMerrick contends that the Medlocks' failure to move for a directed verdict precludes this Court from considering the propriety of the district court's denial of their motion for a new trial. We disagree. A motion for a new trial can be made independently of a motion for a directed verdict or of a motion for a judgment notwithstanding the verdict. 9 C. Wright and A. Miller, Federal Practice and Procedure: Civil \\u00a7 2539 (1971). See also Hall Oil Co. v. Barquin, 33 Wyo. 92, 237 P. 255 (1925).\\nA trial court has broad discretion when it is ruling upon a motion requesting a new trial; its decision on the motion will not be overturned absent an abuse of that discretion. DeJulio v. Foster, 715 P.2d 182 (Wyo.1986). We have said:\\nThe right of trial by jury includes the right to have the jury pass upon questions of fact by determining the credibility of witnesses and the weight of conflicting evidence. The findings of fact, however, are subject to review by the trial judge who, like the jury, has had the benefit of observing the demeanor and deportment of the witnesses. If he concludes that the evidence is insufficient to support the verdict, he should grant a new trial .\\nLong v. Forbes, 58 Wyo. 533, 534, 136 P.2d 242, 158 A.L.R. 224 (1943) (citation omitted), quoted in Cody v. Atkins, 658 P.2d 59, 63 (Wyo.1983). To determine whether the evidence was sufficient to support the verdict, we apply the following standard:\\n[W]e assume the evidence in favor of the successful party to be true, leaving out of consideration entirely the evidence in conflict, and assigning every favorable inference to the evidence of the successful party that can be reasonably and fairly drawn from it. In addition, when reviewing a jury verdict, we leave to the jury the duty of ascertaining the facts, reconciling conflict therein and drawing its own inferences if more than one inference is permissible. Also, when the facts permit the drawing of more than one inference, then it is for the jury to choose which one will be utilized and, if supported by substantial evidence, the jury's choice will be held by us to be conclusive.\\nCrown Cork & Seal Company, Inc. v. Admiral Beverage Corp., 638 P.2d 1272, 1274-75 (Wyo.1982) (citations omitted), quoted in Seaton v. State of Wyoming Highway Commission, District No. 1, 784 P.2d 197, 207-208 (Wyo.1989).\\nReviewing the evidence under this standard, we hold that substantial evidence exists to support the jury verdict. The jury is the sole judge of the credibility of witnesses, and it is not required to accept a plaintiffs version of the facts. Kahler v. Martin, 570 P.2d 720 (Wyo.1977). As long as sufficient evidence exists upon which the jury could base its findings, we will not disturb those findings even if we might have reached a different result. Jones v. Sheridan County School District # 2, 731 P.2d 29 (Wyo.1987); DeJulio, 715 P.2d 182. Much of the cross-examination of Richard Medlock impeached his credibility. For example, Richard Medlock admitted to giving erroneous information on his army physical form and to making a claim for a veteran's disability for injuries similar to those he claimed to have sustained in the accident which was the subject of this lawsuit. In addition, the Medlocks' expert made his conclusions on the basis of the Medlocks' version of the events. He also testified that the road was defective in its design. Beyond those observations, we will not speculate on the exact rationale, thoughts, or reasoning of the jury in reaching the conclusion that Merrick was not negligent. Howell v. Garcia, 747 P.2d 1140 (Wyo.1987).\\nAlthough the discretion in deciding whether to grant a new trial goes further than to mere sufficiency of the evidence, Cody, 658 P.2d 59, the Medlocks have pointed out nothing beyond a claim of insufficient evidence to show that.the trial court abused its discretion. They do, however, attempt to argue for the first time on appeal that Merrick was negligent per se on the basis of an alleged statutory violation. The Medlocks designated only certain portions of the record, no part of which deals with the issue of negligence per se. The Medlocks have the burden to produce a record upon which this Court can decide the issues presented. Edwards v. Edwards, 732 P.2d 1068 (Wyo.1987). We do not address issues raised for the first time on appeal. R.O. Corporation v. John H. Bell Iron Mountain Ranch Company, 781 P.2d 910 (Wyo.1989). A party is bound by the theory of the case it advanced below. Thatcher & Sons, Inc. v. Norwest Bank Casper, N.A., 750 P.2d 1324 (Wyo.1988). We will not consider this issue here.\\nThe Medlocks offered the following jury instruction, which the trial court refused to use:\\nIn the Course of these instructions, The Court will define various specific duties with which the parties are charged. If you find from a preponderance of the evidence that a party has violated a duty, then that party is negligent. The effect of such negligence must be evaluated on the basis of all other instructions.\\nThe court refused to utilize this instruction because its content was adequately covered by other instructions. For example:\\nINSTRUCTION NO. 4\\nWhen the word negligence is used in these instructions, it means the failure to use ordinary care. Ordinary care means the degree of care which might reasonably be expected of the ordinary careful person under the same or similar circumstances. The law does not say how such an ordinary careful person would act. That is for you to decide.\\nINSTRUCTION NO. 6\\nYou are instructed that by a preponderance of evidence is meant not necessarily the greater number of witnesses or exhibits. It means the amount of evidence, taken on the whole, which leads the jury to find that the existence of the disputed fact is more probable than its nonexistence.\\nINSTRUCTION NO. 8\\nIn this action, the plaintiff has the burden of proving by a preponderance of the evidence the following:\\n1. That the defendant was negligent;\\n2. That the negligence of the defendant was a direct cause of the injury and damage to the plaintiff; and\\n3. The nature and extent of the injuries claimed to have been so suffered, the elements of plaintiffs damage and the amount thereof.\\nINSTRUCTION NO. 15\\nEvery person operating a motor vehicle upon a highway shall have the vehicle under reasonable control. A driver may be said to have his car under reasonable control when he is observing other use of the highway and has had the ability to guide and direct the course of the automobile, fix its speed and bring the car to a stop within a reasonable distance. Failure to have such control is evidence of negligence.\\nA party is not prejudiced when a refused instruction is covered by other instructions which have been given. DeJulio, 715 P.2d 182. The Medlocks did not object to any instructions which were given, and the trial court did not err in refusing to use the Medlocks' tendered instruction.\\nThe Medlocks' final contention is that the trial court should have found Merrick negligent as a matter of law. We disagree. The mere fact that a collision occurred does not in itself indicate negligence. Cody, 658 P.2d 59. Negligence is never presumed from an accident. DeWald v. State, 719 P.2d 643 (Wyo.1986). The question of negligence is ordinarily one for the trier of fact. DeJulio, 715 P.2d 182; Miller v. Hedderman, 464 P.2d 544 (Wyo.1970).\\nThe Medlocks have failed to demonstrate any grounds upon which the relief sought should be granted. The trial court did not abuse its discretion when it denied the Med-locks' motion for a new trial.\\nAffirmed.\\nURBIGKIT, J., files a dissenting opinion.\\n. Questions number two and three were phrased as follows:\\n2. If your answer to question number 1 was yes, do you find that John Merrick's negligence was a direct cause of the accident?\\nYes_ No_\\n3[.] If your answer to question number 2 is yes, what total amount of damages was sustained by:\\nRichard Medlock.$_\\nChris[an]ne Medlock_$_\\nSince the jury answered \\\"No\\\" to question number one, it did not answer, nor was it required to answer, questions number two and three.\"}"

wyo/10388139.json

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+"{\"id\": \"10388139\", \"name\": \"WYOMING STATE ENGINEER and the Wyoming State Board of Control, Petitioners (Respondents), v. Jack WILLADSEN and Duane Willadsen, Respondents (Petitioners)\", \"name_abbreviation\": \"Wyoming State Engineer v. Willadsen\", \"decision_date\": \"1990-06-01\", \"docket_number\": \"No. 89-223\", \"first_page\": \"1376\", \"last_page\": \"1379\", \"citations\": \"792 P.2d 1376\", \"volume\": \"792\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T00:14:21.437055+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.\", \"parties\": \"WYOMING STATE ENGINEER and the Wyoming State Board of Control, Petitioners (Respondents), v. Jack WILLADSEN and Duane Willadsen, Respondents (Petitioners).\", \"head_matter\": \"WYOMING STATE ENGINEER and the Wyoming State Board of Control, Petitioners (Respondents), v. Jack WILLADSEN and Duane Willadsen, Respondents (Petitioners).\\nNo. 89-223.\\nSupreme Court of Wyoming.\\nJune 1, 1990.\\nJoseph B. Meyer, Atty. Gen., Mary B. Guthrie, Sr. Asst. Atty. Gen., Jennifer Hag-er, Asst. Atty. Gen., and Frank Gibbard, Legal Intern, for petitioner Wyoming State Engineer.\\nJoseph B. Meyer, Atty. Gen., and S. Jane Cat\\u00f3n, Asst. Atty. Gen., for petitioner Wyoming State Bd. of Control.\\nJohn W. Pattno, Cheyenne, for respondents.\\nBefore CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.\", \"word_count\": \"1591\", \"char_count\": \"10194\", \"text\": \"MACY, Justice.\\nJack Willadsen and Duane Willadsen appeal from a decision by the Wyoming State Board of Control which affirmed the Wyoming State Engineer's determination that an irrigation well operated by an upstream landowner did not interfere with the Wil-ladsens' surface water rights. The Willad-sens appealed the Board of Control's decision to the district court, and the district court certified the appeal to this Court.\\nWe affirm.\\nThe Willadsens present the following issues:\\nI. Did the District Court err[][] in failing to hear this case and by certifying the case to the Supreme Court[?]\\nII. Is it error for the State Board of Control, as hearing officer, to petition for certification of a case to the Supreme Court[?]\\nIII. Did the Board of Control err[ ][ ] in arbitrarily disregarding the uncontra-dicted and unimpeached testimony of the Contestant Petitioners[?]\\nIY. Did the Board of Control err[ ][ ] in failing to find that Contestant Petitioners proved by a preponderance of evidence that there was interference by Cottonwood No. 1 Well with Cottonwood Creek[?]\\nV. Did the Board of Control err[][] in its arbitrary decision[?]\\nThe Willadsens own a surface water right in water which flows out of Cottonwood Creek. The creek is located approximately eighteen miles north of Wheatland, Wyoming, and feeds a ditch which runs through the Willadsens' ranch. On November 25, 1981, the State Engineer's office received a complaint from the Willad-sens contending that an upstream irrigation well was interfering with their surface water rights. Pursuant to Wyo. Stat. \\u00a7 41-3-911(b) (1977), the State Engineer's office conducted an investigation to determine if interference existed. The State Engineer's office prepared a report and concluded that the investigation could not substantiate the existence of interference.\\nThe Willadsens contested the results of the investigation at a hearing held before the Board of Control. The Board of Control received evidence and decided that the Willadsens failed to carry their burden of establishing that the irrigation well interfered with their surface water rights. The Willadsens appealed the Board of Control's decision to the district court, and the district court certified the appeal to this Court. We remanded the case back to the Board of Control because it utilized the wrong burden of proof. Willadsen v. Christopulos, 731 P.2d 1181 (Wyo.1987). We held that the Willadsens were entitled to relief if they established by a preponderance of the evidence that the well interfered with their rights. Id.\\nOnce again, the Board of Control held a hearing and received evidence. The Board of Control examined evidence presented at the first hearing and heard additional testimony from expert and lay witnesses. The Board of Control concluded that \\\"the testimony of the parties' experts and lay witnesses did not convince the Board that interference between Cottonwood No. 1 Well Permit No. U.W. 48944[] and Cottonwood Creek was any more probable than not\\\" and dismissed the Willadsens' complaint of interference.\\nThe Willadsens appealed the Board of Control's dismissal to the district court. As it did with the first appeal, the district court certified the case to this Court. We must decide whether the appeal was properly certified and whether the Board of Control's conclusion is in accordance with law and supported by substantial evidence.\\nThe Willadsens contend that the district court erred when it certified their case to this Court. W.R.A.P. 12.09 provides in pertinent part that review of an agency determination\\nshall be conducted by the court without a jury and shall be confined to the record as supplemented pursuant to Rule 12.08, W.R.A.P., and to the issues raised before the agency. The court's review shall be limited to a determination of the matters specified in \\u00a7 16-3-114(c).\\nIf after such review, the district court concludes the matter to be appropriate for determination by the Supreme Court, the district court may certify the case to the Supreme Court. Upon notification of such certification, the petitioner shall pay the required docketing fee.\\nUnder that rule, the district court's decision to certify a case to this Court is discre-tional. Safety Medical Services, Inc. v. Employment Security Commission of Wyoming, 724 P.2d 468 (Wyo.1986). The record fails to show that the district court abused its discretion, and the Willadsens have not presented cogent argument or authority demonstrating such abuse. Consequently, we hold that this appeal was properly certified for our review.\\nThe Willadsens also contend that the Board of Control's conclusion that the Wil-ladsens failed to prove interference is inconsistent with the evidence and is arbitrary. After an appropriator of surface water files a complaint alleging interference, the State Engineer must conduct an investigation to determine if interference exists and issue a report to all interested parties. An appropriator who is dissatisfied with the findings of the State Engineer may seek relief under the Wyoming Administrative Procedure Act. Section 41-3-911(c). If an adjudicatory hearing is held before the Board of Control, the appropriator has the burden of proving the existence of interference by a preponderance of the evidence. Willadsen, 731 P.2d 1181. Our review of the Board of Control's determination is subject to the standards specified in W.R.A.P. 12.09 and Wyo. Stat. \\u00a7 16-3-114(c) (1977). Doidge v. State Board of Charities and Reform, 789 P.2d 880 (Wyo.1990); Employment Security Commission of Wyoming v. Western Gas Processors, Ltd., 786 P.2d 866 (Wyo.1990); Cook v. Zoning Board of Adjustment for the City of Laramie, 776 P.2d 181 (Wyo.1989). Section 16-3~114(c) provides:\\nTo the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:\\n(i) Compel agency action unlawfully \\u2022 withheld or unreasonably delayed; and\\n(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:\\n(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;\\n(B) Contrary to constitutional right, power, privilege or immunity;\\n(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;\\n(D) Without observance of procedure required by law; or\\n(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.\\nWhen we review an agency decision which a party claims is arbitrary and inconsistent with the evidence, we apply the substantial evidence test and determine whether the decision is supported by \\\"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Such evidence may be less than the weight of the evidence but cannot be contrary to the overwhelming weight of the evidence.\\\" Big Piney Oil & Gas Company v. Wyoming Oil and Gas Conservation Commission, 715 P.2d 557, 561-62 (Wyo.1986) (citations omitted).\\nWe find substantial evidence in the record to support the Board of Control's conclusion that the Willadsens did not prove the existence of interference. In both hearings before the Board of Control, the groundwater hydrologist who designed the interference test for the Willadsen investigation testified that pumpage of the well in question did not have a measurable or observable effect on Cottonwood Creek. The Willadsens' witnesses primarily based their testimony on the same data used by the State's witnesses and concluded that interference existed. The Board of Control believed the State's expert, and we conclude that a reasonable mind would accept that evidence as adequate to support the Board of Control's conclusion. Because the Board of Control's decision is supported by substantial evidence, we must uphold its findings. Id.; McCulloch Gas Transmission Company v. Public Service Commission of Wyoming, 627 P.2d 173 (Wyo. 1981).\\nAffirmed.\\n. Wyo. Stat. \\u00a7 41-3-911 (1977) provides in pertinent part:\\n(b) Any appropriator of either surface or underground water may file a written complaint alleging interference with his water right by a junior right. Complaints are to be filed with the state engineer and are to be accompanied by a fee of one hundred dollars ($100.00) to help defray costs of investigation. This section is not applicable to interference between two (2) surface water rights. Upon receiving the complaint and fee, the state engineer shall undertake an investigation to determine if the alleged interference does exist. Following the investigation, the state engineer shall issue a report to all interested parties stating his findings. The report may suggest various means of stopping, rectifying or ame-Iiorating the interference or damage caused thereby.\\n(c) Any interested appropriator who is dissatisfied with the results of the foregoing procedure may proceed under the applicable provisions of the Wyoming Administrative Procedure Act [\\u00a7\\u00a7 16-3-101 to -115]. If a hearing is to be held, it shall be held before the appropriate water division superintendent. The superintendent shall report to the board of control at its next meeting. The board shall issue its order to include findings of fact and conclusions of law.\"}"

wyo/10391688.json

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+"{\"id\": \"10391688\", \"name\": \"Joseph Newton BEST, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff)\", \"name_abbreviation\": \"Best v. State\", \"decision_date\": \"1989-02-21\", \"docket_number\": \"No. 88-70\", \"first_page\": \"385\", \"last_page\": \"389\", \"citations\": \"769 P.2d 385\", \"volume\": \"769\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T20:41:48.358423+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before C\\u00c1RDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.\", \"parties\": \"Joseph Newton BEST, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"Joseph Newton BEST, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\\nNo. 88-70.\\nSupreme Court of Wyoming.\\nFeb. 21, 1989.\\nLeonard D. Munker, State Public Defender, and Michael Comia, argued, Asst. Public Defender, for appellant.\\nJoseph B. Meyer, Atty. Gen., John Ren-neisen, Deputy Atty. Gen., and Sylvia Lee Hackl, Sr. Asst. Atty. Gen., argued, for appellee.\\nBefore C\\u00c1RDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.\", \"word_count\": \"1889\", \"char_count\": \"11368\", \"text\": \"CARDINE, Chief Justice.\\nAppellant Joseph Best was convicted of attempted first degree murder of Officer Lawrence Szabo of the Wyoming Highway Patrol. He now appeals the denial of his motion for new trial based on newly discovered evidence. The newly discovered evidence upon which appellant relies consists of allegations in Szabo's complaint filed in a civil action seeking recovery of damages for personal injuries caused Szabo by appellant shooting him. This civil action was intitiated subsequent to appellant's trial. Appellant states the issues as follows:\\n\\\"Did the district court abuse its discretion in denying Appellant's motion for new trial?\\\"\\n\\\"Should relaxed standards be applied since the newly discovered evidence involved perjury?\\\"\\n\\\"Did the district court abuse its discretion in failing to hold a hearing on the motion for new trial?\\\"\\n\\\"Did the district court err in failing to state reasons and grounds for denying the motion for new trial?\\\"\\nWe affirm.\\nPACTS\\nThe events leading to appellant's conviction are set out in Best v. State, 736 P.2d 739 (Wyo.1987). We briefly review the basic facts in order to provide a context for review of the denial of appellant's motion for new trial. Officer Szabo attempted to stop Best for speeding on the interstate. Best tried to outrun the patrolman in a lengthy high speed chase. When Best finally stopped, he got out of his car and shot Officer Szabo twice.\\nBest was convicted of attempted first degree murder after a jury trial. On appeal, he contended that the trial court had improperly refused to give an instruction which would allow the jury to find that he shot Officer Szabo in self-defense. Best testified that he thought the patrolman was pointing a gun at him. Officer Szabo testified with respect to the relation of his hand to his gun as follows:\\n\\\"Q. Did you put your hand on it?\\n\\\"A. I kept it right like at this position, down to the right side of it, and had the baton in the left hand.\\n\\\"Q. So, your hand is well below your gun?\\n\\\"A. Yes.\\n\\\"Q. Please turn around and show to the jury where your hand was at that point in time.\\n\\\"A. Just hanging natural.\\n\\u2021 * jfc $ * \\u2021\\n\\\"Q. Your right hand? You're sure that that was just at all times during this \\u2014 I don't know what you call it \\u2014 situation, below your weapon?\\n\\\"A. It was in access to my weapon, but it was hanging normally to the side.\\\"\\nThis court affirmed the trial court's refusal to give a self-defense instruction, stating that even viewing Best's testimony in the light most favorable to him, the requested instruction was not supported by competent evidence. Best, 736 P.2d at 744-47.\\nSzabo later filed a civil action seeking damages against, among others, the manufacturer of his holster. The essence of his claim was that his holster was defective, which prevented him from drawing his pistol. This claim still directly contradicts Best's statement that Szabo had drawn and was pointing his gun at him.\\nBest, however, now focuses upon whether Szabo's hand was at his holster or at his side, citing the following allegation made in the civil complaint:\\n\\\"Officer Szabo immediately exited his patrol car, baton in his left hand, right hand poised on his holster for quick draw if needed.\\\"\\nAppellant contends that this statement constitutes a \\\"recantation\\\" of Szabo's trial testimony concerning the placement of his hand in relation to his gun.\\nBest filed a pro se motion for new trial pursuant to Rule 34, W.R.Cr.P., asserting that the testimony of Szabo concerning the proximity of his hand in relation to his gun was \\\"the only evidence contradicting the Defendant's own testimony that he shot Larry Szabo in self-defense due to Larry Szabo's threatening manner.\\\" The district court denied the motion, and this appeal followed.\\nDISCUSSION\\nI\\nWhen reviewing a trial court's denial of a motion for new trial based on newly discovered evidence, we will not reverse unless appellant affirmatively shows an abuse of discretion by the trial court. Keser v. State, 737 P.2d 756, 759 (Wyo.1987). We have defined judicial discretion as \\\"a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.\\\" Martin v. State, 720 P.2d 894, 897 (Wyo.1986).\\nTo obtain a new trial on the basis of newly discovered evidence a defendant must establish all of the following criteria:\\n\\\"1. The evidence has come to his knowledge since trial;\\n\\\"2. It was not owing to the want of due diligence that it did not come sooner; \\\"3. The evidence is so material that it would probably produce a different verdict; and\\n\\\"4. The evidence is not cumulative.\\\"\\nKeser v. State, 737 P.2d at 759-60; Opie v. State, 422 P.2d 84, 85 (Wyo.1967).\\nAt trial, appellant's theory of the case was self-defense, contending that he was justified in shooting Officer Szabo because Szabo's \\\"threatening manner\\\" placed appellant in fear of his life. The trial court refused a self-defense instruction as not supported by competent evidence. This court affirmed that decision in Best v. State, 736 P.2d at 741. He now argues that if Szabo had testified that his right hand was \\\"poised on his holster\\\" rather than hanging to his side \\\"in access to [his] weapon\\\" the trial court might have given the self-defense instruction, and the jury might have reached a different verdict.\\nWe do not agree with appellant's conclusion that the self-defense instruction might properly have been given. In discussing the evidence supporting appellant's self-defense claim in the original appeal, we reiterated the four requirements of self-defense in a homicide case originally outlined in Patterson v. State, 682 P.2d 1049, 1053 (Wyo.1984):\\n1. The slayer was not at fault in bringing on the difficulty;\\n2. That he believed at the time of the killing that he was in such immediate danger of losing his own life, or of receiving serious bodily injury, that it was necessary to take the life of his assailant;\\n3. That the circumstances were such to warrant reasonable grounds for such a belief in the mind of a reasonable man; and\\n4. That there was no other reasonable method of escaping or otherwise resolving the conflict.\\nBest v. State, 736 P.2d at 746.\\nWe noted that even after giving Best's testimony its most favorable interpretation, it supported only the second factor relating to Best's subjective belief. We also said that:\\n\\\"None of the evidence reflects circumstances which would warrant a reasonable man in concluding that there were reasonable grounds for belief that he was in immediate danger of losing his own life or receiving serious bodily injury.\\\" Id.\\nWe are of the opinion that testimony, similar to the allegations in Officer Szabo's civil complaint that his hand was \\\"poised on his holster,\\\" would not be evidence that would lead a reasonable man to conclude it was necessary for appellant to shoot the officer in self-defense. Even if we were not of that opinion, the first and fourth elements of the test outlined above remain without any competent supporting evidence. Thus, appellant would not be entitled to a self-defense instruction in a new trial.\\nThe newly discovered evidence is not so material that it would probably produce a different verdict as required by the third element of the \\\"Opie\\\" test. The district court did not abuse its discretion in denying the motion.\\nII\\nAppellant asks that we adopt the \\\"more relaxed\\\" standard used by some federal courts to evaluate his motion for new trial \\\"since the newly discovered evidence involves perjury.\\\" The proposed test is taken from Larrison v. United States, 24 F.2d 82 (7th Cir.1928), and is commonly referred to as the \\\"Larrison test.\\\" Federal courts have stated that the Larrison test is limited to cases of \\\"recantation or where it has been proved that false testimony was given at the trial.\\\" Kyle v. United States, 297 F.2d 507, 512 (2nd Cir.1961), quoting United States v. Hiss, 107 F.Supp. 128, 136 (S.D.N.Y.1952); see also United States v. Johnson, 142 F.2d 588 (7th Cir.1944) and United States v. Costello, 255 F.2d 876 (2nd Cir.1958).\\nThis case differs from those involving recantation and perjury in which the Larri-son test is applied. The typical recantation case involves a motion for new trial based on the affidavit of a witness who swears that his trial testimony was false. See, e.g. Larrison v. United States, supra. At most, appellant has demonstrated an inconsistency between Szabo's testimony at trial and statements subsequently made in a civil complaint. This does not constitute a recantation. To recant a prior statement is to publicly renounce and withdraw it. Pradlik v. State, 131 Conn. 682, 41 A.2d 906, 907 (1945); Llanos-Senarillos v. United States, 177 F.2d 164, 166 (9th Cir.1949). Recanted testimony has been defined as \\\"testimony which has been repudiated by a party who gave it.\\\" State v, Nickerson, 320 N.C. 603, 359 S.E.2d 760, 763 (1987). Filing of a civil complaint which contains allegations arguably inconsistent with previous testimony at trial does not constitute a public renunciation or repudiation of that testimony. Nor does it prove that false testimony was given at trial. We see no reason to depart from our established standards in this case.\\nIll\\nAppellant also contends that the district court abused its discretion by failing to hold a hearing on his motion for new trial. A hearing is not required by either rule or statute; a decision to hold a hearing is within the sound discretion of the district court. Story v. State, 755 P.2d 228, 231 (Wyo.1988). A court may deny a motion for new trial without a hearing when all that is necessary for disposition is already in the record. Hopkinson v. State, 679 P.2d 1008, 1025 (Wyo.1984) (Hopkinson III). Such is the case here. As previously discussed in part I, appellant failed to produce new evidence that would justify giving a self-defense instruction; consequently it is improbable that a different verdict would result.\\nWhile appellant asserts that a hearing is necessary to assess the credibility of Szabo, this case does not involve the credibility of a witness who has publicly recanted his trial testimony. The denial of the motion was amply supported by the record, and we find no abuse of discretion.\\nIV\\nAppellant's final assertion of error is that the district court did not adequately state reasons or grounds in its order denying his motion. Rule 34, W.R.Cr.P. does not require that the court make specific findings in its order. The order stated that the motion was denied because the court found \\\"that sufficient grounds did not exist for granting a new trial pursuant to Rule 34 While appellate review is facilitated by a more specific statement of reasons, failure to elaborate is not reversible error, especially in light of appellant's failure to request any clarification of the order.\\nAFFIRMED.\"}"

wyo/10392019.json

@@ -0,0 +1 @@
+"{\"id\": \"10392019\", \"name\": \"In the Interest of JLG and JG, minors. AG and DG, Appellants (Respondents), v. BIG HORN COUNTY DEPARTMENT OF PUBLIC ASSISTANCE AND SOCIAL SERVICES, Appellee (Petitioner)\", \"name_abbreviation\": \"AG v. Big Horn County Department of Public Assistance & Social Services\", \"decision_date\": \"1988-10-04\", \"docket_number\": \"No. C-88-2\", \"first_page\": \"42\", \"last_page\": \"45\", \"citations\": \"762 P.2d 42\", \"volume\": \"762\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T21:37:03.071602+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.\", \"parties\": \"In the Interest of JLG and JG, minors. AG and DG, Appellants (Respondents), v. BIG HORN COUNTY DEPARTMENT OF PUBLIC ASSISTANCE AND SOCIAL SERVICES, Appellee (Petitioner).\", \"head_matter\": \"In the Interest of JLG and JG, minors. AG and DG, Appellants (Respondents), v. BIG HORN COUNTY DEPARTMENT OF PUBLIC ASSISTANCE AND SOCIAL SERVICES, Appellee (Petitioner).\\nNo. C-88-2.\\nSupreme Court of Wyoming.\\nOct. 4, 1988.\\nMiche\\u00e1l K. Shoumaker of Shoumaker and Murphy, Sheridan, for appellants.\\nJoseph B. Meyer, Atty. Gen., Peter J. Mulvaney, Deputy Atty. Gen., and Richard E. Dixon, Asst. Atty. Gen., for appellee.\\nBefore CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.\", \"word_count\": \"1639\", \"char_count\": \"10095\", \"text\": \"MACY, Justice.\\nThis is an appeal from an order of the district court that terminated the parental rights of appellants AG (father) and DG (mother) to their two youngest daughters. Appellants challenge the sufficiency of the evidence to terminate their parental rights and the admission as evidence of a Department of Public Assistance and Social Services (DPASS) file relating to the family.\\nWe affirm.\\nAppellants were married on January 6, 1983. A daughter (JLG) was born on May 11, 1983, and another daughter (JG) was born on November 14, 1984. The household included these four persons as well as two older daughters of the father from an earlier marriage. In this proceeding, appellants', parental rights to the father's two older daughters were also terminated, but no appeal is taken from that portion of the district court's judgment. We include them in our discussion of this case because testimony from them and about them contributes to our resolution of the issues raised in this appeal.\\nAlthough the application of the termination of parental rights statutes is a matter of strict scrutiny, our standard is that, when reviewing the sufficiency of the evidence, this Court assumes that the evidence of the prevailing party is true, leaving out of consideration the evidence presented by the other party in conflict therewith and giving every favorable inference to the evidence of the successful party that may fairly and reasonably be drawn from it. TR v. Washakie County Department of Public Assistance and Social Services, 736 P.2d 712 (Wyo.1987).\\nOn February 4, 1985, the father held a gun to his wife's head and threatened her with it in the presence of the children. On October 23, 1985, the father beat his wife in the presence of the two youngest children. As a result of this incident, the children were temporarily removed from the home. However, the domestic violence continued. Just before midnight on November 1, 1985, police were called to the home to investigate a dispute and possible aggravated assault. When the police arrived, the mother was walking away from the trailer park where the family lived. She told the police she was going to the hospital for treatment of a cut she received in a fight with her husband. The police took the mother to the hospital and then returned to the trailer to check on the father. They noticed blood on the front steps, all over the floor in the kitchen, and down the hallway to the bedroom. The father had been stabbed several times with a steak knife by his wife. He had been at the bar earlier that evening. His children had called him twice, and during the second call his wife said she wanted to come down for a drink. Apparently, she went, and, after they arrived back home, the father asked her to fix his lunch for the next day. This precipitated an argument, and the father proceeded to get a sleeping bag so that he could go to sleep on the living room floor because he had to get up at 3:45 a.m. to go to work. The mother then turned up the volume of a portable radio. The father grabbed for the radio, and the mother attacked him and began stabbing him with the steak knife. After the mother left, the older girls helped their father up off the floor, and he went into the bathroom. When he saw all of the blood, he thought his wife had cut her wrists with a razor blade as she had threatened to do on a previous occasion. The children were all in the home during this episode. The children stayed with a neighbor that night, as did the mother. The father returned to the bar after being treated for superficial wounds. The children were placed in emergency shelter care with the neighbor by DPASS workers. They were later placed in foster care with the consent of appellants. We relate this incident in some detail because it typifies the chaotic and menacing environment that characterized this home.\\nA clinical psychologist who had twenty-eight years of experience working with children prepared a report which concluded that JLG and JG, as well as the older children, were suffering from severe developmental delays and distortions. The developmental and emotional problems were more severe with the older children but posed serious mental health problems for all four children. The psychologist reported that these problems were the result of the circumstances in which the children were raised. Finally, he predicted that the children would be unable to cope with the situation in the home, and he observed that the severity of the condition of the older children underscored the increasing deterioration that could be expected in the younger children with continual exposure to the unhealthy environment in their home.\\nIn addition to this atmosphere of violence, the children were occasionally disciplined in an abusive manner (bruises from spanking with a belt) and were frequently subjected to generally abusive treatment, such as slapping, hair pulling, and being kicked in the posterior.\\nOn at least one occasion, the children were left unattended. Although the parents had adequate income to provide food, the children frequently went hungry when there was no food in the house for periods of a day or two at a time. The children were also poorly clothed, and neither the children's clothing nor the children themselves were kept clean. The record establishes that, were it not for the \\\"parenting\\\" provided by the oldest child, the other children's condition might have been significantly worse.\\nAppellants were examined by the psychologist who had examined the children, and he determined that the father suffers from a paranoid personality disorder with alcoholic features. The assessment indicated that the father has the potential to be extremely aggressive with individuals whom he perceives as incapable of retaliation, such as his wife and children, and that the mother suffers from a borderline personality disorder. The psychologist concluded that this combination results in almost constant conflict, strife, violence, aggression, and inadequate planning. The prognosis for change in appellants was very guarded and, while he saw little chance of them hurting each other, the chances of them hurting the children, both physically and mentally, were diagnosed as probable.\\nThe trial court's findings of incidents of abuse and neglect are supported by the record and are sufficient to warrant the termination of appellants' parental rights to JLG and JG.\\nAs a peripheral ihatter, appellants also question the finding of the court that efforts by DPASS to rehabilitate them were unsuccessful. Findings of the trial court are presumed to be correct and will not be disturbed by this Court unless they are clearly erroneous, inconsistent with the evidence, or contrary to the great weight of the evidence. Eddy v. First Wyoming Bank, N.A.-Lander, 750 P.2d 294 (Wyo.1988); Pancratz Company, Inc. v. Kloefkorn-Ballard Construction/Development, Inc., 720 P.2d 906 (Wyo.1986).\\nStarting in November 1985, DPASS developed a series of treatment plans to assist appellants in regaining custody of their children. The parents failed to comply with three consecutive plans presented to them in November 1985, December 1985, and January 1986. Neither parent would attend parenting classes. The mother nev er sought inpatient treatment for her mental problems as recommended by an examining clinical psychologist. The father completed an inpatient alcoholism program at a Veteran's Administration hospital but resumed drinking shortly thereafter. At the time of trial, appellants had done virtually nothing to prepare themselves for the return of their children.\\nThis evidence is sufficient to sustain the trial court's findings that rehabilitation efforts were unsuccessful and that the parents generally refused rehabilitative treatment. LP v. Natrona County Department of Public Assistance and Social Services, 679 P.2d 976 (Wyo.1984); CP v. Laramie County Department of Public Assistance and Social Services, 648 P.2d 512 (Wyo.1982).\\nAppellants also argue that the district court improperly admitted a DP ASS file as evidence in this case. They object to the evidence on the basis of hearsay. The thrust of their argument is that at trial the district court sustained numerous hearsay objections made by appellants' counsel when a DP ASS casework supervisor was questioned about the contents of that file, especially those portions that were contributed by other persons. Appellants argue that the admission of that file into evidence makes meaningless all the objections that were sustained. We do not agree. The objections were sustained because the witness in question was asked to give hearsay testimony on the basis of his knowledge of the file. In the absence of an objection to the file, and absent a determination that the source of information or the method or circumstances of preparation of the file indicate a lack of trustworthiness, the file is admissible under W.R.E. 803(6).\\nAFFIRMED.\\n. W.R.E. 803(6) provides in pertinent part:\\nA memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.\"}"

wyo/10397106.json

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+"{\"id\": \"10397106\", \"name\": \"Elmo Bernard FOSTER, Jr., Appellant (Defendant), v. Katherine Ann FOSTER, Appellee (Plaintiff)\", \"name_abbreviation\": \"Foster v. Foster\", \"decision_date\": \"1989-02-08\", \"docket_number\": \"No. 88-183\", \"first_page\": \"1038\", \"last_page\": \"1042\", \"citations\": \"768 P.2d 1038\", \"volume\": \"768\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T02:10:20.309118+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY, and GOLDEN, JJ.\", \"parties\": \"Elmo Bernard FOSTER, Jr., Appellant (Defendant), v. Katherine Ann FOSTER, Appellee (Plaintiff).\", \"head_matter\": \"Elmo Bernard FOSTER, Jr., Appellant (Defendant), v. Katherine Ann FOSTER, Appellee (Plaintiff).\\nNo. 88-183.\\nSupreme Court of Wyoming.\\nFeb. 8, 1989.\\nRehearing Denied March 2, 1989.\\nRobert T. Moxley and Sue Davidson of Whitehead, Gage & Davidson, P.C., Cheyenne, for appellant.\\nJohn G. Hanes and Rhonda Sigrist Woodard of Hanes, Burke & Woodard, P.C., Cheyenne, for appellee.\\nBefore CARDINE, C.J., and THOMAS, URBIGKIT, MACY, and GOLDEN, JJ.\", \"word_count\": \"2209\", \"char_count\": \"14138\", \"text\": \"MACY, Justice.\\nThis is an appeal from an order of the district court modifying a divorce decree by increasing the monthly child support obligation of appellant Elmo Bernard Foster, Jr. and also from the denial of appellant's post-trial motions. Although appellant raises several issues, the dispositive question in this case is whether the review afforded by the district court upon the findings and recommendations of the court commissioner satisfied constitutional and statutory requirements.\\nWe reverse.\\nAppellant and appellee Katherine Ann Foster were divorced in 1976, and appellee was granted custody of the parties' adopted son, who then was three years old. Pursuant to the divorce decree, appellant was required to pay $100 per month for child support. On December 23, 1986, ap-pellee filed a motion for modification of the decree, seeking primarily an increase in appellant's monthly support obligation and asserting a significant increase in child care expenses as a substantial change in circumstances.\\nIn accordance with what has apparently become a common practice in the district court of Laramie County, this case was referred to a court commissioner to hold an evidentiary hearing and make findings. A hearing before the court commissioner was held on June 16, 1987. The court commissioner found there was a substantial change in circumstances warranting a modification of the divorce decree to increase appellant's support obligation to $300 per month. The court commissioner directed counsel for appellee to prepare a proposed order to that effect for his approval and submission to the district court.\\nOn January 15, 1988, the court commissioner signed a document entitled \\\"FINDINGS AND REPORT OF COURT COMMISSIONER\\\" which indicated that the court commissioner had conducted the hearing and that his findings were set forth in the proposed form of order submitted to the district court. The order modifying the decree was signed by the district judge and filed on February 17, 1988. The order noted the following changes in circumstances justifying the increase in child support:\\na. The minor child's learning disabilities;\\nb. The minor child's need for counseling;\\nc. The minor child's increased age and the increased needs associated therewith; .\\nd. The minor child's weight problems.\\nOn March 1, 1988, appellant filed a \\\"MOTION FOR NEW TRIAL OR IN THE ALTERNATIVE FOR REVIEW OF FINDINGS OR MODIFICATION OF PROCEEDING,\\\" alleging that the increase in support was excessive, that the modification procedure was in error, and that the proper procedure required the district court to make its independent legal determinations upon the court commissioner's findings of fact. On June 14, 1988, the district court entered an order indicating appellant's motion for a new trial was deemed denied pursuant to W.R.C.P. 59(a) and denying the motion for review and an oral motion for relief from judgment pursuant to W.R.C.P. 60(b)(4). This appeal was then perfected.\\nProvision for court commissioners is found in the Wyoming Constitution. Wyo. Const, art. 5, \\u00a7 14 provides in material part:\\nThe legislature shall provide by law for the appointment by the several district courts of one or more district court commissioners [who] shall have authority to perform such chamber business in the absence of the district judge from the county or upon his written statement filed with the papers, that it is improper for him to act, as may be prescribed by law, to take depositions and perform such other duties, and receive such compensation as shall be prescribed by law.\\n(Emphasis added.) Correspondingly, the legislature has also provided for and addressed the role of court commissioners. See Wyo.Stat. \\u00a7 5-3-301 to -312 (1977). The powers of court commissioners are enumerated in \\u00a7 5-3-307, which provides:\\n(a) Each district court commissioner shall have the powers in respect to every suit or proceeding pending in the district court of the county for which he was appointed, as follows:\\n(i) To make any order which a judge of. the district court is authorized by law to make in chambers, if no judge qualified to hear or act in the proceeding or action is present in the county for which such commissioner was appointed, and to hear and determine cases of mental illness or mental incompetency;\\n(ii) To make any order which a judge of the district court is authorized by law to make in chambers, upon the written statement of such judge, filed with the papers, that he is disqualified in such case;\\n(iii) To administer oaths;\\n(iv) To hear, try and determine all issues whenever an application shall have been made for a change of judge;\\n(v) To take evidence and make findings, and report the same to the district court;\\n(vi) To take depositions;\\n(vii) To punish persons for contempts committed during hearings had before him;\\n(viii) To issue and enforce process for the attendance of witnesses and production of evidence in all lawful hearings before him, in the same manner and with like force as the court might do if in session.\\n(Emphasis added.) Section 5-3-310 states:\\nThe district court shall at each term review all orders made by, and proceedings had before commissioners of such court during vacation, and approve, disapprove, reverse or modify every such order or proceeding.\\nThus, under the Wyoming Constitution, court commissioners may perform \\\"such other duties as shall be prescribed by law.\\\" The legislature has determined that those duties include taking evidence, making findings, and reporting the same to the district court, which in turn is required to review all proceedings had before court commissioners.\\nAppellant contends that the procedures employed in the instant case did not comport with the above constitutional and statutory requirements. We agree.\\nThe hearing before the court commissioner was not transcribed, except for the court commissioner's summary of his findings stated at the conclusion of the hearing. This portion of the hearing was transcribed upon the request of appellant's counsel. No transcript of the evidentiary portion of the hearing was requested or prepared. Review of these transcribed findings reveals that they do not include any recitation of the evidence presented, but rather they are simply composed of a series of conclusions for which no evidentiary basis is mentioned. With respect to the need for an increase in child support, the court commissioner stated, in language adopted almost verbatim in the final modification order, that:\\nI do find that there has been a change of circumstances sufficient to warrant a modification of this decree, those changes of circumstances including but not limited to the learning disabilities, the need for counseling and the additional expenses of the child based upon the increased age and the increased needs of an older child in school, and also some apparent health problems relating to the child's weight.\\nThe court commissioner's findings, as transcribed from the hearing, also contain the conclusions that appellant has the ability to pay and that the child has monthly expenses of approximately $623. In addition, the court commissioner noted that, pursuant to the guidelines established in a government study, appellant's contribution should be approximately $250. At the conclusion of the hearing, the court commissioner requested appellee's counsel to prepare an order. Concerned that the order might not accurately reflect the findings of the court commissioner, appellant's counsel requested the transcription of the findings described above and had them entered into the record. The order of modification, as prepared by appellee's counsel, was submitted to the court commissioner for approval and forwarded to the district court for signature. There is no evidence that the district court conducted any review other than reading the order and signing it.\\nAppellant suggests that this procedure constituted an unconstitutional delegation of judicial authority and that the district court in effect created a \\\"de facto\\\" domestic relations court, an action solely within the province of the legislature. While we are not prepared to go that far in characterization of this procedure, we do perceive that the Wyoming Constitution and applicable statutes contemplate that the district court shall conduct an independent review of the court commissioner's actions beyond that afforded in this case. The court commissioner may take evidence, make findings, and submit a recommendation to the district court. The district court, however, must review the evidence and findings and make its decision upon the basis of that review. Appellee contends, however, that the district court became the actual deci sion maker when it signed the order containing the court commissioner's findings. While that may be essentially true, the cursory review accomplished by simply reading and signing the order is not sufficient, and to sanction such a procedure would elevate form over substance.\\nSection 5-3-307(a)(v) provides that, when the court commissioner takes evidence and makes findings, he is to report the same to the district court. We read that section as requiring the court commissioner to prepare a report of some substance which at least summarizes the evidence presented and indicates the basis upon which he has made his findings of fact. A brief summary of conclusory findings without an indication of their eviden-tiary foundation does not satisfy the statute and does not provide an adequate basis upon which the district court can conduct a meaningful review. We would expect that, in most instances, the district court would require a transcript of the evidentiary hearing. In addition, in order to insure an informed decision, the record should clearly indicate that the district court has independently reviewed the evidence and findings and reached its decision accordingly. This requirement is consistent with the language in \\u00a7 5-3-310 that the district court shall review all \\\"proceedings\\\" had before court commissioners.\\nUnder the procedure utilized in the instant case, the district court accorded unwarranted deference to the court commissioner's determination and expanded the role of the court commissioner beyond that provided for or contemplated by statute and constitution. Thus, the decision cannot stand.\\nIn summary, we hold that, pursuant to Wyo. Const, art. 5, \\u00a7 14 and Wyo.Stat. \\u00a7 5-3-307 (1977), an assignment to a court commissioner to take evidence and make findings in a child support modification proceeding is not improper, but the district court must be apprised of the evidence received and relied upon by the court commissioner in making his findings, and the district court must independently review the evidence and findings in making its decision, with such review being indicated on the record.\\nReversed and remanded for further proceedings consistent with this opinion.\\nURBIGKIT, J., files a specially concurring opinion.\\n. Counsel for both parties, in their briefs, indicate this practice grew out of the federal requirement that, in order to receive federal assistance in enforcing child support obligations of absentee parents, the states are required to have an expedited process for obtaining and enforcing support orders. See 42 U.S.C. \\u00a7 651-666 (1982 & Supp. IV 1986), and particularly \\u00a7 666(a)(2). Apparently, court commissioners are used in Laramie County to quickly resolve support proceedings which could not otherwise be rapidly handled due to docket congestion. The various attachments to the briefs of both parties, although not made part of the record, would seem to support appellant's assertion that the use of court commissioners has expanded in Laramie County to encompass virtually all domestic relations matters other than contested divorces.\\n. It is reasonably clear from the record that, absent the request by counsel for appellant, the step of transcribing the court commissioner's statement of findings would not have been taken, nor deemed necessary.\\n. The judge made a minor change in one paragraph of the order. The order noted that the settlement agreement between the parties purportedly precluded appellee from bringing an action for increased child support. The order referred to this provision as \\\"unconscionable,\\\" which term the judge changed to \\\"unenforceable.\\\"\\n.Wyo. Const, art. 5, \\u00a7 1 provides:\\nThe judicial power of the state shall be vested in the senate, sitting as a court of impeachment, in a supreme court, district courts, and such subordinate courts as the legislature may, by general law, establish and ordain from time to time.\"}"

wyo/10398912.json

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+"{\"id\": \"10398912\", \"name\": \"David Douglas BREWSTER, Appellant (Plaintiff), v. SALVESON CONSTRUCTION, INC., a Wyoming corporation, Appellee (Defendant)\", \"name_abbreviation\": \"Brewster v. Salveson Construction, Inc.\", \"decision_date\": \"1988-12-15\", \"docket_number\": \"No. 88-68\", \"first_page\": \"1350\", \"last_page\": \"1353\", \"citations\": \"765 P.2d 1350\", \"volume\": \"765\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T18:21:30.757480+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.\", \"parties\": \"David Douglas BREWSTER, Appellant (Plaintiff), v. SALVESON CONSTRUCTION, INC., a Wyoming corporation, Appellee (Defendant).\", \"head_matter\": \"David Douglas BREWSTER, Appellant (Plaintiff), v. SALVESON CONSTRUCTION, INC., a Wyoming corporation, Appellee (Defendant).\\nNo. 88-68.\\nSupreme Court of Wyoming.\\nDec. 15, 1988.\\nGeorge Zunker and Ronald E. Triggs of Sullivan & Zunker, Cheyenne, for appellant.\\nRichard P. Boley of Lathrop, Rutledge & Boley, P.C., Cheyenne, for appellee.\\nBefore CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.\", \"word_count\": \"1197\", \"char_count\": \"7591\", \"text\": \"GOLDEN, Justice.\\nThis is an appeal from an order granting summary judgment to the general contractor, Salveson Construction Inc. (Salveson), and against appellant David Douglas Brewster (Brewster), an independent contractor's employee. This case requires us to apply our analysis in Hill v. Pacific Power and Light Company, 765 P.2d 1348 (Wyo.1988). As a result, we affirm the summary judgment.\\nOur standard of review of an order granting summary judgment appears in Johnston v. Conoco, Inc., 758 P.2d 566, 568 (Wyo.1988). We apply that standard here.\\nThe State of Wyoming, by the Board of Charities and Reform, contracted with Salveson to move dirt for site preparation and to lay underground plumbing in relation to the construction of the Wyoming Women's Center (Center) in Lusk, Wyoming. In turn, Salveson subcontracted with Empire Mobile Plumbing, Inc. (Empire) to perform the plumbing work, and more specifically, to construct water and sewer lines to and from the Center site. Empire employed Brewster as a backhoe operator and laborer.\\nOn or before October 26, 1982, Salveson had completed its site grading operation on the job site and removed its personnel and equipment from the job site. Salveson's site preparation work, including all fill, compaction and grading, had been completed and was in the condition as finally accepted by the project's engineers as of October 26, 1982.\\nOn October 27, 1982, a water line previously laid by Empire developed a leak. Only Empire employees were at this water line leak site on this day. At 8:00 a.m., Empire's backhoe operator, Don Watson, opened a trench in which the leaking water line lay. Watson was responsible for the manner in which the trench was opened. Also operating a backhoe on this day was Brewster, who had been assigned that work activity by Empire's president, John Barry. Brewster's co-employee, Marty Wayne Moody, began working in the trench around 9:00 a.m.; the trench contained about one and one-half feet of standing water. The trench conformed to other trenches previously dug by Empire, and the walls were not shored and not graded to an angle of repose.\\nAccording to Brewster, his personal habit was to grade trench walls to an angle of repose. During the time Brewster and Moody worked for Empire, no materials were ever available to shore a trench or other excavation.\\nAfter Brewster's co-employee Watson opened the trench, and at a time when the trench was in essentially the same condition as when it collapsed causing Brewster's injury, Empire's Barry arrived at the site and twice inspected the excavation. Barry at no time requested that shoring materials be used or that the trench site be graded to an angle of repose. Shortly after Barry's inspection, Moody asked backhoe operator Watson to increase the grade on the walls as several portions of the trench had previously fallen. Watson dug away a portion of the right side of the excavation, but not the full length, of the trench. Watson did not grade the trench to an angle of repose; rather, he simply cut away a portion of it to permit additional working room and to try preventing the wall's collapse.\\nAround 3:45 p.m. that day, Empire's crew supervisor, Loren Malone, ordered Brewster to bail water from the trench, which still stood at one and one-half feet. Malone, acting under authority given by Empire's Barry, was in charge of the site and the excavation at all times that day. Brewster said he was in the trench bailing water for only a few minutes when the trench collapsed, causing his injury.\\nAccording to Empire's Barry, Salveson's expertise was not in the plumbing area; Empire was hired as a plumbing contractor or utility contractor because that was its area of expertise. Under the written subcontract agreement between Salveson and Empire, Empire was -to:\\n1. furnish all material and perform all work necessary to complete the work in accordance with the general conditions, special conditions, plans and specifications and contract documents between Salveson and the state;\\n2. comply with all applicable state and federal statutes as well as applicable rules and regulations of state and federal regulatory bodies, including federal OSHA;\\n3. indemnify Salveson from liability for injuries, to persons on account of any act or omission of Empire or Empire's employees;\\n4. hold Salveson harmless from all material, labor, and appliance liens and claims asserted by persons furnishing material or labor in connection with the subcontract;\\n5. employ satisfactory workers who were to work in harmony with Salveson's workers and remove any workers immediately who were not satisfactory to Salveson; and\\n6. furnish all tools, equipment, scaffolding, etc., connected with its work.\\nAccording to Brewster, Empire was supposed to have safety meetings every Monday morning before the work started. Only two meetings were held, at which only general safety subjects were discussed. At one meeting the employees discussed the buddy system in trenching. After Empire discontinued its safety meetings, Empire's foremen told the employees to sign a mimeograph form to signify attendance at a safety meeting that was never held. According to Empire's Barry, Empire's safety meetings were conducted for the people working in the most hazardous areas, which were the ditches. In Barry's deposition testimony he stated Empire's subcontract agreement with Salveson probably required Empire to conduct safety meetings. He testified that no one from Salveson attended or taught Empire's safety meetings. Further, Barry stated Salve-son had no role in Empire's safety program and never issued safety orders to Empire's employees. Barry agreed that Salveson's contract with Empire was limited to making sure Empire complied with the plans and specifications of the contract. Barry also stated that Salveson never asked Empire to dig up pipe and lay it again. In reply to one of several hypothetical questions asked by Brewster's counsel concerning whether Salveson would tell Empire's trench workers to stop digging an unsafe excavation if he saw them doing it, Barry answered, \\\"He would probably come and tell me and then I would go. I don't think Gary Salveson would go and tell anybody else's employees you stop doing that. You generally go to the supervisor or whoever if you're concerned with something.\\\"\\nAs the statement of facts shows, Salve-son, as movant for summary judgment, presented evidence through deposition testimony, affidavit testimony, and the Salve-son-Empire subcontract agreement establishing that no genuine issue of material fact existed concerning Empire's being an independent contractor and Salveson's: 1) not retaining the right to control Empire's work in repairing the leaking water line which flooded the trench that collapsed on Brewster; and 2) not assuming affirmative duties for the safety of Empire's repair work on the water line in that trench.\\nBecause of Salveson's evidentiary presentation, the burden then shifted to Brewster to present facts refuting Salveson's showing. Brewster failed to carry that burden. Salveson's unrefuted evidentiary showing fits within the rule followed in Hill\\nAFFIRMED.\"}"

wyo/10406682.json

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+"{\"id\": \"10406682\", \"name\": \"Jim JOHNSTON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff)\", \"name_abbreviation\": \"Johnston v. State\", \"decision_date\": \"1987-12-29\", \"docket_number\": \"No. 87-58\", \"first_page\": \"1132\", \"last_page\": \"1137\", \"citations\": \"747 P.2d 1132\", \"volume\": \"747\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T18:50:40.035891+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before THOMAS, CARDINE, URBIGKIT, and MACY, JJ, and HANSCUM, DJ.\", \"parties\": \"Jim JOHNSTON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"Jim JOHNSTON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\\nNo. 87-58.\\nSupreme Court of Wyoming.\\nDec. 29, 1987.\\nWyoming Public Defender Program: Leonard D. Munker, State Public Defender, Cheyenne; Wyoming Defender Aid Program: Gerald M. Gallivan, Director, and Dawn L. Howell, Student Intern, Laramie, for appellant.\\nJoseph B. Meyer, Atty. Gen.; John W. Renneisen, Deputy Atty. Gen.; Terry L. Armitage, Asst. Atty. Gen., Cheyenne, for appellee.\\nBefore THOMAS, CARDINE, URBIGKIT, and MACY, JJ, and HANSCUM, DJ.\", \"word_count\": \"2880\", \"char_count\": \"17557\", \"text\": \"HANSCUM, District Judge.\\nThis is an appeal from a conviction for aggravated assault and battery in violation of \\u00a7 6 \\u2014 2\\u2014502(a)(iii), W.S.1977 (Cum.Supp. 1986), brought under a claim of plain error under Rule 49(b), Wyoming Rules of Criminal Procedure. Appellant contends that the trial court committed plain error by giving two supplemental instructions further defining the term \\\"threat\\\" as an ingredient of the essential elements of the charged offense. The trial court gave the additional instructions in response to specific questions raised by the jury during deliberations.\\nAppellant's knife-wielding was the apparent focus of the jury's attention during various stages of deliberations when two questions pertaining to the implications of the term \\\"threat\\\" were posed:\\nQuestion One: \\\"Does the presence of weapon in hand constitute a threat to use it?\\\"\\nIn response and without objection, the trial court further instructed:\\n\\\"Whether there was a threat is a question of fact to be decided by the jury based upon all the circumstances of the case.\\\"\\nQuestion Two: \\\"Is threaten to use a weapon the same as threatened with a weapon?\\\"\\nAgain, the trial court responded without objection by further instructing:\\n\\\"A threat is an expression of an intention to inflict pain, injury, or punishment. It may be expressed by words or acts, or a combination of words and acts. Considering all of the circumstances of the case you must decide whether the defendant's words and acts amounted to an express or implied statement of his intention to use a drawn deadly weapon to inflict pain, injury, or punishment.\\\"\\nAffirming the conviction, we conclude that any defect in the judge's first instruction was cured in the giving of the second instruction; thus, no plain error is established and the evidence is sufficient to uphold the verdict.\\nFACTS\\nOn the evening of June 5, 1986, nineteen-year-old Darren McDaneld arrived at Le-Roy's Body Shop to talk to his uncle Jerry West. A conversation ensued between uncle and nephew about allegations by Uncle Jerry that Darren had taken a knife from him and that Darren was involved in selling knives to younger kids. Overhearing the conversation, LeRoy Hibbs, owner of the body shop, joined the discussion which by this time had become a heated argument. At some point in time, Darren produced a \\\"butterfly\\\" knife. He testified that the blade was not extended. LeRoy Hibbs testified that the blade extension mechanism had been activated as Darren produced the knife from his back pocket, at which time Hibbs knocked the knife out of Darren's hands and launched a fist attack against Darren's head and face.\\nThen appellant, Jim Johnston, who was observing the fray retrieved the knife, approached McDaneld and brandished the knife in the area of Darren's face and neck. Darren testified that Johnston nicked him in the throat with the knife and previously had threatened him with two sickle knives. Appellant denied that he nicked McDa-neld's throat or that he previously had employed any other knives. Appellant contends that the only conceivable threatening conduct towards McDaneld was in the form of a question: \\\"You like to play with knives?\\\"\\nThe jury, weighing the conflicting testimony, apparently believed McDaneld's version of the course of the events and returned a guilty verdict on the charge of aggravated assault and battery.\\nLAW OF PLAIN ERROR\\nSince no objections were made to the supplemental instructions given by the trial court in response to the jury's questions during deliberations, this case must be de cided under the plain error doctrine. Rule 49, W.R.Cr.P. We frequently have had the occasion to consider the plain error doctrine which requires the application of a three-part test:\\n\\\" First, the record must be clear as to the incident which is alleged as error. Second, the party claiming that the error amounted to plain error must demonstrate that a clear and unequivocal rule of law was violated. Finally, that party must prove that a substantial right has been denied him and as a result he has been materially prejudiced. \\\" ' Auclair v. State, Wyo., 660 P.2d 1156, 1159 (1988), cert. denied 464 U.S. 909, 104 S.Ct. 265, 78 L.Ed.2d 249 (quoting Bradley v. State, Wyo., 635 P.2d 1161, 1164 (1981)). See Browder v. State, Wyo., 639 P.2d 889 (1982).\\\" Larsen v. State, Wyo., 686 P.2d 583, 584 (1984).\\nHere, the focus of the inquiry involves the jury's questions and the trial court's reaction to the inquiries, and the record is clear as to that dialogue. The second prong of the test also is met in this case. The answer to the first jury question constituted a violation of a clear rule of law; however, the corrective action taken by the trial court in its answer to the second question cured any denial of a substantial right, and no prejudice resulted. Accordingly, appellant cannot succeed under the \\\"plain error\\\" doctrine.\\nAppellant argues that the answer to question one, \\\"Does the presence of weapon in hand constitute a threat to use it?\\\" should have been \\\"no.\\\" Appellant argues further that the trial court's response, in effect, informed the jury that they could find a constructive threat, and that the instruction eviscerated the plain language of the charged statute which states that \\\"threatens to use\\\" is an element of the offense. Quite correctly, appellant observes that this court has not had the occasion to construe the words \\\"threatens to use\\\" in \\u00a7 6 \\u2014 2\\u2014502(a)(iii). We will take that opportunity in this appeal.\\nIn contending that threatens to use \\\"requires an actual threat not a constructive threat,\\\" appellant cites several cases and authorities:\\n\\\"In State v. Hentz, 663 P.2d 476 (Wash.1983), the Washington Supreme Court construed the words 'threatens to use' by giving it a plain and ordinary meaning. Hentz at 477. The Court reasoned that '[pjointing a gun at someone is clearly \\\"use\\\" of that weapon, whereas \\\"threat\\\" is defined as the expression of an intern tion to inflict injury.' Hentz at 478.\\n\\\"In United States v. Baish, 460 A.2d 38 (D.C.App.1983), the D.C. Appeals Court construed the word \\\"threatens.\\\" It stated 'that a person \\\"threatens\\\" when she utters words, which are intended to convey her desire to inflict physical or other harm on any person or on property and these words are communicated to someone.' Baish at 42. See also, State v. Keller, 199 S.E. 620 (N.C.1938).\\n\\\"In WEBSTER'S COLLEGIATE DICTIONARY 1228 (9th ed. 1984), threaten is defined as 'to utter threats against or to give signs of warning of.' Use is defined as the 'act or practice of employing something.' WEBSTER'S at 1299. In BLACK'S LAW DICTIONARY 1327 (5th ed. 1979), threat is defined as a 'communicated intent to inflict physical or other harm on any person or on property.' Use is defined as an '[a]ct of employing everything, or state of being employed; ' BLACK'S at 1382.\\\"\\nWe find appellant's authority on actual threat to be persuasive. We agree and we hold that the phrase \\\"threatens to use\\\" in \\u00a7 6 \\u2014 2\\u2014502(a)(iii), W.S.1977 (Cum. Supp.1986), requires proof of an actual threat of physical injury during the act of employing a deadly weapon. It was error for the trial judge to insinuate in his answer to the question that factual circumstances would govern in determining if the (mere) presence of a weapon in hand could constitute a threat to use. It cannot. Proof of a required ingredient of an element of a criminal offense to be proved beyond a reasonable doubt cannot be aided by such an inference, presumption or insinuation of the kind contained in the trial court's reply.\\nReversal of the conviction, however on the basis of this error is indicated only ii all three prongs of the Larsen test are met. The trial court's answer to the second question removed all possibility of taint anc prejudice possibly occasioned in the answei to the first question. Accordingly, when reading all the instructions together, as required by Cullin v. State, Wyo., 565 P.2d 445 (1971) and Horn v. State, Wyo., 554 P.2d 1141 (1976), the jury adequately and properly was informed of the essential law of the case.\\nWere it not for the saving effect of the trial judge's second instruction, this court might well find the necessary prejudice to reverse appellant's conviction. Drawing upon the axiom that words in statutes are to be given their plain and ordinary meaning, Keller v. State, Wyo., 723 P.2d 1244, 1246 (1986), the trial judge instructed the jury in the form of a dictionary definition of the term \\\"threat\\\" directly in response to the second jury entreaty to do so. After lengthy colloquy between the trial court and counsel grappling with the proper way to handle the jury's inquiry, the trial court without objection answered:\\n\\\"A threat is an expression of an intention to inflict pain, injury, or punishment. It may be expressed by words or acts, or a combination of words and acts. Considering all of the circumstances of the case, you must decide whether the defendant's words and acts amounted to an express or implied statement of his intention to use a drawn deadly weapon to inflict pain, injury, or punishment.\\\"\\nWe hold that this definition of \\\"threat\\\" is a proper statement of the law of aggravated assault and battery in the State of Wyoming. We also find, as a corollary ruling, that this second instruction mitigates any error or prejudice occasioned by the giving of the first instruction.\\nFurthermore, we have said that \\\" for an error to be regarded as harmful ' there must be a reasonable possibility that in the absence of the error the verdict might have been more favorable to the defendant.' \\\" Nimmo v. State, Wyo., 603 P.2d 386, 395 (1979). Concededly, whether prejudice resulted and whether the verdict would have been different are extremely difficult matters of proof \\u2014 for we cannot divine the course of discussions during jury deliberations. Yet, in this case, we have some remarkable insights into the jury's thought processes in the context of the the issues surrounding the implications of the \\\"threat\\\" ingredient. Their very questions reveal a great deal about their struggle over the meaning of the term \\\"threat\\\" as it applied to this particular fact situation.\\nFrom this window into the minds of the jurors, it is clear that whatever efficacy or prejudice occasioned by the trial judge's answer to their first question, the struggle over the threat issue resurfaced in the second question. Apparently, not satisfied that the first answer resolved their dilemma, the jury again focused on the threat issue. As if \\\"objecting\\\" themselves to the trial court's attempt to resolve the issue in the answer to the first question, the jury returned to the subject, essentially advising the court that the first answer was insufficient and entreatied more assistance in dealing with the thorny threat issue. It appears the jury was saying, \\\"(but judge,) Is threaten to use a weapon the same as threatened with a weapon?\\\" At this point, the judge answered the question directly and as we have held, correctly. The guilty verdict ensued. Any prejudice resultant from the first dialogue was removed by the proper and thorough instruction on the identical focus of inquiry in the second dialogue. The prophylactic effect of the second instruction discounts any reasonable possibility that the jury reached a guilty verdict on account of the first erroneous instruction. As a result, no prejudice resulted from the giving of the first instruction. Upon the jury's request embodied in the second question, the trial court effectively corrected itself. Accordingly, appellant has failed to show plain error.\\nSUFFICIENCY OF THE EVIDENCE\\nFinally, appellant raises a sufficiency of the evidence question on the issue of intent to inflict pain, injury or punishment under the particular facts of this case. The second instruction defining \\\"threat\\\" requires that there be sufficient evidence on this issue. Not only, as we have held, is the definition of threat correct, but it also becomes the law of the case, Hopkinson v. State, Wyo., 632 P.2d 79, 170 n. 43 (1981), against which the sufficiency of the evidence must be tested under standards articulated in Abeyta v. State, Wyo., 705 P.2d 330 (1985).\\nIn Dangel v. State, Wyo., 724 P.2d 1145, 1148 (1986), recently approved in Capshaw v. State, Wyo., 737 P.2d 740, 744 (1987), this court articulated the standard of review when the sufficiency of the evidence is raised in a criminal case.\\n\\u00ab< \\\"[Tjhjg court is to examine all the evidence in the light most favorable to the state to determine if there is sufficient evidence to uphold the verdict. Broom v. State, Wyo., 695 P.2d [640] 646 (1985).\\\" Aden v. State, Wyo., 717 P.2d 326 (1986).' \\\"\\nIn Broom v. State, Wyo., 695 P.2d 640, 642 (1985), we said:\\n\\\" We have consistently held that even though it is possible to draw other inferences from the evidence presented, it is the responsibility of the jury to resolve conflicts in the evidence. [Citations.] The factfinder \\u2014 in this case, a jury \\u2014 did that. \\\"\\nRuling on the motion for judgment of acquittal premised on the conflicting evidence in this case, the trial judge properly denying the motion, announced its adherence to this axiomatic rule by stating: \\\"If the jury believes the boy's version of the events, the state has made its case. If they believe Mr. Johnston's, I'm sure they'll acquit him. That's what juries are for.\\\"\\nSpecifically, appellant here challenges the sufficiency of the evidence on the element of threat as requiring intent to inflict pain, injury or punishment. In this case the evidence is conflicting. Darren McDa-neld, the victim, testified that appellant initially threatened him with two sickle-shaped knives, holding them against his throat, waving them within a couple of inches of his face and asking him, \\\"Do you like to play with knives?\\\" Then LeRoy Hibbs resumed his fist attack against McDaneld, allowing appellant to retrieve the victim's knife from the back of the pick-up and returned with the knife \\\"working it in his hands,\\\" opening and closing the butterfly knife and holding it against McDaneld's throat. McDaneld further testified that he suffered a nick on his throat during the incident. Deputy Sheriff Wend-leboe observed the nick on McDaneld's throat during his investigation. Jeannie Renard, the victim's mother, testified that she arrived at the scene and observed appellant holding the knife \\\"really close to Darren's face.\\\" Mrs. Renard observed the nick on her son's throat and blood on the neck where he had been cut. Asked if Darren was acting in an aggressive way, his mother responded, \\\"He acted scared he was just scared.\\\" Even LeRoy Hibbs testified that he felt threatened by having a knife pointed at him earlier in the affray.\\nAppellant and LeRoy Hibbs testified that McDaneld previously had brandished the butterfly knife during the argument over ownership of knives. They testified that McDaneld flipped open the knife and pointed it at them. McDaneld's testimony is in direct contradiction. Appellant denied holding two sickle knives to McDaneld's throat or ever nicking him. Appellant testified that he always held the knife, which he admittedly retrieved from the truck \\\"by the blade,\\\" insinuating that his waving of the knife in any manner was devoted to the purpose of dissuading McDaneld from playing with knives. Again, McDaneld testified to the contrary.\\nTo illustrate the scene portrayed to the jury, the evidence viewed in a light most favorable to the state showed: Appellant was a forty-three-year old, 6'3\\\" man, weighing 245 pounds, towering over McDa-neld, a nineteen-year-old, 5'11\\\" boy, weighing 155 pounds; \\\"working,\\\" i.e., opening and closing, the butterfly knife as he approached within inches of the boy's throat; nicking the boy; only to be interrupted in the further employment of the knife by the advent of McDaneld's mother onto the scene.\\nUnder these circumstances, not only could the jury properly have inferred a threatening employment of the drawn knife as an expression of an intention to inflict pain and injury, but also as an accomplishment of that expression as manifested by the nicked and bloodied throat. These were reasonable inferences that the jury was entitled to draw from the evidence before it. Again, it is not this court's function to re-weigh the evidence or re-examine the believability of the witnesses, but only to declare sufficiency or lack of sufficiency of the evidence. In this case we declare sufficiency.\\nAffirmed.\\n. Section 6 \\u2014 2\\u2014502(a)(iii), W.S.1977 (Cum.Supp. 1986), provides:\\n\\\"(a) A person is guilty of aggravated assault and battery if he:\\n*\\n\\\"(iii) Threatens to use a drawn deadly weapon on another unless reasonably necessary in defense of his person, property or abode or to prevent serious bodily injury to another.\\\"\\n. Rule 49(b), W.R.Cr.P., provides:\\n\\\"Plain error or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.\\\"\"}"

wyo/10411372.json

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+"{\"id\": \"10411372\", \"name\": \"Robert DUDLEY, Appellant (Third-Party Defendant), v. EAST RIDGE DEVELOPMENT COMPANY, a Utah limited partnership, and Price Development Company, a Utah corporation, Appellees (Defendants and Third-Party Plaintiffs)\", \"name_abbreviation\": \"Dudley v. East Ridge Development Co.\", \"decision_date\": \"1985-01-25\", \"docket_number\": \"No. 84-89\", \"first_page\": \"113\", \"last_page\": \"117\", \"citations\": \"694 P.2d 113\", \"volume\": \"694\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T02:09:41.681417+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before THOMAS, C.J., and ROONEY, ROSE, BROWN and CARDINE, JJ.\", \"parties\": \"Robert DUDLEY, Appellant (Third-Party Defendant), v. EAST RIDGE DEVELOPMENT COMPANY, a Utah limited partnership, and Price Development Company, a Utah corporation, Appellees (Defendants and Third-Party Plaintiffs).\", \"head_matter\": \"Robert DUDLEY, Appellant (Third-Party Defendant), v. EAST RIDGE DEVELOPMENT COMPANY, a Utah limited partnership, and Price Development Company, a Utah corporation, Appellees (Defendants and Third-Party Plaintiffs).\\nNo. 84-89.\\nSupreme Court of Wyoming.\\nJan. 25, 1985.\\nLes Bowron, Casper, for appellant.\\nMark W. Gifford of Brown, Drew, Apos-t\\u00f3los, Massey & Sullivan, Casper, for appel-lees.\\nBefore THOMAS, C.J., and ROONEY, ROSE, BROWN and CARDINE, JJ.\", \"word_count\": \"2198\", \"char_count\": \"13383\", \"text\": \"BROWN, Justice.\\nThe trial court granted summary judgment in favor of Eastridge Development Company and Price Development Company. Robert Dudley appeals that order and raises the following issues:\\n1. \\\"Whether the district court erred in not allowing plaintiff's witnesses Pope and Woodworth to testify orally at the summary judgment proceeding.\\n2. \\\"Whether the district court erred in concluding that there was no genuine issue of material fact.\\\"\\nWe will affirm.\\nThe action was initially brought by Lower and Company, Inc., a construction firm, against Lowrey Organ and Piano Center, Inc., Price Development Company, East Ridge Development Company, and others to foreclose Lower and Company's materi-almen's liens for work performed on the Lowrey Organ store at the Eastridge Mall in Casper. Appellees Price Development Company and East Ridge Development Company subsequently filed a third-party action against appellant Dudley, manager of Lowrey Organ and Piano Center, Inc., as personal guarantor of the lease between Lowrey Organ and Piano Center, Inc. and appellees. The foreclosure action was settled and the trial court dismissed that portion of the action. Appellees subsequently filed a motion for summary judgment on the third party action against appellant based on his personal guarantee of the obligations of the Lowrey Organ and Piano Center, Inc. The trial court granted summary judgment in favor of the appellees and this appeal ensued.\\nI\\nAppellant subpoenaed two witnesses to give oral testimony at the summary judgment hearing. The trial court quashed the subpoenas and did not permit the witnesses to testify.\\nRule 56, Wyoming Rules of Civil Procedure, does not expressly permit nor does it prohibit oral testimony at a summary judgment hearing. Rule 43(e), W.R.C.P., generally allows oral testimony at motion hearings.\\nWe have not had occasion to address the question of oral testimony at a summary judgment hearing. Appellant refers us to authority to the effect that allowing oral testimony is a discretionary matter with the court.\\n\\\"Rule 43(e), which authorizes the use of oral testimony on motions, has been held to be applicable to motions for summary judgment, even though Rule 56 is silent on the point. In spite of its obvious advantages, the court should use oral testimony on a summary judgment motion sparingly and with great care. The purpose of summary judgment \\u2014 providing a speedy adjudication in cases that present no genuine issue of material fact \\u2014 would be compromised if the hearing permitted by Rule 43(e) and Rule 56(c) became a preliminary trial. \\\" Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d \\u00a7 2723, pp. 61-62 (1983).\\n\\\" Our Rules are patterned after the Federal Rules and federal courts have ruled that oral testimony may be considered upon motions for summary judgment.\\\" Daniels v. Paddock, 145 Mont. 207, 399 P.2d 740, 743 (1965).\\nIn Summers v. American Reliable Insurance Company, 85 N.M. 224, 511 P.2d 550, 552 (1973), the Supreme Court of New Mexico addressed the problem of oral testimony at summary judgment hearings:\\n\\\"The authorities seem to be of two views as to whether oral testimony is proper in summary judgment proceedings. Rule 56 does not, in terms, authorize it, but does not prohibit it. But a pleading seeking summary judgment is, after all, a motion, and Rule 43(e) [citation] permits the court to hear oral testimony at a hearing on a motion. Permitting oral testimony might take the opposing party by surprise. On the other hand, the court would have the benefit of hearing cross examination and observing the witness which has certain advantages over affidavits and depositions. [Citations.] A decision on the propriety of using oral testimony in summary judgment proceedings is unnecessary here, and having confidence in the discretion of our trial courts, we decline to adopt any hard and fast rule. \\u215c \\\"\\nIn the case before us there is no indication in the record that appellant made an offer of proof at the summary judgment hearing regarding the proposed testimony of the two witnesses. We said in Valentine v. Ormsbee Exploration Corporation, Wyo., 665 P.2d 452, 460 (1983):\\n\\\"This court has long followed the rule that the party who seeks to elicit the evidence must make an offer of proof showing what that party expected to prove, failing in which he may not assert the exclusion as error. [Citations.]\\\"\\nWe hold that the trial court did not abuse its discretion in refusing to allow appellant to produce oral testimony at the summary judgment hearing.\\nII\\nIn opposition to appellees' motion for a summary judgment, appellant filed an instrument captioned, \\\"Motion in Opposition,\\\" to which was attached \\\"Joint Affidavits of Robert 0. Dudley and Diane L. Dudley.\\\" This attachment appears to be notarized diary entries. This document is a chronology of the contacts between appellant and appellees, and records thoughts, feelings and how affiants viewed the legal implications of what had been said and done. Most of the entries in the diary are irrelevant and hearsay, and very little, if any, would be admissible evidence.\\nThe scope of appellate review of a summary judgment is to examine the judgment \\\" in the same light as the district court, using the same material and information as did the district court. \\\" Lane Company v. Busch Development, Inc., Wyo., 662 P.2d 419, 421 (1983). The moving party has the burden of showing the nonexistence of a genuine issue of material fact. Miller v. Reiman-Wuerth Company, Wyo., 598 P.2d 20 (1979). A material fact has been defined as one which, if proved, would have the effect of establishing or refuting one of the essential elements of the cause of action or defense asserted by the parties. Shrum v. Zeltwanger, Wyo., 559 P.2d 1384 (1977). We look at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences which may be drawn from the facts. Bancroft v. Jagusch, Wyo., 611 P.2d 819 (1980).\\nApplying those principles to this case, we find the trial court was correct in finding there was no genuine issue of material fact. As stated earlier, the basis of the summary judgment was appellant's personal guarantee of the lease between appellees and Lowrey Organ and Piano Center, Inc. The trial court in its decision letter stated:\\n\\\" The Court finds that there is no genuine dispute as to any material fact and that the moving parties are entitled to judgment as a matter of law. Third party defendant [appellant] does not question the allegations in the affidavit by the moving parties. However, a defense is made on the ground that a construction allowance was not paid to third party defendant. However, the contract provides that the payment is not due while the tenant is in default under the lease. From the uncontradicted allegations in the affidavit, the tenant was in default before the allowance was due.\\\"\\nIndeed, the affidavit filed in support of appellees' motion for summary judgment alleged that appellant had breached his personal guarantee of the obligations assumed by Lowrey Organ and Piano Center, Inc., and he was, therefore, liable for the construction costs and other expenses resulting from Lowrey's default of the lease. As the trial court found, these allegations were not denied by appellant in his motion in opposition to summary judgment.\\nRule 56(e), W.R.C.P., governing affidavits and other testimony in support or opposition to summary judgments states:\\n\\\"(e) Form of affidavits; further testimony; defense required. \\u2014 Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the af-fiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond summary judgment, if appropriate, shall be entered against him.\\\"\\nAppellant stresses that the trial court ruled without the benefit of the testimony of two people who were subpoenaed but not deposed. However, as we noted earlier, there was no offer of proof as to what the two witnesses would have testified to. It was not until after the trial court granted the summary judgment that counsel for appellant filed a motion for rehearing and reconsideration, and attached thereto an affidavit stating what the two witnesses' testimony would be. However, the trial court did not have this information when the summary judgment was granted. Since we look at the evidence in the same light as the district court, we must also find there is no genuine issue of any material fact.\\nRule 56(f), W.R.C.P., states:\\n\\\"(f) When affidavits are unavailable. \\u2014Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.\\\"\\nTherefore, appellant could have presented reasons to the court below why such testimony could not be presented, but this was not done until after the trial court ruled on the motion for summary judgment. Appellant could also have filed a motion under Rule 6(b), W.R.C.P., requesting more time in which to file his affidavits. This also was not done. We addressed this issue in Harris v. Grizzle, Wyo., 625 P.2d 747, 750 (1981):\\n\\\"If opposing affidavits cannot be filed, the party opposing the motion for a summary judgment may file an affidavit pursuant to Rule 56(f), W.R.C.P., setting forth the reasons why he cannot file an opposing affidavit. The party opposing a motion for a summary judgment may also or in the alternative file a motion pursuant to Rule 6(b), W.R.C.P., requesting enlargement of the time in which to file the affidavits. A motion requesting enlargement provided for in Rule 6(b) must be filed before the expiration of the time originally prescribed (or extended by previous order). Appellant did not avail himself of the relief provided for in Rule 56(f) nor in Rule 6(b), W.R.C.P.\\\"\\nWhen a party moving for summary judgment supports such motion with affidavits pursuant to Rule 56(e), W.R.C.P., and supplements the affidavits as provided in that rule, it is clear the other party may not rest upon mere allegations or denials in his pleadings to show the existence of a genuine issue of material fact. He must come forward with affidavits or other proof to create a genuine issue for the court. Schepps v. Howe, Wyo., 665 P.2d 504 (1983); and Hyatt v. Big Horn School District No. 4, Wyo., 636 P.2d 525 (1981). We hold that appellant did not come forth with affidavits or other proofs to adequately prove the existence of a genuine issue of material fact. No ambiguity was found in appellant's personal guarantee of the lease and we have held summary judgment may be appropriate in cases where a contract is involved if the language of the contract is plain and unequivocal. Kuehne v. Samedan Oil Corporation, Wyo., 626 P.2d 1035 (1981); and Wyoming Machinery Company v. United States Fidelity and Guaranty Company, Wyo., 614 P.2d 716 (1980). Appellant raised the defense that the construction allowance promised by appellees was never paid, but the clear language of the lease provided that such allowance need only be paid if Lowrey as tenant was not in default of the lease and if no mechanics' or materialmen's liens were filed. The construction allowance was to be paid after construction was completed. However, the trial court found that appellant had personally guaranteed the lease and obligations of Lowrey Organ and Piano Center, Inc., and that appellant's defense of appellees' refusal to pay the construction allowance must fail since the allowance did not have to be paid if Lowrey was in default of the lease, which it was.\\nWe find no error in the decision of the trial court to grant summary judgment in favor of the appellees. The decision of the district court is affirmed.\\n. Rule 43(e), W.R.C.P.:\\n\\\"Evidence on motions. \\u2014 When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.\\\"\"}"

wyo/10431476.json

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+"{\"id\": \"10431476\", \"name\": \"W. J. MURPHY, Appellant (Plaintiff), v. Eugene STEVENS, Appellee (Defendant); Eugene STEVENS, Appellant (Defendant), v. W. J. MURPHY, Appellee (Plaintiff)\", \"name_abbreviation\": \"Murphy v. Stevens\", \"decision_date\": \"1982-04-23\", \"docket_number\": \"Nos. 5565, 5566\", \"first_page\": \"82\", \"last_page\": \"98\", \"citations\": \"645 P.2d 82\", \"volume\": \"645\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T22:34:08.537990+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.\", \"parties\": \"W. J. MURPHY, Appellant (Plaintiff), v. Eugene STEVENS, Appellee (Defendant). Eugene STEVENS, Appellant (Defendant), v. W. J. MURPHY, Appellee (Plaintiff).\", \"head_matter\": \"W. J. MURPHY, Appellant (Plaintiff), v. Eugene STEVENS, Appellee (Defendant). Eugene STEVENS, Appellant (Defendant), v. W. J. MURPHY, Appellee (Plaintiff).\\nNos. 5565, 5566.\\nSupreme Court of Wyoming.\\nApril 23, 1982.\\nRehearing Denied June 1, 1982.\\nJohn Burk, Casper, for W. J. Murphy.\\nWilliam T. Schwartz and Cameron S. Walker of Schwartz, Bon, McCrary & Walker, Casper, for Eugene Stevens.\\nBefore ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.\", \"word_count\": \"7581\", \"char_count\": \"45676\", \"text\": \"BROWN, Justice.\\nThis case arose out of an action by W. J. Murphy (Murphy) against Eugene Stevens (Stevens) for a determination that a partnership existed and that an accounting should be had. The trial court ruled that:\\n1. Murphy, Stevens, and Ralph Schauss (Schauss) were engaged in a partnership and that all properties in contention were partnership properties;\\n2. Proceeds from the McCoy Mountain project had already been distributed to the partners and need not be included in the accounting;\\n3. Stevens' motion for a new trial based on newly discovered evidence be denied;\\n4. Proceeds from the Penbar Mine project had already been distributed to the partners and need not be included in the accounting;\\n5. Murphy was estopped by laches from asserting an interest in coal permits, even though they were determined to be partnership assets; and\\n6. Murphy had also waived his right to assert any rights in the coal permits.\\nSchauss settled with Murphy and was, therefore, not a part of the suit for accounting. Stevens appeals from the first four rulings set out above. We affirm (1) that a partnership existed; (2) that proceeds from the McCoy Mountain project had already been distributed to the partners; and (3) that Stevens' motion for a new trial was properly denied. We will reverse the determination (4) that proceeds from the Penbar Mine project had already been distributed to the partners. Murphy appeals from the findings set out in (5) and (6) above that laches and waiver apply. We will reverse these findings.\\nI\\nStevens contests the finding that a partnership existed. He specifically contests the finding that the Zig and Poe uranium claims were partnership property, and that the Mexican copper project was partnership property. At oral argument, Stevens' counsel also indicated that Stevens was appealing from the finding that the coal permits were partnership assets.\\nThere is no automatic solution to the question of the existence of a partnership. P & M Cattle Company v. Holler, Wyo., 559 P.2d 1019 (1977). Section 17-13-201, W.S.1977, defines a partnership as an association of two or more persons to carry on as co-owners a business for profit. Section 17-13-202(a)(iv), W.S.1977, says that the receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business. The prima facie evidence can be rebutted by a showing that there was no intent to create a partnership, since intent of the parties is controlling. P & M Cattle Company v. Holler, supra. That intent, however, is the intent to do the things which determine whether a partnership relation exists. Nelson v. Seaboard Surety Company, 269 F.2d 882 (8th Cir. 1959). Persons who intend to do the things that constitute a partnership are partners whether their expressed purpose was to create or avoid the relationship. Taylor v. Lewis, Tex.Civ.App., 553 S.W.2d 153 (1977); and Wyatt v. Brown, 39 Tenn.App. 28, 281 S.W.2d 64 (1955).\\nOn conflicting evidence, the question of whether a partnership exists is one for the trier of fact. Pacific General Contractors v. Slate Const. Co., 196 Or. 608, 251 P.2d 454 (1952). A specific factual finding will not be disturbed unless the finding is clearly erroneous or against the great weight of the evidence. Shores v. Lindsey, Wyo., 591 P.2d 895 (1979).\\nIn 1967, the parties orally agreed to enter into a business relationship. Murphy contended that the arrangement was a partnership; Stevens contended that the arrangement was for a joint venture, to be followed by other joint ventures if the arrangement worked out satisfactorily.\\nMurphy testified that they agreed to join each other in mineral exploration and development. Any consideration they received would be split equally three ways. They were also to split the expenses equally at an accounting each year, although the expenditures were initially to be carried separately. Each partner was to claim separate income tax deductions for his expenses. Schauss testified that the agreement was to share one-third, one-third, and one-third of profits and expenses on whatever properties were acquired, and that the partners generally had a meeting of minds before going in on new projects, although not always. He also testified that they discussed projects at their irregularly timed, informal meetings, and that during the association he felt he would have had an obligation to discuss proposed projects with Murphy and Stevens before he acquired anything in his own name. Stevens testified that he had never been in a partnership with anyone in his life. Stevens contends that Murphy and Schauss and he only \\\"agreed to agree\\\" on projects concerning uranium exploration and mining. There was sufficient evidence for the trial court to find that a partnership existed. We will refer to the men as partners and to the business as a partnership in the rest of this opinion.\\n-A-\\nAlthough Stevens conceded that he engaged in joint ventures with Murphy and Schauss on other uranium claims, he argued that the Zig and Poe claims were staked after the three had agreed not to associate further on any projects. According to Schauss and Murphy, the partnership agreed to stop associating on any new projects after September 24, 1969. The claims were acquired on September 13, 1969, and December 26, 1969, respectively, by Schauss and Stevens working through a group of nominees.\\nThe Zig and Poe claims were, however, a part of a Red Desert project, a continuous project that lasted over three years of staking uranium claims. They were in the same formation as the other Red Desert claims staked by the partnership. They were also in a geologic trend of uranium deposits, and were a continuation of previous stakings that Schauss was trying to establish in the Red Desert. Murphy testified that although the claims were staked in December, they were an extension of an earlier claim; Schauss testified that they agreed that projects still in progress would be completed if possible. There was ample evidence for the trial court to find that the Zig and Poe claims belonged to the partnership.\\nStevens argues that if this court upholds the findings on the Zig and Poe claims, we should nevertheless reverse the trial court's award to Murphy of one-third of the number of shares of stock received by Stevens for the Zig and Poe claims. We will not address the argument, as it is unsupported by authority and without merit.\\n-B-\\nStevens contends that since the Mexican copper project did not involve uranium, there was never any agreement among the three of them to participate in it. The evidence that we have already set out concerning the existence of this partnership and its terms also applies to the Mexican copper project. In addition, Murphy testified that before he went to Mexico he talked the project over with Stevens. Schauss testified that all three of them consulted on the Mexican copper project, and that Stevens was consulted at least twice and was in favor of the project.\\n-C-\\nStevens next disputes the trial court's finding that certain coal exploration permits were partnership property. Early in 1968, according to both Murphy's and Schauss' testimonies, Stevens suggested that the partnership should acquire some coal prospecting permits. Murphy testified that the three of them had a \\\"dozen or so\\\" conversations about the coal permits. Stevens actually prepared permit applications in each of the partner's names, together with a coal permit in Nuclear Reserves' name, so that the partnership could acquire an entire area which would be four times as large as the area for which one individual could apply. The applications that Stevens prepared were both for Murphy in the name of Nuclear Reserves and in Murphy's name individually. Stevens then suggested that it would be futile to file the applications because the Bureau of Land Management was delaying issuance of prospecting permits. Both Murphy and Schauss testified that they did not file their permit applications because of Stevens' advice.\\nSometime during the same year, Stevens filed coal permit applications in his own name for the same area. He said that he had prepared the permits for Nuclear Reserves, but had never prepared any applications for Murphy or Schauss. His testimony directly contradicted Murphy's and Schauss'. The question of the credibility of the witnesses is for the determination of the trial court which can best observe their demeanors. Shores v. Lindsey, supra. The trial court determined in this instance that Murphy and Schauss were to be believed, while Stevens was not.\\nWe have considered that the parties here and Sehauss may have entered into a scheme to defraud the government, and that perhaps Kennedy v. Lonabaugh, 19 Wyo. 352, 117 P. 1079 (1911), mandates that this court should not enforce such a contract. This would leave the parties where they placed themselves; that is, the coal interests would be left in Stevens. The facts of Kennedy v. Lonabaugh, supra, were different and can be conceptually distinguished from this case. In Kennedy v. Lo-nabaugh, supra, the partnership was formed for the illegal purpose of defrauding the United States of title to its coal land. For that reason, the court would not grant an accounting. The partnership here, however, was not formed for the purpose of carrying on an illegal business, nor was it formed for the purpose of conducting a lawful business in an unlawful manner.\\nIt is true that the scheme proposed by Stevens was illegal. However, the scheme, which was only one of numerous partnership projects, was never carried out. When Stevens did finally apply for the coal permits, he applied for them in his own name. Murphy and Sehauss did not even know that Stevens had applied for them, which was why they became disputed partnership property.\\nFurthermore, the illegal contract was never performed; the partners did not make the attempt to defraud the government. The coal permits which were applied for were applied for legally by Stevens in his own name, so that he could not have acquired leases on any more acres than those allowed to a single person. If Stevens had gone ahead and filed permits in the names of Murphy, Stevens, Sehauss and Nuclear Reserves, then they might have been asking the trial court and this court to enforce an illegal contract.\\nWe are talking about two separate agreements in this case. One of them was a legal agreement to form a partnership to carry on a legal business. The other was a proposed agreement to subvert government regulations, but that agreement was never carried out. Murphy asked the trial court to enforce the only agreement still in existence, which was the legal agreement to form and carry on a partnership.\\nBecause there was no attempt to defraud the government and because the partnership contract which this court is enforcing was a legal one, we fail to see the applicability of Kennedy v. Lonabaugh, supra, to this case. That is not to say that we approve of the business methods of any of these men. They have been less than fastidious in their dealings with third parties and with each other. Nevertheless, their partnership agreement is a legal one which may be enforced by the courts.\\nThe testimony and the facts brought into evidence and the history of the dealings strongly suggest that every transaction contested at trial was a part of a partnership. There was sufficient evidence for the trial court to find that a partnership existed and that the Zig and Poe claims, the Mexican copper project and the coal permits were partnership property.\\nII\\nStevens also appeals the trial court's finding that funds from certain projects had already been distributed to the partners and were not to be considered in the final accounting by the special master. Specifically, he alleges that the findings that the proceeds from the Penbar Mine venture and from the McCoy Mountain project had already been distributed were unsupported by the evidence. When reviewing a sufficiency of the evidence question, the reviewing court will assume that the evidence in favor of the successful party is true, and will leave out of consideration any conflicting evidence presented by the unsuccessful party. Madrid v. Norton, Wyo., 596 P.2d 1108 (1979). The trial court's judgment must be sustained unless it is clearly erroneous or against the great weight of the evidence. We hold here that evidence was sufficient for the trial court's finding on the McCoy Mountain proceeds, but that it was not sufficient to sustain the finding on the Penbar Mine proceeds.\\nThe evidence showed that the partnership had organized its business to achieve the best tax advantage, which involved having one of the partners individually stake the claims. Each partner would claim his individual expenses as deductions. They would then sell the property to Nuclear Reserves, the close corporation which the three of them controlled during most of the dealings and which was essentially a paper corporation. The corporation would usually issue its stock to all of the partners individually as consideration for the claims, regardless of who had staked the claims. The partners normally reserved individual royalties on each of the claims they sold to Nuclear Reserves.\\nBefore any extensive development could take place, an outside company with adequate capital would have to be able to work the claims. The partners planned eventually to have a tax-free exchange of their Nuclear Reserves stock for stock of another such company. The outside company that was to do the developing would then own the claims, but the partners would own stock in that company. In this case, Petro-Nuclear, Ltd. (Petro), a publicly-owned company which had originally been owned by Murphy and later sold to Consolidated Oil, made an offer to Nuclear Reserves. As part of the offer, Petro insisted that it acquire what Murphy aptly called the loose-ends of the partnership and of the individual members of the partnership before it would acquire the Nuclear Reserves stock. The partners received 400,000 shares of Pe-tro stock in exchange for the property included in the loose-ends transaction. They divided these shares unequally to account for royalties they had reserved on uranium claims, and to account for other properties they had acquired. The partners then received more Petro stock when the tender offer transaction was completed. Each partner received Petro shares based on the number of Nuclear Reserves shares he owned at the time of the tender offer.\\nThe loose-ends transaction was, then, a condition precedent to a tender offer by Petro to buy Nuclear Reserves stock and eventually to merge Nuclear Reserves into Petro. A letter of intent between Petro and Schauss, Murphy, and Stevens, as president of several corporations, said that the interests of the individuals which Petro was to acquire as a condition of the tender offer were the interests described in an attachment to the letter, called Exhibit A by Petro. Exhibit A listed royalties the partners had reserved on claims they had already sold to Nuclear Reserves. It also listed properties that the partners had not sold to Nuclear Reserves. Apparently, Pe-tro wanted to be sure that it bought any mineral assets related to the Nuclear Reserves assets, but which were still owned by the partners in their individual names. Only after Petro had acquired all these loose ends would it complete the tender offer to acquire Nuclear Reserves.\\nExhibit B of Plaintiff's Exhibit 18 stated:\\n\\\"4. Such tender offer [to Nuclear Reserves] shall also be subject to Petro's being able to acquire outstanding royalty interests and additional unpatented mining claims in accordance with the terms of paragraph 5 below.\\n\\\"5. In addition to the proposed tender offer and as a condition thereof, Petro shall have consummated the acquisition by Petro from certain individuals of roy alty interests and other interests owned by them in the properties which have been discussed by the parties, which negotiations shall be conducted on the basis of Petro issuing to such individuals 400,-000 shares of Petro.\\\" (Emphasis added.)\\nThe McCoy Mountain project was listed by Petro on Exhibit A of Plaintiff's Exhibit 18 as one of the loose-ends properties. Murphy testified unequivocally that the McCoy Mountain property had been included in the loose-ends transaction and that the partners had received Petro shares in exchange for the McCoy Mountain property. The McCoy Mountain claims had never been deeded to Nuclear Reserves; they went directly into Petro Nuclear. The evidence, then, does support the trial court's conclusion that the McCoy Mountain property was distributed in the loose-ends transaction.\\nThe Penbar Mine claims are, however, a different story. Murphy had already deeded the claims to Nuclear Reserves. With the approval of Schauss and Stevens as Nuclear Reserves directors acting at a board meeting, Murphy had received 85,000 shares of Nuclear Reserves as consideration for the Penbar shares. Murphy's testimony on Penbar, unlike his testimony on McCoy Mountain, was equivocal. He first stated that he did not think the Penbar stock had yet been distributed. He then said that he thought it had been distributed in the loose-ends transaction because he took less stock there than did Schauss or Stevens. He also said that he would leave the matter open and that it was available for the accounting.\\nThe partners as shareholders of Nuclear Reserves received Petro stock from the tender offer in proportion to their shareholdings in Nuclear Reserves, in addition to the shares which they had received in the loose-ends transaction. Murphy testified that it was impossible in the loose-ends transaction to try to attribute specific shares to specific properties, but that he had not shared the Petro stock which he had received in the tender offer from Petro. He later contradicted himself and testified that Stevens had already received his consideration for the Penbar Mine as it accrued to Nuclear Reserves and Petro. Opposing counsel then asked him:\\n\\\"Q. And, of course, as those shares of stock went to you in your name alone. \\\"A. Unless, of course, the accounting shows that we evened that up in the loose ends transaction.\\\"\\nPetro had apparently tried to use a ratio to divide the shares of its stock among Murphy, Stevens, and Schauss, as a way to settle the loose-ends transaction and as a way to have something to show in its records. Murphy said several times that all three partners objected to Petro's allocation of a certain number of shares to each person for each property listed in Exhibit A, because it didn't demonstrate the truth of the transactions or the equities involved. He also agreed with his counsel that it could possibly affect whatever had been done with exploration costs on his personal income tax returns. He asserted that Pe-tro's proposed ratio of share division was not binding on the partnership, as suggested by Stevens' counsel on cross-examination. The record does show, however, that the ratio of share division eventually arrived at by Murphy, Stevens, and Schauss for the stocks received in the loose-ends transaction is exactly the ratio which was proposed by Petro.\\nIn the face of conflicting evidence, this court must regard only the evidence most favorable to the successful party on appeal, together with all fair inferences which may reasonably be given it. Madrid v. Norton, supra. In this case, however, the evidence which would normally be favorable to the successful party is refuted by the very witness offering it to such an extent that we cannot characterize it as favorable, and the only fair inference which may be reasonably drawn is that the partnership was satisfied with Petro's proposed ratio, but that the partners just did not want any written record of how the division was made or what properties were to be included in the division. The rule relating to conflicting evidence does not:\\n\\\" relieve an appellate court of its duty of analyzing the evidence in the light of reason and human experience and giving consideration to the motives and propensities which tend to influence or prompt human action, in an effort to solve the question as to whether the judgment is reasonably and substantially sustained by the evidence. \\\" Steadman v. Topham, 80 Wyo. 63, 338 P.2d 820, 825 (1959).\\nIf Murphy was to succeed in proving that Penbar had been included in the loose-ends transaction, he should at least have given testimony which was much less equivocal, both during his direct testimony and during his cross-examination. He never definitely stated that Penbar had been included in the loose-ends transaction; he twice indicated that if it had not already been taken care of, then Stevens was entitled to a share. He presented no documentary evidence of the loose-ends transaction other than Exhibit A of his Exhibit 18, which had been prepared by Petro. He testified that Exhibit A generally showed the properties that Petro was to acquire in the loose-ends transaction. Exhibit A did not list the Penbar property, and Murphy never said that Exhibit A was an incomplete list of the loose-ends properties. The Penbar properties had already been deeded to Nuclear Reserves, while none of the properties listed on Exhibit A had been. We conclude that the finding that Penbar Mine proceeds had been divided up in the loose-ends transaction was against the great weight of the evidence.\\nIll\\nAfter ruling that the coal permits were partnership property, the trial court found that Stevens had been impaired in his ability to defend the lawsuit and that the doctrine of laches should apply. Murphy, therefore, was not to receive any of the value of the coal permits.\\nThe facts leading to this ruling are rather complicated. See Appendix B for our understanding of the relationship involved in the part of this litigation pertaining to the coal permits.\\nThe partners decided they would terminate the partnership when the Nuclear Reserves merger with Petro became final, which was on September 24, 1969. Murphy anticipated that he would become the president of Petro until it was merged with yet another larger company to allow still more development. Stevens and Schauss were to become major shareholders in Petro and perhaps also become directors. Murphy felt that continuing the partnership would pose a potential for conflict of interest, since Petro was a public company and could not be treated like just another arm of the partnership as Nuclear Reserves had been.\\nIn 1971, Murphy was indeed president of Petro; Schauss and Stevens were on the board. Petro sold some of its uranium claims to a company called Pollution Control and Engineering, Inc., (Pollution Control) in exchange for Pollution Control stock. Pollution Control had been formed by Stevens and Schauss after the partnership had decided to wind up. Apparently no one thought there was any self-dealing involved, although the relationship of these men and their close corporations and the public corporation might seem indiscreetly and perhaps illegally intimate to a minority shareholder.\\nIn connection with the Petro sale of its uranium claims to Pollution Control, Schauss made a financial presentation to Petro that included references to Stevens' coal permits. Stevens in 1970 had entered into an option agreement with Pollution Control to sell the coal permits to the company, and Pollution Control (basically Stevens and Schauss) looked upon the coal permits as an asset of the company. Murphy testified that at the time of the presentation in 1971, he recognized the permits as the ones which Stevens had originally offered to the partnership.\\nSometime later, Petro-Nuclear merged with Silverbell Industries, a now-public company which Stevens and Schauss had originally owned before their partnership with Murphy. Murphy was once more a president without a company, but not for long. In 1974, he became president of Pollution Control. Schauss testified that he had felt that Murphy could do a better job of running the company because there was a lot of internal dissension, apparently between Schauss and Stevens. Stevens was refusing to perform the option agreement with Pollution Control, and Murphy's first major duty as president of Pollution Control was to force Stevens to comply. He had Pollution Control start a lawsuit to that end. Both sides of the lawsuit were eventually bought out by Western Fuel Reserves, which seems to be the only company mentioned in this suit that neither Murphy, Stevens nor Schauss was involved in at some time. Murphy participated in the negotiations to settle the suit on behalf of Pollution Control. That suit was settled, and in 1975 Murphy started this action against Stevens.\\nMurphy never mentioned for the record at any shareholder or board meeting of Pollution Control that he felt he had a personal interest in the coal permits. He waited nearly four years after he had knowledge that Stevens was claiming the coal permits to file an action for an accounting, by which time the coal permits had become very valuable.\\nLaches is a form of equitable estop-pel based on an unreasonable delay by a party in asserting a right. The party asserting equitable estoppel as a defense must show that he lacked knowledge of the facts or was without the means of discovering them. The party asserting laches or equitable estoppel must also show that he relied upon the plaintiff's actions and changed his position in reliance thereon to his prejudice. \\\" ' Unless the delay has worked injury, prejudice or disadvantage to the defendants or others adversely interested, it is not of itself laches. Hartnett v. Jones, Wyo., 629 P.2d 1357, 1364 (1981).\\nThe burden is on the one who asserts laches to prove prejudice. Pickett v. Associates Discount Corporation of Wyoming, Wyo., 435 P.2d 445 (1967). Here, Stevens introduced no testimony and never indicated in any way that he was prejudiced in his inability to defend this suit because of Murphy's delay. If the facts which supposedly establish the estoppel are uneontested, the decision whether equitable estoppel should apply is a question of law. United States v. Millsap, 208 F.Supp. 511 (D.C.Wyo.1962).\\nHere, the testimony was uncontradicted that Stevens was the bookkeeper for the partnership. The coal permit applications were still in existence and were admitted into evidence. The record also shows that Stevens deposed out-of-state witnesses and cross-examined Murphy's witnesses extensively. Stevens testified adamantly to his version of the facts. Indeed, the ruling as to laches is incongruous. One would assume that if Stevens were prejudiced in his ability to defend against Murphy's assertion of rights in the coal permits, then he would also have been prejudiced in his ability to defend all other aspects of the suit.\\nStevens did allege affirmatively in his answer that laches should apply because he had been prejudiced by the fact that Murphy waited until the coal permits had dramatically increased in value before he asserted any right in them. He implied on appeal that he had taken the risk of developing the coal permits while Murphy sat idly by waiting to grab the benefits without having subjected himself to any possibility of loss. Courts look upon such actions with disfavor:\\n\\\" There is an inherent injustice in one purportedly holding a right to assert an ownership in property to voluntarily await the propitious event and then decide, when the danger which has been at the risk of another is over, to come in and claim a share of the profits. [Citation.]\\\" Madrid v. Norton, supra, at 1120.\\nThat, however, is not what happened here. The standard procedure for coal exploration by individuals is that a person applies for a prospecting permit, as Stevens did. If the permit is granted, the person making the application also gets a license to carry out an exploration program to determine if commercial quantities of coal exist. After submission of a geologic report by the prospector, the United States Geological Service (U.S.G.S.) determines if there are commercial quantities of coal. If so, then the prospector is entitled to a preference-right lease.\\nThe permits here were granted to Stevens in 1970. He then entered into an option agreement to sell them to Pollution Control. Schauss arranged a personal line of credit to raise the money for Pollution Control to pay Stevens the remainder of what it owed him. Pollution Control carried out the exploration on the property, even though the permits were still in Stevens' name. Pollution Control had already forwarded the geologic report to the U.S. G.S. before the lawsuit between Pollution Control and Stevens started. Before Western Fuels would buy out the lawsuit, Pollution Control had to make certain that the U.S.G.S. had determined that commercial quantities of coal had been discovered. Murphy took care of that by making many personal visits to the government people involved. It appears that he was largely responsible for seeing that the U.S.G.S. approved the geologic report.\\nStevens was never at any personal monetary risk. He contested none of the facts here, and presented no evidence that he had or would have received a better offer from Western Fuels had it not been for the lawsuit. It is questionable whether Stevens could even have legally sold the permits to Western Fuels. Whether Murphy first handled the lawsuit by Pollution Control or whether he had instead started a suit for a partnership accounting, Western Fuels would have been on notice either way that the ownership of the coal permits was contested. If we agreed with the trial court that Murphy was estopped to assert his interests in the coal permits, we would be saying that the only two people who would receive any benefit from the approval of the report by the U.S.G.S. and the sale of the lawsuit to Western Fuels would be Schauss and Stevens, who were both major stockholders in Pollution Control. One cannot reasonably infer that Murphy would work so steadfastly and diligently to derogate his own interests.\\nIn addition, Murphy's testimony is also uncontradicted that he made several efforts before the Pollution Control lawsuit to settle his accounts with Stevens, and that these efforts included his claim to rights in the coal property. Stevens had the burden of proof here. The proof offered to show laches must be certain in every particular with nothing left to inference. Failure to prove any one of the elements is fatal. Barfield v. Howard M. Smith Company of Amarilio, Tex., 426 S.W.2d 834 (1968). By not presenting any conflicting evidence, Stevens failed to prove he lacked the knowledge that Murphy would be asserting a right to the coal permits, the proof of which was essential to his affirmative allegation of laches.\\nStevens was not prejudiced in his defense of the suit, nor did he put his money at risk in a speculative venture while Murphy waited to see if there really were any commercial quantities of coal. He also failed to prove lack of knowledge. We find as a matter of law that the doctrine of laches does not apply.\\nIV\\nThe trial court also found, based on Murphy's actions as president of Pollution Control, that he had waived his right to assert any interest in the coal permits. The elements of waiver are that plaintiff has an existing right, knowledge of that right, and an intent to surrender or relinquish the right. In Re Estate of Boyd, Wyo., 606 P.2d 1243 (1980). Waiver differs primarily from laches in that laches requires a showing of prejudice to the party claiming it; waiver does not.\\nThe burden of proving waiver, an affirmative defense, is on the party asserting it. Stevens had to show that Murphy intended to relinquish a right, although the intent may be implied. Murphy's testimony was that he made several efforts before the Pollution Control lawsuit to settle his accounts with Stevens, and that those efforts included an assertion to rights in the coal property. That testimony, standing uncontradicted, does not show an intent to waive a right. While the necessary intent for waiver may be implied from conduct, the conduct should speak the intent clearly. Bankers Trust Company v. Pacific Employers Insurance Company, 282 F.2d 106 (9th Cir. 1960), cert. den. 368 U.S. 822, 82 S.Ct. 41, 7 L.Ed.2d 27 (1961). Waiver must be manifested in some unequivocal manner. Ranger Insurance Company v. Cates, Wyo., 501 P.2d 1255 (1972).\\nWe think that the nonconflicting evidence here admits of only one conclusion, and a contrary conclusion cannot stand. Wyoming Farm Bureau Mutual Insurance Company v. May, Wyo., 434 P.2d 507 (1967). Even if the evidence here did justify either of two reasonable inferences, this court will reverse the finding if it can say, as a matter of law, that the inference in favor of the party which did not have the burden of proof was more, or at least equally, probable. Bocek v. City of Sheridan, Wyo., 432 P.2d 893 (1967). We find that the inference in favor of Murphy that he did not intend to waive his interests in the coal permits is at least equally as probable as the inference that he did intend to waive his interests, and therefore reverse the finding of waiver.\\nV\\nStevens also appeals from the denial of a motion for a new trial based on newly discovered evidence. The trial court had originally found that the Clear Creek mining project was part of the partnership. Stevens wanted a new trial because a document signed by Murphy which had been in Murphy's possession until the accounting proceedings by a special master represented that Murphy owned Clear Creek stock in his own name and did not intend to divide his participation with others. It also said that Murphy was not acquiring the stock in connection with any offering or distribution. Stevens based his motion for a new trial on that document.\\nIt is within the sound discretion of the trial court to grant or refuse a motion for a new trial based on the discovery of new evidence, and the trial court cannot be challenged except for an abuse of discretion. The party who asks for a new trial on the ground of newly discovered evidence must satisfy the court that the evidence has come to his knowledge since the trial and could not with due diligence have been found sooner. He must also prove that the evidence does not speak to facts related to evidence already presented at trial, and that the evidence is so material that it would probably produce a different verdict if the new evidence were granted. Opie v. State, Wyo., 422 P.2d 84 (1967).\\nThe evidence here was related to evidence already presented at trial. Murphy stated in his deposition that he held the shares in his own name, although he held them for the benefit of the partnership. He also said that the shares of stock did not state that he held them for the benefit of the partnership.\\nThe evidence was also not so material that it would produce a different judgment. Schauss testified that all three of them agreed to go in on the project, that he took a trip to Colorado to look at the property, and then came back and told Stevens about it. These men demonstrated several times that what they put on forms to satisfy regulatory agencies and fulfill the letter of the law had no bearing on how they actually conducted their business.\\nWe therefore affirm the trial court's denial of a motion for a new trial. We also affirm the findings that a partnership existed and that the proceeds from the McCoy Mountain project had already been distributed. We reverse the trial court's finding that the proceeds from the Penbar Mine project had been distributed, together with the findings that laches and waiver apply to bar Murphy from asserting and receiving any interest in the coal permit proceeds.\\nThis case is affirmed in part, reversed in part, and remanded to the district court for further proceedings consistent with this opinion.\\n. The parties agreed and the judge entered an order to bifurcate the trial. The issue of liability was decided at the first part of the trial; the questions of contribution and accounting were decided by a special master during the second part of the trial.\\n. See Appendix A for what we understand from our reading of the record to be the organization of the businesses involved, especially as pertains to the loose-ends transaction.\\n. Since Petro was going to acquire Nuclear Reserves after it acquired the loose-ends property, the claims and property from projects which had already been deeded into Nuclear Reserves were not a part of the loose-ends transaction.\\n.Petro wrote a letter to the partners, which Murphy introduced as Plaintiffs Exhibit 18. The letter by Petro had two attachments, one which Petro called Exhibit A and one which Petro called Exhibit B. We will call them the same.\\n. Murphy, Stevens, and Schauss need never worry about unemployment. If they tire of being entrepreneurs and presidents of numerous companies, they could always become script writers for Dallas, in charge of a division creating J.R.'s latest business machinations.\\n. As the development expanded, larger and more adequately financed companies were needed. The same sort of arrangement would be worked out between Petro and a larger company as had been arranged between Nuclear Reserves and Petro.\\n. This is the type of transaction referred to in fn. 6.\\n. Once again, we are reminded of the intrigue of Dallas. Sue Ellen is married to J.R., but is seeing Cliff Barnes, her sister-in-law's brother. Then, Sue Ellen stops seeing Cliff Barnes and starts seeing an old friend who had been a college sweetheart in the pre-J.R. era. His existence on the program was so short that his fictional name eludes us, much like some of these companies. After that liaison, Sue Ellen forms yet another, while still being officially associated with J.R., et cetera, et cetera. Any further delineation of the facts here or in Dallas would just add to the confusion.\"}"

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+"{\"id\": \"10439870\", \"name\": \"Robert W. HORN, Appellant (Defendant), v. DISTRICT COURT, NINTH JUDICIAL DISTRICT, Appellee (Plaintiff), a contempt proceeding originating in: John E. BAINE, Jr., (Plaintiff), v. COWBOY BAR OF JACKSON HOLE, INC., a Wyoming Corporation, David Hauser, Rod Grathwal and Mark Watkins, (Defendants)\", \"name_abbreviation\": \"Horn v. District Court, Ninth Judicial District\", \"decision_date\": \"1982-07-15\", \"docket_number\": \"No. 5653\", \"first_page\": \"1368\", \"last_page\": \"1378\", \"citations\": \"647 P.2d 1368\", \"volume\": \"647\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T02:41:52.638769+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before ROSE, C. J\\u201e and RAPER, THOMAS, ROONEY and BROWN, JJ.\", \"parties\": \"Robert W. HORN, Appellant (Defendant), v. DISTRICT COURT, NINTH JUDICIAL DISTRICT, Appellee (Plaintiff), a contempt proceeding originating in: John E. BAINE, Jr., (Plaintiff), v. COWBOY BAR OF JACKSON HOLE, INC., a Wyoming Corporation, David Hauser, Rod Grathwal and Mark Watkins, (Defendants).\", \"head_matter\": \"Robert W. HORN, Appellant (Defendant), v. DISTRICT COURT, NINTH JUDICIAL DISTRICT, Appellee (Plaintiff), a contempt proceeding originating in: John E. BAINE, Jr., (Plaintiff), v. COWBOY BAR OF JACKSON HOLE, INC., a Wyoming Corporation, David Hauser, Rod Grathwal and Mark Watkins, (Defendants).\\nNo. 5653.\\nSupreme Court of Wyoming.\\nJuly 15, 1982.\\nDon W. Riske, Cheyenne, for appellant, and Robert W. Horn, pro se.\\nSteven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Allen C. Johnson, Sr. Asst. Atty. Gen., Cheyenne, and Michael J. Sullivan and William F. Downes of Brown, Drew, Apost\\u00f3los, Massey & Sullivan, Casper, for appellees.\\nBefore ROSE, C. J\\u201e and RAPER, THOMAS, ROONEY and BROWN, JJ.\", \"word_count\": \"5461\", \"char_count\": \"32250\", \"text\": \"ROSE, Chief Justice.\\nThe appellant, Robert W. Horn, while serving as the attorney for a plaintiff in a negligence action was summarily convicted of contempt of court during a trial being conducted in Teton County District Court. Acting under the authority of Rule 41(a), W.R.Cr.P., the trial judge determined that appellant was in contempt and ordered him to pay a fine of $100 and to pay all costs incurred by the other party to the lawsuit, which costs amounted to $36,927.18. The judge also declared a mistrial. As a result of the trial court's action, the appellant filed the present appeal and he words the issues for review as follows:\\n\\\"I. MAY AN ORDER SUMMARILY FINDING AN ATTORNEY IN CONTEMPT OF COURT BE SUSTAINED WHERE THE TRIAL COURT HAS FAILED TO COMPLY WITH THE PROVISIONS OF RULE 41(a) OF THE WYOMING RULES OF CRIMINAL PROCEDURE?\\n\\\"II. WHEN DURING AN IN-COURT DEMONSTRATION TO SHOW THE UNTRUTH OF THE TESTIMONY BY A WITNESS, AN ATTORNEY PRECIPITATES PHYSICAL CONTACT WITH THE WITNESS, DOES THIS CONDUCT CONSTITUTE SUCH A PATENTLY CONTEMPTUOUS MATERIAL OBSTRUCTION OF THE JUDICIAL PROCESS THAT RESORT TO SUMMARY CONTEMPT PROCEDURES ARE NECESSARY TO VINDICATE THE AUTHORITY AND DIGNITY OF THE COURT?\\n\\\"III. ARE THE DUE PROCESS GUARANTEES CONTAINED IN THE FIFTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES AND IN ARTICLE 1 SECTION 6 OF THE CONSTITUTION OF THE STATE OF WYOMING VIOLATED WHERE AN ATTORNEY IS SUMMARILY CONVICTED OF CONTEMPT OF COURT AND FINED THIRTY SEVEN THOUSAND TWENTY SEVEN DOLLARS AND EIGHTEEN CENTS ($37,027.18) WITHOUT REASONABLE NOTICE OF THE SPECIFIC CHARGES OR A FORMAL HEARING TO REFUTE THE TRIAL COURT'S ALLEGATION OF CONTEMPT?\\n\\\"IV. DOES THE SIXTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES GUARANTEE THE RIGHT TO JURY TRIAL FOR A CRIMINAL CONTEMPT PUNISHED BY A FINE OF THIRTY SEVEN THOUSAND TWENTY SEVEN DOLLARS AND EIGHTEEN CENTS ($37,-027.18)?\\n\\\"V. MAY AN ATTORNEY BE SUMMARILY CONVICTED OF CRIMINAL CONTEMPT WHERE THE TRIAL COURT HAS FAILED TO GIVE HIM NOTICE OR WARNING THAT HIS CONDUCT IS IMPERMISSIBLE AND SANCTIONS MAY BE IMPOSED FOR ITS REPETITION?\\n\\\"VI. DOES DUE PROCESS OF LAW REQUIRE THAT A NEW AND IMPARTIAL JUDGE HEAR A CRIMINAL CONTEMPT CITATION WHERE THE TRIAL JUDGE HAS BECOME SO EMBROILED WITH THE ATTORNEY AND PROVOKED BY THE CONDUCT THAT HE CANNOT MAINTAIN THE CALM DETACHMENT NECESSARY FOR FAIR ADJUDICATION?\\n\\\"VII. HAS AN ATTORNEY BEEN SUBJECTED TO DOUBLE JEOPARDY WHERE HE HAS BEEN SUMMARILY CONVICTED OF CRIMINAL CONTEMPT AND FINED ONE HUNDRED DOLLARS ($100.00) WHEN, AFTER PAYMENT OF THAT FINE, AND WITHOUT ADDITIONAL CONTEMPTUOUS CONDUCT ON HIS PART, THE TRIAL COURT IMPOSES AN ADDITIONAL PENALTY OF THIRTY SIX THOUSAND NINE HUNDRED TWENTY SEVEN DOLLARS AND EIGHTEEN CENTS ($36,927.18)?\\n\\\"VIII. DID THE TRIAL COURT EXCEED THE REASONABLE BOUNDS OF ITS DISCRETION THROUGH IMPOSITION OF FINES TOTALLING THIRTY SEVEN THOUSAND TWENTY SEVEN DOLLARS AND EIGHTEEN CENTS ($37,027.18) FOR A SINGLE CONTEMPT OF COURT CITATION?\\n\\\"IX. DID THE TRIAL COURT ABUSE ITS DISCRETION THROUGH A SUA SPONTE DECLARATION OF A MISTRIAL WHICH WAS NEITHER EXPRESSLY NOR IMPLIEDLY CONSENTED TO BY THE PARTIES AND WHERE THE TRIAL COURT FAILED TO SOLICIT ALTERNATIVE SUGGESTIONS FROM THE PARTIES?\\\"\\nWhile the appellant raises a number of contentions, his principal focus is on the propriety of the trial judge's invocation of the powers vested by Rule 41(a), W.R.Cr.P., and the imposition of the $37,027.18 fine. With this in mind, we view the pertinent issues for review as follows:\\n1. Did the trial judge act properly in finding the appellant in contempt under Rule 41(a), W.R.Cr.P.?\\n2. Did the circumstances present below warrant the imposition of the $37,027.18 fine which was levied against appellant?\\nIn answering these contentions we will affirm the appellant's contempt conviction and reverse that portion of the fine payable to the other party in the underlying lawsuit.\\nFACTS\\nAppellant was representing the plaintiff in a lawsuit in which his client was suing the Million Dollar Cowboy Bar in Jackson, Wyoming, together with several employees of the establishment. The plaintiff had alleged that he suffered severe injuries as a result of a beating he received at the hands of several doormen who had ejected him from the bar.\\nDuring the trial attorney Horn asked one of the defendants to step down from the witness chair so that appellant could perform a demonstration for the jury. It would seem that attorney Horn intended to demonstrate that the witness had testified to an impossible fact situation. The witness was asked to assume a position similar to the position he had assumed on the night of the incident, and to demonstrate to the jury how he, the defendant, had turned and swung his fist at the plaintiff after plaintiff had allegedly kicked him from behind. The witness was instructed to react upon hearing Mr. Horn say the word \\\"Now.\\\" Suddenly, appellant Horn gave the signal and, without warning, kicked the witness with enough force to drive him into the jury box. The record reflects that the following dialogue took place:\\n\\\"MR. SULLIVAN: Your Honor, I object.\\n\\\"MR. DOWNES: I object.\\n\\\"THE COURT: That's sustained. That's highly improper. That's one of the most disgusting things I have witnessed in the courtroom.\\n\\\"Take the jury out.\\n\\\"(Whereupon, the jury leaves the courtroom.)\\n\\\"THE COURT: Let the record reflect that the jury is out. Let the record also reflect that counsel just kicked this witness in the back in front of the jury box with sufficient force to drive him from where he was into the jury box and over the rail. One of the most improper, highly contemptuous matters I have ever witnessed in a courtroom.\\n\\\"Do you have something to say, Mr. Sullivan?\\n\\\"MR. SULLIVAN: I just wanted to make sure the record reflected what's happened and what's taking place and the Court is doing that so\\u2014\\n\\\"THE COURT: The behavior that just occurred is highly disruptive to these proceedings. It's contemptuous and I won't stand for it, and I fine you $100 and you pay the Clerk right now.\\n\\\"Court's in recess.\\n\\\"MR. HORN: Your Honor, may I say something?\\n\\\"THE COURT: After I cool off.\\n\\\"(Whereupon, a brief recess was had.)\\\" (Emphasis added.)\\nDuring the short recess the appellant paid the $100 fine levied by the trial judge.\\nSome 15 minutes later the judge declared a mistrial and ordered appellant to pay \\\"each and every cost\\\" incurred by the defendants up to that point of the trial. At this juncture, appellant apologized to the court and attempted to explain that his only purpose was to represent his client zealously and to refute the witness' story. As noted earlier, the costs assessed against appellant totaled $36,927.18.\\nCONTEMPT\\nBefore discussing the relevant aspects of the case at bar, it may be helpful to first examine the law of contempt.\\nContempts of court are divided into a number of categories. They are usually classified as either civil or criminal in nature, although a given contemptuous act can involve both classes. It is clear, however, that the type of punishment to be imposed is the factor that decides whether a civil or criminal contempt has been committed. As stated by the United States Supreme Court in Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172 (1941):\\n\\\" ' While particular acts do not always readily lend themselves to classification as civil or criminal contempts, a contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public.' \\\" 313 U.S. at 42, 61 S.Ct. at 812 (citing from McCrone v. United States, 307 U.S. 61, 64, 59 S.Ct. 685, 686, 83 L.Ed. 1108).\\nThus, a civil contempt is generally intended to compel a party to comply with a lawful court order, while a criminal contempt is punitive in character and is enforced so that the authority of the law and the court will be vindicated. Tucker v. State, 35 Wyo. 430, 251 P. 460 (1926); Laramie National Bank v. Steinhoff, 7 Wyo. 464, 53 P. 299 (1898). Another way of distinguishing between the two is to say that the primary purpose of criminal contempt is to punish, while the primary purpose of civil contempt is to coerce. City of Wilmington v. General Teamsters Local Union 326, Del.Supr., 321 A.2d 123 (1974).\\nContempts are also categorized depending upon the way that they occur. In Spriggs v. Pioneer Carissa Gold Mines, Inc., Wyo., 378 P.2d 238, 240 (1963), we spoke of these distinctions:\\n\\\"Generally speaking, contempts of court are classified as either direct or constructive, the latter being dependent upon whether the contemptuous conduct is committed in the presence or out of the presence of the court.\\\"\\nThus, not only may a contempt of court be of a criminal or civil nature but it also can be either a direct contempt or a constructive, indirect one. Direct contempts are those committed in the court's presence and constructive contempts are those committed outside of the hearing or view of the judge.\\nCHARACTERIZATION OF THIS CASE\\nAt oral argument a question was raised by the parties concerning the proper designation of the contempt in this case, keeping in mind that the major portion of the fine assessed was ordered payable to the defendants in the litigation that was under way when the contempt occurred.\\nA review of the facts leads to the conclusion that appellant's conduct can only be identified as direct criminal contempt\\u2014 if it is to be assumed that Mr. Horn's conduct was contemptuous at all. We say this because the challenged conduct occurred during a trial, before the trial judge, and punishment was imposed immediately. Given these circumstances, it must be assumed that the trial judge was responding to an act which he perceived to be disruptive of order and in contravention of the dignity and power of the court and that he imposed the fine as a form of punishment for an act which disrupted the orderly administration of justice in his court, Townes v. State, Wyo., 502 P.2d 991 (1972), and, as such, he was acting in response to an act perceived by the judge as a direct criminal contempt.\\nNotwithstanding this conclusion, we consider it important to discuss the reasons why this case cannot be said to involve a civil contempt. As indicated earlier, civil contempt is generally calculated to compel or coerce a party into complying with a lawful order of the court. Spriggs v. Pioneer Carissa Gold Mines, Inc., supra. Here, even though the underlying action was of a civil nature, there was no lawful order of the court extant with which appellant Horn had failed to comply. Nor is it determinative that most of the fine was payable to the opposing party in the suit where the contempt occurred. This is so because the record reflects that the trial judge imposed all of the fine for punitive reasons rather than for the purpose of vindicating the rights of the defendants below. It is the obligation of appellate courts to decide whether a contempt is civil or criminal based on the reasons why a particular penalty is imposed. See: Shillitani v. United States, 384 U.S. 364, 369, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622 (1966); Southern Railway Company v. Lanham, 403 F.2d 119 (5th Cir. 1968). The facts of this case require us to assume that we are here concerned with a challenge to a conviction for direct crimi nal contempt. As discussed by Wright in his treatise on federal criminal procedures,\\n\\\"A criminal contempt proceeding need not arise out of a criminal action. A person may be punished for criminal contempt for defying the authority of the court in a civil action.\\\" 3 Wright, Federal Practice and Procedure, \\u00a7 702, p. 148.\\nWith this in mind, we turn to the specific issues.\\nDID THE TRIAL JUDGE PROPERLY INVOKE RULE 41(a), W.R.Cr.P.?\\nAs we observed early in this opinion, appellant's first challenge focuses on whether or not the trial judge properly invoked his powers vested by Rule 41(a), W.R.Cr.P., supra n.1. We are of the opinion that he did.\\nRule 41(a), W.R.Cr.P., provides that a judge is authorized to punish summarily any criminal contempt when he is able to certify that he either saw or heard the contemptuous conduct or that said act or acts were committed in his presence. The rule also requires that an order reciting a finding of contempt should set forth the facts constituting the contempt and shall be signed by the judge and entered of record. Rule 41(a), supra, n.1. In essence, the rule embodies a power that for decades has been recognized as a vested power of the judiciary. In Application of Stone, 77 Wyo. 1, 305 P.2d 777 (1957), we recognized that all courts have the inherent power to punish for contempt and that any type of contempt which is committed in the face of the court is punishable summarily. 305 P.2d at 777-784. The United States Supreme Court long ago recognized this inherent power in Ex Parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888), when it stated:\\n\\\"The second and third of these grounds may be dismissed as immaterial in any inquiry this court is at liberty, upon this original application, to make. For, upon the facts recited in the order of September 3, showing a clear case of contempt committed in the face of the Circuit Court, which tended to destroy its authority, and, by violent methods, to embarrass and obstruct its business, the petitioner was not entitled, of absolute right, either to a regular trial of the question of contempt, or to notice by rule of the court's intention to proceed against him, or to opportunity to make formal answer to the charges contained in the order of commitment. It is undoubtedly a general rule in all actions, whether prosecuted by private parties, or by the government, that is, in civil and criminal cases, that 'a sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.' Windsor v. McVeigh, 93 U.S. 274, 277 [23 L.Ed. 158]. But there is another rule, of almost immemorial authority, and universally acknowledged, which is equally vital to personal liberty and to the preservation of organized society, because upon its recognition and enforcement depend the existence and authority of the tribunals established to protect the rights of the citizen, whether of life, liberty, or property, and whether assailed by the illegal acts of the government or by the lawlessness or violence of individuals. It has relation to the class of contempts which, being committed in the face of a court, imply a purpose to destroy or impair its authority, to obstruct the transaction of its business, or to insult or intimidate those charged with the duty of administering the law. Blackstone thus states the rule: 'If the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned, at the discretion of the judges, without any further proof or examination. ' \\\" (Emphasis added.) 128 U.S. at 306-307, 9 S.Ct. at 80.\\nThe above quotation makes it clear that as long as the act committed in the face of the court is of a contemptuous nature, the court can constitutionally punish such act in a summary manner. It is also well settled that, with regard to direct criminal con-tempts, concepts of due process and the right to trial by jury give way to the powers of courts to protect their dignity and authority for the benefit of the public. We noted this latter principle in Application of Stone, supra, 305 P.2d at 784, where we cited the following from an Annotation at 99 L.Ed. 892, 893:\\n\\\" ' the requirements of due process are less strict in the case of direct contempt committed in the actual presence of the court than they are in the case of constructive contempt .' \\\"\\nThese authorities establish that Rule 41(a), W.R.Cr.P., can properly be invoked by a trial judge when he observes a contemptuous act, and punishment can be imposed in a summary manner.\\nIn his brief appellant raises several challenges to the trial judge's invocation of Rule 41(a). First, Mr. Horn contends that his actions could not properly be characterized as contemptuous. Secondly, he claims the summary punishment denies him due process of law, and, lastly, he argues that the trial judge's order of contempt must be set aside because its entry was not preceded by the proper and necessary procedures. We are of the view that only two of these contentions warrant consideration since, as discussed in the preceding paragraph, the invocation of summary contempt powers is not per se violative of notions of due process. Therefore, in view of the conclusions we reach below, we do not find due-process rights of appellant to have been violated.\\nAppellant argues that the trial judge erred in finding him in contempt because it was never his intention to disrupt the courtroom proceedings when he forcefully struck the witness. It is Mr. Horn's position that his intent was merely to prove the witness wrong or to impeach his credibility, and that he was simply discharging his obligation to represent his client zealously. We cannot agree, because the record vividly reflects that appellant's attempted demonstration was highly improper and that it did truly impose upon the dignity and order of the court.\\nAppellant concedes that when reviewing an appeal from a contempt citation we should not overturn the trial court's action except for abuse of discretion since the inherent power to summarily punish for contempt is securely vested within the discretion of a trial judge. Badley v. City of Sheridan, Wyo., 440 P.2d 516 (1968). Notwithstanding his recognition of this rule, appellant argues that, because he did not intend to be contemptuous, his conviction cannot stand. Mr. Horn is correct when he says that criminal contempt necessarily implies an element of intent that must be proved before a contempt citation can be upheld. Hawk v. Cardoza, supra at 734; Murray v. Murray, 60 Haw. 160, 587 P.2d 1220 (1978); State v. Browder, Alaska, 486 P.2d 925 (1971). To determine whether a particular act is contemptuous, courts look to whether the complained-of acts actually obstructed the proceedings, and it has been said that:\\n\\\". . [A]n attorney possesses the requisite intent only if he knows or reasonably should be aware in view of all the circumstances, especially the heat of the controversy, that he is exceeding the outermost limits of his proper role and hindering rather than facilitating the search for truth.\\\" Hawk v. Cardoza, supra, 575 F.2d at 734-735, citing In re Dellinger, 461 F.2d 389, 400 (7th Cir. 1972).\\nGiven this standard, we are of the opinion that the record in this ease plainly reflects the contemptuous character of appellant's act. Rather than inform the court or opposing counsel of the force to be used prior to undertaking the unusual demonstration, appellant chose a course of action which he could reasonably foresee would be disruptive of the court process. The force used in the demonstration resulted in an intrusion into the jury box- \\u2014 \\\"driving [the witness] over the rail.\\\" The resulting immediate objections by counsel and the reaction of the court reflect the surprise and disruption occasioned by the force applied in the demonstration. We do not find any abuse of discretion on the part of the trial judge in finding appellant in contempt. His act of striking the witness obstructed the orderly flow of the trial and materially infringed on the dignity and authority of the court. Counsel went far beyond the scope of his authorized role as an advocate.\\nMr. Horn also urges that his contempt conviction should be reversed because the trial judge failed to follow the proper procedures mandated by Rule 41(a), W.R.Cr.P. In this respect, he contends that the trial judge did not set forth the underlying facts relied upon in his order of contempt and also that the filing of a certification of contempt and order were too far removed from the proceeding itself. In support of this position, Horn relies on United States v. Marshall, 451 F.2d 372 (9th Cir. 1971). In that case, the court, in construing Rule 42(a), F.R.Cr.P., said that in certifying a contempt and entering an order the court must recite or point to the specific facts upon which the conviction rests. 451 F.2d at 375. It must also be clear from the record that the contumacious conduct did, in fact, occur directly before the court; however, the required certification need not be entered by the judge immediately and those requirements of Rule 42(a) are merely designed to aid appellate review. 451 F.2d at 377. The certification requirements are not designed to give the defendant notice or to frame an issue to be tried. Id. We followed a similar rule in Townes v. State, supra, where we stated:\\n\\\"A court's power to punish for contempt is a necessary and integral part of the independence of the judiciary. Nevertheless, where there has been a criminal contempt and the trial court makes a summary disposition under (a) of Rule 41 it 'must be meticulously careful to observe [procedural] safeguards,' Yates v. United States, 9 Cir., 227 F.2d 848, 850; Widger v. United States, 5 Cir., 244 F.2d 103, 107; .\\\" 502 P.2d at 993.\\nIn Townes we were concerned with the need for the trial judge to file an order which certified in specific terms the facts supporting the contempt citation. There, however, we did not reverse the conviction where the judge had filed an inadequate certificate under Rule 41(a), W.R.Cr.P., but rather we held that the judge had decided to hold a hearing on the contempt charge and therefore was required to operate under the provisions of Rule 41(b), supra n.l. We also noted in Townes that the need for the filing of a certificate, or for the judge to certify the contempt, is not an immediate one. 502 P.2d at 993. The essential requirement of Rule 41(a), W.R.Cr.P., is that the order or certificate when filed must specifically recite the facts upon which the conviction rests, and it must be clear, from the record, that the contemptuous conduct took place in the presence of the court. In re Williams, 509 F.2d 949 (2nd Cir. 1975); Pietsch v. President of United States, 434 F.2d 861 (2nd Cir. 1970); 3 Wright, Federal Practice and Procedure, \\u00a7 708.\\nTurning to the case at bar, the judge's order makes clear those things that transpired at the trial and that such conduct as is charged to be contemptuous took place directly before the judge. The transcript attached to the order specifically sets out the facts supporting appellant's conviction, and we are of the opinion that Rule 41(a), W.R.Cr.P., has been complied with in all necessary respects. Thus, although the delay in entering the order appealed from was unfortunate, we do not find that appellant's rights were affected in any way, nor was our review of the matter curtailed. We therefore hold that the trial judge properly invoked Rule 41(a) and the conviction of contempt is affirmed.\\nTHE FINE\\nAs noted in the discussion of the facts, the trial judge imposed a $100 fine on appellant immediately after summarily instituting the contempt proceedings, and then after a short recess appellant was further assessed with all the costs incurred by the defendants in the underlying action. This sum amounted to $36,927.18. In his brief, appellant advances numerous arguments concerning the imposition of such a heavy fine. However, he is essentially contending that the trial judge was without authority to impose a civil fine. We agree. The law plainly requires a reversal of the $36,927.18 fine levied against appellant because the trial judge acted outside of the scope of his powers in awarding compensation to the defending litigants in a criminal contempt proceeding. We affirm the $100 fine initially entered because it does not evidence an abuse of discretion. Badley v. City of Sheridan, supra.\\nThe law is well settled that criminal contempt proceedings are designed to protect the integrity of the courts and they are instituted to preserve public confidence in judicial tribunals. As such, the public is the interested party rather than any particular individual suitor. This principle was set out by the United States Supreme Court in Bessette v. W. B. Conkey Co., 194 U.S. 324, 24 S.Ct. 665, 48 L.Ed. 997 (1904), when the court stated:\\n\\\"Manifestly if one inside of a courtroom disturbs the order of proceedings, or is guilty of personal misconduct in the presence of the court, such action may properly be regarded as a contempt of court, yet it is not misconduct in which any individual suitor is specially interested. It is more like an ordinary crime which affects the public .\\\" (Emphasis added.) 194 U.S. at 329, 24 S.Ct. at 667.\\nConsidering the nature of criminal contempt, the courts have established the rule that, since the purpose of fines for criminal contempt is to punish, the proper aggrieved party is the state and not a private litigant who is the beneficiary of an award in a civil contempt proceeding. See: Nye v. United States, supra; United States v. United Mine Workers of America, 330 U.S. 258, 303, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947); State ex rel. Payne v. Empire Life Ins. Co., Ala., 351 So.2d 538 (1977); State v. Unique Ideas, Inc., 44 N.Y.2d 345, 405 N.Y.S.2d 656, 376 N.E.2d 1301 (1978); Brown v. Brown, 183 Colo. 356, 516 P.2d 1129 (1973). This general rule concerning the proper allocation and power of the courts to punish for criminal contempts was discussed as follows in Hyde Construction Company, Inc. v. Koehring Company, 387 F.Supp. 702 (S.D.Miss.1974):\\n\\\"Fines in criminal contempt are wholly punitive and unrelated in amount to any private damages caused by the contemptuous conduct. Fines in purely criminal contempt, moreover, are not allocable to private litigants, since it is the authority and dignity of the court which is endangered, not private interests. We are aware that in some cases involving criminal contempt proceedings fines have been paid over to the opposing party, or divided between the court and the private litigants. It is plain, however, that in each such instance the criminal contempt conviction was accompanied by a valid civil contempt decree so that allocation of fines to private litigants was based solely on the civil aspect of the dual proceeding. We find no instance in which any court, in exclusively criminal contempt proceedings, has allowed private litigants to share in a fine which is punitive and devoid of remedial purpose.\\\" (Footnotes omitted and emphasis in original.) Id. at 715-716.\\nThe rule to be derived from this body of case law is that although a single act can be both a criminal and civil contempt, when the act is punished as a criminal contempt, the court has no power to impose a fine the purpose of which is to punish but which in fact inures to the benefit of a private litigant. The crime is against the court as an agency of the state and not a private litigant, and any fine imposed must therefore and of necessity inure to the benefit of the court and the state. Brown v. Brown, supra; State v. Unique Ideas, Inc., supra. From this it is to be concluded that the trial judge erred in requiring the appellant to pay all costs to the defendants in the underlying lawsuit. He had no power to impose such a fine, since, as hereinbefore discussed, appellant's act can only be regarded as a criminal contempt.\\nWe reverse so much of the court's order as would have the effect of fining the appellant $36,927.18 and affirm such of the order as does impose a $100 fine for criminal contempt.\\nAffirmed in part, reversed in part.\\n. Rule 41, W.R.Cr.P., provides:\\n\\\"(a) Summary disposition. \\u2014 A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts, shall be signed by the judge and entered of record.\\n\\\"(b) Disposition on notice and hearing. \\u2014 A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant, or on application of the prosecuting attorney, or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. Upon arrest the defendant shall be entitled to admission to bail as provided in these rules. If the contempt charge involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment.\\n\\\"(c) Jury trial. \\u2014 Sentence to imprisonment upon a conviction on a charge of criminal contempt shall not exceed a term of six (6) months unless the defendant shall have been afforded the right to trial by jury on the charge.\\\"\\n. The actual issues to be tried in the underlying lawsuit are not before us in this appeal.\\n. The question whether, under the circumstances, appellant's conduct could properly be punished as contemptuous is considered in the next section.\\n. Federal authorities will be cited throughout this opinion because Rule 41(a), W.R.Cr.P., models Rule 42 of the Federal Rules of Criminal Procedure and thus the federal authorities are highly persuasive.\\n. See also: In Re Mayne's Estate, Wyo., 345 P.2d 790 (1959).\\n. For other cases recognizing this principle see: Bessette v. W. B. Conkey Co., 194 U.S. 324, 24 S.Ct. 665, 48 L.Ed. 997 (1904); In Re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); Hawk v. Cardoza, 575 F.2d 732 (9th Cir. 1978); Ong Hing v. Thurston, 101 Ariz. 92, 416 P.2d 416 (1966); In re Hallinan, 71 Cal.2d 1179, 81 Cal.Rptr. 1, 459 P.2d 255 (1969); Pennington v. Chaffee, 1 Kan.App.2d 682, 573 P.2d 1099 (1977).\\n. As to the right to trial by jury in a criminal contempt proceeding it is the rule that as long as the penalty imposed is commensurate with a petty offense, then no jury-trial right attaches. See Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968).\\n. Appellant focuses on the fact that the actual order of contempt was not entered by the trial judge until January 19, 1982, some 63 days after he was summarily found in contempt on November 17, 1981. However, a portion of this delay occurred because the trial judge had entered an order on December 7, 1981, certifying the contempt and setting a precondition on the plaintiffs right to retry his case, which we ordered corrected on January 14, 1982. The order of this court resulted in the filing of the January 19, 1982, order from which this appeal is taken.\\n. Appellant not only contends that the fines amounted to an abuse of discretion but also that they were imposed in violation of his rights to due process and trial by jury, and that they violated concepts of double jeopardy. As we have previously noted, appellant under the circumstances of this case received the due process to which he is entitled (see: Spriggs v. Pioneer Carissa Gold Mines, Inc., supra) and in light of our conclusions set forth infra, we will not address the jury-trial and double-jeopardy claims.\"}"

wyo/10441046.json

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+"{\"id\": \"10441046\", \"name\": \"Gwen BRIGHTWELL, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff)\", \"name_abbreviation\": \"Brightwell v. State\", \"decision_date\": \"1981-07-22\", \"docket_number\": \"No. 5450\", \"first_page\": \"1048\", \"last_page\": \"1051\", \"citations\": \"631 P.2d 1048\", \"volume\": \"631\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T19:27:09.419876+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before ROSE, C. J., and RAPPER, THOMAS, ROONEY and BROWN, JJ.\", \"parties\": \"Gwen BRIGHTWELL, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"Gwen BRIGHTWELL, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).\\nNo. 5450.\\nSupreme Court of Wyoming.\\nJuly 22, 1981.\\nRichard Honaker, Appellate Counsel, Wyoming Public Defender, Gerald M. Gallivan, Director, and Jodi E. Brayton, Intern, Wyoming Defender Aid Program, Laramie, for appellant.\\nSteven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Sharon A. Lyman, Asst. Atty. Gen., Cheyenne, for ap-pellee.\\nBefore ROSE, C. J., and RAPPER, THOMAS, ROONEY and BROWN, JJ.\", \"word_count\": \"2330\", \"char_count\": \"13507\", \"text\": \"ROSE, Chief Justice.\\nAppellant, Ms. Brightwell, was convicted of the crime of assault with a deadly weapon as embodied in \\u00a7 6-4-506(b), W.S.1977, and appeals her conviction. She raises one issue for this court's decision, namely that insufficient evidence of the crime of aggravated assault was adduced at her trial since the State failed to prove an attempted battery on her part which is a necessary element of the crime. We agree that in order to convict a defendant of the crime of aggravated assault under \\u00a7 6-4-506, W.S. 1977, the State must produce evidence of attempted battery. Thus, the sole issue in this appeal concerns whether the State met this burden in her case. For the reasons discussed below we will affirm the appellant's conviction.\\nOn the evening of July 26, 1980, the appellant, along with a friend, Christine Harper, flagged down a small pickup truck driven by Mr. Donald E. Emerson. Mr. Emerson stopped his truck because Ms. Harper was standing directly in his lane of traffic. The two young ladies then proceeded to get into the truck even though Mr. Emerson made no request that they do so. Ms. Brightwell positioned herself next to Mr. Emerson and Ms. Harper sat in the passenger seat. Upon gaining entrance to the truck, the women requested a ride to the supermarket. Mr. Emerson decided to comply with this request in order to get rid of them. Once in the pickup, the appellant ' began to make advances toward Mr. Emerson and requested that they go find a place to sleep. When Emerson refused, appellant Brightwell placed her left arm around Mr. Emerson's neck and told him that she and Ms. Harper needed money. Upon Mr. Emerson stating that he had no money, the appellant said to Mr. Emerson, \\\"I mean business,\\\" whereupon she drew a sharp kitchen knife from her purse and held it in her right hand about three or four inches from Mr. Emerson's side. In the interim, Ms. Harper had acquired from the glove compartment of the truck, and held in her hands, a sharp letter opener. Emerson then drove approximately three blocks to a Mini-Mart where he jumped out of his truck and called the police. The appellant tried to grab his wrist as he left the truck but she was unsuccessful. Throughout the short ride, Ms. Brightwell did not attempt to stab Mr. Emerson, nor did he suffer any injury.\\nAt trial the appellant was found guilty of assault with a deadly weapon under \\u00a7 6-4-506(b), supra, and Ms. Harper was acquitted.\\nAs mentioned previously, the crime of assault with a deadly weapon or aggravated assault is embodied in \\u00a7 6-4-506(b), supra. This section reads:\\n\\\"(b) With dangerous weapon. -Whoever, while armed with a dangerous or deadly weapon, including an unloaded firearm, maliciously perpetrates an assault or an assault and battery upon any human being, shall be fined not more than one thousand dollars ($1,000.00), or be imprisoned in the penitentiary not more than fourteen (14) years, or both.\\\"\\nHowever, the inquiry as to the elements of the crime of aggravated assault cannot stop with a reading of \\u00a7 6-4-506(b), supra, since in Evanson v. State, Wyo., 546 P.2d 412 (1976), we said that it is also necessary to look to the corresponding statutory definition of assault.\\nThe crime of assault is now defined in \\u00a7 6-4-501, W.8.1977, and it reads in pertinent part: Thus, in Evanson, supra, 546 P.2d at 416, we set 'out the elements of the crime of assault with a deadly weapon to be as follows:\\n\\\"Whoever, having the present ability to do so, unlawfully attempts to commit a violent injury on the person of another, is guilty of an assault and shall be fined in any sum not exceeding fifty dollars ($50.00).\\\"\\n\\\" To constitute an assault with a deadly weapon (aggravated assault, \\u00a7 6-70OB), actual injury need not be caused. The elements of the offense are the unlawful attempt with unlawful intent (maliciously) to accomplish a violent injury upon the person of another, the use of a deadly weapon in that attempt and the present ability to accomplish the injury. People v. Rocha, 1971, 3 Cal.3d 893, 92 Cal.Rptr. 172, 479 P.2d 372. In Elliott v. State, 1934, 47 Wyo. 36, 45, 30 P.2d 791, 793, are several definitions making it clear that the term 'maliciously' embraces, amongst other things, the element of unlawful intent.\\\" (Emphasis added.)\\nIn Brown v. State, Wyo., 590 P.2d 1312 (1979), we were called upon to decide the effect of the \\\"including an unloaded firearm\\\" language in \\u00a7 6-4-506(b), supra, which had been added to \\u00a7 6-70B, W.S. 1957, in 1975 and thus made an element of our aggravated-assault law. In that case, we determined that the effect of the amendment was to change the \\\"present ability\\\" element in \\u00a7 6-4-501, supra, to that of \\\"apparent ability.\\\" Id., 590 P.2d at 1315. We did not find that the added language was intended by the legislature as an adoption of a second type of assault. In Fuller v. State, Wyo., 568 P.2d 900, 904 (1977), we stated that \\\"(bly its statutes, Wyoming has limited criminal assault to attempted battery.\\\" Our decision in Brown did not change this. Thus, even though the trend in the law of criminal assault is to punish not only the attempted-battery type but also the intentional-apprehension-of-fear type, which is more in the nature of the tort concept of assault, the Wyoming legislature has not yet adopted this latter approach.\\nConsidering our decision in Brown, the elements of the erime of assault with a deadly weapon in Wyoming are now the unlawful attempt with unlawful intent (maliciously) to commit a violent injury (attempted battery) upon the person of another, with the use of a deadly weapon in that attempt and the apparent ability to accomplish that injury.\\nIt is now necessary to analyze the facts of this case in relation to the above elements to determine whether the appellant was properly convicted of assault with a deadly weapon under \\u00a7 6-4-506(b), supra. Clearly, the appellant in this case held in her hand a deadly weapon when she pointed the knife at Mr. Emerson. We said in Evanson, supra, 546 P.2d at 416, that \\\"[a] weapon, when used in a manner capable of producing and likely to produce death or great bodily injury, is a deadly weapon.\\\" A knife with a six-inch blade, like that held by Ms. Brightwell, clearly satisfies this test. In addition, the appellant had the \\\"apparent ability\\\" to commit a violent injury upon Mr. Emerson when she put her left arm around his neck and held the knife a few inches from his body.\\nLikewise, from these same facts Ms. Brightwell's intent to commit a violent injury upon Mr. Emerson can be inferred. In Fuller, supra, 568 P.2d at 904, we stated that \\\"[iJntent may be inferred from the conduct of a defendant and from circumstantial evidence,\\\" citing Deeter v. State, Wyo., 500 P.2d 68 (1972). In Fuller the defendant's intent to injure was inferred from his firing a rifle at a moving patrol car. In this case, Brightwell's placing of her arm around Emerson's neck, while holding a knife a few inches from his body and stating \\\"I mean business,\\\" all while Emerson was driving a motor vehicle, is enough, taken collectively, to satisfy the proof requirement that she in fact intended to injure him.\\nThe final element which must be satisfied concerns the attempted-battery requirement. The appellant contends that there was no evidence adduced at trial that she attempted a battery upon the person of Mr. Emerson. In her brief she correctly stated that at no time did she swing the knife or attempt to use it upon Mr. Emerson. Mr. Emerson also testified that the appellant never injured him physically. However, the appellant in this case would have this court hold that in order for her to have committed an assault she would in fact have had to stab Mr. Emerson. In Evanson, supra, 546 P.2d at 416, we stated that in order to commit an assault with a deadly weapon, actual injury need not be inflicted. Appellant would require in this case that Mr. Emerson had in fact been injured. It seems very likely that had Ms. Brightwell attempted to stab Mr. Emerson she would have injured him, considering the fact that the knife was only inches from his body and the fact that his movement was restricted by her arm around his neck. When appellant placed her arm around Mr. Emerson's neck, she actually touched him in a rude and threatening manner. She indicated that he could avoid injury from use of the knife only on condition that he comply with her directions. This was an attempted battery. In conclusion, we hold that when a knife is held in a threatening manner only inches from a person's body, an attempted battery has occurred.\\nAs further support for this conclusion, it is easy to see why Ms. Brightwel' committed an assault with a deadly weapon and why Ms. Harper did not. Ms. Harper may have been holding a knife at the time of the incident, but she never pointed it in Mr. Emerson's direction nor threatened him with it. In juxtaposition to this is Bright-well's conduct. She not only had her arm around Emerson's neck and pointed a knife at him, but also threatened him by stating . \\\"I mean business.\\\" Clearly she attempted a battery upon him.\\nWe conclude that the appellant was properly found guilty of the crime of assault with a deadly weapon (aggravated assault) under \\u00a7 6-4-506(b), W.8.1977, and her conviction is affirmed.\\n. In Evanson we were dealing with \\u00a7 6-70B, W.S.1957, and with the statutory definition of assault embodied in' \\u00a7 6-67, W.$.1957. Section 6-4-506(b), W.$.1977, now embodies the identical language of \\u00a7 6-70B including a 1975 amendment to that statute which was not at issue in Evanson.\\n. For a discussion of the two types of criminal assault see LaFave and Scott, Handbook on Criminal Law, \\u00a7 82 (1972).\"}"

wyo/10441169.json

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+"{\"id\": \"10441169\", \"name\": \"Edward B. CAMPEN and Schlumberger Well Services, a Texas Corporation, authorized to do business in the State of Wyoming, Appellants (Defendants), v. Charles STONE, Appellee (Plaintiff)\", \"name_abbreviation\": \"Campen v. Stone\", \"decision_date\": \"1981-10-21\", \"docket_number\": \"No. 5479\", \"first_page\": \"1121\", \"last_page\": \"1135\", \"citations\": \"635 P.2d 1121\", \"volume\": \"635\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T23:13:17.748851+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.\", \"parties\": \"Edward B. CAMPEN and Schlumberger Well Services, a Texas Corporation, authorized to do business in the State of Wyoming, Appellants (Defendants), v. Charles STONE, Appellee (Plaintiff).\", \"head_matter\": \"Edward B. CAMPEN and Schlumberger Well Services, a Texas Corporation, authorized to do business in the State of Wyoming, Appellants (Defendants), v. Charles STONE, Appellee (Plaintiff).\\nNo. 5479.\\nSupreme Court of Wyoming.\\nOct. 21, 1981.\\nRehearing Denied Nov. 9, 1981.\\nJeffrey J. Gonda and Robert G. Berger, Lonabaugh & Vanderhoef, Sheridan, signed the briefs and appeared in oral argument on behalf of appellants.\\nTimothy S. Tarver, Koester & Tarver, Sheridan, signed the brief and appeared in oral argument on behalf of appellee.\\nBefore ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.\", \"word_count\": \"8627\", \"char_count\": \"52701\", \"text\": \"RAPER, Justice.\\nThis appeal primarily concerns a jury's award of punitive damages against an employer as a result of an employee's willful and wanton misconduct. The employer challenges the award contending that it should not be held liable for punitive damages absent a showing that it \\u2014 the employer \\u2014 was guilty of willful and wanton misconduct. Both the employer and employee challenge the remainder of the verdict because of the admission of evidence as to the employer's wealth.\\nWe will reverse and remand for a new trial.\\nOn the morning of April 15, 1980, appellant \\u2014 Edward Campen \\u2014 while in the employ of appellant \\u2014 Schlumberger Well Services \\u2014 was preparing for a business trip. He was to drive from his home in Billings, Montana, to Casper, Wyoming, in order to address the Wyoming Geological Society on behalf of his employer. During the morning hours Campen took a prescribed valium tablet for chest pains and an Allerest for cold symptoms. Then at lunch he consumed three martinis before setting off for Casper in a company car at around 1:20 p. m.\\nSometime between 4:00 p. m. and 4:30 p. m. on Interstate 90 outside of Sheridan, Wyoming, the car Campen was driving collided with the rear end of a 1979 Chevrolet pickup, owned and driven by appellee\\u2014 Charles Stone. While Stone's pickup truck was totaled in the accident, Stone himself received two compressed vertebrae as a result of the accident. His medical bills totaled $503, and there was testimony that Stone would have a ten percent permanent partial physical impairment as a result of the injuries to his back.\\nAfter the collision, an investigating police officer asked Campen to submit to a blood alcohol test, but Campen refused. Campen later pled guilty to driving too fast for conditions.\\nOn June 17, 1980, the appellee filed suit against the appellants. On October 9,1980, appellee amended his complaint and alleged that Campen, while acting within the scope of his employment, \\\"was driving in a reckless manner with complete disregard for the safety of others and was willfully, wantonly and grossly negligent, which caused the damage to Stone.\\\" Appellee prayed for compensatory and punitive damages against both Campen and Schlumberger. Prior to trial the parties stipulated that Campen had been negligent in the operation of his motor vehicle. On December 15, 1980, the trial commenced. During the trial evidence of Schlumberger's wealth was admitted into evidence. On December 17, 1980, the jury returned the following special verdict:\\n\\\"1. Was Edward B. Campen negligent?\\n\\\"A. Yes X (You have been instructed that Edward B. Campen and Schlumberger Well Services, Inc., have stipulated that Edward B. Campen was negligent.) [ ]\\n\\\"B. No_\\n\\\"2. Was the negligence of Defendant, Edward B. Campen, a proximate cause of the Plaintiff's personal injuries?\\n\\\"A. Yes X\\n\\\"B. No _\\n\\\"3. Determine the dollar amount of damages which Plaintiff Charles Stone suffered as the proximate result of the collision for each of the following items:\\n\\\"A. Damage to his personal property. (The parties have stipulated that the value of his property is $8,500.00.) $ 8,500.00\\n\\\"B. Medical expenses. (The parties have stipulated that $503.00 is a reasonable amount.) $ 503.00\\n\\\"C. Lost earnings between the date of the collision and the date of the trial.\\n$ 6,700.00\\n\\\"D. Earnings Mr. Stone will lose in the future. $30,000.00\\n\\\"E. Past and future loss of enjoyment of\\nlife. $ 2,500.00\\n\\\"F. Past and future pain and suffering.\\n$ 7,500.00\\n\\\"4. Was Defendant Edward B. Campen guilty of willful and wanton misconduct on April 15, 1980, which caused the collision?\\n\\\"A. Yes X\\n\\\"B. No _\\n\\\"5. If your answer to Question 6 is in the affirmative state what amount, if any, Defendants should pay as Punitive Damages.\\n\\\"A. Defendant Edward B. Campen\\n$ 3,000.00\\n\\\"B. Schlumberger Well Services, Inc.\\n$120,000.00\\\"\\nJudgment awarding damages was entered in accordance with the findings of the jury on December 22, 1980. From that judgment Campen and Schlumberger have appealed.\\nI\\nThe first issue we must consider on appeal concerns, when may punitive damages be properly awarded against an employer for the misconduct of an employee. When reviewing an award of punitive damages, we must keep in mind that \\\"[pjunitive damages are not a favorite of the law Town of Jackson v. Shaw, Wyo., 569 P.2d 1246 (1977).\\n\\\"[Punitive] damages have for their purpose the punishment of a defendant in a civil action for wrongful and aggravated conduct and to serve as a warning to others to deter. They are not recoverable to compensate the plaintiff. \\\" (Bracketed word substituted.) Danculovich v. Brown, Wyo., 593 P.2d 187 (1979).\\nTheir justification is not to provide a windfall to plaintiffs and their attorneys, but is, in fact, to publicly condemn some notorious action or inaction upon the part of the defendant. The design of punitive damages is deterence through public condemnation and the damages awarded should be narrowly tailored toward that end. It must always be remembered that if the conduct was outrageous enough, the legislature would have provided a civil or criminal sanction. \\\"Accordingly, our consideration is whether the award for punitive damages in this case can be said to serve a useful purpose as a punishment to a defendant for the protection of the public.\\\" Condict v. Hewitt, Wyo., 369 P.2d 278 (1962). We will not uphold an award of punitive damages which punishes unjustly or excessively. See Town of Jackson v. Shaw, supra, where provision was made for a diminished award and also Mattyasovszky v. West Towns Bus Company, 61 Ill.2d 31, 330 N.E.2d 509, 511 (1975).\\nThere exists an important distinction between punitive and compensatory damages. Town of Jackson v. Shaw, supra, 569 P.2d at 1253. Where the question raised is one concerning the employer's liability for compensatory damages, this court has said:\\n\\\"In Wyoming, as a matter of public policy and economic requirement, a master is liable for damages caused by the negligence of his servant while acting within the scope of the servant's employment. \\\" Combined Insurance Company of America v. Sinclair, Wyo., 584 P.2d 1034, 1042 (1978).\\nIn the present case Schlumberger, as the employer, conceded that at the time of the accident Campen, its employee, was acting within the scope of his employment. Consequently, there is before us no question as to Schlumberger's liability for compensatory damages.\\nSome jurisdictions have held that an employer's liability for acts occurring within the scope of the employment extends to punitive damages as well as compensatory. In fact, according to one well known authority, a majority of courts have adopted this position. Prosser, Law of Torts, 4th Ed., p. 12 (1971).\\nThere is, on the other hand, a substantial and growing number of courts which reject blindly applying the doctrine of respondeat superior to punitive damages. These courts have different rules for the imposition of liability upon the master depending on whether the damages are punitive or compensatory in nature. These courts argue:\\n\\\"The punitive and deterrent underpinnings of a punitive damages award explain this divergence in vicarious liability doctrine. For whereas the purpose of compensatory damages \\u2014 compensation of the victim \\u2014 is accomplished whether payment comes from the master or his misbehaving servant, that of punitive damages \\u2014 to punish the wrongdoer and deter him and others from duplicating his misconduct \\u2014 is not. Unless the employer is himself guilty of some tortious act (or omission) because his employee has misbehaved, an award punishing the employer and deterring him and others situated to act likewise (i.e., other employers) makes no sense at all.\\\" Williams v. City of New York, 508 F.2d 356, 360 (2nd Cir. 1974).\\nRecently the Florida Supreme Court abandoned the so-called \\\"majority rule.\\\" Mercury Motors Express, Inc. v. Smith, Fla., 393 So.2d 545 (1981). There that court said:\\n\\\"We conclude that the principles of law which should be applied in this and in other similar respondeat superior cases are as follows: (1) An employer is vicariously liable for compensatory damages resulting from the negligent acts of employees committed within the scope of their employment even if the employer is without fault. This is based upon the long-recognized public policy that victims injured by the negligence of employees acting within the scope of their employment should be compensated even though it means placing vicarious liability on an innocent employer. (2) Punitive damages, however, go beyond the actual damages suffered by an injured party and are imposed only as a punishment of the defendant and as a deterrent to others. (3) Before an employer may be held vicariously liable for punitive damages under the doctrine of respondeat superior, there must be some fault on his part. (4) Although the misconduct of the employee, upon which the vicarious liability of the employer for punitive damages is based, must be willful and wanton, it is not necessary that the fault of the employer, independent of his employee's conduct, also be willful and wanton. It is sufficient that the plaintiff allege and prove some fault on the part of the employer which foreseeably contributed to the plaintiff's injury to make him vicariously liable for punitive damages.\\\" (Emphasis in original.) 393 So.2d at 549.\\nOther courts have adopted even more stringent tests for determining if an employer shall be liable for punitive damages. The New Mexico Supreme Court stated in Samedan Oil Corporation v. Neeld, 91 N.M. 599, 577 P.2d 1245, 1249 (1978), that:\\n\\\" Whether or not an employee is acting 'within the scope or course of his employment' is not the standard under which punitive damages may be assessed against his employer. This point of law was clearly settled in Sanchez v. Securities Acceptance Corp., supra [57 N.M. 512, 260 P.2d 703] where we said:\\n\\\" 'The law of New Mexico, as set forth in [Stewart v. Potter, supra, 44 N.M. 460, 104 P.2d 736, and Miera v. George, 55 N.M. 535, 237 P.2d 102 (1957)] establishes the rule that a principal is liable for compensatory damages arising out of the tortious act of an employee acting within the scope of his authority ; but the principal is not liable for punitive damages for the same act, unless it is proved, over and above the fact that the agent was acting within the scope of his authority, that the principal participated in, authorized, or ratified the actual tortious conduct of the agent. (Emphasis added.)'\\n\\\"Id. 57 N.M. at 516-517, 260 P.2d at 706-707.\\\" (Bracketed material in original.)\\nA similar approach has been followed in Ohio. There in connection with punitive damages, it was recently stated:\\n\\\" Such damages are awarded as punishment for the malicious intent of the defendant, and not as compensation for the benefit of the plaintiff. Curry v. Big Bear Stores Co., [Ohio Com.Pl., 142 N.E.2d 1684 (1956)]. The employer is not to be punished for the personal guilt of his servant or agent unless the employer authorized, ratified or participated in the wrongdoing. Tracy v. Athens & Pomeroy Coal & Land Co. (1926), 115 Ohio St. 298, 152 N.E. 641.\\\" Gray v. Allison Division, General Motors Corporation, 52 Ohio App.2d 348, 6 Ohio Op.3d 396, 370 N.E.2d 747, 752 (1977).\\nAn almost identical rule has been incorporated in the Restatement, Torts 2d, \\u00a7 909 and in the Restatement, Agency 2d, \\u00a7 217C. Both of these sections provide that:\\n\\\"Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if,\\n\\\"(a) the principal or a managerial agent authorized the doing and the manner of the act, or\\n\\\"(b) the agent was unfit and the principal or a managerial agent was reckless in employing or retaining him, or\\n\\\"(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or\\n\\\"(d) the principal or a managerial agent of the principal ratified or approved the act.\\\"\\nThe comments to the Restatement argue that this rule is the logical result when consideration is given to the purpose behind punitive damages. It would be improper \\\"to award punitive damages against one who himself is personally innocent and therefore liable only vicariously.\\\" Restatement, Torts 2d, \\u00a7 909, Comment (b).\\nSeveral states have adopted the Restatement's approach. In Agarwal v. Johnson, 25 Cal.3d 932, 160 Cal.Rptr. 141, 603 P.2d 58, 69 (1979), the California Supreme Court acknowledged \\u00a7 909 of the Restatement, Torts 2d as the law of that state. The Illinois Supreme Court cited \\u00a7 217C of the Restatement, Agency 2d as authority in Mattyasovszky v. West Towns Bus Company, supra, 330 N.E.2d at 512. See also, Holda v. County of Kane, 88 Ill.App.3d 522, 43 Ill.Dec. 552, 410 N.E.2d 552 (1980). The Supreme Court of Texas applied the Restatement's test in Purvis v. Prattco Inc., Tex., 595 S.W.2d 103 (1980).\\nWe likewise believe that the Restatement's approach is the best. It is consistent with the purpose behind punitive damages. Further, it is relatively straight forward and easy to apply. Accordingly, we adopt the test as set forth in the Restatement as the one to be used in determining when an employer may be held liable for punitive damages as a result of the misconduct of the employee.\\nIn this case then, in order for the award of punitive damages to have been proper, one of four circumstances must have been present. First, Schlumberger or a managerial agent thereof must have authorized the doing and the manner of the act. Or second, Campen was unfit and Schlumber-ger was reckless in employing or retaining him. Or third, Campen was employed in a managerial capacity and was acting in the scope of employment. Or finally, Schlum- berger or one of its managerial agents ratified or approved the act.\\nHowever, the jury was only given the following instruction as to when it could award punitive damages against Schlum-berger:\\n\\\"If you find that Defendant Ed Campen was guilty of willful and wanton misconduct, then, in addition to any actual damages, you may also award Mr. Stone punitive damages against Mr. Campen and Schlumberger.\\n\\\"Punitive damages are not to be considered as compensation to the Plaintiff for the injuries he suffered, but as punishment to the defendants, and as an example to others. In assessing such damages against Defendant Ed Campen you may consider the pecuniary ability of Defendant Ed Campen. In assessing such damages agains [sic] Schlumberger, you may consider the pecuniary ability of Defendant Schlumberger.\\\"\\nIn effect, the court told the jurors that if Campen's conduct was willful and wanton, then Schlumberger was vicariously liable for punitive damages. These damages would be awarded separately from any punitive damages awarded against Campen; the measure of the damages would be based upon the wealth of the defendants.\\nSuch an instruction was in the nature of a partial summary judgment against Schlumberger that at least one of the four alternate conditions which would fix liability for punitive damages on the employer as required by the Restatement, Torts 2d, \\u00a7 909, was present and no issue of fact in that regard existed. Summary judgments are proper only when the evidence fails to raise an issue of fact requiring resolution during a trial. Madison v. Marlatt, Wyo., 619 P.2d 708, 716 (1980).\\nIn our review of the record, we have been unable to find that sufficient evidence supporting such a judgment for punitive damages against Schlumberger existed as a matter of law. Though Campen's trip to Casper was within the scope of his employment, no evidence was admitted in this case to show that Schlumberger authorized the negligent manner in which Campen was driving. Further, after the accident there is nothing in the record to indicate that Schlumberger approved or ratified Cam-pen's misconduct. Appellant has pointed out that Campen was not fired after the occurrence and no disciplinary action was taken against him. The Restatement, Agency 2d, \\u00a7 217C in its comment (b) declares that mere failure to dismiss a servant, unaccompanied by conduct indicating approval of the wrongful conduct, is not sufficient basis on which to impose punitive damages. Thus, the first and fourth elements of the Restatement's test clearly were not present.\\nAs to Campen's fitness, the evidence shows that prior to the accident involved in this case he had an \\\"excellent\\\" safety record. Schlumberger's files indicate that during the 23 years for which Campen had been employed, this was his first accident. Campen admitted that he had received three speeding tickets in the State of Montana between June of 1978 and November of 1979. During redirect examination of a company representative, the following exchange occurred:\\n\\\"Q Do the records about which you are speaking indicate any sorts of traffic violations by Mr. Campen?\\n\\\"A No, not to my knowledge.\\n\\\"MR. TARVER: I have no further questions.\\\"\\nThis evidence is insufficient to warrant a legal conclusion that Schlumberger was reckless in allowing Campen to continue to drive though this may be sufficient to at least raise a question in that regard. Even then, it would be tenuous at best. Finally, as to whether Campen was employed in a managerial capacity, the evidence submitted to the jury is again so skimpy as to be inadequate. The best appellee could offer us on the subject is a bare statement not received by the jury, made by Campen during a deposition taken in August of 1980, that his job entailed both sales and supervisory work. No questions were asked regarding what was meant by \\\"supervisory.\\\" This alone was insufficient to war rant the district court's instruction to the jury that Schlumberger was liable for punitive damages if Campen was guilty of willful and wanton misconduct.\\nAn adequate form of instruction to the jury was offered by appellants which would have properly presented the issue of Schlumberger's liability for punitive damages to the jury but was refused by the court. The law was fully argued and proper objections to the court's instructions timely made.\\nAccordingly, we conclude that the district court improperly instructed the jury as to when punitive damages could be awarded against Schlumberger. Tolle v. Interstate Systems Truck Lines, Inc., 42 Ill.App.3d 771, 1 Ill.Dec. 437, 356 N.E.2d 625 (1976); Oakview New Lenox School Dist. No. 122 v. Ford Motor Co., 61 Ill.App.3d 194, 19 Ill.Dec. 43, 378 N.E.2d 544, 548 (1978). The jury needed to make certain findings, which were not made, before the award of punitives against Schlumberger as a matter of law would have been proper. The award of punitive damages must be reversed and the case remanded for a new trial on that issue.\\nII\\nWe must now consider the second issue raised on appeal \\u2014 whether it was error for the district court to allow evidence of appellants' wealth to be presented to the jury.\\nNormally, the question of a defendant's ability to pay has absolutely no relevance to the issue of negligence or even compensatory damages and evidence of financial status is inadmissible. On a comparable basis, Wyoming has steadfastly followed the rule that it is error to receive evidence of a defendant's insurance coverage. Eagan v. O'Malley, 45 Wyo. 505, 21 P.2d 821, 822 (1933); Barnette v. Doyle, Wyo., 622 P.2d 1349 (1981). The danger of prejudice to a defendant of a disclosure of vast resources is obvious; also, a question of invasion of privacy is presented. See Gierman v. Toman, 77 N.J.Super. 18, 185 A.2d 241, 245 (1962). The Alabama Supreme Court, concerned about such dangers, has followed the rule for well over a hundred years that \\\"[liability for damages cannot be determined by the economic condition of either party.\\\" Southern Life and Health Ins. Co. v. Whitman, Ala., 358 So.2d 1025, 1027 (1978). This rule recognizes \\\"no distinction between situations involving compensatory and punitive damages.\\\" 358 So.2d at 1026.\\nHowever, in Wyoming such a distinction is acknowledged. In Sears v. Summit, Inc., Wyo., 616 P.2d 765, 772 (1980), this court stated:\\n\\\"It is proper to introduce evidence of a defendant's wealth when punitive damages are requested. And while this court has never held that such proof is mandatory, Town of Jackson v. Shaw, Wyo., 569 P.2d 1246, 1255 (1977), we believe that evidence of a defendant's wealth should be introduced when punitive damages are requested.\\n\\\"Evidence of a defendant's wealth is important because it is one of three factors that should be considered by the jury when making an award of punitive damages and by the appellate court in reviewing the award. The factors that should be considered are: the nature of the tort; the amount of the actual damages; and the wealth of the defendant. \\\"\\nCompensatory damages have been designed to attempt to make a plaintiff whole again; punitive damages are aimed at punishing in a degree equivalent to the level of moral or social culpability attached to the defendant's misconduct. As a result, before assessment of punitive damages is allowed, courts have historically required a finding that the defendant's action \\\"was committed maliciously, willfully, or by some form of wantonness.\\\" Wilson v. Hall, 34 Wyo. 465, 468, 244 P. 1002, 1003 (1926). This malice requirement has served as a means of ensuring that the defendant's misconduct merits punishment. Evidence of a defendant's wealth must be provided the jury in such a manner so as not to interfere in the deliberations on whether willful and wanton conduct is present. As one commentator observed:\\n\\\" It is a good guess that rich men do not fare well before juries, and the more emphasis placed on their riches, the less well they fare. Such evidence may do more harm than good; jurymen may be more interested in divesting vested interests than in attempting to fix penalties which will make for effective working of the admonitory function. \\\" Morris, Punitive Damages in Tort Cases, 44 Harv.L.Rev. 1173, 1191 (1931).\\nThus, any procedure which is employed as a means of presenting this evidence should be designed to allow the defendant's conduct to be judged in a prejudice-free atmosphere. Only when this goal is attained will evidence of wealth constitute a meaningful deterrence which \\\"in the hands of astute counsel can [not] be used to prejudice the jury and becloud the issue.\\\" Morris, supra, 44 Harv.L.Rev. at 1191.\\nEvidence of wealth is irrelevant and prejudicial in most instances, but has generally been allowed when a question of punitive damages has been raised. This provides an obvious way to circumvent the import of Eagan, supra, when a wealthy defendant is involved. Plaintiffs merely need to claim they are entitled to punitive damages. Not only may the evidence of wealth affect the determination of whether punitive damages should be awarded, but it may further encourage compensatory damages to be based upon the defendant's ability to pay.\\nSeveral states have grappled with this problem. One of the more important opinions in the area is Gierman v. Toman, supra, 185 A.2d 241. There the court said:\\n\\\"The information sought appears to be relevant to the subject matter of this suit since malice is an ingredient of a malicious prosecution action and punitive damages are demanded.\\n\\\"Is the sequence of proof to be controlling? Should malice be first established before a party has a right to such information? There is no connection between a defendant's wealth and compensatory damages but there is such connection when exemplary damages are demanded. The obviously objectionable features of the present demand are invasion of a traditionally personal and private domain as well as inconvenience of disclosing details. Strictly speaking, orderly procedure requires liability to be proved before damages are available. However, since pretrial discovery precedes proof, should a prima facie showing of the right to damages support such a demand? Defendant, even when successful in litigation, absorbs unrecoverable costs and inconvenience. While orderly procedure is preferable, deviation is com mon practice. The exigencies of a trial require departure at times. However, where a right of a litigant to insist on orderly procedure raises a substantial question of prejudice, albeit of an intangible nature, the strict adherence to procedure seems called for where the character of the harm is irreparable. Just and orderly procedure here requires that prima facie proof of the right to recover punitive damages should precede the right to a general disclosure of wealth; and as to specific details such as requested here, the rules furnish sufficient protection against abuse and harassment.\\\" 185 A.2d at 244.\\nIn 1975 a New York court carried Gier-man further:\\n\\\"It was also ruled in Gierman (supra) that evidence of defendant's wealth could not be brought out upon the trial unless and until the jury has brought in a special verdict that plaintiff is entitled to punitive damages against defendant. This approach has been recommended in a note in 21 St. John's Law Review, pp. 198 at 201-202. We adopt this procedural principle.\\n\\n\\\"Defendant's wealth should not be a weapon to be used by plaintiff to enable him to induce the jury to find the defendant guilty of malice, thus entitling plaintiff to punitive damages. To avoid such possible abuse, we conclude that the split trial procedure should be used, and that the Court should take a special verdict as to whether defendant was guilty of such conduct that plaintiff is entitled to punitive damages. Not until plaintiff obtains such a special verdict that he is entitled to punitive damages is it necessary or important for him to know defendant's wealth.\\n\\n\\\"We recognize that in some respects this procedure may delay the final disposition of a case. But such delay will be eompen-sated (1) by the protection of defendants from harassment by discovery of their net worth in cases where plaintiffs have only alleged, but have not established, a cause of action for punitive damages and (2) by the time saved in barring such discovery in cases where plaintiff cannot prove that he is entitled to punitive damages. Moreover, the limited discovery to which a plaintiff is entitled as to defendant's wealth in a punitive damage case should be conducted expeditiously, and in most cases it should be completed and the necessary evidence be available for presentation to the same jury which rendered the special verdict.\\\" Rupert v. Sellers, 48 A.D.2d 265, 368 N.Y.S.2d 904, 912-913 (1975).\\nThe ruling in Rupert was examined and discussed at length in a recent law review Note, The Use of Evidence of Wealth in Assessing Punitive Damages in New York: Rupert v. Sellers, 44 Alb.L.Rev. 422 (1980). There the import of the case was noted as follows:\\n\\\"The most fundamental element of the Rupert decision is its holding that evidence of wealth is admissible with respect to the assessment of punitive damages. This holding reflects the view that evidence of a defendant's wealth, when coupled with evidence of his culpability, provides a realistic guide for the assessment of damages that will, in fact, punish the defendant. Thus, utilization of evidence of wealth is consistent with the punishment and deterrence objectives of punitive damages.\\n\\\"Utilization of evidence of a defendant's wealth is also consistent with the secondary functions performed by the punitive damages sanction. The jury, as societal representatives expressing indignation toward conduct motivated by malice, is better equipped to do so in a system where punitive damages are not assessed in an evidentiary vacuum. Furthermore, potential plaintiffs, confronted with a sys tem in which juries can express societal disapproval with reference to economic realities, will be encouraged to bring suit against those who have committed tor-tious wrongs. The anticipation of awards proportional to a defendant's wealth can serve as an incentive for the commencement of such suits by neutralizing the inherently negative factors of delay and expense that accompany litigation. Thus, allowing evidence of wealth to serve as a factor in punitive damages awards effectively may encourage individuals harmed by wrongful conduct to bring the tort-feasors into the courtroom.\\n\\\"It must be noted that Rupert, while allowing evidence of the defendant's wealth to serve as a consideration in the assessment of punitive damages, does not allow such evidence into the trial indiscriminately. Rather a split trial procedure is utilized \\u2014 no evidence of wealth is allowed unless and until the jury has returned a special verdict authorizing an award of punitive damages. This two-phase requirement makes it possible for the defendant's conduct to be evaluated free from the influence of his financial status. Splitting the trial into two phases thus effectively balances the interests of the defendant with those of society by insuring that liability in the first instance will be based solely on the presence of a tortious wrong, while at the same time allowing the jury to assess a meaningful punishment when the defendant's conduct merits the imposition of punitive damages.\\n\\n\\\"In passing, it should be noted that the Rupert proposal provides that the same jury which decides the issue of liability, determine the amount of punitive damages. This approach is wise as the jury which hears evidence of the defendant's conduct is in the best position to assess punitive damages.\\\" (Emphasis in original and footnotes omitted.) 44 Alb.L. Rev. 437-440.\\nThe New York procedure was reviewed by California in Cobb v. Superior Court, County of Los Angeles, 99 Cal.App.3d 543, 160 Cal.Rptr. 561 (1979). The court there said:\\n\\\"In the first instance we conclude that the trial court correctly disposed of the motion to bifurcate based upon the holding of the Supreme Court in Coy v. Superior Court, 58 Cal.2d 210, 23 Cal.Rptr. 393, 373 P.2d 457. In Coy the Supreme Court held that in an action for punitive damages, evidence of a defendant's financial condition is admissible at trial for determining the amount that it is proper to award. It further held that his financial condition is relevant to the issue and is properly discoverable, and it concluded that the trial court in that case 'erred seriously in holding that plaintiff must wait until after he obtains a judgment in order to obtain such information.' Ordering bifurcation of discovery regarding financial condition until a special verdict on the right to punitive damages has been obtained flies squarely in the face of the holding in the Coy case, for the essence of bifurcation is to await favorable outcome for the plaintiff on the underlying cause of action, a prerequisite for punitive damages.\\n\\\"Petitioners rely upon a holding in New York ordering bifurcation of discovery and trial where punitive damages are involved as a means of insuring protection from disclosure of a defendant's financial affairs.\\n\\\"It is interesting that the New York court was aware of the existence of the Coy case and its holding because it cited it. It also appears that the New York court relied upon Gierman v. Toman, 77 N.J.Super. 18, 185 A.2d 241, Law Division New Jersey Superior Court, as precedent for its own ruling. However, we do not read the New Jersey decision as requiring a special jury verdict on punitive damages before permitting discovery. Rather, what the New Jersey court concluded was that a prima facie showing had to be made of the right to recover punitive damages before a general disclosure of a defendant's wealth can be compelled. \\\" 160 Cal.Rptr. at 564-565.\\nA Tennessee court rejected the New York procedure on the basis that an undue delay might occur if discovery was not allowed until after the return of the special verdict. As a result the Tennessee court feared that a new jury could possibly be required. Breault v. Friedli, Tenn.App., 610 S.W.2d 134 (1980).\\nBoth the California and Tennessee courts concluded that the best approach was just to require a prima facie showing that the misconduct of the defendant warranted punitive damages. Once such a showing was made, discovery of a defendant's wealth would be permissible and whatever evidence was found would be admissible during the trial.\\nWe do not understand the reluctance of the California and Tennessee courts to adopt the bifurcation of the trial. If the wealth of a defendant is allowed to be discovered prior to trial upon a prima facie showing of willful and wanton misconduct, no unnecessary delay will occur. Such an approach does not interfere with the use of such evidence to peg an appropriate punitive damages award. In fact the New York approach makes good sense. The plaintiff receives an appropriate redress for the wrongs he has suffered, the defendant is provided a prejudice-free atmosphere in which his liability may be assessed, and our society's interest in effecting punishment and deterrence for socially outrageous conduct is preserved. There is no need for a jury to know of defendant's resources while it is determining the amount of compensatory damages. So long as discovery is allowed before trial, there should be no delay once a jury decides punitive damages should be awarded. The evidence of a defendant's wealth can be submitted right then, and the jury can deliberate further on the proper amount to be awarded. Such a procedure should be employed in a flexible manner which both fosters the aims of justice and insures the judicial system's ability to deal with the variety of factual situations that may arise.\\nIn summary, then, we adopt the following approach and procedure for the discovery and presentation of evidence of financial status of a defendant when punitive damages are sought:\\n1. The plaintiff may - claim in his complaint a right to punitive damages and then seek pretrial discovery of a defendant's wealth.\\n2. Defendant may move for a protective order requiring the plaintiff to make a prima facie showing to the trial court that a viable issue exists for punitive damages. Upon such a showing, the pretrial discovery would be allowed.\\n3. At trial, if evidence is produced making a prima facie case of punitive damages, the verdict form will make provision for compensatory damages and further ask the jury whether punitive damages should or should not be awarded. However, no provision would be made for the jury to determine the amount of punitive damages to be awarded at that point.\\n4. If the jury finds that punitive damages should be awarded, it then hears evidence of the defendant's financial status and returns a separate verdict setting the award of punitive damages.\\nIll\\nIn the case at bar, plaintiff's counsel throughout the trial made repeated references to the vast holdings and wealth of Schlumberger. This was error; the question we must now resolve is whether it was harmless error. While we approve of the inherent soundness of the two rules, holding evidence of defendant's financial condition inadmissible where only compensatory damages are involved, and admissible where punitive damages are warranted, the conclusion is inescapable that the latter rule defeats the purpose of the first. This will occur in any case where both compensatory and punitive damages are claimed and are presented to the jury in an unbifurcated trial.\\nIn ABC Builders, Inc. v. Phillips, Wyo., 632 P.2d 925 (1981), it was said that \\\"[a]n error to warrant reversal must be prejudicial and affect the substantial rights of an appellant.\\\" 632 P.2d at 934. The test the court applied was whether there was \\\"a reasonable possibility that in the absence of error the verdict might have been more favorable to [the complaining party].\\\" 632 P.2d at 935.\\nHere there was contradictory evidence concerning the extent to which appel-lee's future earnings would be impaired by the accident. It is impossible to say that the jury's verdict of compensatory damages was not affected by its knowledge that Schlumberger had a deep pocket and that the award would be satisfied from that pocket. See Instruction No. 4, supra, fn. 4. Accordingly, we cannot conclude that the error was harmless. We must reverse the entire verdict and remand the case for a new trial on both the compensatory and punitive damages issues. Discovery of Schlumberger's wealth has already been completed so that phase in the new procedure need not be pursued.\\nSince a new procedural approach is instituted, it will be effective in this case upon the new trial we direct and in all other cases tried on and after thirty days following the date of this opinion.\\nReversed and remanded for new trial consistent with this opinion.\\n. Also known as exemplary damages.\\n. It should be observed that the verdict form did not allow the jury the opportunity to make any finding as to the basis of Schlumberger's liability for punitive damages.\\n.The court had typed in this \\\"X\\\".\\n. The judgment was joint and several against Campen and Schlumberger for the compensatory damages totaling $55,703.00 and costs in the sum of $2,268.66; several against Campen for punitive damages in the sum of $3,000.00 and several against Schlumberger for punitive damages in the sum of $120,000.00. It is noted that this is slightly inconsistent with Instruction No. 4 given by the trial judge:\\n\\\"Defendant Schlumberger has admitted that Defendant Ed Campen was its employee and that he was acting within the scope of his employment at the time of the accident. Therefore, Schlumberger is liable for any and all damages, both compensatory and punitive, which you award to Mr. Stone.\\n\\\"Defendant, Ed Campen is individually liable for any compensatory damages awarded, and any punitive damages assessed against him only.\\\" (Emphasis added.)\\n. For the law in Florida prior to this recent case see Life Insurance Company of North America v. Aguila, Fla.App., 389 So.2d 303, 305 (1980), and Hartford Accident & Indemnity Company v. U. S. Concrete Pipe Company, Fla.App., 369 So.2d 451, 452 (1979).\\n. Appellants offered Instruction C:\\n\\\"Punitive damages can properly be awarded against Schlumberger Well Services, Inc. because of the action of Edward B. Campen if, but only if, one of the following elements has been proven by a preponderance of the evidence by the Plaintiff:\\n\\\"A. Schlumberger Well Services, Inc. authorized the doing and the manner of the act of Edward B. Campen, or\\n\\\"B. Edward B. Campen was unfit and Schlumberger Well Services, Inc. was reckless in employing him, or\\n\\\"C. Edward B. Campen was employed in a managerial capacity and was acting in the scope of his employment, or\\n\\\"D. Schlumberger Well Services, Inc. or a manager of Schlumberger Well Services, Inc. ratified or approved the actions of Edward B. Campen.\\\"\\n. Barnes v. Sand Mountain Elec. Co-op., 40 Ala.App. 88, 108 So.2d 378 (1958); Packard v. Moore, 9 Cal.2d 571, 71 P.2d 922 (1937); Baggett v. Davis, 124 Fla. 701, 169 So. 372 (1936); Hooks v. Sanford, 29 Ga.App. 640, 116 S.E. 221 (1923); Dawson v. Shannon, 225 Ky. 635, 9 S.W.2d 998 (1928); Taulborg v. Andresen, 119 Neb. 273, 228 N.W. 528 (1930), 67 A.L.R. 642; McDonnell v. Merrill, 79 N.H. 379, 109 A. 264 (1920); Laidlaw v. Sage, 158 N.Y. 73, 52 N.E. 679 (1899); Herstein v. Kemker, 19 Tenn.App. 681, 94 S.W.2d 76 (1936); Blankenship v. Rowntree, 219 F.2d 597 (10th Cir., 1955); 1 JONES ON EVIDENCE \\u00a7 4:47-:49 (6th ed. 1972); 22 Am.Jur.2d Damages, \\u00a7 319-320.\\n. Four states do not allow punitive damages unless authorized by statute: Louisiana, Massachusetts, Nebraska and Washington. See, Moore v. Blanchard, 216 La. 253, 43 So.2d 599 (1949); Boott Mills v. Boston & M. R. & R., 218 Mass. 582, 106 N.E. 680 (1914); Wilfong v. Omaha & Council Bluffs St. Ry. Co., 129 Neb. 600, 262 N.W. 537 (1935); Anderson v. Dalton, 40 Wash.2d 894, 246 P.2d 853 (1952), 35 A.L.R.2d 302.\\n. This procedure was followed in Doralee Estates, Inc. v. Cities Service Oil Company, 569 F.2d 716, 723 fn. 9 (2nd Cir. 1977).\\n. Rule 26(b)(1), W.R.C.P., provides:\\n\\\"(b) Scope of discovery. \\u2014 Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:\\n\\\"(1) In General. \\u2014 Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence; \\\"\\nThere is no need for delay if the plaintiff makes a pretrial prima facie showing that punitive damages is a viable claim and evidence of entitlement will be presented at trial. When the plaintiff seeks discovery of financial status pri- or to trial, defendant may ask for a protective order requiring such a showing before such discovery proceeds, under Rule 26(c), W.R. C.P.:\\n\\\"(c) Protective orders. \\u2014 Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition to be taken within the state, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one (1) or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.\\n\\\"If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.\\\"\"}"

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+"{\"id\": \"10447464\", \"name\": \"Bill SEARS, Appellant (Defendant), Jean Sears (Defendant), v. SUMMIT, INC., a South Dakota corporation registered and authorized to do business in Wyoming, Appellee (Plaintiff)\", \"name_abbreviation\": \"Sears v. Summit, Inc.\", \"decision_date\": \"1980-08-27\", \"docket_number\": \"No. 5293\", \"first_page\": \"765\", \"last_page\": \"774\", \"citations\": \"616 P.2d 765\", \"volume\": \"616\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T19:03:12.061547+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before RAPER, C. J., and McCLIN-TOCK, THOMAS, ROSE and ROONEY, JJ.\", \"parties\": \"Bill SEARS, Appellant (Defendant), Jean Sears (Defendant), v. SUMMIT, INC., a South Dakota corporation registered and authorized to do business in Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"Bill SEARS, Appellant (Defendant), Jean Sears (Defendant), v. SUMMIT, INC., a South Dakota corporation registered and authorized to do business in Wyoming, Appellee (Plaintiff).\\nNo. 5293.\\nSupreme Court of Wyoming.\\nAug. 27, 1980.\\nThomas D. Roberts, Morgan & Brorby, Gillette, for appellant.\\nEdward S. Halsey, Newcastle, Gary D. Jensen, and Horace R. Jackson, Lynn, Jackson, Shultz & Lebrun, P. C., Rapid City, S. D., for appellee.\\nBefore RAPER, C. J., and McCLIN-TOCK, THOMAS, ROSE and ROONEY, JJ.\", \"word_count\": \"4906\", \"char_count\": \"29209\", \"text\": \"McCLINTOCK, Justice.\\nThe questions presented by this appeal concern the respective rights of a landowner and a construction company who were both found to have committed acts of trespass against the other. Summit brought suit against Bill and Jean Sears seeking actual and exemplary damages for the unlawful detention of its heavy road-construction equipment and vehicles. By answer and counterclaim, Bill and Jean Sears demanded actual and exemplary damages for Summit's trespass upon their property. Following a jury trial, the district judge entered judgment against defendant Bill Sears in the amount of $2,941.86 actual damages and $4,000.00 punitive damages and against plaintiff Summit in the amount of $985.00 actual damages. Before submitting the case to the jury, the district court judge held, among other things, that there was no evidence that would sustain punitive damages in favor of defendants and, therefore, he did not submit this question to the jury. Because we feel that there was sufficient evidence to sustain an award of punitive damages against Summit, we find that the trial court erred in failing to submit the question to the jury. We also find that the district court judge erred in instructing the jury to consider the wealth of the defendant when assessing punitive damages against him because there was no evidence of the defendant's wealth presented at trial.\\nOn September 4, 1979, Summit, Inc., began moving a convoy of heavy road-construction equipment consisting of one TS-24 Power Spray, four 651B Scrapers, one 12F Patrol, two flatbed trucks, one service truck, two or three company pickup trucks, and a station wagon south of Newcastle, in a westerly direction along a county road called the Morrissey Road. The testimony indicates that while the convoy could have traveled to its jobsite using public highways, Summit chose to transport its equipment on the county road to save time and permit fees, and because Summit felt that it would be less hazardous to use a county road.\\nAfter traveling along the Morrissey Road for approximately 32.7 miles during which time the convoy encountered 29 cattle guards and numerous no-hunting, no-trespassing signs, the convoy encountered a fork in the road. One branch of the road went slightly to the left and the other branch turned sharply to the right. The testimony indicates that the road branching to the left appeared to be a good graveled road, similar to the county road that the convoy had just traveled over, whereas the branch to the right was in poor condition. There was no sign indicating which branch was the Morrissey Road, and because the convoy's superintendent thought that the road to the left was a continuation of the county road he directed the convoy to proceed down the left fork. This fork of the road was not, as it turned out, a continuation of the county road but a private road owned by Bill and Jean Sears.\\nAfter traveling approximately one-quarter of a mile down the left branch of the road, the convoy came to a cattle guard that not only had a steel gate but also a no-trespassing sign thereon that read:\\n\\\"4W RANCH.\\nPRIVATE ROAD\\nNO TRESPASSING\\\"\\nSwift, a Summit construction superintendent, testified that the cattle guard and the no-trespassing sign presented nothing unusual; however, the steel gate made him question whether the convoy had taken the correct branch of the road. At this point, he halted the convoy and took off in his pickup truck to investigate. First, he went back to the fork in the road and traveled down the right branch for approximately three or four miles. He testified that because this road was a narrow dirt road with an occasional oil tank or drilling rig on the side of the road he did not think this was the county road. He also testified that he was sure that this road would eventually end in a dead end.\\nSwift then went back to the convoy and drove past it until he came to several buildings that were located next to the'road. He stopped at these buildings in order to inquire whether the convoy was on the correct road. After finding no one at home, he radioed another Summit superintendent in an attempt to determine whether or not the convoy was on the correct road. He was advised by the superintendent that the convoy was on the correct road and that it should proceed. It is interesting to note that although Swift was unfamiliar with the area, he did not purchase a county map. He had begun this journey with only a hand-drawn map that he had drawn with the directions of a transport driver.\\nAfter talking with the other superintendent, Swift returned to the convoy and directed his men to proceed. Apparently the next thing the convoy encountered was a wooden bridge that had a sign posted on it that read:\\n\\\"NO TRESPASSING\\n4W RANCH\\nPRIVATE ROAD\\nNO TRESPASSING\\\"\\nFurther down the road there was still another sign indicating that this road was a private road. The sign stated:\\n\\\"4W RANCH\\nNO TRESPASSING\\nNO THRU TRAFFIC\\\"\\nWe note particularly that while previous signs along the Morrissey Road had said merely \\\"NO HUNTING\\\" and \\\"NO TRESPASSING,\\\" the last three signs specifically referred to \\\"PRIVATE ROADS\\\" or \\\"NO THRU TRAFFIC,\\\" thereby indicating that it was the road itself and not the surrounding area that was closed.\\nUndaunted by these signs, the convoy continued on its way until it arrived at yet another fork in the road. Once again Swift halted the convoy and proceeded to investigate one of the two branches of the road. While Swift was so engaged, Bill Sears, toting a loaded .357 magnum revolver with the price tag still hanging from the handle, appeared at the scene. Sears, apparently outraged by the presence of the convoy on his private road, decided to take the law into his own hands. He ordered the crew to get off their equipment and to follow him. When Sears reached the pickup truck in which Assistant Superintendent Sparger was sitting, he pulled the revolver out of his pants and began waving it around, periodically pointing it at Sparger.\\nSears then ordered Sparger to shut down the machinery, stating that the equipment could not be removed from Sears' property until someone paid for the damage that the convoy had done to his property. Apparently Summit's crew remained in control of their emotions, while Sears continued to wave his revolver, shouting obscenities. Sparger managed to contact Swift on the radio. Swift told Sparger to go along with Sears' order to shut down the equipment and to leave it on Sears' road.\\nSears escorted the crew off his property by the same route that they had entered. The crew rode in Sparger's pickup truck with the exception of one man who rode in the station wagon driven by his wife. After traveling about a mile and a half, Sears slammed on his brakes and pointed to a cattle guard, stating that the cattle guard was the \\\"first goddamn thing\\\" that was going to be replaced by Summit. At another point, Sears came speeding up from behind Sparger's pickup and once again slammed on his brakes. This time Sears jumped out of his pickup, jerked the gun out of the holster, threw the holster into the air, cocked the gun and put his finger on the trigger. Sears then pointed the gun at Sparger and demanded that Sparger get out of the pickup. Before getting out of the pickup, Sparger asked whether Sears would shoot him if he got out of the truck, but Sears did not respond to the question. Sears merely repeated his original demand. Having no other choice but to obey Sears' command, Sparger got out of the truck. Sparger testified that Sears then said,\\n\\\"I'm charging all of you men with tres-spassing [sic]. I want every man's name and driver's license number. I'm going to see that you are arrested for tresspassing [sic].\\\"\\nAt this point, Sears ordered Sparger to give him a list of names and driver's license numbers of the crew. Using a Summit time card Sparger began writing down each man's name and driver's license number while Sears was standing in front of the pickup truck with \\\"his left arm on the hood and his right arm and the pistol pointed at me [Sparger] laying over the hood.\\\" The gun was still cocked and Sears had his finger on the trigger. Sears also continued using abusive language.\\nAfter Sparger completed the list and gave it to Sears, Sears set off to find Superintendent Swift. When Sears encountered Swift, he nearly ran Swift off of the road. Sears'then jumped out of his pickup truck and at this point the two men became engaged in a fistfight. While there is conflicting testimony as to the cause of the fray, it finally ended when Swift was able to \\\"choke him [Sears] down.\\\" After the fray ended, Sears was able to discuss the situation with Swift. He told Swift that the equipment would be detained until Sears was paid for the damages, and that Swift and his men would be arrested for trespass.\\nSummit did not recover its equipment until the next day after Swift, Sears and a sheriff's deputy viewed the damages to Sears' property. The damage consisted of damaged cattle guards and culverts, broken power and water lines, and an earthen stock dam rendered useless.\\nThe following issues raised by Sears will be considered on appeal:\\n1. Did the trial judge err in ruling that as a matter of law Sears had committed an actionable trespass?\\n2. Did the trial judge err in ruling that there was no evidence presented at trial that would allow Sears to recover punitive damages against Summit?\\n3. Was the jury incorrectly instructed to consider the wealth of Sears when assessing punitive damages because there was no evidence presented as to Sears' wealth or lack of it?\\n4. Did the trial judge err in admitting the .357 magnum pistol into evidence?\\nWith respect to the first question, Sears contends that his action was privileged because it was taken in defense of his property and that there was sufficient evidence presented at trial to support such a finding. We cannot agree.\\nAs Sears has correctly pointed out, a directed verdict should only be granted when the evidence viewed as a whole without giving weight to the credibility of witnesses leads to only one rational conclusion. Barnes v. Fernandez, Wyo., 526 P.2d 983, 985 (1974).\\nThe question, therefore, is whether there was sufficient evidence presented at trial from which reasonable men could have reached more than one conclusion as to whether Sears' action was privileged. In support of his contention that he was privileged to detain the equipment, Sears relies exclusively upon the Restatement (Second) of Torts, \\u00a7 260 (1965). As provided in \\u00a7 260, in order to claim privilege the evidence presented at trial must meet a two-pronged test:\\n\\\"(1) Except as stated in Subsection (2), one is privileged to commit an act which would otherwise be a trespass to a chattel or a conversion if the act is, or is reasonably believed to be, necessary to protect the actor's land or chattels or his possession of them, and the harm inflicted is not unreasonable as compared with the harm threatened. \\\"\\nAs to the first test, Sears testified that he told Summit's employees that \\\"[wje're not going to move this equipment until we get somebody to decide something about what's going to be done about the damages.\\\" The evidence established that Sears did riot detain the equipment to prevent further damage to his land, but did so in an attempt to force payment for the damages already done to his land. As to the second test, it cannot be shown that the harm inflicted to Summit by detaining costly, heavy road-construction equipment was reasonable compared to the harm that was done when the equipment was moved over Sears' private road.\\nIn Reed v. Esplanade Gardens, Inc., 91 Misc.2d 991, 398 N.Y.S.2d 929 (1977), an automobile owner who leased a parking space brought suit against the parking lot owner seeking to recover costs of removing warning stickers that were placed on his automobile because the automobile owner had not put the identifying decal on his automobile. The issue raised on appeal was \\\"the scope of action available to a landowner when personalty trespasses on his land.\\\" Reed, supra, 398 N.Y.S.2d at 931. In discussing the question of privilege versus trespass the court stated:\\n\\\"In such circumstances the landowner is privileged to deal with the personalty in a manner which would otherwise be a trespass or a conversion if the act is reasonably necessary to protect the actor's interest and the harm inflicted is not unreasonable compared to the harm threatened. But the actor may be liable if he uses unreasonable force which causes harm to the chattel . . \\\" 398 N.Y.S.2d at 931.\\nIn affirming the judgment for the automobile owner the court found that\\n\\\"[t]he plastering of stickers as done here is a punishment, constitutes interference with the motor vehicle beyond the penumbra of the landowner's interest and is unlawful. In these circumstances the landowner may not indulge in self-help and act as prosecutor, judge and jury.\\\" 398 N.Y.S.2d at 931.\\nAlso see, Postal Telegraph & Cable Co. v. Gulf & S.I.R. Co., 110 Miss. 770, 70 So. 833, 835 (1916).\\nBecause we agree with the trial judge that the evidence could not support a finding that Sears was privileged to detain the construction equipment and that the detention constituted an unlawful interference, we find that the jury was correctly instructed that Sears as a matter of law had \\\"committed a trespass against the equipment and vehicles of the plaintiff by reason of his detention of the same.\\\"\\nThe next question is whether the district court judge was correct in ruling that there was no evidence presented at trial that would support an award of punitive or exemplary damages against Summit. Generally, punitive damages are proper where there has been an aggravated disregard of another's rights and where the imposition of punitive damages will tend to prevent this type of violation in the future, Senn v. Bunick, 40 Or.App. 33, 594 P.2d 837, 842 (1979); also see cases cited herein, and they are awarded because of their \\\"civilizing influence\\\" upon society, Douglas v. Humble Oil & Refining Company, 251 Or. 310, 445 P.2d 590 (1968).\\nThe award of exemplary damages in a trespass action is a jury question, and such an award is proper upon a showing \\\"that the acts, constituting the trespass, were committed with a reckless disregard for, or a willful indifference to, the rights of the plaintiffs.\\\" Hall Oil Co. v. Barquin, 33 Wyo. 92, 237 P. 255, 271 (1925). However, a party seeking exemplary damages is not required to show that the trespasser acted with actual malice or a wicked intent in order to recover punitive damages. Hagenson v. United Telephone Company of Iowa, Iowa, 209 N.W.2d 76, 82 (1973). A showing of legal malice is sufficient to support an award. Hall Oil, supra, 237 P. at 272; Senn, supra, 594 P.2d at 842.\\nActual malice requires a showing of actual ill will or hatred. However, legal malice has been defined as \\\"wrongful or illegal conduct committed or continued with a willful or reckless disregard of another's rights.\\\" McCarthy v. J. P. Cullen & Son Corp., Iowa, 199 N.W.2d 362, 369 (1972), cited with approval in Hagenson, supra, 209 N.W.2d at 82.\\nAs stated in McElwain v. Georgia-Pacific Corporation, 245 Or. 247, 421 P.2d 957, 958 (1966):\\n\\\"Malice is the term most frequently used in our decisions to define a state of mind that will justify the imposition of punitive damages. Malice, as a basis for punitive damages, signifies nothing more than a wrongful act done intentionally, without just cause or excuse. The intentional disregard of the interest of another is the equivalent of legal malice, and justifies punitive damages for trespass.\\\" Cited with approval in Senn, supra, 594 P.2d at 842.\\nSummit argues in effect that it trespassed upon Sears' road without knowledge that the road was private. However, exemplary damages may be awarded even though entry was made in good faith. Citing Sutherland on Damages, this court in Hall Oil Co., supra, 237 P. at 274, has pointed out that\\n\\\"though an entry is made upon real estate under a conviction that the right to do so exists, if it is in fact wrongful, and willful injury is done to the plaintiff's property, the defendant will be liable for exemplary damages . . \\\"\\nThis court went on to point out that\\n\\\"[t]he rule is stated in Corpus Juris (17 C.J. 985) that, where an act is done in good faith, there can be no recovery of punitive damages, but that a mere belief in the right to do the act cannot shield a person, where there is no reasonable ground for it, nor if the act is done in a wanton and outrageous manner.\\\" Hall Oil Co., supra, 237 P. at 275.\\nHall Oil Co. involved a case where plaintiffs brought an action of trespass in which they were seeking both compensatory and punitive damages because defendants had allegedly entered their land and drilled for oil and gas without a right to do so. Defendants claimed that they entered the land under the authority of a lease that gave them the right to drill for oil and gas on plaintiffs' land. Plaintiffs claimed that the lease was void and the oil company knew of this claim before it entered plaintiffs' land.\\nIn upholding the jury's award of punitive damages against defendants, this court stated:\\n\\\" There was no evidence of personal malice or ill will against the plaintiffs, on the part of either defendant, unless a conversation occurring in July, 1917, to be related, might be thought to indicate some such feeling at or before the trespass on the part of the Hall Oil Company. Nor do we think the evidence shows any act of oppression or conduct unusual to the work of drilling an oil or gas well. But the circumstances under which the entry was made, and the drilling done, justified, we think, a finding of legal malice as the result of an unlawful act, willfully done, in view of the general finding for plaintiffs. And we think there was sufficient evidence also to justify a finding that the acts, constituting the trespass, were committed with a reckless disregard for, or a willful indifference to, the rights of the plaintiffs. In other words, the jury might reasonably have found, we think, upon the evidence introduced by the plaintiffs, if believed, that the defendants assumed the attitude of intending to drill the well upon the premises, whatever their rights under the lease, whether any or none, deeming it sufficient justification that they were able to pay any damage that might result therefrom, if it should ultimately be determined that they had no right whatever upon the land.\\\" Hall Oil Co., supra, 237 P. at 271.\\nIn Hagenson, supra, 209 N.W.2d 76, landowners brought actions against a telephone company for trespass on laying an underground cable along the landowners' private road. One of the issues presented on appeal was whether the district court properly submitted the question of exemplary damages to the jury.\\nSometime before the trespass occurred, two residents in the area contacted the telephone company to inquire about the possibility of obtaining telephone services. However, the landowners never actually requested that telephone service be supplied. After the landowners made the inquiry, the commercial manager of the company requested that the engineering department survey the road and prepare a blueprint for the underground cable, stating untruthfully that there would be four new subscribers with the possibility of seven. The engineering department complied with this request. The matter, however, was never referred to the company's right-of-way officer and no easements were obtained.\\nAfter the survey and blueprint were completed, the construction supervisor began the actual process of laying the underground telephone cable. The record reflects that the construction supervisor never inquired who owned the road even though it was not a public road. And like the case at bar, there were two gates along the road that were closed at times and one of the landowners had a sign on his property stating that the road was a private way. In laying the cable, substantial damage was done to the road and the surrounding property. For example, trees were knocked down, one landowner's tile septic tank was damaged, and numerous drain pipes were dug out.\\nIn affirming the award of punitive damages, the Iowa eourt stated:\\n\\\"The evidence will not support a claim that the company knew the road was private but went ahead anyway. Rather, the evidence shows a mistake which the jury could reasonably find was committed 'with a willful or reckless disregard of another's rights' or 'without just cause or excuse.' \\\" Hagenson, supra, 209 N.W.2d at 82.\\nThe court went on' to observe:\\n\\\"The jury could have found the engineering personnel must have observed the sign near the entrance that the road is private and also the gates farther on. Yet they did not contact the right-of-way officer, examine public records, or make inquiry to ascertain if the road was public.\\\" Hagenson, supra, 209 N.W.2d at 82.\\nIn the case at bar, there is sufficient evidence to show that Summit should have known that the road it chose to travel down was a private road. There were three no-trespassing, private-road signs along Sears' road in addition to a steel gate.\\nWe believe that this evidence standing alone is sufficient to support a finding of legal malice. For this reason, the question of punitive damages should have been presented to the jury.\\nThe third issue raised by appellant concerns the award of punitive damages against him. Appellant contends that the trial judge erred when he instructed the jury to consider Sears' wealth when assessing punitive damages because there was no evidence presented at trial as to the economic status of appellant. Sears' objection to giving this portion of Instruction No. 3 was overruled by the trial judge.\\nInstruction No. 3 stated in pertinent part: \\\" In assessing punitive damages, you are to consider the character of the defendant's act, the nature and extent of the harm to the plaintiff the defendant caused or intended to cause and the wealth of the defendant.\\\"\\nIt is proper to introduce evidence of a defendant's wealth when punitive damages are requested. And while this court has never held that such proof is mandatory, Town of Jackson v. Shaw, Wyo., 569 P.2d 1246, 1255 (1977), we believe that evidence of a defendant's wealth should be introduced when punitive damages are requested. As stated by Dobbs in his treatise on damages, cited with approval by the Florida Supreme Court in Rinaldi v. Aaron, Fla., 314 So.2d 762, 764 (1975):\\n\\\"The main technique of proof is to explore the defendant's wealth. The existence or nonexistence of the defendant's wealth or financial support is wholly irrelevant when it comes to compensatory damages. But since the purpose of punitive damages is punishment and deterrence, the sum assessed, if it is to be effective at all, must be a sufficiently large one to have effect. A hundred dollar punitive liability may be sufficient punishment for a man of limited means, a hundred thousand dollar punitive liability might be inadequate for a man of great wealth. For these reasons, courts permit the plaintiff claiming punitive damages to introduce evidence showing something of the defendant's financial resources, net worth, for example.\\\" Dobbs, Remedies at pp. 218-219.\\nNot only may the plaintiff introduce evidence as to the wealth of the defendant, but the defendant may also introduce evidence of impecunity in order to mitigate the award of punitive damages. Rinaldi, supra, 314 So.2d at 765; Annot., 79 A.L.R.3d 1138.\\nEvidence of a defendant's wealth is important because it is one of three factors that should be considered by the jury when making an award of punitive damages and by the appellate court in reviewing the award. The factors that should be considered are: the nature of the tort; the amount of the actual damages; and the wealth of the defendant. Indiana & Michigan Electric Company v. Stevenson, Ind. App., 363 N.E.2d 1254, 1263 (1977). As we stated in Town of Jackson, supra, 569 P.2d at 1255:\\n\\\"[t]he economic status of the defendants is a consideration, as we have indicated, in not wanting to financially ruin the defendants and such evidence is admissible.\\\"\\nAppellee contends that the indirect evidence present at trial was sufficient to present a picture of appellant's wealth. Appellee relies upon the following evidence to support its claim: appellant's ranch extended for at least six miles along the private road; appellant stated that it would take at least six days to separate the cows from the yearlings after appellee's crew allegedly left the gates open; and appellant owns road-construction equipment which he rents for $50.00 an hour. We do not believe that this evidence standing alone is sufficient to allow the jury to determine appellant's wealth. We agree with appellant that there was no evidence present from which the jury could have considered appellant's wealth.\\nBecause there was no evidence presented at trial from which the jury could have determined appellant's wealth, we must consider whether the erroneous instruction amounted to reversible error. This court has frequently held that instructions should not be given on issues that are not supported by the evidence. Edwards v. Harris, Wyo., 397 P.2d 87, 90 (1964); Gilliland v. Rhoads, Wyo., 539 P.2d 1221, 1231 (1975). This rule has also been applied to elements that are to be considered in awarding damages. Vangemert v. McCalmon, 68 Wash.2d 618, 414 P.2d 617, 620 (1966). However, unless it can be shown that the erroneous instruction had some influence upon the verdict, the error is held to be harmless. Vangemert, supra, 414 P.2d at 621.\\nIn the case at bar, Sears contends that reversible error was committed because the instruction was\\n\\\"totally impermissible and inherently prejudicial and could well lead to the extreme overestimation by the jury of the defendant-appellant's wealth and therefore what would be reasonable punishment.\\\"\\nWe agree with appellant. Instructing the jury to consider the wealth of appellant without having any evidence in the record to support such an instruction was nothing more than an invitation for the jury to speculate as to appellant's wealth. Such an instruction was inherently prejudicial.\\nThe final question is whether the trial judge erred in admitting into evidence the .357 magnum revolver. Appellant contends that the probative value of the evidence was outweighed by the danger of unfair prejudice considering the fact that Sears had admitted he was in possession of the gun during the incident. While we agree with appellant that Rule 403 of the Wyoming Rules of Evidence provides that relevant evidence \\\"may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice\\\" we do not believe that the trial judge abused his discretion in admitting the gun.\\nIn Chism v. Cowan, Mo., 425 S.W.2d 942, 947 (1967), an action for assault and battery, the court held that the trial judge did not err in admitting the shotgun claimed to have been used by defendant in shooting plaintiff. In so holding, the court rejected defendant's contention that the shotgun was \\\" 'irrelevant, immaterial, prejudicial and inflammatory evidence.' \\\" Chism, supra, 425 S.W.2d at 946. Likewise, in State v. Vasquez, 83 N.M. 388, 492 P.2d 1005 (1971), a criminal case, the court rejected defendant's contention that the gun admitted into evidence was inflammatory and prejudicial because the state failed to identify the gun as the same one used in the shooting. In so holding, the court stated:\\n\\\"We fail to see how such introduction was inflammatory and prejudicial since defendant admitted possession of the gun and in using it to twice shoot Mr. Chavez.\\\" Vasquez, supra, 492 P.2d at 1008.\\nAppellee contends that the trial judge did not abuse his discretion in admitting the gun because one issue presented at trial was the question of the award of punitive damages. We agree with appellee that the gun was properly admitted as it related to the question of punitive damages. Like the courts in Chism, supra, and Vasquez, supra, we do not believe that the introduction of the .357 magnum revolver was unduly prejudicial since Sears admitted carrying the gun during the incident.\\nThe case is reversed and remanded for a new trial with respect to the question of punitive damages against Summit and Sears.\\n. Because the case is to be remanded to the district court for retrial of the question of punitive damages to be awarded against Sears, we need not discuss the question of whether the original award of punitive damages against Sears was excessive.\"}"

wyo/10449390.json

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+"{\"id\": \"10449390\", \"name\": \"BOARD OF TRUSTEES OF WESTON COUNTY SCHOOL DISTRICT NO. 1, Weston County, Wyoming (John Ratigan, William Stearns, Ted Elliott, Robert Engle, Lyle Sylte, Max Decker, Fred Ertman, Jerry Dixon, and James Griffin, in their official capacity) Appellants (Some of defendants below), v. David L. HOLSO, Appellee (Plaintiff below); A. L. ALBERT, Individually, Appellant (One of defendants below), v. David L. HOLSO, Appellee (Plaintiff below)\", \"name_abbreviation\": \"Board of Trustees v. Holso\", \"decision_date\": \"1978-11-21\", \"docket_number\": \"Nos. 4807, 4808\", \"first_page\": \"203\", \"last_page\": \"204\", \"citations\": \"587 P.2d 203\", \"volume\": \"587\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T23:58:07.526100+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BOARD OF TRUSTEES OF WESTON COUNTY SCHOOL DISTRICT NO. 1, Weston County, Wyoming (John Ratigan, William Stearns, Ted Elliott, Robert Engle, Lyle Sylte, Max Decker, Fred Ertman, Jerry Dixon, and James Griffin, in their official capacity) Appellants (Some of defendants below), v. David L. HOLSO, Appellee (Plaintiff below). A. L. ALBERT, Individually, Appellant (One of defendants below), v. David L. HOLSO, Appellee (Plaintiff below).\", \"head_matter\": \"BOARD OF TRUSTEES OF WESTON COUNTY SCHOOL DISTRICT NO. 1, Weston County, Wyoming (John Ratigan, William Stearns, Ted Elliott, Robert Engle, Lyle Sylte, Max Decker, Fred Ertman, Jerry Dixon, and James Griffin, in their official capacity) Appellants (Some of defendants below), v. David L. HOLSO, Appellee (Plaintiff below). A. L. ALBERT, Individually, Appellant (One of defendants below), v. David L. HOLSO, Appellee (Plaintiff below).\\nNos. 4807, 4808.\\nSupreme Court of Wyoming.\\nNov. 21, 1978.\", \"word_count\": \"674\", \"char_count\": \"4160\", \"text\": \"ORDER DENYING PETITION FOR REHEARING\\nGUTHRIE, Chief Justice.\\nAppellants-defendants having petitioned this court for a rehearing of their appeals on the ground that the decision of the court in Board of Trustees of Weston County School District No. 1 v. Holso, Wyo., 584 P.2d 1009, represented a substitution of judgment for that of the school board, and further for the reason that this court erroneously found liability on the part of A. L. Albert, and\\nIt being the settled law that rehearing will not be granted where the application presents no new facts but instead undertakes to reiterate the arguments made on the appeal, or where the effect of the application is to ask the court to review its decision on points and authorities already determined, Elmer v. State, Wyo., 466 P.2d 375, 376, and\\nIt being apparent from a reading of the appellants' brief in support of the petition that the defendants have merely restated the arguments raised previously and discussed in the dissenting opinions to our original decision, and\\nIt appearing to the court that the original decision has considered and disposed of each point raised in the original appeal:\\nNOW, THEREFORE, the petition for rehearing is denied, as is the Wyoming School Boards Association's Motion for Leave to Appear as Amicus Curiae.\"}"

wyo/10456499.json

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+"{\"id\": \"10456499\", \"name\": \"Manuel ESCOBEDO, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff)\", \"name_abbreviation\": \"Escobedo v. State\", \"decision_date\": \"1979-10-31\", \"docket_number\": \"No. 5196\", \"first_page\": \"1028\", \"last_page\": \"1029\", \"citations\": \"601 P.2d 1028\", \"volume\": \"601\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T19:44:26.279723+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Manuel ESCOBEDO, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"Manuel ESCOBEDO, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\\nNo. 5196.\\nSupreme Court of Wyoming.\\nOct. 31, 1979.\", \"word_count\": \"674\", \"char_count\": \"4088\", \"text\": \"ORDER DISMISSING APPEAL\\nPER CURIAM.\\nManuel Escobedo, Jr., entered plea of guilty in the District Court of Washakie County to charge of first-degree sexual assault and judgment and sentence upon the charge was entered July 25, 1979. No appeal was taken from this conviction and the time for taking such appeal has expired.\\nOn September 25, 1979, Escobedo, acting pro se, filed with the district court a motion that transcripts of all proceedings be furnished to him without charge and that he be permitted to proceed in forma pauperis. As stated in said motion, appellant requested the documents \\\"for the purpose of preparing and filing a Sentence Reduction and/or Post Conviction.\\\" By order made and entered on that same date the district court found the motion to be without merit and denied the same.\\nOn September 17, 1979, appellant filed in the district court his notice of appeal from the judgment denying \\\"Defendant's Motion to Obtain Transcripts and having hereto fore been entered on the 5th day of September, 1979.\\\" The record on appeal containing all of the proceedings relative to the charge, proceedings, plea of guilty and sentence of the court, was filed on September 24, 1979.\\nRule 1.04 WRAP provides\\n\\\"A judgment rendered or final order made by a district court may be reversed in whole or in part, vacated or modified by the Supreme Court for errors appearing on the record.\\\"\\nRule 1.05 WRAP provides in pertinent part:\\n\\\"A final order is: (1) an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment;\\nAfter examination of all pertinent statutes and rules of court this court has determined:\\nThat \\u00a7 7-11-518, W.S.1977, permitting needy persons to obtain a free transcript in connection with an appeal is inapplicable because no appeal of the conviction is pending;\\nThat \\u00a7 7-14-101, et seq., W.S.1977, pertaining to the right of imprisoned persons to apply to the court for post-conviction relief, based on a violation of constitutional rights, must be considered together with \\u00a7 5-3-405 and 406, W.S.1977, requiring the court reporter to furnish transcripts at the expense of the state. Section 5-3-405, W.S.1977, states:\\n\\\"In any case arising under 'An act to provide a remedy for persons convicted and imprisoned in the penitentiary, who assert that rights guaranteed to them by the constitution of the United States or the state of Wyoming, or both, have been denied, or violated, in proceedings in which they were convicted' [\\u00a7\\u00a7 7-14-101 to 7-14-108], in which the presiding judge has determined that the post conviction petition is sufficient to require an answer, it shall be the duty of the official court reporter to transcribe, in whole or in part, his stenographic notes of the evidence introduced at the trial in which the petitioner was convicted, if instructed so to do by the court. \\\"\\nThus two requirements must be met before the district court is required to furnish a transcript for the defendant at the state's expense. First, the defendant must file a petition seeking constitutional relief and, second, the district court must determine that the petition has merit. In the case at bar appellant has not filed a petition requesting post-conviction relief, and therefore these statutes are not applicable.\\nRule 36, W.R.Cr.P. permits the court issuing a judgment and sentence to reduce the sentence within 120 days after entry of judgment. This rule makes no provision for furnishing a transcript preliminary to the application for reduction and no necessity for such transcript is shown in the record.\\nThe Court having of its own motion considered the proceedings and being duly advised in the matter is of the opinion that the order of the district court denying a free transcript to appellant is not a judgment or final order within the meaning and purpose of Rule 1.05, WRAP.\\nIT IS ORDERED that the appeal be and is hereby dismissed.\"}"

wyo/10463456.json

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+"{\"id\": \"10463456\", \"name\": \"Gary JANSKI, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below)\", \"name_abbreviation\": \"Janski v. State\", \"decision_date\": \"1975-07-23\", \"docket_number\": \"No. 4348\", \"first_page\": \"271\", \"last_page\": \"293\", \"citations\": \"538 P.2d 271\", \"volume\": \"538\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T22:16:29.401748+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before GUTHRIE, C. J., and Mc-CLINTOCK, RAPER, THOMAS and ROSE, JJ.\", \"parties\": \"Gary JANSKI, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).\", \"head_matter\": \"Gary JANSKI, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).\\nNo. 4348.\\nSupreme Court of Wyoming.\\nJuly 23, 1975.\\nJohn E. Ackerman, Ronald L. Brown and Peter J. Feeney, Casper, for appellant.\\nDavid B. Kennedy, Atty. Gen., and David A. Kern, Asst. Atty. Gen., Cheyenne, for appellee.\\nBefore GUTHRIE, C. J., and Mc-CLINTOCK, RAPER, THOMAS and ROSE, JJ.\\nTerm expired prior to oral argument.\", \"word_count\": \"13673\", \"char_count\": \"79921\", \"text\": \"RAPER, Justice.\\nFollowing reversal of the trial court (529 P.2d 201), upon application of the State, a rehearing was granted in this case. It was thereafter argued anew and taken under advisement by the full court. We now set aside the original opinion as improvident and affirm. It is considered advisable to make a complete restatement of the facts in the case to cover the several points raised by the appellant.\\nThe defendant-appellant was charged with delivering a controlled substance in violation of \\u00a7 35 \\u2014 347.14(d) (10) and \\u00a7 35-347.31 (a) (ii), W.S.1957, as amended. The drug involved was hashish. During the State's case in chief, a Robert Laabs, with the nickname Haystack, undercover narcotics agent for the Casper police department, testified that after knowing the defendant for about a week, he went to his residence where defendant answered the door, let him in and together they went to the basement of the house, where Laabs asked him if he could buy some hash. Laabs testified that defendant told him he would have to go out to a golf course and get it from a friend of his. There were some teenagers present in the house at the time. After the defendant had been gone approximately 25 to 30 minutes, he returned with two tinfoil-wrapped packages, saying that they were quarter ounces. Laabs bought two of them at $40 each, for a total of $80. After remaining for another 15 or 20 minutes, talking to Janski and the other people in the house, he left and went to his police supervisor's residence where he delivered his purchase, as evidence.\\nOn direct examination by the State prosecutor, Laabs admitted that several years previously he had been convicted of armed robberies when he was 17 and 18 years of age, been confined in a reformatory and had spent five years in a penitentiary. Following his release, he had gone into a business, found his way into the position of narcotics agent and had worked at that occupation in several different states. Previous to the trial, on a motion in limine by the State, defendant offered to show that the State's witness Laabs had been arrested for burglary and other offenses, too, but the court ruled that a witness may not, on cross-examination, be asked whether he had been accused of, arrested, indicted or tried for a crime of which he had not been convicted. At the same time, the trial judge also prohibited use of a Denver Post news article in cross-examination of Laabs.\\nDuring the course of his testimony, it developed that on occasions the witness Laabs, while acting as an undercover agent, would disguise himself with a Mohican haircut and he said, \\\"[T]he weirder, more I look crazy looking, the more dope I usually buy.\\\" While working for the police department, the witness had bought a couple thousand dollars worth of drugs in this role.\\nThe following exchange took place on cross-examination:\\n\\\"Q. Do you know whether he [defendant] made any profit on the sale or not?\\n\\\"A. I believe he did.\\n\\\"Q. You don't know though, do you, you don't know how much he paid.\\n\\\"A. Well, there were other boys there buying it also.\\\"\\nThe drug was properly linked into a full chain of evidence and the State chemist identified it to be a controlled substance, a derivative of marijuana. The State thereupon rested.\\nThere was an additional charge of the same sort pending against the defendant. It was scheduled to be tried immediately following this one. Since they involved many similarities, one witness mistakenly testified the transaction took place on January 7 when, in fact, it took place on January 6. Defendant at close of State's case in chief asked for a mistrial, which the trial court denied, and the State was permitted to reopen to straighten out the dates and the defendant was offered an opportunity by the State for a continuance if defendant was unprepared to meet the State's evidence, which he did not take nor request but proceeded into his defense to the evidence presented.\\nThe defendant established through a city official that the witness Laabs had been employed as an emergency employee and at the time of his employment, it was known that he had a felony record. At every chance, it might be said, defendant played Laabs' felony convictions to the limit for the benefit of the jury. On direct examination, witness Laabs was called by the defendant and asked whether he carried a gun with him during the time that he was an undercover agent. The witness answered that he carried a .22 derringer, black with a pearl handle. He was asked whether or not he stuck the gun into defendant's stomach. Laabs denied that he did so.\\nA witness, Kevin Doing, age 17, was called by the defendant. He testified that Haystack Laabs was discussing drugs in Janski's basement \\\"and he stood up and gave Gary some money and told him to go get the hash and bring it right back here, he said, don't mess around with Haystack. He had a gun and pushed it into Gary's stomach.\\\" Doing described the gun as a .\\\"gray Derringer type pistol, .22, with a white handle.\\\" On cross-examination, Doing said that the gun used had a cylinder and he could see the bullets showing out of the front. On further cross-examination, the prosecutor showed the witness a derringer, regularly marked as an exhibit, and he replied, \\\"[T]his isn't the gun I saw, the gun had a cylinder right here (indicating) , it had a shorter barrel, the cylinder right here, light gray handle.\\\" He was definite that the weapon used by Laabs had a cylinder. The hand gun displayed to the witness had no cylinder.\\nLaabs was recalled on State's rebuttal, handed the same derringer as the one shown to Doing. He identified it as the weapon carried while he was on duty. He also testified that on a day about a week later, he did carry a .38 revolver. Laabs' supervisor was then called and he testified that on only one occasion had Laabs had possession of a police .38 revolver and it was at a time a week later than the date of the offense being tried. The State had neglected to offer the derringer as an exhibit and upon all the evidence being closed, reopened momentarily, with permission of the court, to do so. It had been marked and shown to both Doing and Laabs, so was no more than a technical correction.\\nAt the close of the State's rebuttal, the defendant requested an opportunity for surrebuttal and offered to prove' by em ployees of a Casper Mini-Mart that Laabs had threatened one of them with a revolver. The offer was denied. Later in the opinion, these proceedings will be explained in greater detail.\\nFollowing.instructions and argument, the jury retired and returned a verdict of guilty. The defendant was sentenced to the Wyoming state penitentiary for a term and fined $500.00.\\nThe defendant assigns as error the following :\\n1. Refusal of the court to permit the defendant an opportunity to inquire of the State's undercover narcotics agent as to his previous criminal activity, not resulting in convictions, in the light of the witness' rather extensive record of felony convictions.\\n2. The evidence adduced at trial was insufficient to overcome the defense of entrapment, thereby rendering the verdict contrary to the evidence.\\n3. The court's submittal of the issue of entrapment to the jury.\\n4. The court's allowing the trial to proceed after the court discovered that evidence had been received concerning the crime for which the defendant had not been convicted and was not then being tried.\\n5. The court's denial of surrebuttal by defendant.\\nThe trial court was correct in limiting the cross-examination with respect to any past offenses of Laabs to felonies of which he had been convicted, for purposes of impeachment. The rule, under the facts of this case, is that only evidence of a prior conviction for a felony is admissible to impeach a witness. Gabrielson v. State, Wyo.1973, 510 P.2d 534, 536; Wright v. State, Wyo.1970, 466 P.2d 1014, 1016; Rosencrance v. State, 1925, 33 Wyo. 360, 373, 239 P. 952, 956; Eads v. State, 1909, 17 Wyo. 490, 503, 101 P. 946, 950.\\nThe court instructed the jury that when the defense of entrapment is claimed, it is necessary that the State show a predisposition by the defendant to commit the crime.\\nThe defendant argues that there was no evidence of predisposition.\\nWithout getting into the details of the trilogy of cases of the Supreme Court of the United States on entrapment, we find a good synopsis of the rules to he gleaned therefrom in Anno., Entrapment \\u2014Narcotics Offense, 33 A.L.R.2d 886, \\u00a7 3:\\n\\\"The cases within the scope of the annotation support the conclusion that the defense of entrapment cannot be successfully interposed by one accused of a narcotics offense if he was already engaged in an existing course of similar crimes, [ ] or if he had already formed a design to commit the crime with which he was charged, or similar crimes, as where he offered to make a sale prior to any solicitation, or was willing to do so, as shown by ready complaisance, or if the criminal design originated in the mind of the defendant, and the government, having through its agents reasonable cause to believe that the defendant was violating the narcotics laws, merely afforded opportunities or facilities for the commission of the offense, as by the employment of informers or decoys, the use of decoy letters, or other stratagems. \\\" (Emphasis and footnote supplied.)\\nIt will be observed that there are various alternative ways of establishing predisposition and may be shown by a fashioning of circumstances preceding the sale in which the defendant committed the offense. The facts in this case are very simple and fall within the rule of ready complaisance. They show that Laabs went to the defendant's residence, asked to buy drugs, the defendant went to his known source, was gone a few minutes and returned. His plan and design to sell became fixed with those preliminaries and were confirmed when the sale was made. From these facts, there is the requisite evidence of predisposition and that is what the cases hold.\\nAs early as State v. Kirkbride, 1925, 34 Wyo. 98, 100, 241 P. 709, 710, this court recognized that:\\n\\\" The decisions in cases involving illegal sales of drugs and liquors are practically unanimous in holding that the defense of entrapment is not available where the only solicitation is an offer to buy. ^ ^ \\u215c\\nWhen the jury discarded defendant's defense of threat with a hand gun, by its guilty verdict, that is all that was left and the State had carried its burden of proving predisposition. A review of some cases out of the United States Court of Appeals, Tenth Circuit, follows.\\nIn Sandoval v. United States, 10 Cir. 1960, 285 F.2d 605, 607, a case similar to this, the government agent approached the defendant, asked him if he had any heroin, he replied that he had only five caps, for which the agent paid him $35.00, the court stated:\\n\\\" It is well settled that while the law will not permit decoys to be used for the purpose of luring or inducing innocent or law-abiding citizens into the commission of a crime, still officers may offer an opportunity to one who is intending or willing to commit a crime. [Citing cases.] It is quite clear that Sandoval was not entrapped into making the sale to Chavez. The evidence is without conflict that he approached the car driven by Chavez and, when he recognized him, entered the automobile with the narcotics in his possession. He had known Chavez for a long time, and he made the sale without asking any questions, immediately after Chavez asked him if he had any heroin. He was ready, willing and able to make the sale when he entered the automobile.\\\"\\nThe same situation existed in Wood v. United States, 10 Cir. 1963, 317 F.2d 736, 738, -where the agent told the defendant he wanted some narcotics and they were sold to him. The court said:\\n\\\" These facts are again undisputed and bring the case well within the creation of a simple opportunity to commit a crime as described in Hester v. United States, 303 F.2d 47 (10th) Cir., .\\\"\\nIn Hester v. United States, 10 Cir. 1962, 303 F.2d 47, 49, cert. den. 371 U.S. 847, 83 S.Ct. 80, 9 L.Ed.2d 82, the \\\"special employee\\\" testified:\\n\\\" 'I told him (appellant) that I would like to purchase some narcotics, and he said he thought it was possible, and I purchased three capsules of heroin from him.'\\n\\\"Appellant did not testify and the informer's version of the purchase remained totally uncontradicted.\\n\\\"We find no merit to the contention that the issue of entrapment rests against this background of events. Rather the circumstances point directly to the establishment of a simple opportunity to commit crime with the appellant subjectively mistaking the safety of the circumstances. This is not entrapment. \\\"\\nIn Marshall v. United States, 10 Cir. 1961, 293 F.2d 561, cert. den. 368 U.S. 898, 82 S.Ct. 175, 7 L.Ed.2d 94, reh. den. 368 U.S. 949, 82 S.Ct. 387, 7 L.Ed.2d 345, the defendant sought to have entrapment established as a matter of law, when the agent approached the defendant, asked to buy some amphetamines and they were sold. That court concluded such evidence did not establish entrapment as a matter of law and the issue having been submitted to the jury upon appropriate instructions, there was no entrapment.\\nThe cases are so voluminous on the point that it is really unnecessary to go any further. . However, we are particularly impressed by United States v. Rodrigues, 1 Cir. 1970, 433 F.2d 760, 762, cert. den. 401 U.S. 943, 91 S.Ct. 950, 28 L.Ed.2d 224. It was also a simple case of solicitation and sale. Nothing more. The court said:\\n\\\"It is true that the government did not produce evidence of appellant's prior connection with the narcotics trade. Although such evidence is admissible to rebut a proferred defense of entrapment, it is not the only means available to the government to meet its burden. A jury can find predisposition beyond a reasonable doubt by looking to the totality of circumstances involved in the particular transactions in question. Otherwise, a first offender, disposed to commit the crime for which he is charged, would find sanctuary in the entrapment defense merely because the government would be unable to prove prior nonexistent activities. The entrapment defense does not require such a result. \\\"\\nThe facts as submitted by the State's case in chief fulfilled the requirements of proof of predisposition. The jury chose to accept the State's evidence and reject the defendant's testimony of coercion with a firearm. A jury question was presented by the evidence. It was up to the jury to believe or disbelieve Laabs, in spite of his past felony record. Though the appellant-defendant makes much of this fact, it is not for this court to judge the testimony in the case, where there is a conflict and to do so would usurp the function and authority of the jury. We have no right to say that a particular person or type of individual with a felony conviction, cannot be a witness, which is what we would be doing if we set aside Laabs' testimony. If he was acceptable to the jury, he was acceptable to the community, which the jury represents and this court when we must permit the jury to be supreme in its domain of fact finding. The defense of entrapment was not established as a matter of law. The crucial question is for the jury when there is a conflict of evidence. LaFleur v. State, Wyo.1975, 533 P.2d 309, 314; Dycus v. State, Wyo.1974, 529 P.2d 979, 981; Montes v. State, Wyo.1974, 527 P.2d 1330, 1332; Higby v. State, Wyo.1971, 485 P.2d 380; State v. Kirkbride, supra.\\nWhile there was some confusion as to which case was being tried, there is no indication that the jury received any prejudicial evidence or implications, because the transcript indicates that the matter of confusion if in fact it did exist, was presented to the court alone and outside the hearing of the jury; from what we can see in the transcript, the jury could have been completely oblivious to any mixup. It is apparent that the defendant was prepared to go ahead with his defense and had his witness, Doing, present along with other witnesses. The defendant was entitled to a fair trial but not necessarily a perfect one.\\nTurning now to the question relating to the additional evidence offered by the defendant as surrebuttal, we think the matter has been settled by a statute of the State of Wyoming and case law as well. The defendant was not entitled to surrebuttal, as a matter of right.\\nAfter both parties had rested their cases at the day's end, defendant moved to be allowed to reopen testimony and stated as a reason that as a result of the .22 derringer being admitted into evidence on the State's reopening, he now had something to rebut. The trial judge agreed to allow the defendant to reopen briefly. However, the next morning, after some reflection, the court asked defense counsel to dictate his request into the record. Defendant then in greater detail repeated his motion for sur-rebuttal to show through two witnesses from a Casper Mini-Mart that they had seen the witness Laabs on a number of occasions with a .38 caliber revolver and he had threatened one of the proposed witnesses for being a \\\"snitch\\\" because he had called the police when Laabs tried to sell him some drugs and he refused. Further more, another witness would testify that Laabs had threatened two friends of hers with a gun and ordered them out of Casper and told them if they came to Casper, they would be arrested for selling narcotics.\\nThe foregoing offer was claimed to be n\\u00e9wly discovered evidence but during the taking of testimony at the trial, some of these circumstances were hinted at by defendant, naming at least one of the proposed witnesses. After questioning of counsel closely and explaining his position, the trial judge denied the request for surrebut-tal.\\nSection 7-228, W.S.1957, prescribes the order in which criminal trials shall proceed and, in part, states:\\n\\\"\\n\\\"Fourth \\u2014 The state will then be confined to rebutting evidence, unless the court, for good reasons, in furtherance of justice, shall permit it to offer evidence in chief .[ ]\\n\\\"\\n(Footnote supplied.)\\nWhether or not the person engaged to buy narcotics for the State had a weapon was no part of the State's case in chief. The defendant by way of a defense opened the subject of the witness Laabs shoving a weapon into the stomach of the defendant, to persuade him to sell narcotics. The State is normally entitled to open and close the evidence. Introduction of the .22 caliber derringer into evidence was not new evidence in the sense that it would be a part of the State's case in chief. The matter of getting the derringer into evidence before it concluded its rebuttal was only an oversight on the part of the prosecution. It had already been produced and shown not only to defendant's witness Doing but also to the witness Laabs during the course of his testimony when he had been called as a witness for the defense and was fully before the jury anyway. At that time, when he was testifying upon call of the defendant, Laabs stated that he had never pointed a gun at anybody and told them that they had to sell drugs and specifically denied pointing the gun at Janski.\\nIt was during the defendant's case that Kevin Doing was called back for cross-examination. It was then that the weapon was handed to Kevin Doing and he was asked about it and he said that was not the gun and that the weapon used had a shorter barrel and a cylinder. The weapon being completely before the jury, it was only a small detail to offer and have it received in evidence. The event of its formally becoming a part of the record is but a frail ground for surrebuttal. The defendant had his opportunity to attack the credibility of the witness Laabs during his own case and passed it up.\\nAs said in State v. Alexander, 1958, 78 Wyo. 324, 347, 324 P.2d 831, 839, cert. den. 363 U.S. 850, 80 S.Ct. 1630, 4 L. Ed.2d 1733, in dealing with the denial of surrebuttal:\\n\\\" While it is true, as explained by Wigmore, supra, \\u00a7 1874, pp. 517-518, and 1 Chamberlayne, The Modern Law of Evidence, \\u00a7 383, pp. 516-517, that new facts brought out on rebuttal may properly be met by surrebuttal evidence, that rule does not permit surrebuttal merely to supply evidence which could have been given in chief or to cumulate additional evidence or to fortify evidence already given, or to supplement such evidence because it has been impeached upon rebuttal. \\\"\\nA word of caution in reading Wigmore, as cited in State v. Alexander: the cases cited in footnote 2 at page 518 in support of the rule deal with cases in which the State put in new facts in its rebuttal which were properly a part of its case in chief! In the instance here, the gun bit in rebuttal was no part of the State's case but only designed to meet defendant's defense. Neither of the State's rebuttal witnesses were new witnesses, they had been called by the defendant himself, during his case; they could have then been impeached by the surrebuttal witnesses proposed during defendant's case and as a matter of fact were called by defendant to lay the ground work for that purpose. It was discretionary with the court as to whether to allow surrebuttal and as mentioned in Alexander, quoting Wigmore from page 517:\\n\\\" 'In general, such discretionary variations should be liberally dealt with; for nothing can be more irrational or more unjust than to apply the judicial lash of a new trial to errors of trivial importance.' \\\"\\nSee also Keffer v. State, 1903, 12 Wyo. 49, 73 P. 556, where surrebuttal was denied when the court decided that rebuttal testimony by the State was not a necessary part of the State's case in chief.\\nWe find no prejudicial error by the trial court.\\nAffirmed.\\n. For an interesting discussion of the rule, see McCormick et al. on Evidence, 2d Ed., HB, \\u00a7 43, beginning on page 84.\\n. Instruction No. 7 in its entirety is as follows :\\n\\\"Defendant claims the defense of entrapment.\\n\\\"Broadly speaking, the defense of entrapment is accorded to a defendant by law, in order to prohibit law enforcement officers from instigating criminal acts by persons otherwise innocent, in order to lure them to commit the crime, and then to punish them.\\n\\\"If a person has no previous intent or purpose to commit the crime charged, but is induced or persuaded by law enforcement agency to commit the crime, he is a victim of entrapment.\\n\\\"A defendant who has been entrapped, although otherwise guilty in all respects, must be acquitted of the crime committed as a result of the entrapment.\\n\\\"To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent, and the trap for the unwary whose criminal conduct was due to his own readiness and who himself planned to commit the crime.\\n\\\"Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police. The fact that officers or employees of the government merely afford opportunities, or some of the means or facilities for the commission of the offense, does not defeat the prosecution. Nor will the mere fact of deceit. Infiltration and limited participation by a police employee in unlawful practices, to gain the confidences of wrongdoers, is a recognized and permissible means of apprehension. It is only when the government's deception actually implants the criminal design in the mind of the defendant that the defense of entrapment is available.\\n\\\"With the foregoing introduction, you are then specifically instructed:\\n\\\"The principal element in the defense of entrapment is the presence, or absence, of the defendant's predisposition to commit the crime.\\n\\\"If you conclude there is reasonable doubt whether any defendant had the previous intent or purpose to commit the offense in his case, and that he committed or participated in the offense only because he was induced or persuaded to do so by the police employee and police activity, then you must acquit that defendant.\\n\\\"But, where a person has a predisposition, the willingness and the readiness to commit the crime, the mere fact that the police and the police employee provide what appears to be a favorable opportunity to do so, is not entrapment.\\\"\\n. United States v. Russell, 1973, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366; Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; Sorrells v. United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, 86 A.L.R. 249.\\n. There are lurking dangers involved to the prosecution when it evidentially explores the drug peddling background of a defendant charged with delivery of a controlled substance. See, for example, Hmsford v. United States, 1962, 112 U.S.App.D.C. 359, 303 E.2d 219, where the defendant raised the defense of entrapment and the State came back to prove his criminal record to show a predisposition to commit the instant offense. It was found to be reversible error by the court because as it said at page 225:\\n\\\"There is a well settled rule that it is ordinarily reversible error for the trial court to admit evidence of an offense other than the one on trial.\\nand went on to say at page 226:\\n\\\" There was no arrest for the alleged prior offense and thus no indictment or conviction. In these circumstances the defendant had no opportunity to prepare to defend against this other charge and no means of combatting it, save by his own unsupported testimony in denial of the officer's testimony. \\\"\\nWe here confine our holding to the facts of this case and set no standards for other means by which the entrapment defense may be met.\\n. See the collection of cases in Anno., Entrapment To Commit Narcotics Offense, 62 A.L.R. 3d 110, \\u00a7 4, and Anno., Modern Status of the Law Concerning Entrapment to Commit Narcotic Offense \\u2014 Federal Cases, 22 A.L.R. Fed. 731, 739, \\u00a7 4.\\n. We must lay aside any individual attitudes about Mr. Laabs in dealing with the issues of law. In the recent case United States v. Russell, supra, Mr. Justice Relinquish speaking for the majority of the United States Supreme Court, said at 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366, 375:\\n\\\"Several decisions of the United States district courts and courts of appeals have undoubtedly gone beyond this Court's opinions in Sorrells and Sherman in order to bar prosecutions because of what they thought to be, for want of a better term, 'overzealous law enforcement.' But the defense of entrapment enunciated in those opinions was not intended to give the federal judiciary a 'chancellor's foot' veto over law enforcement practices of which it did not approve. The execution of the federal laws under our Constitution is confided primarily to the Executive Branch of the Government, subject to applicable constitutional and statutory limitations and to judicially fashioned rules to enforce those limitations. \\u215c \\\"\\n. \\\"I think these are collateral matters, the only issue involved in the testimony was raised by the defense witness as to seeing the pistol, which he identified as a revolver pointed at the Defendant. The rest of these matters are proposed by Mr. Whitaker appear to the Court to be collateral matters, not related to the issues at the trial, with the possible exception of the disposition of the State's witness Laabs. If the Defendant had stated to the Court that he desired to hold the trial open, which he had an opportunity to do, it might have a different situation. I recall that Mr. Whitaker had said he was trying to locate a couple of witnesses, but hadn't been able to find them, and we then proceeded with the closing on both sides. I think we should proceed with the trial, after the closing by both sides, and the Instructions, and Mr. Whitaker's request will be denied.\\\"\\n. The full statutory provison is as follows: \\\"After the jury has been impaneled and sworn, the trial shall proceed in the following order:\\n\\\"First \\u2014 The counsel for the state must state the case of the prosecution, and may briefly state the evidence by which he expects to sustain it;\\n\\\"Second \\u2014 The defendant or his counsel may then state his defense and may briefly state the evidence he expects to offer in support of it, or may wait until the evidence on the part of the state is closed;\\n\\\"Third \\u2014 The state must first produce its evidence; the defendant will then produce his evidence;\\n\\\"Fourth \\u2014 The state will then be confined to rebutting evidence unless the court, for good reasons, in furtherance of justice, shall permit it to offer evidence in chief;\\n\\\"Fifth \\u2014 When the evidence is concluded, either party may request instructions to the jury on the points of law, which shall be given or refused by the court; which instructions shall be reduced to writing, if either party require it;\\n\\\"Sixth \\u2014 Before the argument of the case is begun, the court shall immediately, and before proceeding with other business, charge the jury, which charge shall be reduced to writing by the court, if either party request it, and such charge or charges, or any other charge or instruction provided for in this section, when so written or given, shall in no case be orally qualified, modified, or in any manner explained to the jury by the court, and all written charges and instructions, shall be taken by the jury in their retirement and returned with their verdict into court, and shall remain on file with the papers of the case;\\n\\\"Seventh \\u2014 When the evidence is concluded, and the charge given by the court, unless the case is submitted without argument, the counsel for the state shall commence, the defendant or his counsel follow, and the counsel for the state shall conclude the argument to the jury.\\\"\"}"

wyo/10471970.json

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+"{\"id\": \"10471970\", \"name\": \"Franklin E. CARTER et al., Appellants (Plaintiffs below), v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF LARAMIE, State of Wyoming, Appellee (Defendant below)\", \"name_abbreviation\": \"Carter v. Board of County Commissioners\", \"decision_date\": \"1974-01-31\", \"docket_number\": \"No. 4278\", \"first_page\": \"142\", \"last_page\": \"145\", \"citations\": \"518 P.2d 142\", \"volume\": \"518\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T22:17:39.562712+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE, and Mc-CLINTOCK, JJ.\", \"parties\": \"Franklin E. CARTER et al., Appellants (Plaintiffs below), v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF LARAMIE, State of Wyoming, Appellee (Defendant below).\", \"head_matter\": \"Franklin E. CARTER et al., Appellants (Plaintiffs below), v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF LARAMIE, State of Wyoming, Appellee (Defendant below).\\nNo. 4278.\\nSupreme Court of Wyoming.\\nJan. 31, 1974.\\nRobert L. Duncan of Fennell & Duncan, Cheyenne, for appellants.\\nEdward L. Grant, Deputy County and Pros. Atty., Frederic C. Reed, Deputy Atty. Gen., Crim. Div., Cheyenne, for ap-pellee.\\nBefore PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE, and Mc-CLINTOCK, JJ.\", \"word_count\": \"1433\", \"char_count\": \"9104\", \"text\": \"Mr. Chief Justice PARKER\\ndelivered the opinion of the court.\\nPlaintiffs, Laramie County residents and property owners, sought a declaratory judgment to restrain the board of county commissioners from enforcing a July 11, 1972, zoning resolution without having conducted a public election as required by \\u00a7 18-284 (c. 6, Title 10 ), W.S.1957, and including an area beyond the three-mile limit prescribed in \\u00a7 18-281 of the same chapter and title. According to the facts stipulated by the parties, the board had not pretended to comply with the mentioned statutes but instead purported to act under the authority of c. 6.1, Title 18 (\\u00a7\\u00a7 18-289.1 to 18-289.9), W.S.1957, 1973 Cum. Supp., first passed in 1959 and amended in 1967. The district court decided for the defendant, dismissing the complaint of plaintiffs, who have appealed, arguing that the commissioners were required to conduct an election before establishment of zoning, that the zoning resolution was invalid as exceeding the jurisdictional limitations, and that the provisions of c. 6.1 were unconstitutional as an invalid delegation of legislative authority granted to the county and to the planning and zoning commission. The defendant responds that the provisions of c. 6 are not applicable and that c. 6.1, providing for the establishment of zoning regulations by the board of county commissioners upon the recommendation of a county planning and zoning commission within the county, is a valid and enforceable legislative act and is not an unconstitutional delegation of legislative power to either the board or the commission.\\nIt thus appears that aside from the claimed unconstitutionality of c. 6.1 because of invalid delegation of legislative authority the question presented in the appeal is which of the mentioned legislative provisions controls. Incidentally, plaintiffs argue that there can be no implied repeal of c. 6; but this facet is unimportant since defendant does not so claim, insisting instead that the two pieces of legislation deal with different subjects. Addressing ourselves to the principal question, we consider first the provisions in the respective statutes showing their purposes.\\nIn the 1955 statute, \\u00a7 18-285, states:\\n\\\"The purpose of such zoning as provided in this act [\\u00a7\\u00a7 18-281 to 18-289] shall be to conserve and promote the public health, safety, and welfare of the citizens of the county. The board of county commissioners shall provide by resolution for the regulation of sanitary facilities for buildings and other structures. Such sanitary facilities shall mean and include domestic water supply, sewage disposal, rodent and insect control, and the storage, collection and disposal of garbage and refuse.\\\"\\nThe provisions of the later acts' of 1959 and 1967 state in the first section (\\u00a7 18-289.1):\\n\\\"In order to promote the public health, safety, morals and general welfare, the board of county commissioners of any county shall be and hereby is authorized to regulate and to restrict the location and use of buildings and structures and the use, condition of use or occupancy of lands for residence, recreation, agriculture, industry, commerce, public use, and other purposes in the unincorporated area of the county. \\\"\\nThe mere reading of the respective sections relating to the purposes and authority of the board would seem to settle the implicit contention of the plaintiffs that the two chapters cover the same subject. The statements of the respective purposes clearly indicate that the legislature intended to deal with separate subjects and provide authority to accomplish different objectives by the two pieces of legislation.\\nWe pass then to the argument that the mentioned provisions of c. 6.1 are unconstitutional as an invalid delegation of legislative authority. Plaintiffs urge that c. 6.1 is unconstitutional as an invalid delegation of legislative authority granted to the board for the reason that it violates Art. 2, \\u00a7 1, Wyo.Const., which provides:\\n\\\"The powers of the government of this state are divided into three distinct departments : The legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.\\\"\\nThey assert that since the constitution does not contain a provision which would \\\"expressly direct or permit\\\" such delegation the statute in question is unconstitutional. We cannot agree. The prohibition in that section of the constitution is against the exercise by any department of the government of powers properly belonging to either of the other two departments. There is no showing that such situation exists in this instance. Neither case' cited on the point is germane. We need not draw upon other jurisdictions for authority in this field although Wyoming follows the general law. Judge Blume in Board of Trustees of Memorial Hospital of Sheridan County v. Pratt, 72 Wyo. 120, 262 P.2d 682, 687, said that for a great variety of purposes and governmental functions the legislature may delegate a part of its power over local subjects to municipal corporations, county boards, and other public bodies within the legislative classification of departments and that legislative power of a purely local nature may be delegated to political subdivisions created for the purpose of local self-government. In War Memorial Hospital of District No. 1, Park County, v. Board of County Commissioners of County of Park, 73 Wyo. 371, 279 P.2d 472, 475, we held that governmental functions are those conferred or imposed on the municipality as a local agency of limited and prescribed jurisdiction, to be employed in administering the affairs of the state and promoting the public welfare generally; and in Bondurant v. Board of Trustees of Memorial Hospital of Converse County, Wyo., 354 P.2d 219, 221, we indicated that such holding was equally valid in determining the character of county activities. It follows that in this jurisdiction the legislature may properly delegate a part of its power to both cities and counties for the exercise of governmental functions.\\nWhether plaintiffs' argument that the statutes in question are unconstitutional because they grant authority to the county planning and zoning commission to adopt a comprehensive zoning plan is probably answered by our previous discussion. However, a reading of the statutes indicates that they do not attempt to so delegate. Rather they provide that the planning and zoning commission may prepare a comprehensive plan for the purposes mentioned and recommendations to effectuate the same and certify its recommendation to the board of county commissioners and that after due notice and hearing by the board the board votes upon the recommendation. Thus, the statute on its face really provides that the authority of the commission is limited to recommendations. In that connection it may be well to mention briefly the case of Plath v. Hi-Ball Contractors, Inc., 139 Mont. 263, 362 P.2d 1021, upon which plaintiffs rely. A careful review of the Plath case discloses that court's reasons for holding the Montana statute unconstitutional. In the first place, Montana had specifically held that municipal corporations did not include counties and that these did not possess the powers of local legislation and control \\u2014 -a holding which is not applicable in Wyoming. Another relevant circumstance in the case was that the statute there under consideration (\\u00a7 11-3801, R.C.M.1947) contained the provision that \\\"additional powers be granted legislative bodies of cities and counties to carry out the purposes of this act,\\\" which clause the court said, 362 P.2d at 1023, was the crux of the suit and which the court indicated contained no sufficient guidelines, an aspect not here presented. Thus, the Plath decision is not only distinguishable but entirely inapplicable here.\\nThe order of the trial court dismissing the complaint and revoking the order restraining the defendant from enforcing the zoning resolution was proper and is affirmed.\\nAffirmed.\\n. 0. 232, S.L. of Wyoming, 1956.\\n. Plaintiffs contend the zoning resolution is invalid because it includes land beyond the three-mile limitation set forth in \\u00a7 18-281 and the legislature intended by using the word \\\"unincorporated\\\" in c. 6.1 to rely back on the definition of unincorporated as set forth in c. 6. However, we consider this view to be without merit.\\n. 4 Antieau, Local Government Law, County Law, \\u00a7 35.07, p. 119, n. 2 (1966).\"}"

wyo/10476210.json

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+"{\"id\": \"10476210\", \"name\": \"Merle I. ZWEIFEL, Appellant (Defendant below), v. STATE of Wyoming, on the relation of Clarence A. BRIMMER, Attorney General of the State of Wyoming, Appellee (Plaintiff below)\", \"name_abbreviation\": \"Zweifel v. State ex rel. Brimmer\", \"decision_date\": \"1974-01-04\", \"docket_number\": \"No. 4194\", \"first_page\": \"493\", \"last_page\": \"504\", \"citations\": \"517 P.2d 493\", \"volume\": \"517\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T17:39:57.873958+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE, and Mc-CLINTOCK, JJ.\", \"parties\": \"Merle I. ZWEIFEL, Appellant (Defendant below), v. STATE of Wyoming, on the relation of Clarence A. BRIMMER, Attorney General of the State of Wyoming, Appellee (Plaintiff below).\", \"head_matter\": \"Merle I. ZWEIFEL, Appellant (Defendant below), v. STATE of Wyoming, on the relation of Clarence A. BRIMMER, Attorney General of the State of Wyoming, Appellee (Plaintiff below).\\nNo. 4194.\\nSupreme Court of Wyoming.\\nJan. 4, 1974.\\nEdward L. Grant of Osborn & Grant, Cheyenne, for appellant.\\nClarence A. Brimmer, Atty. Gen., William M. Sutton, Sp. Asst. Atty. Gen., Cheyenne, for appellee.\\nBefore PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE, and Mc-CLINTOCK, JJ.\", \"word_count\": \"6610\", \"char_count\": \"38919\", \"text\": \"Mr. Justice McCLINTOCK\\ndelivered the opinion of the Court.\\nMerle I. Zweifel appeals from the order of the District Court of Laramie County, Wyoming, granting default judgment to plaintiff. The order for this judgment was entered October 31, 1972, after defendant had failed to file answers or objections to interrogatories of the plaintiff served on defendant on May 3 of that year. Defendant asserts upon appeal that his motion to dismiss the complaint and a subsequent motion to vacate the default judgment, filed November 6 and denied by order entered after notice on appeal had been filed and served, should have been sustained.\\nThe complaint first states that the action is initiated by the state of Wyoming through its attorney general, in its own behalf and in behalf of its residents and citizens who own lands and minerals the title of which has been or may be affected by the activities of the defendant. Legal authority to institute the action is said to rest on \\u00a7 9-132, W.S.1957 and venue of the action in Laramie County is said to be justified by \\u00a7 1-36, W.S.1957.\\nIn brief synopsis, the factual allegations are that the defendant has filed and will continue to file placer mining claims in the offices of several of the county clerks of the state on large tracts of \\\"public and private\\\" lands within the state, which claims purport to claim interest in and to minerals \\\"underlying lands belonging to the State of Wyoming, as well as Federal and private lands\\\" and lands belonging to the municipal city of Cheyenne; that in addition to filing these claims and in ord\\u00e9r to maintain and perpetuate the same under the mining laws of the state of Wyoming and the United States defendant has filed and will continue to file affidavits of assessment; that in the course of \\\"making blanket mining claims upon thousands of acres of lands\\\" within the state the defendant \\\"has failed and will continue to fail to comply\\\" with statutory prerequisites set forth in \\u00a7 30-10, W.S.1957, requiring that before filing the location certificate the discoverer of valuable minerals must locate his claim by fixing upon each claim a notice containing the name of the claim and locator, the date of the discovery and the number of acres claimed, and must in addition place substantial posts or stone monuments marking the corners of the claim on the ground; that by reason of such failure to comply with the statute the claims are invalid and of no force and effect.\\nThe complaint further alleges that there is no provision of Wyoming law for. the acquisition of an interest in minerals belonging to the state of Wyoming or in private ownership by filing mining claims; that the claims filed by defendant are without any right whatsoever; that defendant has no estate or interest in the minerals or the surface of these private and state lands and no possessory right therein, but that the claims constitute a cloud upon such state and private ownership.\\nIt is further alleged that defendant has sold and intends to sell interests in said invalid mining claims, which sale to the general public is contrary to the best interests of an uninformed public and landowners within the state; that if defendant is permitted to hold, maintain, and deal in mining claims filed by him and to continue to file such claims on state and privately owned lands within the state, and is permitted to perpetuate his claims already filed, the citizens of the state will suffer irreparable harm and injury; and that if defendant continues to perform assessment work as he purports to have done, and goes upon the lands as required by law, a trespass will occur upon the lands of the state and its citizens to their further irreparable harm and injury.\\nThe prayer of the complaint asks first that defendant be required to appear and set forth the nature of his claims and that all his claims adverse to the state, its citizens and municipalities be determined by decree; second, that defendant be enjoined from further filing any placer mining claims to lands and minerals belonging to the state, its citizens and municipalities and from filing affidavits of assessment Work to maintain and perpetuate said claims. The third prayer is that defendant be required at his cost\\n\\\" to file a release of claim to any and all claims which may have been invalidly filed by him within the State of Wyoming, and that in the event of failure by him so to do, a decree of this Court may provide for the release of any such claims;\\\"\\nand finally the plaintiff prays such other and further relief as the court may deem equitable.\\nPursuant to stipulation of the parties and order of court fixing time to plead, defendant on April 13, 1972 filed a motion to dismiss, and on April 14 filed separate motions for more definite statement and to strike paragraph (a) of the prayer of the complaint. The motion to dismiss is based upon the grounds that the state has no standing to sue with respect to any lands other than its own; that there is improper venue; that the court fails to have jurisdiction over the subject matter of the complaint ; and that the complaint fails to state a claim against defendant upon which relief can be granted.\\nOn May 3 the State served interrogatories on defendant's attorney seeking a considerable amount of specific information, which interrogatories had not been answered or objected to by defendant by June 8, on which date all the motions were argued and the court then signed an order entered June 13, reserving action upon the motions for definite statement and to strike until after the interrogatories had been answered, denying the motion to dismiss, allowing defendant 20 days in which to file answer to the complaint, and allowing him until July 8 to file answers to interrogatories.\\nAn answer was filed within the time fixed, denying the allegations of the complaint \\\"for the reason that they are not true or that the Defendant does not know whether or not they are true and therefore denies the same\\\", again raising the question of jurisdiction and venue, asserting that the mining claims are valid and legal, and that the state of Wyoming is not irreparably harmed by the actions of defendant wherefore he should not be enjoined from further filing placer claims within the state, wherefore the complaint should be dismissed.\\nDefendant again failed to answer or object to the interrogatories and on July 14 plaintiff served and filed a motion for default judgment. By order of the court entered July 21 this motion was set for hearing on August 4. Presumably the matter was heard on that date, but no written or der was entered until October 31. This order recites that the matter was heard on argument of both counsel, and that defendant had failed to file answers or objections to the interrogatories of plaintiff filed May 5 and to file answers within 30 days after the entry of order for such answers entered June 13. It is also expressly recited that defendant \\\"has neither sought relief from answering said interrogatories nor shown to this Court any justification for such failure to file answers.\\\"\\nThe order of October 31 directs that all of the material allegations of the complaint be taken as true, the answer of the defendant be stricken, and that judgment as by default be entered in plaintiff's favor. Reciting that the State had previously been ordered to file affidavits establishing the truth of the allegations in the complaint, which affidavits had been considered by the court, it was ordered that all placer mining claims filed by the defendant, his agents, or employees, within the state of Wyoming,\\n\\\"be and are hereby declared to be invalid unless the Defendant shall prove unto this Court that said placer mining claims were filed pursuant to complete compliance with the laws of the State of Wyoming,\\\" (Emphasis supplied.)\\nand that until he should prove such complete compliance with the law defendant was enjoined from filing affidavits of assessment work or affidavits seeking to defer assessment work. Further, the defendant is enjoined from filing any placer mining claims on lands and minerals within Wyoming \\\"unless such claims are established and filed pursuant to complete compliance with the laws of the State of Wyoming.\\\" The order was declared to apply to all placer mining claims filed by the defendant involving lands within the state of Wyoming, including federal, state, county, municipal, and privately owned lands.\\nFollowing entry of this default judgment and on November 6, defendant filed separate motions to strike affidavits and to vacate the default judgment. This latter instrument asserts that the judgment is contrary to law and to the evidence; that there was excusable neglect on the part of defendant in failing to file the answers, incorporating an affidavit of the defendant attached to the motion; that the judgment is void for want of proper venue and lack of jurisdiction of the District Court of Laramie County because there were no involved lands located in that county; that an attached certified copy of a complaint filed in the United States District Court shows that the same relief is sought in the federal action and that only that court may properly hear actions to invalidate mineral estates located on federal lands; that agents and employees of the defendant are not parties to the action and should not be bound; and that the order is invalid because based upon improper affidavits. Without allegation of any facts, either in the motion or in the annexed affidavit, it is asserted that \\\"Defendant has a good, valid and meritorious defense to the Complaint of Plaintiff\\\".\\nThe annexed affidavit was sworn to by Merle I. Zweifel in Oklahoma on August 5 (the day after argument upon the motion for default judgment) but never filed with or delivered to the district court until the filing of the motion on November 6. In this affidavit defendant for the first time attempts to excuse his failure to respond to the interrogatories, stating that while he has been diligently working on the answers it has been impossible for him to complete the work because some 3,000 co-locators and 70,000 mining claims are involved; that to answer the interrogatories requires the composition of voluminous material; and that he has only a small force and to draft the answers would require 90 additional days. These motions were denied by order of the lower court entered December 18, after notice of appeal to this Court had been served and filed on November 20.\\nPROPRIETY OF THE DEFAULT JUDGMENT\\nAlthough by his own statement Zweifel has filed some 70,000 placer mining claims in Wyoming, using some 3,000 co-locators, at no place in the record do we find any allegation or other showing that would have justified the court below or this Court in holding that even one of the locations was initiated in compliance with the laws of the United States or the state of Wyoming. Defendant was content to make only a general denial of allegations that he had filed location certificates in the county clerks' offices without doing location work upon the ground. That allegation of fact was substantially supported by affidavits of competent geologists who had done walkouts of the premises. While these affidavits did not disclose that every legal subdivision as to which Zweifel had recorded a certificate had been inspected and found to be devoid of any posts or notices on the ground of the placer mining claim, we think that in the absence of any specific showing by defendant to the contrary they were proper proof of the allegations of the complaint.\\nDefendant was given every opportunity to respond to the interrogatories and furnish factual information. Although on June 8 he was in default for failure to respond or object thereto, the court at that time gave him another 30 days. That date passed with no action by him. Knowing that a motion for default had been filed and having some two weeks notice of the setting of argument thereon, he made no attempt to justify his failure to answer or to get further extension of time. It was not until after argument and presumably an orally announced adverse decision and request for additional affidavits in behalf of plaintiff that he got around to preparing an affidavit concerning the difficulties of preparing and filing the answers, which was not then filed but retained by defendant or his counsel until November 6, a week after the judgment had been entered.\\nEven after judgment had been entered and in connection with his motion to vacate, defendant made no attempt to be factual; his statement that he has a meritorious defense is completely without factual substantiation, a procedure that we have consistently rejected. Rule 37(d), W.R.C.P., is explicit in permitting the en try of default judgment against one who fails to file answers to interrogatories or to excuse such failure. The trial court was therefore amply justified in granting the default judgment, and the action taken was clearly no abuse of discretion. While its action in denying the motion to vacate the judgment was probably taken after its jurisdiction of the cause had ended, we have no doubt that it was correct and there is no basis for this Court to set aside the default and permit further proceedings in the action unless defendant is correct in his contention that the judgment was legally erroneous.\\nTHE MOTION TO DISMISS\\nSufficiency of the Complaint\\nThe attorney general advances the argument that because the trial court has found all material allegations of the complaint to be true, it is an unassailable finding that Zweifel has filed false mining claims not in compliance with the law, that the claims are without right under the law, that the attorney general has the right to bring the action, and that the action is in the best interests of the state. We think that the statement in 10 Wright and Miller, Federal Practice and Procedure: Civil \\u00a7 2688, p. 282, is more apt, that is, that\\n\\\"Once the default is established defendant has no further standing to contest the factual allegations of plaintiff's claim for relief.\\\"\\nConsistent with this, it is said in 5 Am. Jur.2d, Appeal and Error, \\u00a7 854, p. 296,\\n\\\" On appellate review of a default judgment the party in default may contest the sufficiency of the complaint and whether the averments in it justify the judgment appealed from, but may not question the lack of evidence or the sufficiency of the evidence to prove the allegations of the complaint. A default judgment will be reversed on appeal where it appears from the plaintiff's declaration that it does not set forth a cause of action.\\\"\\nApplying this rule to the case at bar, we think it can properly be said that the trial court has made a finding supported by ample evidence that defendant filed location certificates in the offices of the several county clerks when he had not first done the necessary location work upon the ground. From that factual basis we proceed to consider whether this is an actionable wrong which the attorney general, as the chief legal officer of the state, can attack.\\nIn his brief and argument defendant construes the complaint as being one to quiet title and stresses those allegations of the complaint that are customary in such an action. On this premise \\u2022 he can then contend with some logic that the venue of the case was improperly laid in Laramie County, no lands in that county being involved in the action; that class action procedures were not followed; and that the complaint did not state facts sufficient to constitute a claim for quiet title since title to the minerals really affected was in the United States, with emphasis on the fact that the United States had filed its own action in federal court. The argument, of course, is that the state courts have no right or power to adjudicate the validity of such claims for or against the United States.\\nWhile it is true that there are many allegations in the complaint usually contained in quiet title suits, the attorney general contends and we agree that the complaint alleges more than this and that under the direction of \\u00a7 9-132 he has the power and duty to protect the state and its citizens against abuse of its laws, in this instance claimed to be a willful violation of Wyoming's laws relative to the institution and perfection of mining claims. He points out that the judgment does not quiet title to any lands, but declares void certain previous acts of the defendant and enjoins future action on the part of the defendant in violation of those state laws relative to filing mining claims. We agree that this is so.\\nWithout entering into any discussion of the manner by which certain public minerals may be acquired, we note that the provisions of the Act of May 10, 1872 (17 Stat. 91, 30 U.S.C. \\u00a7 22 et seq.), as amended, do not provide the whole method for either initiating or protecting such entries but do specifically require that the \\\"location must be distinctly marked on the ground so that its boundaries can be readily traced.\\\" 30 U.S.C. \\u00a7 28. Miners of each mining district may make regulations not in conflict with the laws of the United States or the laws of the state. Id.\\nConsistent with this recognition of the applicability of state law, Wyoming has enacted detailed provisions relating to the institution and perfection of mining claims, both as to lode and placer. We have previously referred to \\u00a7 30-10, W.S.1957, which provides for the recording in the county clerk's office of a certificate of location setting forth certain information concerning the location but which may be filed only after certain acts have been performed upon the ground.\\nIf, then, the action is one to quiet title, it is equally one to secure a judicial determination that a specific act of the defendant is a nullity, namely, the filing for recordation of a certificate of location without having performed the other acts required by our state law to institute a valid mineral location. We specifically refer to allegations in the complaint that defendant has filed placer mining claims \\\"on large tracts of public and private lands\\\" within the state; that the claims (certificates of location) so filed \\\"purport to claim interests in and to minerals underlying lands belonging to the State of Wyoming, as well as Federal and private lands\\\" within the state; and that defendant, in making these blanket filings has failed to comply with the statutory prerequisites.\\nWe thus find in the first three paragraphs of the complaint allegations that justified the court below and justify this Court in finding that defendant was attempting to proceed in a manner not permitted by our law, thereby flouting that law as to how mining locations should be effected. At the same time he was ignoring the federal law which contains the basic grant of the right to acquire certain minerals through the location process.\\nUnder the specific factual allegations of the complaint, sustained by factual affidavits, the defendant has failed to do essential and prerequisite location work upon the ground and thousands of acres are claimed as valuable mineral properties purely on the basis of the recorded certificates. What this means in practical effect is that any person who might be interested in going upon lands containing locatable minerals owned by the United States and instituting a good faith and bona fide location for such minerals, but who first checked the records in the county clerk's office, would find Zweifel's recorded notices and in all probability conclude that there would be no point in going upon those lands and seeking to discover valuable minerals in an attempt to establish mining claims. In this way, then, Zweifel as to millions of acres has discouraged an activity which over the years has been of considerable economic importance to the state of Wyoming. This is not what the legislature intended. The recordation of the certificate is to protect rights validly initiated, not to act as a bar to proper prospecting.\\nMoreover, the recording of these location notices imposed a substantial and improper burden upon the county clerks in the various counties where filed, and the filing of assessment affidavits compounds the burden upon these offices.\\nFinally, and of equal importance to the state of Wyoming and the public officials charged with the duty to enforce its laws is the allegation that Zweifel has sold or intends to sell interests in these claims. The investment by the general public in stocks and other securities is a notable public concern. The state has an equal interest in guarding against the sale of unfounded mineral claims, and references to the claims as being recorded in the office of the county clerk of Campbell County, or Carbon County, may well lend a credibility to the sales promotion that it would not otherwise have.\\nWe hold that questions whether the complaint states facts sufficient to state a claim for quieting title, whether there are defects of parties, or whether the proceedings have been conducted consistently with rules relating to class actions, are immaterial because the complaint states a sufficient claim for relief to clear the public records of false and misleading certificates of location.\\nAuthority of the Attorney General and Venue\\nConsidering then the authority of the attorney general to prosecute the suit and the proper venue thereof, we hold that this is justified by \\u00a7 9-132, W.S.1957, authorizing the attorney general to go into any court in the state to prosecute any proceeding which is in his opinion in the best interest of the state. While each individual locator or claimant of mineral interest in lands which may be affected by defendant's grandiose filings would have an individual right to protect his interests by proper action limited to the specific lands claimed, the evil here attacked is much broader than one mineral claimant or one county attorney can be expected to cope with. It represents a wholesale perversion of the beneficent purposes of the federal and state mining legislation designed to award the diligent search for and development of mineral wealth. To say that such action must be attacked piecemeal and upon a claim by claim basis would be to deny efficacy to the statutory restrictions on the initiation of mining claims. We do not think that the attorney general of this state must sit idly by while those mining laws are ignored in such a wholesale fashion.\\nIt has been held that the attorney general of the state of California was the proper party to cancel allegedly fraudulent voter registrations, Pierce v. Superior Court in and for Los Angeles County (1934), 1 Cal.2d 759, 37 P.2d 460, 461, where it was said that it was a state prerogative to provide elections, and, further,\\n\\\"If, as we hold, the state may maintain such an action, the right of the Attorney General to institute it may not be attacked. The Attorney General, as the chief law officer of the state, has broad powers derived from common law, and in the absence of any legislative restriction, has the power to file any civil action or proceeding directly involving the rights and interests of the state, or which he deems necessary for the enforcement of the laws of the state, the preservation of order, and the protection of public rights and interests.\\\"\\nIn United States v. San Jacinto Tin Co. (1888), 125 U.S. 273, 8 S.Ct. 850, 31 L.Ed. 747, without any legislative designation as to who might represent the United States in a suit to annul a false patent, the court said (p. 279, 8 S.Ct. at p. 853):\\n\\\" we cannot believe that where a case exists in which this [cancellation of patent] ought to be done it is not within the authority of that officer to cause such action to be instituted and prosecuted.\\\"\\nDefendant's objection to the maintenance of the suit by the attorney general is predicated on the theory that the suit is one to quiet title to lands of the United States and we would agree that the attorney general has no authority to bring such action. But considering the action as one to enforce the laws of the state applicable to the filing and recording of mining claims, and keeping in mind that the judgment of the court below or of this Court has no bearing upon the title of the United States or any claimant from it in or to specific lands, or the possessory rights therein, we think that the authority of the attorney general to maintain the action must be sustained.\\nOn the basis that the action is not a quiet title action it also follows that the action as prosecuted to judgment is not one involving land and the provisions of such statutes as relate to the maintenance of suits affecting real property do not apply. We think that the attorney general correctly relies upon \\u00a7 1-36, and that the venue of a general action by him to enforce the laws of the state may properly be filed in the county where he has his office, in this case Laramie County.\\nVARIANCE BETWEEN THE JUDGMENT AND THE DEMAND\\nDefendant argues that the relief granted in the judgment improperly varies from that demanded in the complaint. The question is not free from difficulty, in view of the express provisions of Rule 54(c), W.R.C.P., providing in pertinent part:\\n\\\"A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.\\\" (Emphasis supplied.)\\nPrevious decisions of this Court holding that relief different from that demanded in the prayer of the complaint may be granted if it is justified by the allegations and proof, are not entirely determinative of this question because judgment in those cases was entered after trial. Without detraction of those holdings as to completely contested cases, we do not think that we should ignore the plain import of the above quoted rule as to default cases. Concerning the federal counterpart of and model for our rule, it is said in 10 Wright and Miller, Federal Practice and Procedure: Civil \\u00a7 2663, p. 99, that the theory of the rule is to permit the defendant to determine from the original pleading whether he wants to expend the money and trouble to defend it, that it is unfair to have the complaint lead defendant to believe that only a certain type of relief was being sought and then, after he has sought to limit the scope of the judgment by not appearing, to give a different type of relief. It is further said that unless the parties have voluntarily litigated an issue not within the pleadings, the court should consider only those issues.\\n\\\"In sum, then, a default judgment may not extend to matters outside the issues raised by the pleadings or beyond the scope of the relief demanded. A judgment in a default case that awards relief that either is more or different in kind from that requested originally is null and void and defendant may attack it collaterally in another proceeding.\\\"\\nIf a judgment may be collaterally attacked, it surely may be attacked upon appeal for noncompliance with Rule 54(c). Most of the cases dealing with this question involve a complete failure of the defendant to make an appearance, while in this case defendant attacked the complaint for insufficiency, he filed an answer denying the material allegations, and he supported his legal position in argument upon the motions to dismiss and for default. It does not appear that the complaint was at any time amended, although the record does show that both defendant's counsel and the attorney general considered the complaint as attacking the filings in the county clerks' offices upon a broad basis. Thus, in a brief submitted to the trial court in support of motion to dismiss the complaint it is said:\\n\\\"The Complaint goes so far as to seek this Court to declare invalid those mining claims which the Defendant has filed on federal lands, state lands, municipal lands, and the lands of private individuals. The Complaint is not completely clear that it is this broad but I bring to the Court's attention a letter written by the Plaintiff\\nThe letter so referred to and attached to the brief is addressed to defendant and states that\\n\\\"you perhaps have mistaken the import of the complaint we have filed against you because we have alleged invalid staking of all claims filed by you within the State of Wyoming, whether upon Federal, State, or private lands.\\\"\\nIt is reasonable to conclude, therefore, that whatever the technical wording of the prayers of the complaint, defendant was aware that plaintiff sought to invalidate the filings as to all claims and not just those filed on state or privately owned lands. While this would not justify a complete departure from the demand of the complaint we do not think that the prayers must be considered as a straitjacket depriving the judgment of any manner of flexibility, as might be the situation in a complete default.\\nThe State's concern was and is with the thousands of pieces of paper being improperly filed in the county clerks' offices, as clearly shown by the complaint, and one explicit prayer is that defendant be required at his own expense to file a \\\"release of claim to any and all claims which may have been invalidly filed by him within the State of Wyoming A determination that claims should be released would necessarily involve a determination that there was a fatal defect in the filing, so we consider that a declaration of invalidity is by any reasonable interpretation a part of that prayer.\\nWe hold, then, that upon the allegations and prayer of the complaint, established by the default of the defendant and the further proof contained in the affidavits submitted by the attorney general, it was proper for the trial court to declare that any and all certificates of location, whether filed on federal, state, county, or privately owned lands, were invalid.\\nHowever, we think it was unnecessary and improper for the trial court to qualify its declaration as to the invalidity of the filings with the proviso,\\n\\\"unless the defendant shall prove unto this Court that said placer mining claims were filed pursuant to complete compliance with the laws of the State of Wyoming.\\\"\\nHaving found defendant to be in default, the allegations of the complaint true, and that the location certificates were invalid, the declaration that they were a nullity should not itself be annulled by leaving the case open to further proof. We have considered defendant's contention that the proviso rendered the judgment indefinite and not dispositive of the issues, but we believe that the elimination of this proviso leaves no question as to the finality of the judgment.\\nThe further order of the court that defendant is enjoined from filing any placer claims within the state unless such claims are established and filed pursuant 'to complete compliance with the laws of the state of Wyoming, was probably consistent with the allegations of the complaint and affidavits, but we find no prayer for such relief except as to lands of the state of Wyoming, its citizens and municipalities, and to enjoin the defendant generally was outside the scope of that demand. By the same to ken the injunction against filing assessment affidavits unless defendant should prove to the court that he filed the claims pursuant to complete compliance with the laws of the state, is held to be outside the prayer of the complaint and invalid.\\nWe therefore direct that the judgment of the court below be modified by striking from the fourth paragraph of the order any and all provisions indicating that defendant may appear and present proof to that court designed to show that his claims have been established and filed pursuant to' compliance with the laws of the state of Wyoming, and striking the fifth and sixth paragraphs of such order in their entirety.\\nAs so modified, the judgment is affirmed.\\n. Upon oral argument of the case defendant's counsel complained of a number of statements of \\\"fact\\\" contained in the brief of the attorney general. We recognize that such statements are not proper representations of the facts and throughout this opinion -will accept as fact only such matters as are alleged in the complaint or other documents properly of record in the case.\\n. \\\" The attorney general, his deputy or any of his assistants are hereby authorized to go into any of the courts of the State of Wyoming or the United States and prosecute or defend on behalf of the state whenever in the opinion of the attorney general the interest of the state would be best served by so doing.\\\"\\n. Section 1-30, W.S.1957, relates to the venue of actions concerning real property. Following sections relate to other types of actions, none of which is pertinent to this case. Section 1-36, W.S.1957, provides: \\\"An action other than one of those mentioned in the first four sections of this article [\\u00a7\\u00a7 1-30 to 1-33] against a non-resident of this state, or a foreign corporation, may be brought in any county where the cause of action arose or where the plaintiff resides.\\\" The seat of the state government is at Cheyenne, in Laramie County, and the attorney general has his office in the cap\\u00edtol building at that location.\\n. As we understand the complaint this and other references in the complaint to \\\"filing mining claims\\\" relate to the filing for recordation in the county clerks' offices of certificates of location, as provided in \\u00a7 30-10, W.S. 1957. This statute requires the discoverer of a placer claim, within 90 days after the discovery, to \\\"cause such claim to be recorded in the office of the county clerk\\\", setting forth certain required information, and continues: \\\"Before filing such location certificate, the discoverer shall locate his claim: First, by securely fixing upon such claim a notice in plain painted, printed or written letters, containing the name of the daim, the name of the locator or locators, the date of the discovery, and the number of feet or acres claimed; second, by designating the surface boundaries by substantial posts or stone monuments at each corner of the claim.\\\" The record does not enlighten us as to the manner in which Zweifel claims to have made discovery of locatable minerals.\\n. According to affidavit of the defendant filed with his motion to vacate the judgment, more than 70,000 separate placer claims have been filed involving some 3,000 co-locators. A placer mining claim may properly cover 160 acres of land, so although Zweifel does not disclose the amount of acres involved, it is not unreasonable to assume that some ten million acres of land may be affected by these filings.\\n. Supra, n. 4.\\n. An affidavit incorporated as an exhibit to the complaint, executed by the special assistant attorney general signing the complaint, states that he has been informed by the county clerks of Albany and Carbon counties that Zweifel has filed mining claims affecting described lands shown by the records to be owned by the city of Cheyenne (Albany County) and the state of Wyoming (Carbon County), as well as undescribed lands (in both counties) held in private ownership. There is no reference to lands in Laramie County in the complaint or in the affidavit.\\n. Except for failing to file answers or objections defendant was at all time active in the cause: the motion to dismiss was argued and a written memorandum submitted in behalf of defendant; the motion for default judgment was argued; and the orders entered on both these motions bear the signature of defendant's then attorney of record showing approval of the orders as to form.\\n. The record is not clear concerning the court's order requiring the State to file affidavits before entry of judgment, and no written order appears in the record. It is reasonable to assume that this was done orally and that the time between August 4 and October 30 was taken up in obtaining the information which is set forth in affidavits of a landowner, geologists, and a land man, filed on the latter date. The information set forth in these affidavits was that actual inspection had been made of a large quantity of lands (some specifically described in Campbell County and others only generally referred to as being in Fremont and Carbon Counties) as to which defendant had filed location notices, and that this inspection showed no posts, monuments, notices, or other indicia of mining location.\\n. The foregoing synopsis discloses that there are substantial differences between the judgment as prayed and as entered. We also note that nothing appears in the record disclosing that permission to amend the complaint was requested.\\n. The record does not contain a copy of this complaint but we believe that we may properly take judicial notice of its filing and the proceedings therein. This action, United States v. Merle I. Zweifel, No. 5784, was filed in the federal district court of Wyoming on October 17, 1972, and on December 26, 1973 that court entered judgment in favor of the United States, quieting title to its mineral interests against all claims of the defendant and his co-locators. The suit involves at least in part some of the lands in Campbell County that were described in some of the affidavits filed with the court below. We do not construe the lower court judgment in any manner to adjudicate the interest of the United States or the validity of claims as against the United States.\\n. See Martellaro v. Sailors (Wyo.1973), 515 P.2d 974, 976.\\n. Supra, n. 11.\\n. Supra, n. 4.\\n. This last allegation is arguably a conclusion rather than fact, but taken in the context in which it is made we think it may properly be considered as an allegation of fact, that is, that defendant filed location certificates without posting a notice upon the claim itself and without placing posts or monuments upon the corners thereof.\\n. Walton v. Atlantic Richfield Co., (Wyo.1972), 501 P.2d 802; State v. Moore (Wyo.1960), 356 P.2d 141; and Bentley v. Jenne (1925), 33 Wyo. 1, 236 P. 509.\\n. See 10 Miller and Wright, supra, \\u00a7 2663, p. 102 et seq., and 6 Moore's Federal Practice \\u00b6 54.61, p. 1232.\\n. Defendant is faced with the dilemma that if the judgment appealed from is not a final order his appeal was improperly taken and there was nothing before this Court.\"}"

wyo/10476526.json

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+"{\"id\": \"10476526\", \"name\": \"Charlene C. HENDRICKSON, as Administratrix of the Estate of James Leroy Hendrickson, Deceased, Appellant (Plaintiff below), v. John H. HEINZE, Appellee (Defendant below)\", \"name_abbreviation\": \"Hendrickson v. Heinze\", \"decision_date\": \"1975-11-05\", \"docket_number\": \"No. 4500\", \"first_page\": \"1133\", \"last_page\": \"1136\", \"citations\": \"541 P.2d 1133\", \"volume\": \"541\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T20:26:56.723621+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before GUTHRIE, C. J, and Mc-CLINTOCK and RAPER, JJ.\", \"parties\": \"Charlene C. HENDRICKSON, as Administratrix of the Estate of James Leroy Hendrickson, Deceased, Appellant (Plaintiff below), v. John H. HEINZE, Appellee (Defendant below).\", \"head_matter\": \"Charlene C. HENDRICKSON, as Administratrix of the Estate of James Leroy Hendrickson, Deceased, Appellant (Plaintiff below), v. John H. HEINZE, Appellee (Defendant below).\\nNo. 4500.\\nSupreme Court of Wyoming.\\nNov. 5, 1975.\\nElmer J. Scott, Scott & Jones, Worland, signed the brief and appeared in oral argument, for appellant.\\nJohn R. Hursh and Christopher A. Crofts, Hamilton & Hursh, Riverton, signed the brief and John R. Hursh, River-ton, appeared in oral argument, for appel-lee.\\nBefore GUTHRIE, C. J, and Mc-CLINTOCK and RAPER, JJ.\", \"word_count\": \"1728\", \"char_count\": \"10351\", \"text\": \"RAPER, Justice.\\nThe trouble with this case is that the appellant insists on retrying the case and using as evidence in this retrial, the evidence and argument of the appellant instead of that of the appellee. Petsch v. Florom, Wyo.1975, 538 P.2d 1011, 1013; Hammer v. Town of Jackson, Wyo.1974, 524 P.2d 884, 886. In the consideration of this case, we follow the standard set out in Stock v. Roebling, Wyo.1969, 459 P.2d 780, 784, wherein it was said:\\n\\\" We must assume that evidence in favor of the successful party is true, leave out of consideration entirely evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference which may be reasonably and fairly drawn from it. [Citing case.]\\\"\\nWe outline the facts in the worst possible way as far as plaintiff is concerned, clinging fairly to the record, however.\\nThis wrongful death action arose out of circumstances surrounding an automobile fatality occurring on Interstate 25, about eight miles north of Chugwater, Wyoming, on December 9, 1972, at approximately 9:00 a. m. At the time and place of the occurrence, the highway was covered with snow, two or three inches thick, and it was snowing hard. Visibility was about three-quarters of a mile but variable from bad to worse in that snow was being billowed and swirled about by gusts of wind and passing vehicles.\\nThe appellant-plaintiff's decedent, just prior to the episode, was driving a 65-foot long diesel tractor-trailer combination northbound when the left front tire of the pulling unit blew out. The decedent drove the truck partially over into the parking lane and parked it, the left front tire resting about on the line dividing the driving lane and the emergency lane, and seven and one-half feet from the guardrail; the rear end of the truck protruded one and one-half to two feet into the driving lane. The painted driving lines were visible at the point the truck was parked. There was no valid reason why the vehicle could not have been pulled completely into the parking lane. Although so equipped, no flares, reflectors or other warning devices were placed out on the highway to the rear of the truck. Drivers, including decedent, were instructed by company management that before any exposure to risk was undertaken, warning equipment would be em-placed. Truck flashers were on but so snowpacked that they were not visible. The decedent, making no effort to wait until warning devices were put out, immediately obtained tools from the left side-box of the cab and prepared to work on the left front part of the vehicle to change the wheel. The decedent and his assistant driver, in order to work on the tire problem, would have to be out in the driving lane on the left side of the tractor unit. If the truck had been properly pulled completely into the emergency lane, the work could have been more safely done and the decedent would have been able to observe traffic approaching from the south. The diesel motor was left running by the now deceased, overcoming or neutralizing the warning sound of approaching traffic. The decedent was wearing dark gray overalls with a gray hood, blending him into the gray, stormy conditions.\\nA motorist, going in the same direction as the truck was faced, came upon this situation, pulled up ahead of the tractor and stopped to see if he could assist in any way. After this well-meaning good Samaritan had parked his vehicle, the decedent got out into the driving lane near the passing lane of the highway and, walking with his back to oncoming traffic, went toward the motorist's parked vehicle. He had gone only a short distance when the right front of defendant's car, probably in a sliding attitude, struck him, knocking him into the back of and over the helpful motorist's vehicle, killing him instantly. The defend ant-appellee because of the visibility did not see the deceased nor any warnings until about 100 feet away from the victim, honked his horn, tried to turn away or stop, but his car went into a skid. The horn apparently startled decedent and he stepped even further into the driving lane.\\nThe case was bench tried; the trial judge found the defendant guilty of negligence and the decedent guilty of contributory negligence, thereby disallowing recovery. Comparative negligence is not an issue because the cause of action arose before \\u00a7 1-7.2, W.S.1987, 1973 Cum.Supp., became effective in 1973. Findings of fact and conclusions of law were not requested by either party at the beginning of the trial. The court entered only a general finding, as indicated, and is not required to make separate findings except on request made before the introduction of evidence. Rule 52(a), W.R.C.P. A motion for a new trial made by plaintiff was denied by the court.\\nThe appellant argues that the findings of the trial court, with respect to decedent's contributory negligence, are not supported by substantial evidence. The appellee does not argue that he was free of negligence and is satisfied with the judgment.\\nIn the absence of special findings of fact, the reviewing court must consider that a judgment carries with it every finding of fact which is supported by the evidence. School District No. 32, in County of Fremont v. Wempen, 1959, 80 Wyo. 311, 321, 342 P.2d 232, 235. A judgment will be affirmed on appeal if sustainable on any legal ground appearing in the record. Heyl v. Heyl, Wyo.1974, 518 P.2d 28, 30; In re Romer, Wyo.1968, 436 P.2d 956, 958.\\nThe law of negligence is predicated upon that which is required of a reasonable person in the light of all the circumstances present. Gilpatrick Construction Co. v. Wind River Ready-Mix Concrete Co., Wyo.1970, 473 P.2d 586, 589; Phelan v. Read Construction Co., Wyo.1963, 379 P.2d 829. Contributory negligence is \\\" conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause, cooperating with the negligence of defendant in bringing about plaintiff's harm.\\\" Cimoli v. Greyhound Corp., Wyo. 1962, 372 P.2d 170, 174; Johnston v. Vukelic, 1950, 67 Wyo. 1, 17-18, 213 P.2d 925, 930.\\nAs said in Gamet v. Beazley, 1945, 62 Wyo. 1, 11, 159 P.2d 916, 919:\\n\\\" It is not what counsel for the plaintiff might think about it, but whether or not the trial judge might not reasonably conclude that under the circumstances [plaintiff] should have been more careful, and that had he been so the collision would not have occurred. \\\"\\nIt is for the trier of fact to determine the question of the contributory negligence of the plaintiff. Fitzsimonds v. Cogswell, Wyo.1965, 405 P.2d 785, 786. Whether the plaintiff's decedent was prudent and careful in walking in the traveled portion of the highway with due regard for the poor visibility, the slippery condition of the road and the totality of the circumstances was a question of fact to be determined by the trial judge. The trial court could well have specially found that the decedent was contributorily negligent in his inattention to the dangers existing. Reasonable inferences of contributory negligence fall into place by a bare reading of the record.\\nWe do not discuss any of the detailed claims of contributory negligence by the plaintiff's decedent. Those claims are surrounding circumstances sufficient to show a disregard for his own safety and put in motion the concept that the negligence of plaintiff's decedent prevents recovery against the negligent defendant. Mayou Manufacturing Co. v. Consumers Oil & Refining Co., 1944, 60 Wyo. 75, 101, 146 P.2d 738, 746, 151 A.L.R. 1243, 1254, citing from comment to the Restatement of the Law of Torts, \\u00a7 478 (1934). We are content to go no further. As said in Mayou, contributory negligence was a question of fact for the factfinder, in the light of all the circumstances of the case.\\nPlaintiff argues that if the decedent was negligent, then the last clear chance doctrine must apply. The doctrine is discussed at length in Johnston v. Vukelic, 67 Wyo. 1 at 20-21, 213 P.2d 925, at 931-932, where the rule is set out:\\n\\\" 'A plaintiff, who, by the exercise of reasonable vigilance could have observed the danger created by the defendant's negligence in time to have avoided harm therefrom, may recover if, but only if, the defendant\\n\\\" '(a) knew of the plaintiff's situation, and\\n\\\" '(b) realized or had reason to realize that the plaintiff was inattentive and therefore unlikely to discover his peril in time to avoid the harm, and\\n\\\" '(c). thereafter is negligent in failing to utilize with reasonable care and competence his then existing ability to avoid harming the plaintiff.'\\n\\n\\\" the last clear chance doctrine 'can never apply where the party charged is required to act instantaneously, and if the injury cannot be avoided by the application of all means at hand after the discovery of the peril > \\\"\\nThe trial court could well have found \\u2014 and it was his decision \\u2014 that the defendant did everything possible when he discovered intestate's peril, i. e., honked his horn, tried to turn, took his foot off the accelerator, tried to brake but the stormy conditions and the slippery road made every available evasive effort useless, so he really had no last clear chance. The last clear chance doctrine entails a clear and apparent opportunity to avoid the result. Dr. Pepper Co. v. Heiman, Wyo.1962, 374 P.2d 206, 212. We have no reason to disturb the trial judge's finding in that regard, included in his general finding.\\nWe find no error.\\nAffirmed.\\n. This rule appears in so many eases that it is impractical to list them. This one is used here only because it was cited by one of the parties. For others, see Appeal and Error, West's Wyoming and Pacific Digests.\"}"

wyo/10492851.json

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+"{\"id\": \"10492851\", \"name\": \"Adrian GERRITSEN, Jr., d/b/a Pioneer Realty Company, Appellant (Plaintiff below), v. Howard DRANEY, Dell Draney and Ruth Draney, Appellees (Defendants below)\", \"name_abbreviation\": \"Gerritsen v. Draney\", \"decision_date\": \"1960-05-03\", \"docket_number\": \"No. 2915\", \"first_page\": \"667\", \"last_page\": \"674\", \"citations\": \"351 P.2d 667\", \"volume\": \"351\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T02:37:42.549624+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.\", \"parties\": \"Adrian GERRITSEN, Jr., d/b/a Pioneer Realty Company, Appellant (Plaintiff below), v. Howard DRANEY, Dell Draney and Ruth Draney, Appellees (Defendants below).\", \"head_matter\": \"Adrian GERRITSEN, Jr., d/b/a Pioneer Realty Company, Appellant (Plaintiff below), v. Howard DRANEY, Dell Draney and Ruth Draney, Appellees (Defendants below).\\nNo. 2915.\\nSupreme Court of Wyoming.\\nMay 3, 1960.\\nQuentin L, R. Alston, Salt Lake City, Utah and R. Dwight Wallace, Evanston, for appellant.\\nWilliam S. Edmonds and C. Stuart Brown, Kemmerer, for appellees.\\nBefore BLUME, C. J., and PARKER and HARNSBERGER, JJ.\", \"word_count\": \"3696\", \"char_count\": \"21079\", \"text\": \"Mr. Chief Justice BLUME\\ndelivered the opinion of the court.\\nThis is an action to recover commission as a real estate broker. The action was filed on August 28, 1958. The plaintiff, Gerritsen, alleged that he was retained as a broker by the defendants to sell, trade, exchange and dispose of the equity of the defendants in the Star Valley Meat Packing Company plant and a residence property, both located in the town of Afton, Wyoming; that plaintiff negotiated the sale of the aforesaid property of the defendants upon the terms and conditions suggested and agreed upon by defendants and that a written agreement was entered into, a copy of which was attached; that the purchasers of said property procured by plaintiff were ready, willing and able to complete the purchase of the property upon the terms and conditions fixed and agreed upon in writing by the purchasers and the defendants herein; and that plaintiff performed all the conditions of the contract and employment on his part to be performed. He asked judgment against the defendants for $8,000. The defendants answered, denying substantially all of the allegations of the petition, and further alleged that the contract was too indefinite to be enforceable; that the plaintiff was not a licensed broker in Wyoming; and that if plaintiff procured a purchaser pursuant to any agreement the purchaser was not qualified and was unable to perform any agreement entered into. They further alleged \\\"for another and alternative defense\\\" that the plaintiff misrepresented to the defendants that the Forrest Hotel mentioned in Plaintiff's Exhibit A had an indebtedness against it and was subject to liens and encumbrances not to exceed $60,000; that defendants believed the representations to be true; and that the representations were in error and not true in that instead of $60,000 there were encumbrances against the Forrest Hotel of $90,-000. The case was tried to the court without a jury and at the end of the trial the court found generally in favor of the defendants. From that judgment the plaintiff has appealed, alleging that the judgment is not supported by, and is contrary to, the evidence in the case. The parties will be mentioned herein as in the case below or by name.\\nOn April IS, 1958, defendants listed for sale with plaintiff, a real estate broker, \\\"6 acres w/furnish by seller\\\" for $165,000 in cash, \\\"Price includes home of Howard Draney in Afton, Wyo.\\\", with a further provision \\\"Will Exchange for property of equal value, prefer rental property to our written approval\\\", whatever all this may mean. What is called by plaintiff \\\"an earnest money receipt\\\" and which is designated as a preliminary contract was signed April 13, 1958, by defendants and Lou Kiszak and wife, the latter being the purchasers. This instrument was drawn up in a rather slipshod manner and it is somewhat hard to determine just what the meaning is. It is hardly necessary to set it out. Apparently Lou Kiszak and wife agreed to buy for $165,000 cash the \\\"Star Valley Meat Packing Co. W/home now occupied by Howard Draney\\\" in Afton, Wyoming. The \\\"Buyers are offering $60,000 Equity in Forrest Hotel as down Pmt. Forrest Hotel to be refinanced by new owners.\\\" Certain payments to be made by buyers are set out. The property described in the contract was not the property of the sellers. Their property was known as \\\"Draney and Sons.\\\" In order to determine what the actual agreement was we must, we think, resort in part at least to the oral testimony herein, all of which was admitted without objection, and we must, according to a well-established rule, accept the testimony most favorable to the defendants.\\nBriefly the contract was as follows : The defendants agreed to sell the property above mentioned for $165,000 cash and were willing to take as part payment the Forrest Hotel at Nephi, Utah, with encumbrances thereon not to exceed $60,000. There was a first mortgage against the property of $48,000 held by the First Security Bank at Spanish Fork, Utah, which apparently was to be refinanced, the plaintiff himself undertaking to see that the loan was refinanced. Plaintiff did not do so, and in fact it was apparently impossible to refinance it because of the condition of the encumbrances against the property. The parties met in Afton, Wyoming, on May 1, 1958, in order to exchange final papers and for the Kiszaks to take possession of the property of the defendants at Afton. An abstract of title was submitted to Mr. C. Stuart Brown, an attorney at law. Pie discovered that the encumbrances against the Forrest Hotel far exceeded the sum of $60,000. Plaintiff, as well as Kiszak, testified that the encumbrances against the Forrest Hotel amounted to $90,000 consisting of three mortgages, taxes due in the sum of about $2,000 and some other liens. One of the witnesses stated that the situation was \\\"in a mess.\\\" Counsel for plaintiff seem to take the position that it was the duty of the defendants to clean up this \\\"mess.\\\" The trial court, thinking otherwise, apparently held that it was the duty of the Kiszaks and the plaintiff to do so. We agree. Thereafter the defendants refused to deliver their property to the Kiszaks, broke off the negotiations, and refused to pay the plaintiff any commission because it was not earned. Thereupon this action was commenced. It may be well to set out some of the testimony in order to determine what the actual transaction was.\\nMr. Howard Draney testified, among other things, as follows :\\n\\\"Q. What can you tell us with reference to Mr. Gerritsen's testimony that he represented to you that there would only be $60,000.00 against the hotel?\\nA. Mr. Gerritsen said there was an RCF loan for approximately, not to exceed $60,000.00 with the Springville bank and they would just transfer that over to our name and all we would have to do was pay that loan off.\\n\\\"Q. Pay off the 60 thousand? A. Yes.\\n\\\"Q. Would you have been willing to take the property shown you if it had only had 60 thousand against it? A. Yes.\\n\\\"Q. Why didn't you take the property? A. Well, after they came over home to take possession of our property, they had the abstracts on the Forrest Hotel property which was the first time I had ever seen them and Mr. Brown examined it and found that there was well over $60,000 liens against that property.\\n\\u215d \\u215c \\u215c \\u215c \\u215d \\u215c\\n\\\"Q. Were you able to negotiate a new loan? A. Mr. Thomas informed us that the property had been in proceedings of receivership for approximately a year and a half and he couldn't, at that time, turn the loan over to us.\\n\\\"Q. Now, you say Gerritsen told you he needed that to protect him from Kiszak? A. Yes, that was Mr. Kis-zak's earnest money contract.\\n\\\"Q. Was anything said about you being bound under it ? A. No, he told us that the contract that we had signed \\u2014the contract that we would sign \\u2014 the final and binding contract, we would get our lawyers together and draw it up and they would supply the deeds and abstract deeds and everything.\\n\\\"Q. Calling your attention to his representation as to there being only $60,000.00 against the hotel, did you believe those representations? A. Yes.\\n\\\"Q. Did you rely on them? A. I relied on Mr. Gerritsen's word.\\n\\\"Q. Would you have signed the contract if you had known there was more than $60,000.00 against the hotel? A. No.\\n*\\n\\\"Q. Now then, Mr. Kiszak had some testimony to the effect that they discussed the liens when you went down to see the property at Nephi. Did you have any discussion on the liens in Mr. Kiszak's presence? A. The only discussion that was ever made on the liens that Mr. Gerritsen says that they wouldn't exceed $60,000.00 and it was with RFC, the Spanish Fork bank, and they would transfer that contract to our name and it was never mentioned again until we went to the bank.\\n\\\"Q. You went over to the bank and there you discussed the RFC loan? A. Yes.\\n\\\"Q. When did you first find out about these additional liens? A. When they come over May 1st to take possession of the plant and Mr. Brown went through the abstract deed.\\n\\\"Q. Were you willing to turn the plant over to them at that time? A. We didn't turn it over to them.\\n\\u215c \\u215c \\u215c \\u215c \\u215c ijc\\n\\\"Q. I believe you testified there was no mention made of this additional indebtedness by Kiszaks or anyone else?\\nA. No, no mention.\\n\\u215d \\u215c \\u215d \\u215d \\u215c \\u215d\\n\\\" A. Mr. Brown found all these liens against it and suggested to us that we don't sign this contract until their abstracts and liens and things are taken care of so that the property could be refinanced.\\n\\u215d \\u215d \\u215d \\u215c \\u215c H*\\n\\\"Q. Was anything said about them removing these encumbrances? A. Oh, yes, when they came over we refused to sign any contract until their encumbrances were brought up to date and we could get it refinanced for not to exceed $60,000.00.\\n\\\"Q. What do you mean, their encumbrances brought up to date? A. Their abstract \\u2014 to supply us with an abstract and the loan.\\n\\\"Q. Now then\\u2014 A. (Interrupting.) Mr. Gerritsen was going to secure this loan for us all the time.\\n\\\"Q. As your agent? A. Yes, he says that he would have that loan when we signed that earnest money contract. It was our understanding the RFC loan would be assigned over to us.\\n\\\"Q. Let me ask you this, Mr. Draney: Was the paramount reason you did not sign that contract the existence of indebtedness in excess of $60,-\\n000.00? A. Yes.\\n\\n\\\"[Cross] Q. And you stated, I believe, that your objection was the encumbrances were more than $60,000.-00, against the property. A. That is right, and Mr. Gerritsen would secure the loan for us.\\n\\\"Q. Let's go first to -the encumbrances, Mr. Draney. When did you first learn that the encumbrances were greater than $60,000.00? A. When they came over the first day of May.\\n\\\"Q. How did you learn they were more than $60,000.00? A. Mr. Brown went through the abstract deed.\\n\\u215b\\n\\\"Q. You knew there was an agreement to satisfy the $30,000.00 mortgage for about $3,500.00, didn't you?\\n\\n\\\"Q. By Mr. Alston: Did you know that there was such an agreement? A. It was mentioned.\\n\\\"Q. It was discussed in Mr. Brown's office? A. In Mr. Brown's office.\\n\\\"Q. Was it discussed in Mr. Brown's office to the effect that the existing encumbrance could be satisfied for less than $60,000.00? A. It was discussed about the encumbrances and I don't think there was anything definite that that could be settled for less than $60,000.00.\\n\\\"Q. If that could be, you would have been willing to go through with the contract? A. Yes.\\n\\n\\\"Q. At that time did you apply for a loan through that bank? A. That was the reason Mr. Gerritsen had us go to Spanish Fork to meet with Mr. Thomas, on the loan they had on the Forrest Hotel.\\n\\\"Q. Did you, in fact, apply for a loan? A. That was the only loan we understood there was on the hotel.\\n\\\"Q. Did you apply for a loan? A. We asked Mr. Thomas about a loan, if we could take that loan over and Mr. Thomas informed us at that time, and the first time we knew the Forrest Hotel property had been in proceedings of foreclosure for a year and a half\\n\\\"Q. Was it your contemplation, Mr. Draney, that you would secure financing both on your property in Afton and possibly the Forrest Hotel in Nephi, Utah? A. No, Mr. Gerritsen was going to get the loan for us and he would take care of all that for us. We didn't have to get any loans.\\n\\n\\\"Q. Did you actually sign up for any kind of loan on anyplace? A. No, there was no purpose to sign up for a loan. Mr. Gerritsen never found a place for me to sign up for it. * \\\"Q. Mr. Draney, in Mr. Brown's office didn't you suggest the contract be modified so it be made subject to the refinancing of the Forrest Hotel? Wasn't that suggestion actually made? A. I don't know how I could make a suggestion about refinancing because I didn't know where it could be refinanced.\\n* \\\"Q. Did he [Mr. Brown] ever tell you what it was, other than what the abstract showed? A. He said it showed in excess of $90,000.00.\\n\\\"Q. You think the discussion was dropped until those mortgages could be taken care of? A. Yes.\\n\\\"Q. Did you ever tell anybody in writing what mortgages should be taken care of? A. I didn't do it. I left that to my lawyer.\\n* He\\n\\\"Q. [direct-recalled] By Mr. Ed-monds: Mr. Draney, calling your attention to the provision for $500.00 earnest money in the contract that is a part of the plaintiff's complaint, was that $500.00 ever paid to you? A. No.\\n\\n\\\"Q. [cross] In your testimony yesterday reference was made to the refinancing of the obligation against the Forrest Hotel in Nephi, Utah. A. Mr. Gerritsen says that he would take care of the financing and the RFC loan would just be transferred over to us.\\\"\\nPlaintiff himself testified in part as follows :\\n\\\"Q. Did you tell the Draneys and assure them at that time that the total indebtedness at that time would not exceed $60,000? A. I was assured of that.\\n\\\"Q. You had been assured of that. A. Yes.\\n\\\"Q. And having been assured of that, you made that representation to the Draneys, didn't you, in good faith ?\\nA. Yes, sir.\\n\\\"Q. You told the Draneys the total indebtedness was not to exceed $60,000, isn't that true? A. Yes, that is correct.\\\"\\nCounsel for plaintiff state in their brief as follows:\\n\\\"A third defense by which defendants challenged plaintiff's right to recover was that the amount due and owing on the encumbrances against the Forrest Hotel was purportedly misrepresented. The claimed misrepresentation is that the encumbrances against the Forrest Hotel could be satisfied and discharged for less than $60,000.00. It is not disputed that a representation to this effect was made. What is disputed and challenged is that this was a 'misrepresentation.' In order to be a misrepresentation it must be shown to have been false.\\n\\\"The fact is that this representation was true. The encumbrances against the Forrest Hotel could have been satisfied and discharged for less than $60,000.00. The burden of proof was on defendants to show that this was not so since they claimed it was a misrepresentation. They failed to meet this burden of proof. The defendants them selves personally admitted that they made no inquiries as to the existing balances due and owing on the record encumbrances against the Forrest Hotel. \\\"\\nWe fear that counsel for plaintiff are confusing the facts and the law. The defendants did not undertake to do anything whatever except to convey their property upon the receipt of $165,000 in cash or the equivalent. They agreed to accept the Forrest Hotel provided that the encumbrances thereon did not exceed the sum of $60,000. They were entitled to receive a clear title to the Forrest Hotel (55 Am.Jur. Vendor and Purchaser \\u00a7 149; 92 C.J.S. Vendor and Purchaser \\u00a7 183) which in this case meant a title with not more than $60,000 in encumbrances against it. They were not required to accept the hotel when the title was not such as agreed upon by the parties. 92 C.J.S. Vendor and Purchaser \\u00a7 183, 187. Counsel say that the Draneys did not make inquiries as to encumbrances against the property, apparently contending that they should have done so. There is no merit in that. Counsel cite no authority. In the first place the Kiszaks were owners of the Forrest Hotel and had peculiar knowledge of the facts. A reasonable rule in such case would seem to be that the burden of proof was upon them to show the encumbrances were not larger than represented. 31 C.J.S. Evidence \\u00a7 113. In the second place, the Kiszaks, in so far as the Forrest Hotel was concerned, were the vendors of that property, and, as stated in 92 C.J.S. Vendor and Purchaser \\u00a7 186, \\\"As a general rule, where nothing to the contrary appears from the contract, the good title to which the purchaser is entitled must be made out by the vendor himself, or by his legal representatives.\\\" It was the duty of the Kiszaks to tender, or at least be willing, ready and able to tender, to the defendants the conveyance of the Forrest Flotel with not more than $60,000 in encumbrances against it. The . tender is required to be one in conformity with the contract. 92 C.J.S. Vendor and Purchaser \\u00a7 228, 229, 230. If not in such conformity, it is the same as if no tender is made at all. 92 C.J.S. Vendor and Purchaser \\u00a7 230, p. 102; Hutchinson v. Coonley, 209 Ill. 437, 70 N.E. 686. That the Kiszaks did not comply with these rules of law is clear from the testimony herein. While the so-called \\\"earnest money contract\\\" states \\\"Forrest Hotel to be refinanced by new owners,\\\" the testimony on behalf of the defendants, which does not seem to be denied, is that the plaintiff undertook to see that as a matter of fact the refinancing was to be done by him, that is to say, accomplished on behalf of defendants. We see no inconsistency in that connection with any written agreement. The plaintiff did not accomplish the refinancing of the property so it is difficult to see that he was entitled to any commission. It is true that plaintiff and defendants talked about the payment of the commission and the latter wanted to pay it in installments. But we fail to see the materiality of that when it finally appeared that the Kiszaks were unable to fulfill their part of the contract.\\nCounsel for plaintiff say that since the defendants claim misrepresentation as to the encumbrances totaling $60,000 against the Forrest Hotel the burden was upon them to show that to be true and that they failed to meet the burden. The representation was not as counsel say. It was, as plaintiff himself testified, that there was not more than $60,000 in encumbrances against the property, not that they could be reduced to that amount. The misrepresentation claimed by the defendants was clearly shown by the plaintiff himself, as well as Kiszak, both of whom testified that instead of encumbrances of $60,000 against the Forrest Hotel there were encumbrances against it of $90,000. While the defendants in part treated the matter as to the encumbrances against the Forrest Hotel as a misrepresentation, it may well be considered, according to another defense, as one of the terms and conditions of the transaction, and the law is well settled that a broker is not entitled to a commission unless he produces a purchaser who is ready, willing and able to comply with the terms and con ditions of the principal. 8 Am.Jur. Brokers \\u00a7 174; 12 C.J.S. Brokers \\u00a7 85, 111 b(b). The trial court had a right to find under the facts herein that no such purchaser was produced.\\nThe burden of counsel's argument is, as above indicated, that the encumbrances against the Forrest Hotel could have been reduced to $60,000. That, as heretofore stated, was not the agreement, but, assuming plaintiff's contention to be correct, let us examine the matter. Counsel for plaintiff rely upon the fact that a mortgage of $30,000 in favor of one Leavitt could have been reduced to $3,500. At the time when the parties met at Afton on May 1, 1958, to close up the transaction, plaintiff had in his possession an agreement dated April 27, 1958, purported to be between Kiszak and Leavitt, giving Kiszak an option for 60 days to pay Leavitt $3,500 for a release of the $30,000 mortgage. The agreement was not witnessed, was not notarized and- was not of record, and objection was made that in order to enforce such contract litigation might be necessary. Waiving that matter, however, the agreement required a payment of $3,500. That payment had not been made so far as the. record shows. Apparently counsel for plaintiff think that such payment should have been made by the defendants but the latter never agreed to do so. In fact, the whole contract contemplated that the defendants were not to make any payments of any kind except such as might ultimately be required to satisfy the $60,000 in encumbrances against the Forrest Hotel. So this agreement between Kiszak and Lea-vitt fails to show fulfillment of the contract on the part of the Kiszaks. Furthermore, unless the Kiszaks paid the $3,500 above mentioned, the encumbrances would not have been reduced from $90,000 to $60,000.\\nWithout mentioning further details which go to show that the purchaser produced by plaintiff was about the poorest kind of purchaser whom he could have produced, e. g. that Howard Draney was \\\"dunned\\\" for bills owing by Kiszak, we think it clear that the trial court had the right to find in favor of the defendants and the judgment herein must be and is affirmed. It is not necessary, we think, to consider any other contentions made in this case, as for instance that the contract is indefinite and defendants did not own any Star Valley Meat Packing Company property. See Annotation, 12 A.L.R.2d 1412.\\nAffirmed.\"}"

wyo/10497532.json

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+"{\"id\": \"10497532\", \"name\": \"Ernest O. McCLURE, Appellant (Defendant below), and George Acuff Drilling Company (Defendant below), v. Bernetta LATTA and Robert Latta, Appellees (Plaintiffs below)\", \"name_abbreviation\": \"McClure v. Latta\", \"decision_date\": \"1960-02-03\", \"docket_number\": \"No. 2893\", \"first_page\": \"1057\", \"last_page\": \"1063\", \"citations\": \"348 P.2d 1057\", \"volume\": \"348\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T21:12:21.603006+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.\", \"parties\": \"Ernest O. McCLURE, Appellant (Defendant below), and George Acuff Drilling Company (Defendant below), v. Bernetta LATTA and Robert Latta, Appellees (Plaintiffs below).\", \"head_matter\": \"Ernest O. McCLURE, Appellant (Defendant below), and George Acuff Drilling Company (Defendant below), v. Bernetta LATTA and Robert Latta, Appellees (Plaintiffs below).\\nNo. 2893.\\nSupreme Court of Wyoming.\\nFeb. 3, 1960.\\nMurane, Bostwick & McDaniel, Casper, Edward E. Murane, Casper, for appellant.\\nErnest Wilkerson and Robert J. Murphy, Casper, for appellees.\\nBefore BLUME, C. J., and PARKER and HARNSBERGER, JJ.\", \"word_count\": \"4045\", \"char_count\": \"23427\", \"text\": \"Mr. Justice PARKER\\ndelivered the opinion of the court.\\nThis cause arises from a one-car accident on December 31, 1953, wherein an automobile belonging to the George Acuff Drilling Company, and driven by Ernest O. McClure, went off -the Campbell curve on the Lander-Hudson highway. Mrs. Bernetta Latta, a guest of the driver McClure, was seriously injured in the crash; she with her husband brought'suit against both McClure and the George Acuff Drilling Company. At the close of plaintiffs' case, the court on motion dismissed as to the company, and the case proceeded against McClure. The jury rendered a verdict in favor of Mrs. Latta in the sum of $50,-000 and in favor of the husband in the sum of $9,194.32, and judgment was entered thereon. This appeal is prosecuted from such verdicts and judgment.\\nThe principal issue is the application of \\u00a7 31-233, W.S.1957, commonly known as the guest statute, to the facts in the case, it being alleged in the pleadings and admitted that Mrs. Latta was a guest of McClure and defendant urging that he was not guilty of gross negligence upon which liability could be based under the guest statute.\\nThe record discloses evidence of the following occurrences: By mutual arrangement, Mrs. Latta met McClure in Casper on December 31, 1953, and accompanied him as a guest on a trip to Lander that afternoon. En route they each ' had a couple of drinks of whiskey from a- bottle. They registered at a hotel in Lander, going to their separate rooms, and thereafter met in a bar where they had two or three drinks. About eight o'clock they -left for Hudson where they expected to have dinner. Mrs. Latta said that at the edge of Lander McClure started out with quite a burst of speed. McClure testified that there was no ice or snow on the road, that the night was clear but that it was dark, and that he drove about 50 miles'per hour all the way. Some two miles out of town, immediately prior to the Beebe curve, they passed a 1947 Dodge driven by Paul Ogden who was accompanied by his wife and Mr. and Mrs.'Walter -Richie. Ogden said that he was traveling about 30 miles per hour when McClure came up behind him; that as McClure passed he (Ogden) slowed his speed to avoid a possible accident on the curve; that between the Beebe curve and the Reiding ranch turnoff, some 675 feet down the road, he increased his speed \\\"to about 40 miles an hour. Between 30 and 40.\\\" He estimated McClure's speed in passing at 50 miles per hour; said, \\\"The car passed me prior to the Beebe curve at a place where I should not have been passed, and at a speed that should not have been obtained to make that curve.\\\" Just after the McClure car had passed, Ogden exclaimed, \\\"He made that one, but he won't make the next one.\\\" Ogden said McClure's car swayed after he got around the curve, that McClure decreased his speed and thereafter increased it. Over the defendant's objection as to lack of qualification, the passengers, Mr. and Mrs. Richie and Mrs. Ogden, testified variously as to the speed of the Ogden car as being 30 to 40 miles per hour at the point of the passing and the speed of the McClure car as \\\"very fast\\\" and \\\"65 to 70.\\\" Richie said that McClure's car swerved in \\\"heading back\\\" after the Beebe curve. Mrs. Latta,. who was not clear as to the exact point of passing on the Beebe curve, said that she remembered the tires squealing as they passed the car and went around the curve, and she said to McClure, \\\"That's a little fast, don't you think?\\\" McClure says he does not recall her saying anything. Some 1,885 feet from the Beebe curve toward Hudson is the Campbell curve where the road slopes downhill. Some 225 feet preceding this in'the borrow pit on the right-hand side of the road is a highway marker showing a sharp curve to the left and the number \\\"30\\\" below the curve sign. McClure says that for some unknown reason he did not see the curve sign; that he continued to drive about 50 miles per hour toward the Campbell curve. He says that he knew, from the twenty-five or thirty times he had been over the road, that the Campbell curve was there but didn't know just where and thought that it turned right instead of left; that at the Campbell curve he was driving 50 miles per hour; that the lights from the Ogden car blinded him and he went straight off the curve. He said he didn't know he was in trouble until the right front side of the car started dropping, going off the curve first. He testified:\\n\\\"And then I turned the wheel back to try to get back on the road, and that throwed the back end in the ditch, two wheels on top of the road, on top of the borrow pit. I went ahead and opened it up to try to bring it out of the skid, because I was skidding sideways on around the curve in the borrow pit, with two wheels on top, the front wheels cut towards the direction I was skidding in. I thought I was going to bring it out of it. It looked like I was going to make it all right. And I hit the road approach to this little house * when the back wheels hit that, the next thing I knew I seen the pavement directly underneath me. I hit on the left front fender out in approximately the middle of the road, and then rolled off on the corner and started rolling sideways, wound up down in the alfalfa field across the borrow pit.\\\"\\nAccording to the investigating officer, the car turned over one and a half times and stopped at a point approximately 140 feet from where it left the highway.\\nMrs. Latta's account of what happened immediately preceding the crash was as follows: \\\"Everything was so fast. There was a sensation of going around the [Beebe] curve, the screeching, the righting of the car, and the lights, and that's it.\\\" On direct examination she said of the light that after the Beebe curve her next recollection was a light; asked what it was, she said, \\\"The light was very soon after the screeching of the tires, and I noticed what I thought was a dirty windshield, which I am sure it was.\\\" On cross-examination counsel referred many times to a \\\"blinding\\\" light, and Mrs. Latta assented to the description, or at least did not correct him, and at one time said that the brilliance stuck in her memory.\\nOgden testified that when he reached the Reiding ranch turnoff (675 feet from the Beebe curve) he turned on his bright lights and that when he was about halfway down the lane from the Beebe curve to the Campbell curve he saw McClure's brake lights go on and the car \\\"start into its roll,\\\" and said, \\\"There he goes.\\\" He estimated McClure's speed as twice that of his car. Mrs. Latta was seriously injured, help was summoned, and she was taken to the hospital. The highway patrolman who investigated the accident testified that the cause of the accident was \\\"Speed too fast for conditions.\\\"\\nCounsel make no point of the amount of the damages flowing from the injuries, but confine argument to the insufficiency of the evidence to support the verdicts and judgment, emphasizing the lack of showing that there was excessive speed and urging the insufficiency of speed alone as constituting gross negligence; the fact that any failure to observe the warning sign was at most simple negligence not proximately related to the accident; and McClure's being blinded as the actual cause of the crash.\\nThe burden of defendant's contention as to speed is that there was no positive and compelling testimony on the subject. He admits that the investigating patrolman stated the cause of the accident to be \\\"speed too fast for conditions,\\\" but says' that this was vague, indefinite, uncertain, and testimony solely from memory, overlooking the fact that apparently the trial court considered the officer to be an expert witness and entitled to express an opinion. As we said in Macy v. Billings, 74 Wyo. 404, 289 P.2d 422, 424, \\\" 'the question of whether an expert witness is qualified rests largely in the judicial discretion of the trial court,' and we (j0 not feej warranted to reverse the cause herein simply because the court considered Peterson [the officer] an expert.\\\" In any event, there was no objection to the testimony, and since a rule of evidence not invoked is waived, 1 Wig-more on Evidence, 3 ed., p. 321, the jury was entitled to consider the patrolman's opinion- in arriving at its verdicts.\\nIt is urged that the statements of Mr. and Mrs. Richie and Mrs. Ogden were conflicting in some respects, that there was no foundation laid for testimony from them as to speed, and that their evidence was inadmissible as being conclusions. We agree that there might he a difference in viewpoint as to what weight should be accorded the testimony of these obviously nonexpert witnesses since they had not made speedometer readings of testified in detail as to the basis upon which they could determine exact speed. However, their testimony was competent to be. admitted for such weight as the jury might determine from a consideration of it in conjunction with all of the facts brought out at the trial. \\\"Expert testimony may be used to aid in determining speed, but testimony of nonexpert witnesses is equally competent.\\\" 9C Blashfield, Cyclopedia of Automobile Law and Practice, perm. ed. 1954, p. 382. This is in accord with 2 Jones on Evidence, 5 ed., p. 763:\\n\\\" The rate of speed of automobiles on public streets and highways is a matter of daily observation and some knowledge by substantially all persons; it is not a matter exclusively of expert knowledge or skill. Where the rate of speed of such a vehicle is material in an action, any person of ordinary capacity and means of observation who may have observed the vehicle may give his estimate as to the rate of speed at which it was moving. The extent of his observation goes to the weight of his testimony.\\\"\\nDefendant seeks to discredit the testimony o\\u00ed Ogden as to speed because of discrepancies and indefiniteness. It was suggested that the witness was impeached because in an alleged former deposition he had made some statement regarding McClure's having driven in a normal manner. The record shows that the deposition question to Ogden contained the qualifying phrase, \\\"apart from the speed.\\\" Thus, there was no real inconsistency between his answer there and his testimony in court. In any event, the evaluation of the testimony was for the jury.\\nIt is argued that Mrs. Latta in talking about the trip from Casper to Lander said she had no complaints and that McClure was then driving normally. It is further argued that her remark, \\\"That's a little fast, don't you think?\\\" was not really a protest against extreme speed, especially in the light of a statement made by her to Costlow, an insurance investigator, on January 7, 1954, and another made to Poole, an insurance company representative, on February 8 of that year wherein she indicated no criticism of McClure's driving. The jury was entitled to evaluate all testimony bearing on this subject, including evidence tending to show Mrs. Latta to have been in serious physical and mental condition during January and February 1954 and her categorical denial of ever having seen the insurance men who purported to have taken the statements.\\nSome reliance is placed by defendant upon the failure of certain other persons to recall or notice the highway warning sign, and upon his own testimony that he could safely make the curves at 50 miles per hour (the speed which he admitted). He seems to think this evidence tends to contradict any showing of gross negligence. Such a view is so broad that it could not be accepted unless substantiated by persuasive authority, and none is cited.\\nMcClure testified that he was blinded by the lights of the the Ogden car just prior to the crash. Plaintiffs' counsel insist that the matter was not pleaded or raised by McClure in any way until the time of the trial and that this defense was an afterthought. Plaintiffs sought to show that the lights of a 1947 Dodge car at the distance from the Reiding ranch turnoff to the Campbell curve, a distance of over 1,200 feet, would not be strong enough to cause any brilliance or blinding effect, but objection was interposed on the ground that the conditions of a proffered experiment were not the same, and the evidence\\\" was excluded. As stated in Beck v. Givens, 77 Wyo. 176, 309 P.2d 715, 313 P.2d 977, a trier of fact may not disregard the uncon-tradicted testimony of a witness where no reason appears for doubting the accuracy or the credibility of the witness. Here we think that the jury was not bound to accept at face value defendant's statement that \\\"the lights came on bright and blinded me, and I went straight off the curve.\\\" They were obligated to consider such testimony, but they were entitled to consider also the testimony of Mr. Latta that McClure repeatedly recited to him the cause of the accident as being something other than, being blinded by lights from the rear, and we think they were not precluded from relying upon the general knowledge of the physical facts regarding automobile headlights which are matters of judicial notice. We find no cases on the point identical to the one before us, but we are convinced from the reading of various authorities that the jury should not be restricted on this point. 9 Wigmore on Evidence, 3 ed., p. 542, states:\\n\\\" so far as the matter in question is one upon which men in general have a common fund of experience and knowledge, through data notoriously accepted by all, the analogy of judicial notice by the judge obtains here also, to some extent, and the jury are allowed to resort to this information in making up their minds.\\\"\\nMore specifically, 9B Blashfield, Cyclopedia of Automobile Law and Practice, perm. ed. 1954, pp. 395-397, says that determinations of matters of common knowledge relate to the lights on automobiles and cites various cases to support the view. See also 15-16 Huddy Cyclopedia of Automobile Law, 9 ed., p. 272. Moreover, the jury in determining whether or not there was gross negligence was entitled also to have in mind defendant McClure's knowledge of the extreme curving condition of the road and of the potential effect of the headlights of a following car.\\nDefendant argues that failure to observe the curve warning sign was not the proximate cause of the accident, citing cases to the effect that the violation of a legal or statutory duty does not carry liability for injury unless such violation is the proximate cause thereof. He points out that plaintiffs in order to recover have the burden of establishing defendant's gross negligence and cites authorities that excessive speed is not necessarily negligence leading to liability unless it is the proximate cause of the accident. He also cites cases determined by this court in which we have said in case of momentary blindness of the driver the question of negligence is for the jury. It is not necessary that we discuss these authorities since the principles cited are uncontroverted and the sole question for our decision is whether or not the evidence adduced at the trial makes a sufficient showing to warrant the submission of the case to the jury. There is, of course, the correlative question of the jury's justification in rendering the verdicts, but this is dependent upon the propriety of the matter having been submitted to them.\\nCases such as the one before us are not without difficulty since the meaning of the term \\\"gross negligence\\\" has often varied both in the inherent definition and in its application to a set of circumstances. However, this court has heretofore provided the definition applicable to this jurisdiction, and there is no occasion to depart therefrom. In Arnold v. Jennings, 75 Wyo. 463, 296 P.2d 989, 990, we defined gross negligence as indifference to present legal duty and utter forgetfulness of legal obligations. See also Hawkins v. L. C. Jones Trucking Co., 68 Wyo. 275, 232 P.2d 1014. Prior to that time in Mitchell v. Walters, 55 Wyo. 317, 100 P.2d 102, 107, we had quoted two cases from other states which accorded with our views:\\n\\\" 'Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence. But it is something less than the willful, wanton and reckless conduct which renders a defendant who has injured another liable to the latter even though guilty of contributory negligence, or which renders a defendant in rightful possession of real estate liable to a trespasser whom he has injured. It falls short of being such reckless disregard of probable consequences as is equivalent to a willful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from willful and intentional conduct which is or ought to be known to have a tendency to injure. ' [Altman v. Aronson, 231 Mass. 588, 121 N.E. 505, 506, 4 A.L.R. 1185.] \\\"\\n\\\" 'The element of culpability which characterizes all negligence is, in gross negligence, magnified to a high degree as compared with- that present in ordinary negligence. \\u2022 Gross negligence is manifestly a smaller amount of watchfulness and circumspection than the circumstances require of a prudent man. But it falls short of being such reckless disregard of probable consequences as is equivalent to a willful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from willful and intentional conduct which is or ought to be known to have a tendency to injure.' [In Shaw, Adm'r v. Moore, 104 Vt. 529, 162 A. 373, 374, 86 A.L.R. 1139.] \\\"\\nDefendant insists a verdict should have been directed in the present case, arguing in effect that we have no alternative but to say, as a matter of law, that there was no gross negligence. We think there is little justification for our so holding. It is of course elementary that whether or not a motorist involved in an accident has been guilty of gross negligence must be determined by the facts and circumstances in the particular case. However, there is little conflict among the authorities in the view that where the evidence is legally sufficient and conflicting or different inferences of fact may reasonably be drawn therefrom it is for the finder of fact to determine the issue of gross negligence. 61 C.J.S. Motor Vehicles \\u00a7 526f (11), p. 488. 10A Blashfield, Cyclopedia of Automobile Law and Practice, perm. ed. 1955, pp. 624-626, states the matter more strongly:\\n\\\"Gross negligence is generally a question of fact for the jury or for the trial court sitting without a jury, and it becomes a question of law only when it is clear that 'but one conclusion can be drawn. If reasonable minds might draw different conclusions from the evidence, the question is for the jury.\\\"\\n5A Am.Jur. Automobiles and Highway Traffic \\u00a7 530, after stating that such determination is usually a question for the jury, says, \\\"The courts do not ordinarily interfere with the jury's conclusions.\\\" The question has been definitely resolved in Wyoming by the case of Meyer v. Culley, 69 Wyo. 285, 241 P.2d 87, 96, wherein we said that ordinarily the question of negligence, whether slight or gross, is one of fact; and that if the evidence respecting it is in conflict and is such that ordinary minds might draw different conclusions therefrom, then a question of fact is presented for the jury to determine.\\nIn the light of the general authorities, the precedents from other courts, and the views expressed in former Wyoming cases, our duty in this decision is clear and unequivocal. If reasonable minds might well have differed in interpreting the facts and ar riving at a conclusion regarding the gross negligence of defendant, then the trial court was correct in overruling defendant's motion for directed verdict and for a judgment notwithstanding the verdict, and the judgment must be affirmed. If on the other hand the evidence adduced does not in the light most favorable to the plaintiffs show gross negligence, the cause must be reversed. Let us advert to the testimony.\\nAs to the speed of defendant's car immediately prior to the crash, McClure testified it was 50 miles per hour, Ogden said it was twice as fast as his speed (30 to 40 miles per hour), and another witness said it was 65 to 70 miles per hour. Statements upon which a trier of fact would be entitled to draw inferences as to both speed and care included defendant's testimony, \\\"At 50 miles an hour I figured I could take any of those curves along that road\\\"; Ogden's statement that \\\"He made this one, but he won't make the next one\\\"; and Mrs. Latta's evidence that \\\"We passed the car, and I remember the tires squealing as we went around the curve, and that's the time that I said, 'That's a little fast, don't you think ? ' \\\" As to the cause of the accident, the patrolman said it was \\\"Speed too fast for conditions,\\\" while defendant gave as the reason his being blinded by the Ogden lights.\\nThe foregoing disputed testimony was of course subject to interpretation in the light of the uncontroverted evidence that the road was curving, which fact defendant knew because of having repeatedly traveled it, and that he failed to see the warning sign prior to the Campbell curve, which he thought went to the right and not to the left.\\nIn Mitchell v. Walters, supra, after an exhaustive review of the authorities on the subject, we said, 100 P.2d 108:\\n\\\" each case must to a large extent be ruled by its own circumstances as found by the trier of fact, this being especially so touching the question of gross negligence and where substantial conflicts in evidence are presented.\\\"\\nIn the present case the evidence was conflicting in numerous respects and in the aspects most favorable to the prevailing parties showed indifference to legal duty and utter forgetfulness of legal obligations. Under the rule effective in this jurisdiction, the case was properly submitted to the jury, and there was no error in denying defendant's motions.\\nAffirmed.\\n. \\\"No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful 'and wanton mis-conduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton mis-conduct contributed to the injury, death or loss for which the action is brought.\\\"\\n. Plaintiffs' petition alleged gross negligence and wilful and wanton misconduct of the defendant but the argument is limited to gross negligence.\\n. Defendant moved to strike this as a conclusion of the witness, not a statement of fact, but was overruled and does not argue the matter in this court.\\n. 18A Words and Phrases, Gross Negligence, p. 518 ff.; 4 Blashfield, Cyclopedia of Automobile Law and Practice, perm. ed. 1946, p. 370 ff.\\n. Mitchell v. Walters, 55 Wyo. 317, 100 P.2d 102.\"}"

wyo/10563832.json

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+"{\"id\": \"10563832\", \"name\": \"Irene KNIGHT, Appellant (Defendant below), v. Harry BONER, Appellee (Plaintiff below)\", \"name_abbreviation\": \"Knight v. Boner\", \"decision_date\": \"1969-09-18\", \"docket_number\": \"No. 3757\", \"first_page\": \"205\", \"last_page\": \"208\", \"citations\": \"459 P.2d 205\", \"volume\": \"459\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T21:34:23.391338+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before GRAY, C. J., and McINTYRE, PARKER, and McEWAN, JJ.\", \"parties\": \"Irene KNIGHT, Appellant (Defendant below), v. Harry BONER, Appellee (Plaintiff below).\", \"head_matter\": \"Irene KNIGHT, Appellant (Defendant below), v. Harry BONER, Appellee (Plaintiff below).\\nNo. 3757.\\nSupreme Court of Wyoming.\\nSept. 18, 1969.\\nErnest Wilkerson, Casper, for appellant.\\nPaul B. Godfrey, Cheyenne, William A. Taylor, Lusk, for appellee.\\nBefore GRAY, C. J., and McINTYRE, PARKER, and McEWAN, JJ.\", \"word_count\": \"1503\", \"char_count\": \"9102\", \"text\": \"Mr. Chief Justice GRAY\\ndelivered the opinion of the court.\\nPlaintiff, Harry Boner, brought an action of forcible entry and detainer in justice of the peace court against defendant, Irene Knight, to recover possession of certain real property located in the Town of Lusk, Wyoming. Judgment was for the plaintiff, and defendant appealed to the district court.\\nWhen the matter came on for trial de novo in the district court plaintiff, without objection, put in evidence a warranty deed dated July 10, 1960, by virtue of which the parties acquired title to the premises involved as joint tenants with right of sur-vivorship; a warranty deed dated July 6, 1966, whereby the defendant conveyed her interest in the premises to the plaintiff; and a copy of a stipulation entered into in open court on July 17, 1967, between the parties in settlement of a bastardy proceeding brought by the defendant against the plaintiff wherein, among other things, it was agreed that defendant, who was then making her home on the premises, would vacate the same on or before October 1, 1967, and if not \\\"she shall be deemed to be a tenant at sufferance and subject to immediate removal by an action in forcible entry and detainer by the defendant [plaintiff here], and the plaintiff [defendant here] shall assert no defenses to said action.\\\" It was also stipulated that proper notice to quit had been served and that defendant was still in possession of the premises. Thereupon plaintiff rested his case.\\nIn defense of the proceeding the defendant took the position that the stipulation concerning plaintiff's right to possession of the premises was entered into by the defendant and her then attorneys under a misapprehension of the facts brought about through concealment by plaintiff of certain financial transactions between plaintiff and a bank relating to the property and defendant's automobile and that the deed from defendant to plaintiff whereby defendant conveyed away her interest in the premises and relinquished her equal right to possession thereunder was void because obtained by plaintiff through misrepresentation, fraud and deceit.\\nWhen defendant undertook to offer evidence in support of her theories, objection was made on the ground that the derivation of plaintiff's title was incompetent, irrelevant and immaterial and on the further ground that the matters raised constituted equitable defenses which could not be injected into an unlawful detainer proceeding. The objection was sustained and defendant, after making an extensive offer of proof which we find unnecessary to relate in any detail for purposes here, and Which offer was also rejected by the trial court, rested her case. The district court in disposing of the appeal found that plaintiff was entitled to possession and entered its order affirming the judgment of the justice court. Defendant appeals;\\nIn presenting the matter here counsel for defendant in his brief says:\\n\\\"The issue in this appeal is a narrow one: Is the defendant in a forcible entry and detainer action, being a former joint owner of the property with attendant joint right to possession, entitled to establish as a defense to eviction by the other joint tenant that the title in the evictor was obtained from the defendant evictee by misrepresentation, deceit and fraud and therefore that the instrument vesting such title in the evictor is void and of no force and effect with the resulting continuing right in the defendant to occupy the premises.\\\"\\nAs nearly as we can determine, the argument of defendant that the issue should be answered in the affirmative is predicated upon the proposition that the proffered evidence was admissible as tending to show that the defendant took possession of the premises and continued in possession under \\\"color of title,\\\" which if established would defeat the action of unlawful detainer.\\nThe difficulty with defendant's carefully articulated statement of the narrow issue on this appeal and the argument in support thereof is that it entirely ignores the underlying and significant circumstance of the force and effect of the stipulation in the bastardy proceeding. Although the contention was made in the trial court that the stipulation was vulnerable for the reason stated above, the point is neither presented nor argued here by the defendant.\\nHaving thus waived any claim of infirmity in the stipulation, the defendant must be held bound by it and that in turn bears heavily on defendant's only defense for the reason that regardless of what had gone on before by way of entry or possession, the stipulation on its face established the relationship of landlord and tenant between the parties on and after October 1, 1967. From that time on defendant occupied the premises as a tenant at sufferance and upon her failure to vacate after proper notice terminating the tenancy, the plaintiff was well within his rights in bringing an action for unlawful detainer pursuant to the provisions of \\u00a7 1-677\\u2014 1-692, W.S.19S7. The suggestion of defendant that the appropriate action here was in ejectment is answered in Hurst v. Davis, Wyo., 386 P.2d 943, 949, wherein it was pointed out that the principal object of the statutory proceeding is to furnish a speedy remedy for recovery of possession against tenants holding over their term \\\"and to save landlords from the need to resort to [a] cumbersome, dilatory, and expensive suit in ejectment.\\\"\\nThe only determination to be made in the proceeding is \\\"the right or fact of possession.\\\" Jenkins v. Jeffrey, 3 Wyo. 669, 29 P. 186, 188. As a general rule the tenant is estopped to deny the title of the landlord and any investigation of title to the premises is precluded. Hitshew v. Rosson, 41 Wyo. 509, 287 P. 316, 318; Jenkins v. Jeffrey, supra. Defendant does not dispute that such is the law but asserts that the proffered evidence relating to title comes within the exception mentioned in Jenkins that evidence of title is sometimes admissible \\\"to show the purpose for which the entry was made, and the character and extent of the possession.\\\"\\nWe fail to grasp the force of the argument. In the first instance plaintiff, by his complaint, conceded that defendant's entry was lawful and consequently the exclusion of defendant's evidence to establish such fact, even if erroneous, in no way prejudiced the defendant. In addition, of course, evidence of the purpose of defendant's entry and the character and extent of her possession was immaterial in view of the stipulation that on and after October 1, 1967, she occupied and possessed the premises as a tenant by sufferance. See Ferguson v. Haygood, 67 Wyo. 422, 225 P.2d 336, 339.\\nThe further argument that the evidence was offered to show defendant was in possession under \\\"color of title,\\\" overlooks the fact that the deed of July 10, 1960, conveyed to defendant an undisputed title to the premises as a joint tenant. Such an instrument does not establish \\\"color of title\\\" for the reason that the term \\\"color of title\\\" is well defined as meaning an instrument which has \\\"a semblance or appearance of title, but is not title in fact or law.\\\" McCoy v. Lowrie, 42 Wash.2d 24, 253 P.2d 415, 418; 3 Am.Jur.2d, Adverse Possession, \\u00a7 105, p. 188. Consequently, and aside from defendant's right to question plaintiff's title, the proffered evidence was not competent under the claim of \\\"color of title\\\" and particularly so when long before the time of trial she had conveyed to plaintiff all of her right, title and interest in the premises.\\nWhat defendant's contention really boils down to, as indicated by the offer of proof and the argument presented here, is that the trial court erred in refusing to admit evidence tending to establish an equitable defense, i. e., the rescission of the deed to plaintiff because of alleged fraud and deceit and restoration of defendant's right of possession as a joint tenant. Regardless of what the rule might be elsewhere, it has long been the rule in this jurisdiction \\\"that neither the court of the justice of the peace nor the action of unlawful detainer is designed to try equitable defenses.\\\" Ferguson v. Haygood, supra, 225 P.2d at 342. The case also gives recognition to the well-recognized principle that the possessory action of forcible entry and detainer is not to be converted into an action of ejectment where the question of legal and equitable titles could be tried or to an action seeking equitable relief. That is not to say, of course, that a determination in the posses-sory action precludes an action in the proper forum to enforce equitable rights such as defendant asserts here. In that connection we should perhaps mention that what is said here should not be taken or understood as passing upon the merits of defendant's equitable rights.\\nJudgment affirmed.\"}"

wyo/10564464.json

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+"{\"id\": \"10564464\", \"name\": \"John H. McCLURE et al., Appellants (Defendants below), v. Murray C. WATSON and Louise Maxine Watson, Appellees (Plaintiffs below)\", \"name_abbreviation\": \"McClure v. Watson\", \"decision_date\": \"1971-11-22\", \"docket_number\": \"No. 3973\", \"first_page\": \"1059\", \"last_page\": \"1062\", \"citations\": \"490 P.2d 1059\", \"volume\": \"490\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T20:48:38.953645+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before McINTYRE, C. J., PARKER and McEWAN, JJ., and GUTHRIE, District Judge.\", \"parties\": \"John H. McCLURE et al., Appellants (Defendants below), v. Murray C. WATSON and Louise Maxine Watson, Appellees (Plaintiffs below).\", \"head_matter\": \"John H. McCLURE et al., Appellants (Defendants below), v. Murray C. WATSON and Louise Maxine Watson, Appellees (Plaintiffs below).\\nNo. 3973.\\nSupreme Court of Wyoming.\\nNov. 22, 1971.\\nHarry E. Leimback, and Ronald W. Hofer, of Leimback, Aspinwall & Hofer, Casper, for appellants.\\nB. J. Baker, of Brown, Drew, Apost\\u00f3los, Barton & Massey, Casper, for appellees.\\nBefore McINTYRE, C. J., PARKER and McEWAN, JJ., and GUTHRIE, District Judge.\", \"word_count\": \"1602\", \"char_count\": \"9543\", \"text\": \"District Judge GUTHRIE\\ndelivered the opinion of the court.\\nThis case arises on an appeal by the defendants below, appellants here, from the granting of a summary judgment in favor of the plaintiffs below, the appellees here. These parties will be hereinafter referred to as they appeared in the original proceeding.\\nPlaintiffs filed an action to quiet title to certain lands in Natrona County on March 16, 1970. Thereafter the defendants filed an answer therein asserting an ownership and claim to the oil and gas upon said premises by virtue of and pursuant to an oil and gas lease dated March 1, 1967. It appears, however, that the oil and gas lease under which the answer asserted the claim was superseded by an oil and gas lease bearing date of June 1, 1967, and for the purposes of the argument on this motion it was the later lease and extensions under which defendants asserted their rights.\\nInasmuch as the disposal of this matter is dependent upon the term of this lease and its extensions, the operative portions thereof are set out verbatim as follows:\\n\\\"It is agreed that this lease shall remain in force for a term of 120 days from this date, unless extended as above described, and as long thereafter as oil, gas, casinghead gas, casinghead gasoline or any of them is produced from said leased premises, or drilling operations are continued as hereinafter provided. If at the expiration of the primary term of this lease, oil or gas is not being produced on the leased premises but lessee is then engaged in drilling for oil or gas, then this lease shall continue in force so long as drilling operations are being continuously prosecuted on the leased premises ; \\\"\\nThe reference to the above-mentioned extension appears in the following clause:\\n\\\"Anything herein contained to the contrary, is expressly agreed by the parties that if lessees drill an oil and gas well to the Tensleep formation within the primary term herein, this lease will extend to one (1) year from the date herein, it being understood that the Tensleep is approximately 4600 feet.\\\"\\nThe term of this lease, however, was extended and the conditions thereof changed by virtue of that certain instrument entitled \\\"THIRD EXTENSION AGREEMENT FOR OIL AND GAS LEASE,\\\" being dated January 16, 1968, wherein it is recited as follows:\\n\\\" the Lessors hereby grant to the Lessees another extension of time from January IS, 1968 to May 1, 1968 and they shall have the opportunity to drill a second well provided the first well is drilled as contained in the lease herein, shall be extended from June 1, 1968 to September 1, 1968.\\\"\\nThe following facts are undisputed as they appear in the record: A well for oil was begun on said premises on or about April 10, 1968, and on May 3, 1968, was logged in the Phosphoria formation. An attempt was made to complete said well and put it on production in August of 1968. Some oil was produced and sold to the Rock Island Oil Company. There is nothing in the record showing the amount or the value thereof. The purchaser of said oil, Rock Island, required a ratification from the plaintiffs before payment could be made. Plaintiffs refused to execute such ratification. Thereafter defendants sought permission to deepen this first well through the Tensleep formation. Plaintiffs refused permission so to do on May 7, 1969. At the date of the filing of this suit the well was not in operation nor was oil being produced; nor were there any facilities to produce oil therefrom. On February 27, 1970, all pumps, tanks, and other personal property of the defendants at the well site were sold to satisfy liens which had been foreclosed. Plaintiffs received no payment for any oil by way of royalty, nor were they ever tendered a division order.\\nDefendants seek to avoid the termination of this lease upon two grounds, asserting that by reason of the refusal of the plain tiffs to allow the deepening of said well through the Tensleep sand that they were deprived of an opportunity to develop the same to their profit. They further contend that by reason of the failure of the plaintiffs to execute the ratification required by the purchaser of the oil that the plaintiffs had violated certain express or implied covenants in said lease.\\nThe defendants insist that there is a conflict of material fact in connection with these contentions which makes the granting of the summary judgment erroneous.\\nThe affidavit of plaintiff Murray C. Watson states that he did nothing to prevent defendants from drilling to the Ten-sleep sand during the term of this lease. Defendants seek to counter this by the following which appears in the affidavit of John H. McClure:\\n\\\"That after reaching the depth heretofore described the lessors and the plaintiffs herein refused and prohibited the well completion down through the Ten-sleep Formation, see Exhibit C attached hereto which is a copy of a letter by the plaintiffs which prohibited the drilling of the well through the Tensleep Formation.\\\"\\nAccepting the statement of defendant John H. McClure, as we must, there is still no conflict of fact raised herein. Plaintiffs do not deny that on May 7, 1969, they wrote the letter and refused to give permission to deepen the well through the Tensleep formation.\\nThis permission was sought and denied some eleven months after the expiration of the primary term of this lease as extended, or if it be considered that the specific permission to drill a second well extended this primary term to September 1, 1968, it was still some eight months after that date. Defendant John H. McClure's affidavit negatives any claim that this first well was a producing oil well which would have extended the term of the lease wherein he recites in his affidavit as follows:\\n\\\"Had we been allowed to proceed through the Tensleep area, we would have had and developed a producing well which would have been economically feasible to develope \\\"\\n(Emphasis supplied.)\\nIn addition thereto, the affidavit of plaintiff Murray C. Watson contains the following uncontradicted statement:\\n\\\" Various oil and gas liens were filed against the lease and in the summer of 1969 the production from the well ceased entirely and since that time no oil has been produced from the lease.\\\"\\nIf this oil and gas lease had expired by its own terms, as it appears from this record, the appellants have cited no authority nor made any suggestion of any rule or principle, legal or equitable, which casts upon these lessors any duty to modify, extend, or change the terms of their original oil and gas lease. Had this lease been in force and effect by its original terms certainly plaintiffs' permission was unnecessary and defendants could have proceeded with such operation.\\nIn connection with the defendants' second contention, it is to be noted that the answer charges plaintiffs with the refusal to execute division orders for the payment of oil and gas so produced. The affidavit of plaintiff Murray C. Watson denies this and no showing is made by the defendants that division orders were submitted to the plaintiffs. The affidavit of the defendant McClure makes no mention of the tender of division orders, but does assert that the purchaser of the oil, Rock Island Oil Company, required a ratification of the lease by plaintiffs and asserts that defendants! attorneys prepared such ratification, which was submitted to the plaintiffs and their attorneys twice, but that \\\"without reason or excuse the lessors refused to sign the ratification agreement.\\\"\\nDefendants, however, did not attach a copy of this ratification agreement to their affidavit, nor is any attempt made to set out the terms thereof or explain just why plaintiffs' actions were \\\"without reason or excuse.\\\" A party cannot rely upon conclusions, nor can they be employed by a court in disposing of a motion on summary judgment.\\nIt is true that motions for summary judgment may only be granted when there is no conflict as to the material facts. However, the rule and Wyoming cases impose a burden on both parties to demonstrate to the court the absence or existence of such conflict and this is to be demonstrated to the court through the existence of \\\"specific facts showing that there is a genuine issue for trial.\\\" These words of conclusion in defendant McClure's affidavit leave the court entirely at sea and unable to determine whether said refusal to sign this ratification agreement was unreasonable or the plaintiffs acted improperly in their refusal to execute the same. This court has earlier commented on the necessity of the statement of specific facts by parties to such a proceeding.\\nThe judgment of the trial court is affirmed.\\nGRAY, J., not participating.\\n. Low v. Sanger, Wyo., 478 P.2d 60, 64; Newton v. Misner, Wyo., 423 P.2d 648, 650; Lieuallen v. Northern Utilities Company, Wyo., 368 P.2d 949, 952; Rule 56(e), W.R.C.P.\\n. Rule 56(e), W.R.C.P. See also 3 Barron & Holtzoff, Federal Practice and Procedure, \\u00a7 1235, p. 146 (Rules Ed.).\\n. In re Wilson's Estate, Wyo., 399 P.2d 1008, 1009; Lieuallen v. Northern Utilities Company, supra, 368 P.2d at 951.\"}"

wyo/10573194.json

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+"{\"id\": \"10573194\", \"name\": \"Arthur D. WELLER and Helen F. Weller, Appellants (Plaintiffs below), v. John E. DALZELL and Velma P. Dalzell, Appellees (Defendants below); David Cleveland BRUCE, Appellant (Plaintiff below), v. John E. DALZELL, Appellee (Defendant below); Joseph W. SIMROCK, Appellant (Plaintiff below), v. John E. DALZELL, Appellee (Defendant below)\", \"name_abbreviation\": \"Weller v. Dalzell\", \"decision_date\": \"1962-10-23\", \"docket_number\": \"Nos. 3079-3081\", \"first_page\": \"467\", \"last_page\": \"474\", \"citations\": \"375 P.2d 467\", \"volume\": \"375\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T16:58:35.495923+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BLUME, C. J., and PARKER, HARNSBERGER, and McINTYRE, JJ.\", \"parties\": \"Arthur D. WELLER and Helen F. Weller, Appellants (Plaintiffs below), v. John E. DALZELL and Velma P. Dalzell, Appellees (Defendants below). David Cleveland BRUCE, Appellant (Plaintiff below), v. John E. DALZELL, Appellee (Defendant below). Joseph W. SIMROCK, Appellant (Plaintiff below), v. John E. DALZELL, Appellee (Defendant below).\", \"head_matter\": \"Arthur D. WELLER and Helen F. Weller, Appellants (Plaintiffs below), v. John E. DALZELL and Velma P. Dalzell, Appellees (Defendants below). David Cleveland BRUCE, Appellant (Plaintiff below), v. John E. DALZELL, Appellee (Defendant below). Joseph W. SIMROCK, Appellant (Plaintiff below), v. John E. DALZELL, Appellee (Defendant below).\\nNos. 3079-3081.\\nSupreme Court of Wyoming.\\nOct. 23, 1962.\\nBefore BLUME, C. J., and PARKER, HARNSBERGER, and McINTYRE, JJ.\", \"word_count\": \"4169\", \"char_count\": \"24859\", \"text\": \"Mr. Justice HARNSBERGER\\ndelivered the opinion of the court.\\nThe separate suits brought by the Wel-lers against the Dalzells, and by Bruce and by Simrock against Dalzell, have been consolidated on the respective appeals of the plaintiffs to this court, although there are issues of fact and law involved in the Weller appeal which are somewhat different from those in the other two cases. Each of the appealing plaintiffs individually owned separate lands, but all the lands had been used substantially as a unit by the Dalzells who, for some years, had separately leased them from each owner. Hereinafter the plaintiffs-appellants will be named in the singular.\\nThe Weller complaint filed June 8, I960, alleged that on March 1, 1953, a five-year written lease executed to the Dalzells had terminated, and thereafter the parties agreed to a year-to-year lease upon the same terms contained in the original five-year written lease, but with certain additional conditions. Weller further alleged the Dalzells failed to pay the rental when due; failed to properly care for, repair and replace personal property; failed to maintain and repair buildings, fences, and reservoirs; allowed livestock to graze, ruin, and destroy trees and shrubbery; failed to return personal property; subleased the premises without written permission; vacated the dwelling upon the premises; failed to account unto Weller for money advanced by Weller for repairs and improvements which were not made; and failed to assign Taylor Grazing Act leases at expiration of the lease. Weller prayed only for $20,000 damages.\\nThe Dalzells filed a general denial and alleged the original written lease had been extended for an additional term of five years from March 1, 1958, and until March 1, 1963. The Dalzells also cross-complained, alleging that Weller, Simrock and Bruce, in order to deprive the Dalzells of their leases, conspired to interfere with the Dalzells' application for a loan by making false representations, all to the Dal-zells' damage in the sum of $50,000 for which, with punitive damage of $25,000, judgment against Weller was prayed.\\nThe trial court found generally for the Dalzells; that the five-year lease agreement of March 1, 1953, was extended for an additional term of five years by a written mutual agreement as set forth in Weller's cancelled check dated April 6, 1959; that the extended lease was valid and binding until March 1, 1963; and that the Dalzells had complied with all provisions of the lease except certain rental and tax payments which the Dalzells had offered to pay Weller. The trial court also found the Dalzells had not been deprived of their lease agreement, and, therefore, held against the Dalzells on their cross-complaint. Judgment was rendered according to these findings and Weller has appealed.\\nAlthough appellant Weller contends his action against the Dalzells was for termination of a lease agreement, the record does not bear that out. Weller's complaint only sought $20,000 damages for the Dal-zells' alleged failure to perform the terms of a year-to-year lease which Weller claimed the parties had agreed upon as an extension of the five-year written lease dated March 1, 1953. Notwithstanding Weller's suit did not seek termination of any lease, appellant still continues to insist he had the right to terminate the year-to-year lease pleaded in his complaint, and claims that even if the Dalzells did have a five-year extension of the original lease, that extended lease had been breached and Weller was entitled to retake possession. This amounts to a reassertion by Weller that his action was for termination of lease, although for the different reason of alleged breach of covenants. Weller's complaint and the Dalzells' answer thereto do not raise any issue involving termination. They merely join issue on the alleged breach of contract and Weller's right to damages therefor. Weller does not seem to appeal from the judgment adverse to him upon the damage issue. However, the Dalzells cross-petitioned alleging the parties had extended the written March 1, 1953, lease for an additional five years, and the Dalzells prayed for its confirmation. Weller's answer traversed this cross-complaint, thus presenting an issue as to the validity and subsistence of the five-year extension of the March 1, 1953, lease. Weller's appeal must, therefore, be considered as being only from the judgment adverse to him on the extension issue.\\nWeller's appeal poses the usual questions \\u2014whether there is substantial evidence in the record justifying the trial court's finding there was a five-year extension of the original March 1, 1953, lease between the parties, and whether there were any breaches of the lease warranting its termination.\\nWeller produced in evidence: His five-jyears lease of lands to the Dalzells dated March 1, 1953, which contained a provision that it might be extended for another term upon written mutual agreement of the parties; a letter dated September 25, 1957, from the Wellers to the Dalzells saying:\\n\\\"This letter is to confirm our understanding and oral agreement made while at ranch. You are to receive a renewal lease, term 5 years under certain requirements that must be full-filled [sic], namely, #1, the place is never to be abandoned nor the house vacated, this is to avoid cancellation of \\u2022fire insurance. #2, buildings, corrals and fences must be kept in repair \\u2022at all times. #3, materials to repair the house, bunk house, chicken house and pump house roofs, I agree to advance the cost, however, the sum so advanced shall be repaid to me, in 5 .annual installments, beginning with the renewal of the lease, the rental terms \\u2022shall remain the same as formally '[sic]. You are to pay all labor cost on the above repair work.\\\";\\nan unsigned copy of a letter dated May 11, 1958, from the Wellers to the Dalzells, saying:\\n\\\" In my letters, I mentioned that I would come to the ranch when the repair work was finished and a new lease drawn up at that time. \\\";\\n.a letter dated May 22, from the Dalzells .to the Wellers, stating:\\n\\\"Fixing up a place with no more of a lease than we have \\u2014 leaves us with the uncertainty [sic] of just what to do. We have done all we can afford to do with out [sic] our lease \\u2014 therefore its [sic] up to you to send our lease \\u2014 this labor comes very high . We should have more of an understanding or lease.\\\";\\na letter dated May 24, 1958, from the Wel-lers to the Dalzells, wherein it was stated:\\n\\\"Beginning with our oral understanding while at the ranch concerning a new lease and verified in my letter dated Sept. 25, 1957, certain requirements had to be met before a renewal lease could be considered and which was fully understood and agreed upon.\\n*\\n\\\" We demand nothing that is not already an obligation on your part to fulfill under the lease you had with us.\\\";\\na letter dated September 15, 1958, from Mrs. Dalzell to the Wellers giving in some detail an outline of the repairs and improvements made; a letter from the Dal-zells to the Wellers, dated October 15, 1959, reporting on fence matters and explaining it would be necessary to have a lease running until April, 1964, in order to obtain a needed loan from the F.H.A., and that they would like to have that lease by October 25, or as soon as possible, as they had to change their loan by the first of November; a letter dated November 24, 1959, from the Wellers to the Dal-zells, saying:\\n\\\"Gladly discuss making a new lease with you folks, however, we must settle our account first, under our present setup to ascertain how to proceed and that would be fair and just to all concerned.\\\" ;\\na letter dated January 26, 1960, from the Wellers to the Dalzells, stating:\\n\\\"We have been advised that you have quit the cattle business, now what about this matter?\\n\\\"Should the above be true, what about your future plans and are you vacating our ranch?\\n\\\"The original five year renewal lease dated March First, 1953 and supplements thereto, expired March the First 1958. In September 1957 while we were at Ranch we discussed a renewal lease orally, later after arriving home we put in writing our agreements and understandings based upon certain specific requirements and to which we all agreed upon.\\n\\\"You accepted those requirements and conditions by remaining on the premises and we were willing to come to the ranch when you had completed the requirements at which time a new lease was to be signed. \\\";\\nand a letter dated February 13, 1960, from Mrs. Dalzell to Wellers, saying:\\n\\\" we had too [sic] sell the biggest part of our cattle \\u2014 due to hard winter' \\u2014 low prices & feed shortage\\u2014 however, we still have some left' \\u2014 and will have too [sic] take some stock in too [sic] pasture \\u2014 but figure it a good rest for the land for this spring & summer and let it go to seed \\u2014 of course we will have too [sic] use this land to make expenses as we will have too [sic] rebuild quite a bit of fence \\u2014 and you can expect your lease money 'on time as always. \\\" (Emphasis not supplied.)\\nIn his testimony Weller made reference to Dalzells' having a \\\"tentative new lease\\\" and said he told Dalzell when he performed according to oral and written statements, they would negotiate a new lease under the same terms and conditions.\\nMrs. Dalzell identified, and there was received in evidence, Weller's letter to Pioneer Lumber Company dated March 16, 1959, in which Weller says he had received remittance from Dalzell, \\\" to cover the annual rental under the five year lease, dated 2-27-59\\nWeller's September 25, 1957, letter to the Dalzells is by its own statement a written confirmation of the parties' oral mutual agreement to extend the term of the 1953 lease. The fact that both the oral mutual agreement to extend the term and the written confirmation. of that mutual agreement included certain additional requirements . to be kept and performed by the lessee during the period of the enlarged tenancy, which were not in the original lease, did not serve to destroy the augmented character of the lease. They merely appended additional requirements, the breach of which might result in the lease's de-feasance.\\nWeller's insistence that the statement in Weller's letter means that Weller would agree to the lease extension only when the new requirements were met is on its face untenable. The fulfillment or breach of the new requirement that \\\"the place is never to be abandoned\\\" was incapable of ascertainment until either an abandonment occurred or the period expired without abandonment. Similarly, until breach or performance, it could not be determined whether the requirement for repair of buildings, corrals, and fences had been satisfied. In like manner it could not possibly be known if Dalzells would repay monies advanced by Weller for repair materials, until Weller made such advances. Evidently Weller did not place such a strained construction upon the wording of his letter of confirmation at the time he wrote the Pioneer Lumber Company letter, as he now advances, for in it he said he had received Dalzell's letter \\\"with remittance to cover the annual rental under the five year lease, dated 2-27-59.\\\" (Emphasis supplied.) It is not known why Weller used the date reference \\\"2-27-59\\\", and this is not explained in the briefs of \\u2022either party to this appeal. Nor does Weller indicate he entertained his present contention in this regard when he wrote Dal-zells on March 16, 1959, setting forth instructions to Dalzells and saying when he would send Dalzells certain remittances, followed by:\\n\\\" Foregoing applies to the arrangment [sic] made in the renewal of our lease, the supplements which are in writing.\\\" (Emphasis supplied.)\\nAnd Weller must have had a different idea than that for which he now contends, when he wrote on the face of his check dated \\\"4-6-59\\\" to the Dalzells, \\\"Material costs Ranch advance under lease\\\", and typed on the back of that check:\\n\\\"Endorcements [sic] constitudes [sic] loan for materials purchased on their account from Pioneer Lbr. Co. .and applies in full settlement of the ranch lease arrangement. Repayment to be made in 3 equal annual installments of $62.49 each, same \\u215b be added to ranch annual rental, namely, on Mch. 1, 1960, Mch. 1, 1961 and Mch. 1, 1962.\\\"\\n-under which the Dalzells both signed their names endorsing the check.\\nAlthough both counsel at times sought -expressions from witnesses as to the meaning of the exhibits, the trial judge properly ruled they were to be interpreted by .the court.\\nThe evidence above recounted was -ample to support the court's conclusion that there was compliance with the extension provision of the 1953 lease which re- quired that the five-year lease might be extended for another term upon written mutual agreement of the parties thereto.\\nThere has been a distinction drawn between a renewal and an extension, the courts treating an extension as .a demise for the full period to which the \\u00a1term is extended. In the instant case this would make the full term of the 1953 lease a term of ten years, providing only that the exercise of the right to extend was made in the manner required by the extension provision of the 1953 lease. As the word used in the lease provision is \\\"extended\\\" there is no reason to consider it meant other than to permit an extension of the lease period rather than to provide for a renewal of the lease. Under a proper interpretation of the extension provision, the making of a new lease was unnecessary and the continued tenancy of the Dalzells was under the original 1953 lease .as extended. See 32 Am.Jur., Landlord .and Tenant, \\u00a7 956, p. 805.\\nRespecting the alleged breaches of the lease by Dalzells, Weller testified on cross-examination that in 1957 and 1958, he said nothing to Dalzell about loss of trees; that \\\"as far as the fences was [sic] concerned, that was taken care of\\\" and that Dalzell took pretty good care of trees and kept stock out; that he accepted the rent for 1959 but refused it for 1960; that Dalzell paid 1958 taxes and Weller paid the taxes for 1959 after he started this suit; and that he told the Bureau of Land Management Dalzell was clear out of the picture, he was firing Dalzell, and that Dalzell did not have a lease from Weller, Bruce or Simrock.\\nMrs. Dalzell testified: That when they entered the premises in 1950 they were in a deplorable condition; that the fences were run down; that Dalzells fixed the fences and put in electricity; that the trees are now in as good condition, if not in better condition, than when entry was made; that the Dalzells had lived on the place continuously for about ten years except for occasional visits to daughters; that \\\"three years ago this last June\\\", which is understood as meaning either June of 1958 or 1959, Weller's wife told Mrs. Dalzell the place was better than it ever was; that until Weller sent the eviction notice, Weller never complained about the fences or trees; that Weller's check of $516 was for certain bathroom fixtures purchased at a cost exceeding $725, and Dalzell added and paid for a pump and septic tank costing $500, and dug ditches to put them in; that Dalzell also bought $1,179 of equipment from a plumbing company; that a water well man bought her horse and he drilled a well to connect with bathroom fixtures; that she considered the endorsement on Weller's check, dated April 6, 1959, to the Dalzells' order, which Weller had produced in evidence, an extension of the March 1, 1953, lease, and which read on the face, \\\"Material costs Ranch advances under lease\\\" and on its back:\\n\\\"Endorcements [sic] constitudes [sic] loan for materials purchased on their account from Pioneer Lbr. Co. and applies in full settlement of the\\nranch lease arrangement. Repayment to be made in 3 equal annual installments of $62.49 each, same to be added to ranch annual rental, namely, on Mch. 1, 1960, Mch. 1, 1961 and Mch. 1, 1962.\\n\\\"/s/ John Dalzell\\n\\\"/s/ Velma Dalzell\\\";\\nthat the Dalzells always paid the taxes until Weller, \\\"demanded to evict us\\\"; that in February 1961 Weller told her if she would assign the Dalzell Taylor Grazing lease, her husband would not need to know about it and Weller would not sue for damages; that until eviction notice was received, Dalzells had paid taxes and they were willing to pay the rent and the yearly adjustments agreed upon; that the fences were kept tight and the place was in better condition than it had ever been known to be; that the place has water, lights, telephone, gravel road, flowers, and fences; that an apparent washout at the reservoir was sand blown in by storm and then washed out by rain; that the reservoir held water; that Weller did not buy staples or wire; that Weller said he was glad Dal-zell had saved so many trees; that Dalzell had never subleased Weller lands to anyone; that pictures showing a portion of the fence being down were taken at a place where the wires had been let down to allow driving a truck through; that the house was never abandoned; that repairs had been made on buildings, fences, and corrals, but Weller told Dalzell to leave the barn roof alone; that a terribly high wind tore off the roof of the chicken house; that Weller only sent $187 for roofing that cost $800; and that Weller knew there were times Dalzells were away from his place but said that didn't \\\" 'make so much difference as long as it's livable' \\\", which the witness said it certainly was.\\nJohn Dalzell testified that he had been on the place continuously since 1949 and until these proceedings; that the rent was all paid when he met with the three plaintiffs in February 1960, and that he then tendered $590 rent by certified check and that he had $62.49 additional to pay Weller in accordance with the notation on Weller's $187.47 check, which was dated \\\"4-6-59\\\", and tendered it to Weller but could not get Weller to take the money or the check; that he was always ready, willing, and able to pay the taxes and any back rent; that he-went to pay the 1959 taxes but found Weller had already paid them; that he paid the Taylor Grazing lease rental; that he owes-nothing to Weller but Weller still owes him; that he had never billed Weller for any improvements that he had not made; that when: the lease extension was made he moved back to the Weller place and that he never abandoned the Weller place; that he bought the wire, staples, and posts which Weller should have paid for; that the farming, equipment on the place was bought about 1920-25 and the buildings were in poor shape in 1950; that things are generally better than before; that Weller's picture of the dam showing an apparent gap was a picture of the dam spillway; that pictures of down fences were old dry-farmer fences not supposed to be kept up and that they served' no useful purpose now; that livestock was-not allowed to graze around the trees and shrubbery which are in much better condition now; and that porcupines had killed some trees.\\nWitness Etchemendy, under cross-examination by Weller, identified Etchemendy's. $1,200 check to Dalzell upon which was-written, \\\"lease until March 15th 1960 in full\\\", and another check for $750 upon which was written, \\\"lease on 4000 acres-pasture until April 1st 1961\\\", also an instrument to which Dalzell and Etchemendy were parties entitled, \\\"Grazing Permit\\\",, dated January 11, 1960, granting Etche-mendy the privilege of grazing sheep,, and another instrument entitled, \\\"Share-Agreement\\\", dated April 1, 1960, which provided Dalzell and Etchemendy should pasture and care for 1,200 of Etchemendy's-ewe sheep on a crop-share basis. Etche-mendy testified he wanted to change the deal because he was served with notice to vacate the premises; that he told the man. he was leasing; that he was not leasing the \\u2022entire premises, just grass; that Dalzell lived in the house and he saw him around the house several times; that he was told to .get off in February 1960; and that if leases were valid he would complete his agreement with Dalzell.\\nThe witness Suranyi testified that in 1950 water was hauled to the place in barrels, but \\u2022in 1961 they had running water; that the trees were much better; that she saw no fences down although one inside fence need\\u2022ed repair; that the chicken house was pretty good and she saw nothing wrong with the windbreak by the shed; and that the corral was all right.\\nWitness Stolcis testified that she was at -the ranch hundreds of times; that when Dalzells moved there the place was in a deplorable condition; and that in 1960 the buildings, house, trees, and shrubbery were in much better condition.\\nFrom this evidence the trial court was entitled to believe Dalzells had either paid or offered to pay all rentals and taxes \\u2022due under the extended lease; that Dalzells Rad properly maintained and repaired the buildings, fences, and reservoirs; that Dal-zells had not allowed livestock to graze, ruin, and destroy trees and shrubbery; that Dal-.zells had not subleased the premises or vacated the dwelling upon the premises; and that Dalzells had not failed to account unto Weller for money advanced by Weller for repairs and improvements which were not made.\\nFurthermore, Weller failed to show \\u2022there was personal property which the Dal-zells should have returned to Weller, and which they either failed or refused to give Weller. Similarly there was no showing that there was an obligation on Dalzells' part to assign to Weller the Taylor Grazing leases.\\nThe judgment in favor of Dalzells and \\u2022against Weller must, therefore, be affirmed.\\nThe Bruce and Simrock complaints, filed June 8, 1960, allege that about November 4, 1959, Dalzell requested plaintiffs to cancel his written leases with them and enter into new leases, upon condition that Dalzell would return such new leases if Dalzell failed to obtain a loan from Farmers Home Administration; that Dalzell did not obtain the loan but nevertheless refused to deliver up the new written leases. Dalzell generally denied; alleged he and plaintiffs entered into valid five-year written leases on November 4, 1959, but plaintiffs refused Dal-zell's tender of rental payments. Also in a cross-complaint, Dalzell charged plaintiffs with conspiring to avoid their leases with him and to deprive him of certain grazing leases, and asked $50,000 damages and $25,-000 punitive damages from each of those plaintiffs.\\nThe court found Bruce and Simrock failed to prove the allegations of their complaints by competent evidence; that even if there were oral conditions to the November 4, 1959, written leases, the conditions were violated by plaintiffs, and dismissed plaintiffs' complaints. Additionally, the court held the November 4, 1959, leases were valid and binding, but denied defendant's claims for damages, as Dalzell still had his leases. Plaintiffs have appealed from these judgments.\\nAppellants Bruce and Simrock agree that the-only issue in controversy upon their appeal is whether or not the delivery of their leases dated November 4, 1959, and by their own terms not to expire until April 1, 1964, were conditioned upon the Dalzells obtaining a loan.\\nAs in the Weller appeal, this court is not concerned with any conflicting testimony given by plaintiffs and upon which appellants' counsel seems to rely, for in the face of conflicting evidence this court regards only the evidence most favorable to the successful party on appeal together with all fair inferences which may reasonably be given it.\\nThe undisputed evidence is that Dal-zells wanted the leases in question in order that they could comply with the F.H.A. requirements for obtaining a loan. But it is clear that the positive testimony given by the Dalzells was that these new leases were not given upon any condition that the leases would be returned to the lessors in the event the Dalzells did not receive their requested loan. It was the trial court's right to weigh conflicting evidence and with that court's conclusion this court will not interfere. The honesty, integrity, and reliability of the Dal-zells' evidence remains unassailed. The leases themselves contain no such condition as that relied upon by Bruce and Simrock, and the trial judge was entitled to choose as to which testimony was the more convincing.\\nThe judgments in favor of Dalzells and against Bruce and Simrock will, therefore, also be affirmed.\\nCases Nos. 3079, 3080, and 3081 affirmed.\"}"

wyo/10573273.json

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+"{\"id\": \"10573273\", \"name\": \"Gail FLEMING, Appellant (Defendant below), v. Jack E. GOGGINS, Appellee (Plaintiff below)\", \"name_abbreviation\": \"Fleming v. Goggins\", \"decision_date\": \"1962-11-05\", \"docket_number\": \"No. 3075\", \"first_page\": \"474\", \"last_page\": \"477\", \"citations\": \"375 P.2d 474\", \"volume\": \"375\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T16:58:35.495923+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Gail FLEMING, Appellant (Defendant below), v. Jack E. GOGGINS, Appellee (Plaintiff below).\", \"head_matter\": \"Gail FLEMING, Appellant (Defendant below), v. Jack E. GOGGINS, Appellee (Plaintiff below).\\nNo. 3075.\\nSupreme Court of Wyoming.\\nNov. 5, 1962.\\nJ. Byron McHale and John D. Flitner, Greybull, for .appellant.\\nJohn O. Callahan, Basin, fo.r appellee.\\nBefore BLUME, C. J., and PARKER, HARNSBERGER and McINTYRE, JJ.\", \"word_count\": \"1586\", \"char_count\": \"9079\", \"text\": \"Mr. Justice McINTYRE\\ndelivered the opinion of the court.\\nThe District Court of Big Horn County awarded judgment for $3,000 less $250 al lowed on a counterclaim, in favor of Jack E. Goggins, plaintiff, and against Gail Fleming, defendant, for the loss of corn silage belonging to plaintiff. The loss was found to have been caused by the acts of defendant-Fleming. He has appealed.\\nIt is admitted that the silage in question was grown, harvested and stored by Goggins upon a portion of 800 acres of land in Big Horn County, which had been leased from W. A. Davenport. There is no dispute of the fact that half of the consideration for the Davenport lease had been furnished by Goggins through the delivery of 100 ewes to Davenport. The lease was originally prepared by Fleming's attorney with both Gog-gins and Fleming named as lessees. Subsequently, however, Goggins' name was deleted and the lease was executed by Fleming only as lessee. Goggins claimed that this was done for Fleming's convenience in connection with a loan and without authorization by Goggins.\\nLater on, Goggins used a portion of the leased premises for the raising of crops and feeding of livestock. Fleming testified that he had a verbal agreement with Goggins that \\\"I was to let him use the place part of the time.\\\" The testimony of Goggins in that regard was that the two men had an oral agreement to separate the place fifty-fifty; that each was to use half but Fleming was to have the added privilege of living on the premises; and that for such added privilege Fleming was to watch after any livestock which Goggins had on the place.\\nWhatever the arrangement may have been, it appears from the evidence that Goggins did occupy and use a portion of the land with livestock and that he also planted and raised com on about 80 acres. When the corn was harvested, it was made into silage and stored in pits on the ranch. According to Goggins, there was a total of approximately 1,000 tons, about half of which he fed to his own livestock. He claims that he intended to use his portion of the place for lambing in the spring and also intended to feed the remaining 500 tons of silage to his sheep.\\nThe evidence shows that prior to lambing time Fleming put a padlock on the place. As a result, Goggins claims, he was not able to reenter and was compelled to buy other feed and to make arrangements for another place for lambing. It is not entirely clear what the reasons for Fleming's actions were. Also, the evidence is in conflict as to whether Goggins attempted to gain access to the place and to make use of his silage.\\nThere was nevertheless ample testimony to justify a finding that Goggins did attempt to gain access to the place and to make use of his silage and that Fleming prevented both. Goggins testified to several conversations with Fleming in which he demanded and was refused access to the premises and feed. He also served a written demand upon Fleming which was not honored. In addition, attempts to enter were made by Goggins and his employees, and each time entry was barred or prevented by Fleming. This testimony warranted a conclusion that Goggins was purposely and intentionally kept from the premises and from the silage by actions of defendant-Fleming. There was also testimony that Goggins sent men with trucks to haul out the feed and that Fleming refused to let them on the place to get the feed.\\nWith respect to the damages suffered by Goggins as a result of the actions of Fleming, not only did Goggins buy feed to replace the silage, in amounts sufficient to support the judgment, but he testified that 500 tons of silage was left on the place; that the silage was worth $6 per ton; and that the silage rotted and became worthless because it could not be fed or removed. The amount of damages is not challenged on appeal, and we will not therefore disturb the award as far as amount is concerned.\\nDefendant-Fleming freely admits by his answer and in his testimony that Goggins planted 80 acres of com on the leased premises and that defendant claimed no interest in the silage which remained on the place. Also, his attorney stated in oral argument that Fleming does not deny that the silage belonged to Goggins. We find nothing in appellant's statement of points or brief which would suggest any fair or equitable justification for Fleming's actions in barring Goggins from access to his property.\\nInstead, the grounds of appeal seem to be based entirely on asserted legal axioms, which we consider irrelevant to the issues involved. For example, Fleming's summary of points includes (1) that plaintiff is barred from asserting any interest in the Davenport farm lease or in any real property by reason of the statute of frauds, and (2) that the trial court erred in not finding that plaintiff was a tenant at sufferance.\\nAs long as it is admitted that Gog-gins planted, grew and harvested the corn and that the silage was his, it is immaterial whether he had any interest in the Davenport lease. Let it be remembered that the silage when harvested and stored was personal property and not real estate as counsel for Fleming seem to suppose. See Hamilton v. Rock, 121 Mont. 245, 191 P.2d 663, 667; Silveira v. Ohm, 33 Cal.2d 272, 201 P.2d 387, 390; and Balia v. Ireland, 183 Or. 663, 196 P.2d 445, 449.\\nEven if we were to accept appellant's theory, for purposes of this decision, that Goggins should be considered as a tenant at sufferance, we still would not be able to deny his right to the silage in question. The produce gathered by a tenant holding over or by a tenant at will or by a tenant at sufferance during his tenancy belongs to him, and he has a right to enter and take the crops after termination of his tenancy. Hemberger v. Hagemann, 120 Colo. 431, 210 P.2d 995, 997, 998, and 999; Smith v. Dairymen's League Coop. Ass'n, 186 Misc. 82, 58 N.Y.S.2d 376, 380-381, affirmed (Smith v. Hungerford and Dairymen's League Cooperative Association, Inc. et al.) 270 App.Div. 1071, 63 N.Y.S.2d 691; 51 C.J.S. Landlord and Tenant \\u00a7 348, p. 1036.\\nIt is of course apparent that, regardless of whether Goggins was a tenant at sufferance or fo.r a fixed term, the corn was gathered, converted into silage and stored on the premises during his tenancy. Thus,, it is clear that even if Goggins were considered a tenant at sufferance, as contended; by appellant, the judgment of the district court would still be proper.\\nBoth parties agree that there was a verbal agreement between them under which Gog-gins had the right either to use the place-part of the time or to use part of the place during the entire lease term. For purposes-of this appeal, we will assume that appellee's-testimony on that subject was accepted by the court and that the oral agreement authorized Goggins to use his part of the land during the entire lease term.\\nIn view of the fact that Goggins had paid the full consideration for his tenancy and that he had gone into possession, neither of which is denied by Fleming, it cannot be said that the verbal agreement between the parties themselves with respect to use of the premises would be void by reason of the statute of frauds. Johnson v. Maki, 45 Wyo. 113, 16 P.2d 46, 47. See also Butler v. McGee, Wyo., 373 P2d 595, 597. The existence of this verbal agreement is an added reason for our saying that it is immaterial whether Goggins did or did not have an interest in the Davenport lease.\\nThe only additional grounds asserted for a reversal of the judgment here involved have to do with the sufficiency and the credibility of evidence. These grounds are numbered 3 to 6, inclusive, in appellant's brief, and as we understand them, they include the following contentions: (3) The court erred in finding that plaintiff was refused access to silage when needed; (4) the testimony of plaintiff was such as to lend question to its credibility; (5) there was no proof that conversations which were testified to, between defendant and employees of plaintiff, were binding upon defendant since there was no proof that the employees acted as agents fo.r plaintiff; and (6) the court erred in not finding that plaintiff failed to use due diligence to secure possession of the silage.\\nWithout discussing these contentions separately and in detail, it is sufficient to say that the evidence already referred to in our previous statement of the case was sufficient to support the findings of the trial court and the judgment in favor of Gog-gins. The trial judge was of course the sole judge of the credibility of witnesses and their testimony. See Eblen v. Eblen, 68 Wyo. 353, 234 P.2d 434, 437 and 441.\\nWe fail to find merit in any of the contentions advanced by appellant-Fleming, and accordingly we must affirm the judgment appealed from.\\nAffirmed.\"}"

wyo/10579377.json

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+"{\"id\": \"10579377\", \"name\": \"Ada B. CRAWFORD, Appellant (Plaintiff below), v. Alvin BARBER, John Barber, Joyce Barber, Dorothy Burden, Sarah Barber, Alvin Barber, as Administrator of the Estate of Perry Barber, and John Barber, Conservator of Sarah Barber, Appellees (Defendants below)\", \"name_abbreviation\": \"Crawford v. Barber\", \"decision_date\": \"1963-10-17\", \"docket_number\": \"No. 3141\", \"first_page\": \"655\", \"last_page\": \"658\", \"citations\": \"385 P.2d 655\", \"volume\": \"385\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T21:05:56.228910+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before .PARKER,- C. J.', and HARNS-BERGER, GRAY and McINTYRE, JJ.\", \"parties\": \"Ada B. CRAWFORD, Appellant (Plaintiff below), v. Alvin BARBER, John Barber, Joyce Barber, Dorothy Burden, Sarah Barber, Alvin Barber, as Administrator of the Estate of Perry Barber, and John Barber, Conservator of Sarah Barber, Appellees (Defendants below).\", \"head_matter\": \"Ada B. CRAWFORD, Appellant (Plaintiff below), v. Alvin BARBER, John Barber, Joyce Barber, Dorothy Burden, Sarah Barber, Alvin Barber, as Administrator of the Estate of Perry Barber, and John Barber, Conservator of Sarah Barber, Appellees (Defendants below).\\nNo. 3141.\\nSupreme Court of Wyoming.\\nOct. 17, 1963.\\nJames E. Barrett, Lusk, for appellant Maurer & Garst, Douglas, for appellees.\\nBefore .PARKER,- C. J.', and HARNS-BERGER, GRAY and McINTYRE, JJ.\", \"word_count\": \"2096\", \"char_count\": \"12100\", \"text\": \"Mr. Chief Justice PARKER\\ndelivered the- opinion of' the court.\\nAda B. Crawford,'the'widow and sole devisee of David W. Crawford, brought an action for declaratory judgment requesting the court to decree that she was entitled to a- one-half interest in certain real property which originally' belonged to the husband's mother,.Mary E. Crawford, who died testate, leaving all her real- estate, including 320 acres of land in Niobrara County, Wyoming, to her second husband for life. Of significance here are four paragraphs of the will dealing with- the further disposition of the property: ,\\n\\\"Third: Upon the death of my beloved husband, Thomas G. Crawford, I then give, devise and bequeath all of my. property, real, personal and mixed, of whatsoever kind, and .wheresoever situ-., ated, unto my two-beloved-sons, David W. Crawford and Perry ,A. Barber for their natural -lives, each to have one .half thereof, .that is to say, each shall have a life estate in one half of- - my property. The taxes and upkeep of said property shall first be deducted and the balance of the income shall be divided equally between my said two sons. In the event of the death of either -one of my sons, it is then my will that this arrangement shall continue until the death of my other son.\\n\\\"Fourth: Upon the death of my beloved son, David W. Crawford, I then . give, devise and bequeath one half of all my property, real, personal and mixed, of whatsoever kind and wheresoever situated, unto the heirs of his body who may be living; at that time. If any of his heirs shall have died before his death, then the share of said heir shall go to the children of said heir. If said heir shall have died without children, then said share shall be divided among the other heirs of the said David W. Crawford. If the said David W. Crawford shall die without any children surviving him, then it , is my will that his half shall be divided among his heirs according to the rules .of descent and distribution of the State of Illinois.\\\"\\nParagraph five was identical to paragraph four except that the name of the other son, Perry A. Barber, was substituted for David W. Crawford.\\n\\\"Sixth: If either of my beloved sons, David W. Crawford and Perry A. Barber shall have died before my death, then it is my will that the one half of my property shall go to the children of said son so deceased. If he should die without children surviving then said share shall go to his heirs according to the rules of descent and distribution of the State of Illinois.\\\"\\nThe case was tried on a stipulation of facts, which in addition to those above mentioned recited that testatrix's husband predeceased her; that her son, Perry, died in November 1956, leaving as his sole heirs his wife and four children, Alvin Barber, John Barber, Dorothy Burden, and Joyce Burlingame; and that her son, David, died testate in January 1960, having no descendants and naming as sole devisee his wife, Ada B. Crawford. The court found that the will of Mary E. Crawford could be interpreted from the instrument itself with no necessity of applying the rule in Shelley's Case and that under the rules of descent and distribution of the State of Illinois, plaintiff, Ada B. Crawford, was entitled to only 25 percent interest in the 320 acres. .\\nFrom this judgment plaintiff has appealed, contending that the court erred in its finding that the rule in Shelley's Case does not apply and that its application would have resulted in plaintiff's being adjudged the owner of an undivided one-half interest in and to the real estate in question. Plaintiff asserts, \\\"There can be no question but that Wyoming has recognized the application of the Rule in Shelley's Case,\\\" citing Singleton v. Gordon, 60 Wyo. 26, 144 P.2d 138. It is true that we recognized the existence of the rule and stated some principles concerning it in the Singleton case. However, the court found it unnecessary to decide whether the facts of that case came within its purview. Now that the subject is again presented,it may be desirable to amplify our views.\\nThe reason for the development of the rule in Shelley's Case and the rationale for its continued existence are topics about which there have been much discussion and disagreement, with comments ranging from faint praise to bitter condemnation of the rule. Illustrative analyses and summaries are found in Simes and Smith, Law of Future Interests, \\u00a7 1541-1572 (2 ed.); Annotation, 29 L.R.A.,N.S., 963; 3 A.L.I. Restatement, Property, \\u00a7 312 (1940); and see 45 Ill.L.R. 173 and 2 Wyo.L.J. 91.\\nThe situation presented by the instant case is at best an unfortunate example of heteronomy. We are asked to apply the rule in Shelley's Case for the reason that it was part of the common law of England, which the legislature provided as the rule of decision in this State, \\u00a7 8-17, W.S.1957, but ironically England abolished the rule in Shelley's Case by the Law of Property Act of 1925. Further anomaly arises from the fact that the legislature in Illinois, like those in a majority of the states, assumed a positive attitude regarding the propriety of the rule and passed a statute abolishing it. Ill.Rev.Stat.1957, c. 30, \\u00a7 186, 187. We are cognizant of the nullification of the rule in Shelley's Case by the courts in at least two jurisdictions \\u2022 of the United States on the ground that it is inapplicable to their social institutions. This court stated in Fuchs v. Goe, 62 Wyo. 134, 163 P.2d 783, 792, 166 A.L.R. 1329, \\\"we have by statute adopted the common law so far as same is of a general nature and not inapplicable in this state . The meaning of the word 'applicable' in such a context has been thus defined: 'in adopting the Common Law, it must be applicable to the habits and condition of our society, and in harmony with the genius, spirit and objects of our institutions.'\\\" Under such a holding, we are doubtful that the rule in Shelley's Case could be applicable in Wyoming. Certainly, in the light of the mentioned trouble and confusion, there should be no occasion to apply the rule with blind rigidity.\\nAddressing ourselves to the present litigation, we find the first and the last sentences of paragraph four of especial interest. The first because upon the death of the two sons the testatrix purports to give one-half of her property to the heirs of David's body who may be living at that time. An objective reading of the entire will clearly shows that when she used the words \\\"heirs of his body\\\" she had in mind his children, Hodam v. Jordan, E.D.Ill., 82 F.Supp. 183; Simes and Smith, Law of Future Interests, \\u00a7 1549, p. 444 (2 ed.) ; and had David left children surviving him, the rule should not have applied. However, he died childless, thereby rendering pivotal the last sentence of the paragraph which stated that in such event his half should \\\"be divided among his heirs according to the rules of descent and distribution of the State of Illinois.\\\"\\nIn determining whether such provision is within the rule in Shelley's Case, we observe that four of the basic prerequisites for the application of the rule are present: namely, that there was an estate of freehold in the ancestor, David; that he acquired this estate in consequence of the same instrument, the will, which contained the limitation to his heirs; that the interest of D\\u00e1vid and the heirs was of the same character or quality; and that the limitation to the heirs was of an inheritance in fee made by way of remainder. 47 Am.Jur. Shelley's Case, Rule in, \\u00a7 8. However, we do not think that the word \\\"heirs\\\" is used in a technical sense so as to satisfy the fifth requirement. Judge Blume said in the Singleton case, 144 P. 2d at 141, that if this word was not used in a technical sense but rather as a description of the persons to take from the grantor the rule in Shelley's Case would not be applicable. It is our view that such rule does not apply in situations of. this nature unless the remainder is limited to heirs in an indefinite line of inheritable succession from generation to generation. Donald v. Troxell, Tex.Civ.App., 346 S. W.2d 398; Turner v. Monteiro, 127 Va. 537, 103 S.E. 572, 13 A.L.R. 383; Benton v. Baucom, 192 N.C. 630, 135 S.E. 629; and see 47 Am.Jur. Shelley's Case, Rule in, \\u00a7 12. This we understand was the English approach, and we view it as the correct approach, notwithstanding the fact that there is respectable American authority to the contrary, 3 A.L.I. Restatement, Property, \\u00a7 312, comment \\\"f\\\" (1940).\\nAffirmed.\"}"

wyo/10579704.json

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+"{\"id\": \"10579704\", \"name\": \"In the Matter of the ESTATE of Burley F. BORTON, Deceased. Sadie L. SCHULTZ, Appellant (Petitioner-Plaintiff below), v. George F. BORTON, Administrator of the Estate of Burley F. Borton, Deceased, Appellee (Petitioner-Defendant below)\", \"name_abbreviation\": \"Schultz v. Borton\", \"decision_date\": \"1964-07-09\", \"docket_number\": \"No. 3217\", \"first_page\": \"808\", \"last_page\": \"815\", \"citations\": \"393 P.2d 808\", \"volume\": \"393\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T17:33:15.461582+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before PARKER, C. J., and HARNS-BERGER, GRAY and McINTYRE, JJ.\", \"parties\": \"In the Matter of the ESTATE of Burley F. BORTON, Deceased. Sadie L. SCHULTZ, Appellant (Petitioner-Plaintiff below), v. George F. BORTON, Administrator of the Estate of Burley F. Borton, Deceased, Appellee (Petitioner-Defendant below).\", \"head_matter\": \"In the Matter of the ESTATE of Burley F. BORTON, Deceased. Sadie L. SCHULTZ, Appellant (Petitioner-Plaintiff below), v. George F. BORTON, Administrator of the Estate of Burley F. Borton, Deceased, Appellee (Petitioner-Defendant below).\\nNo. 3217.\\nSupreme Court of Wyoming.\\nJuly 9, 1964.\\nR. L. Gilbert, Morrill, Neb., and Donald E. Jones, Torrington, for appellant.\\nHathaway & Sigler and Stanley Hathaway, Torrington, and Holtorf, Hansen & Fitzke, Gering, Neb., for appellee.\\nBefore PARKER, C. J., and HARNS-BERGER, GRAY and McINTYRE, JJ.\", \"word_count\": \"4316\", \"char_count\": \"25476\", \"text\": \"Mr. Justice GRAY\\ndelivered the opinion of the court.\\nBurley F. Borton died intestate on the thirteenth day of January, 1963. He left surviving him a widow, now Sadie L. Schultz, appellant herein, three adult sons, and one adult daughter. Shortly after the death of decedent the son George commenced probate of the estate of decedent and petitioned the court for appointment as administrator. The other sons and the daughter joined in the petition, and for the reason that our statute, \\u00a7 2-93, W.S.1957, gives preference of appointment to the surviving spouse there was annexed to said petition an antenuptial agreement executed on December 4, 1962, by decedent and appellant wherein appellant was alleged to have relinquished her rights under the statute. On January 25, 1963, the petition was granted and on that same day George duly qualified as administrator and entered upon his duties. However, on March 4; 1963, appellant petitioned the court for an order appointing her nominee as administrator of the estate of decedent. Attached to said petition was a pleading alleging that as the surviving spouse of decedent appellant had a preference with power of appointment under the statute, and the relief sought was that the order appointing the son George as administrator be vacated; that his letters testamentary be revoked; and' that the matter be set for hearing. No mention was made of the antenuptial agreement. Following this, a pretrial- conference was held and it was ordered that issues concerning the validity of the ante-nuptial agreement, the preference right of appellant in the administration of the estate, and the rights of inheritance to the estate .should be made up by pleadings of the \\u2022parties.\\nAppellant's pleading in substance alleged that on December 4, 1962, the date of the agreement, she and decedent were engaged to be married and were married on December 6, 1962; that appellant was the surviving spouse and legal heir of decedent along with his children; that on December 4, 1962, decedent owned property valued at $104,465.00 free from indebtedness, but she was without knowledge thereof and had not been informed of the extent or value of such property; that appellant was not informed of her rights as his wife or as a widow; that the meaning of the agreement was not explained to her; that the sum of $10,000.00 received by her on the day the agreement was signed was inequitable, unjust and unreasonably disproportionate to the means of decedent and her rights in his property upon his death; that in addition to the $10,000.00 decedent represented that he would provide for her from his income and property for the remainder of her lifetime; that she was induced to sign the agreement by his statement that he would place his savings account in a joint bank account for her use and protection and she did not learn that this was not done until after the marriage; that as further inducement the decedent represented that the agreement covered only lands that would go to their respective children and she did not understand nor was \\u2022she advised that it covered all property; and that because of those matters the agreement was void. It was also alleged that the agreement was void as against public policy because it modified and limited the duty of decedent to support his intended \\u2022wife.\\nThe answer of the remaining heirs of \\u00abdecedent admits the execution of the agreement, payment of the $10,000.00 to appellant, the date of marriage, and that appellant was the surviving spouse. All other allegations above summarized were denied, and it was then affirmatively alleged that appellant had been advised of the effect, consequences, and purposes of the agreement prior to signing; that the nature and value of decedent's property was discussed but was limited after appellant stated she did not want decedent's property but wanted it to go to deceased's children; that the agreement was read and explained to appellant before it was signed; that appellant said she understood it and wanted to sign it; that the consideration received by appellant was fair and equitable; and that appellant was estopped from denying the validity thereof.\\nSubsequently, on June 18, 1963, appellant filed application for a widow's allowance for support in the sum of $200.00 per month from the date of death to settlement of the estate, and in this she represented that such sum was reasonable for her support in keeping with her circumstances and accustomed mode of life. In this connection it should be stated that she remarried in April 1963, and there is evidence that she was then being supported by her third husband.\\nThereafter the matter came on for trial and on June 19, 1963, the trial court entered an order denying the petition of appellant for appointment of her nominee as administrator; denying the application for widow's allowance; overruling the objections of appellant to the antenuptial agreement and holding the agreement to be valid and binding in all respects; and declai'ing that appellant had no rights of inheritance from decedent's estate. It is from that order that this appeal is taken by appellant.\\nOne of the complaints made on this appeal by appellant was the refusal of the trial court, on two or three occasions, to permit appellant to testify, over objection, to conversations had with decedent because of the so-called Dead Man Statute. We find no occasion seriously to consider such contention for the reason that substantially all of the matters stated in appellant's offers of proof in some fashion or other, aside from the offers, got into the record. Presumably these matters were considered by the trial court in reaching its conclusions, and we have given attention to them here. If the ruling of the trial court was error, it was harmless.\\nThe complaint made with respect to the agreement being contrary to public policy for the reason that its terms relieved decedent of his duty to support appellant also requires little discussion. We do not so read the agreement. True, the agreement is not artfully drawn to avoid such a contention, which is based upon literal language of the agreement, but on the other hand an intention by decedent to commit a criminal act in violation of a husband's statutory duty of support for his wife is not lightly to be inferred. Reasonably construed, the provisions of the agreement relate to the subject matter of the agreement, which was \\\"the mutual desire of the parties that all property and property rights of each shall be, and be maintained for the benefit of her or him and her or his heirs, legal representatives and assigns, as though no marriage relation ever existed between them.\\\" The only direct authority cited by counsel to support the contention is the case of French v. McAnarney, 290 Mass. 544, 195 N.E. 714, 98 A:L.R. 530, but in that case it will be noted that the agreement contained a provision whereby the prospective bride specifically waived her right to support.\\nBefore coming to grips with appellant's principal contentions regarding matters that are said to invalidate the agreement as a matter of law we should relate further some of the circumstances surrounding the transaction.\\nParagraph 1 of the agreement recites a deposit of the sum of $10,000.00 by decedent to a savings account in the name of appellant and sets it aside as the sole property of appellant. Paragraph 2 then sets aside to each party all other \\\"property of whatsoever' nature, kind and description.! now owned or hereafter acquired by her or him\\\" with the right to deal separately with the property as though unmarried, and contains also the usual mutual disclaimer and release of \\\"all and every right, claim and estate, which she or he might, would or could have, hold or acquire in, to or upon all or any of the said property of the other by reason of said marriage.\\\" A later provision excepts property that might be jointly purchased and held in their joint names subsequent to marriage. Provision is also made for the execution of instruments to carry the terms of the agreement into effect. Paragraph 4 reserves to-, each of the parties the income from his separate property and provides also that each will be responsible for his own debts contracted before marriage.\\nIt has been stipulated that at the time this agreement was executed the decedent, was 76 years of age, with a life expectancy of 5.88 years; that he had been previously. married and was survived by four adult.children; and that he was possessed of; the. \\u2022 following property:\\nReal Estate in Nebraska \\u2014 Value ? 15-,047100\\nReal Estate in Wyoming \\u2014 Value 28,000.00\\nMiscellaneous Personal Property 3,104.05\\nSavings Account 62,297.0C\\nChecking Account 5,882.00\\nTotal $114,330.00'\\u00ab\\nIn addition to the stipulation there was evidence that early in May 1962 the decedent suffered a severe illness and was in the hospital for some two months. It was on that occasion that the parties became acquainted. Decedent remained under a doctor's care until at least September 1962, and there was further evidence from which the trial court could find that he was an ill, feeble old man all during the so-called courtship and the marriage. On or about: January 9, 1963, he suffered a cerebral hemorrhage and died on January 13, 1963..\\nConcerning the appellant, it was stipulated that she was 56 years of age with a: life expectancy of 16.72 years on the date the agreement was signed; that she owned some 17 acres of land near Morrill, Nebraska, valued at $6,000.00, subject to an indebtedness of $2,000.00 secured by a mortgage; and that she owned no other property except household goods. Aside from the stipulation there was undisputed evidence that she had been married previously to a Mr. Wheeler; that two children, a daughter and a son, resulted from that marriage, and both were living at the times herein; that the family made its home upon the above acreage, and at the time of Wheeler's death in 19S6 the mortgage indebtedness on the land, some 14 acres of which were irrigable, was in the sum of $5,000.00; that Wheeler left her no other property, and appellant and her son continued to reside on the land after the daughter married and were residing there in December 1962; that appellant was forced to seek employment, and worked as a nurses' aid in the hospital at Scottsbluff, Nebraska, from which she earned approximately $1,800.00 per year; that the son\\u2014 24 years of age in 1962 \\u2014 worked spasmodically and contributed approximately $600.00 to their mutual support, but the earnings of both did little more than meet the cost and expense of maintaining the home.\\nWith that general background we come now to consider the contentions concerning the validity of the antenuptial agreement. We think counsel for appellant can hardly be serious in advancing to this court that there was evidence before the trial court that compelled a finding of actual fraud on the part of decedent. It is lodged on the basis of the testimony of appellant, her sister, and her son, and certain offers of proof, that decedent represented that the agreement was to embrace real property only and was necessary because decedent's children were objecting to the marriage; that he would make provision for her support for the rest of her life; that he would transfer his savings to a joint account for her protection; and that he would make her a \\\"well to do woman.\\\" Without reference to any legal impediment as to competency, such evidence at best did no more than establish an equivocal promissory representation relating to the future and was not sufficient to sustain appellant's burden of proving the fraud by clear, cogent and convincing evidence. Hiatt v. LaFever, 69 Wyo. 373, 242 P.2d 214, 216; Goodson v. Smith, 69 Wyo. 439, 243 P.2d 163, 171, rehearing denied 244 P.2d 805; Bushnell v. Elkins, 34 Wyo. 495, 245 P. 304, 307, 51 A.L.R. 13. Furthermore the testimony was so at odds with the circumstances surrounding the execution of the agreement, of which more will be said, that the trial court could scarcely have done otherwise than to reject it.\\nAbsent actual fraud, was there then constructive fraud as further contended by appellant? Constructive fraud has been defined as consisting of all acts, omissions, and concealments involving breaches of a legal or equitable duty resulting in damage to another, and exists where such conduct, although not actually fraudulent, ought to be so treated when it has the same consequence and legal effects. In re Arbuckle's Estate, 98 Cal.App.2d 562, 220 P.2d 950, 954, 23 A.L.R.2d 372.\\nTo aid its contention that constructive fraud is shown here as a matter of law, the appellant advances a rule to the effect that because of the engagement of the parties a confidential relationship resulted whereby decedent was duty bound to make a full disclosure to appellant of the extent, nature, and value of his property, and because the record fails affirmatively to show such a disclosure a breach of good faith rendering the agreement unenforceable was established. We would agree with appellant's premise that so far as we can determine appellant was not furnished with itemized detail of decedent's wealth, and under some of the authorities cited to us by appellant such fact would be regarded as sufficient to vitiate the agreement. See Annotation 27 A.L.R.2d 885.\\nPlowever, there is by no means unanimity with respect to application of such a rule. Some of the states reject the rule as too broad and too rigid. Johnston v. Johnston, Ind.App., 184 N.E.2d 651, 654; In re Parish's Estate, 236 Iowa 822, 20 N.W.2d 32, 36, 37; In re Phillips' Estate, 293 N.Y. 483, 58 N.E.2d 504, 507-508, motion denied 294 N.Y. 662, 60 N.E.2d 389; In re Knippel's Estate, 7 Wis.2d 335, 96 N.W.2d 514, 519; In re Koeffler's Estate, 215 Wis. 115, 254 N.W. 363, 368. In at least two jurisdictions it is said that the rule springs from the archaic presumption of inequality or dominance by the husband which should no longer be indulged. Del Vecchio v. Del Vecchio, Fla., 143 So.2d 17, 20; In re Moore's Will, Surr.Ct., 41 N.Y.S.2d 697, 701. In essence those states which decline to follow the Tule hold that each case will be decided upon its own particular facts and unless there is evidence of overreaching, deceit or outright concealment by the prospective husband from which an inference of fraud might be drawn, the agreement will not be set aside.\\nIn the case of In re Ward's Estate, 178 Kan. 366, 285 P.2d 1081, 1084, the Supreme Court of Kansas states the rule in a somewhat modified form, but its comment with respect to application of the rule is Informative, is in keeping with the jurisdictions above mentioned, and we think states the more reasonable view. In that case it is said:\\n'\\\"Appellant sets forth the general rule that there must be a fair disclosure of the nature and amount of the assets to which the intended bride contracts to renounce her statutory rights, and a failure to deal openly and fairly will render the contract unenforceable. We have no quarrel with this rule. However, where it appears an antenuptial contract was understanding^ made and freely executed, and where there is an absence of anything showing fraud or deceit, the mere fact the intended husband did not disclose in detail to the intended wife the nature, extent and value of his property will not, of itself, invalidate the contract or raise a presumption of fraudulent concealment, and if from a consideration of all the facts concerning the situation of the parties, such as their respective ages, family conditions, property rights, etc., at the time the contract was made and the trial court concludes the intended wife was not overreached, the contract should be sustained. \\\"\\nWith the foregoing general principles in mind we again turn to the evidence to determine whether or not the trial court was warranted in concluding that appellant understanding^ and voluntarily entered into the agreement. We are satisfied that it , was. In the first instance, whatever is required of the parties with respect to good faith and candor, it could scarcely be argued that the duties are not reciprocal. Assuming, as held by some authorities, that appellant was under no duty to speak or inquire concerning detail of decedent's wealth, it would also follow that she would not be permitted to mislead anyone as to her need for such information. By her own admission, although she now attempts to qualify it, she advised the attorney selected to draft the agreement that she did not want any of decedent's property, but wanted his children to have it. According to the testimony of the attorney her only concern was immediate payment of the $10,000.00 and the drafting of a deed conveying her own property to her son, with reservation of a life estate. Then after the instrument had been prepared and before it was signed, again as shown in part by her own admission and by further testimony of the attorney, she was asked if she understood the agreement and she answered \\\"yes.\\\" She was then asked if there was anything further she wanted explained or added to the agreement and she said \\\"no.\\\" If, as appellant now contends, she was without adequate information intelligently to appraise that which she was relinquishing, it was incumbent upon her when asked so to state. \\\"Even when a party is under no duty to speak regarding a matter, if he does speak, he must speak the truth and make a full and fair disclosure.\\\" Twing v. Schott, 80 Wyo. 100, 338 P.2d 839, 843.\\nIt is clear also that appellant had a great deal of general knowledge of decedent's wealth. There is evidence apparently accepted by the trial court that decedent was prone to boast about his wealth \\u2014 in fact to exaggerate \\u2014 and that he did so to appellant and her family is quite evident. Appellant testified that decedent had said he had a good sum of money saved; that she knew he had a \\\"goodly amount in the bank\\\"; and that \\\"He always said he was well to do. He never referred to it in numbers.\\\" Appellant's sister also testified that decedent said \\\"he had plenty in the banks and savings\\\" and appellant knew this; that he said he had quite a \\\"lot of land\\\" and was getting income from it and also from interest and social security; that she considered him well to do because he said he was and he made no secret of it; and that decedent made no attempt to hide his wealth from appellant. With respect to the land, her information was more than general. She knew decedent had land in Nebraska of a value of at least $400.00 per acre. As to the Wyoming land, appellant testified that decedent had taken her upon the land and pointed out its extent. Having been raised on a farm, appellant must be charged with having some knowledge of the value of farm lands. The foregoing was ample if accepted by the trial court to support an inference that she had sufficient knowledge upon which to act.\\nLikewise we find no merit in appellant's contention that she was overreached because of her lack of education and experience in such matters. While her testimony was in some conflict with that of the attorney concerning what occurred at the conference leading up to the agreement, that conflict has been resolved by the trial court against the appellant, and the trial court's findings are accepted here. With respect to the $10,000.00 provision that was made for appellant the attorney testified that he was first asked to make a bequest of such amount to appellant in a will that was to be prepared for appellant and for which arrangements had also been made on the same day. Upon being so advised the'attorney called in his secretary and started dictating the agreement in the presence of the parties. When the attorney reached the provision concerning the $10,000.00 the appellant inquired if it would not be possible for the children of decedent to question the bequest on the grounds of the competency of decedent and when advised that this was possible, arrangement was made for immediate transfer of such amount to a savings account in her name and to which decedent relinquished all claim. In addition appellant insisted upon the preparation and execution of a deed to her son of her own real property with reservation to her of a life estate, thus freeing it from any terms of the agreement. Appellant's insistence that these special provisions be made for her protection is hardly consistent with her professed naivete.\\nIn addition to the foregoing matters, the record shows a close relationship between appellant and her son and considerable knowledge on the part of the son concerning the progress of his mother's efforts to assure her financial future and make her a \\\"wealthy woman.\\\" It will be recalled that this agreement was executed on December 4, 1962, two days prior to the marriage, and the attorney testified that a copy was delivered to her at that time. Although appellant did not testify that she had discussed the agreement with her son prior to the marriage, the trial court might well have drawn such inference from the son's testimony. He testified:\\n\\\"Q. Handing you what has been marked as defendant's Exhibit 2 [the agreement] have you seen that Exhibit, that instrument prior to today? A. Yes, sir.\\n\\\"Q. When did you first see it? A. December 4th, in the evening.\\n\\\"Q. Did you talk with Mr. Borton [decedent] concerning that instrument? A. Yes, I did, I asked him\\u2014\\n\\\"Q. When did this take place? A. Right after the marriage. About the 8th or 10th, between those two dates. if\\nThis was in the nature of independent advice and it was not her only opportunity in this regard. She testified:\\n\\\"Q. You received a copy of this agreement? A. Yes.\\n\\\"Q. You took it home with you? A. Yes.\\n\\\"Q. Did you sometime thereafter take it out and read it over? A. Yes, my brother read it one day\\nThese circumstances would have furnished additional reasons for the court's holding.\\nWe now come to the further facet of the rule relating to confidential relation insisted upon by appellant to the effect that if the provision made for the prospective bride is unreasonably disproportionate to that which she would receive out of her husband's estate but for the agreement, it will be presumed that the prospective bride was not sufficiently informed as to the extent, nature, and value of the husband's property and the burden is upon the proponents of the agreement to prove otherwise. Again there is authority to sustain that view. Annotation 27 A.L.R.2d 891. There are also authorities to the contrary, and we might make mention of a retreat by the Supreme Court of Nebraska from adherence to the rule. In the cases of In re Maag's Estate, 119 Neb. 237, 228 N.W. 537; Stahl v. Stahl, 115 Neb. 882, 215 N.W. 131; and In re Enyart's Estate, 100 Neb. 337, 160 N.W. 120, upon which appellant relies, we find the rule as stated above. However, in the case of Kingsley v. Noble, 129 Neb. 808, 263 N. W. 222, the Nebraska Court, on the specific point of burden of proof, overruled the foregoing cases to the degree that if knowledge of the extent and value of the other's ^property is satisfactorily established, a disproportionate allowance does not shift the burden of proof.\\nBe that as it may, for reasons to be stated and for purposes of this case we think it unnecessary to resort to further analysis of the divergent views indicated by the authorities except to comment that in any event we have reservations concerning the adoption of such a rule in Wyoming. An antenuptial agreement is not contrary to the public policy of this state, Metz v. Blackburn, 9 Wyo. 481, 65 P. 857; a valid agreement making provision contrary to our laws of descent and distribution is specifically authorized under \\u00a7 2-37, W.S.1957; the very purpose of the statutory provision contemplates a result contrary to the statute disproportionate as it might be; this court has long favored agreements between husband and wife entered into voluntarily as family settlement of their affairs, Rinehart v. Rinehart, 52 Wyo. 363, 75 P.2d 390; Beard v. Beard, Wyo., 368 P.2d 953; allegations that an agreement is inequitable, unjust, and unreasonably disproportionate is affirmative matter and under our procedure the burden of proof never shifts, although in the course of a trial the opposite party may be required to go forward with evidence to rebut a prima facie case, First National Bank of Morrill v. Ford, 30 Wyo. 110, 216 P. 691, 31 A.L.R. 1441.\\nHowever, assuming that there was some burden upon the appellees with respect to the equity and fairness of the agreement, we are of the opinion as concluded above that appellees produced ample evidence from which the trial court could charge appellant with knowledge, and since it appears that such agreement was understandingly and voluntarily entered into by appellant we think any burden thrust upon the ap-pellees was fully satisfied.\\nJudgment affirmed.\"}"

wyo/10582909.json

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+"{\"id\": \"10582909\", \"name\": \"Al BERRY, Appellant (Plaintiff below), v. IOWA MID-WEST LAND AND LIVESTOCK COMPANY, a Corporation, Appellee (Defendant below)\", \"name_abbreviation\": \"Berry v. Iowa Mid-West Land & Livestock Co.\", \"decision_date\": \"1967-03-06\", \"docket_number\": \"No. 3566\", \"first_page\": \"409\", \"last_page\": \"412\", \"citations\": \"424 P.2d 409\", \"volume\": \"424\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T01:47:10.205869+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before GRAY, McINTYRE and PARKER, JJ.\", \"parties\": \"Al BERRY, Appellant (Plaintiff below), v. IOWA MID-WEST LAND AND LIVESTOCK COMPANY, a Corporation, Appellee (Defendant below).\", \"head_matter\": \"Al BERRY, Appellant (Plaintiff below), v. IOWA MID-WEST LAND AND LIVESTOCK COMPANY, a Corporation, Appellee (Defendant below).\\nNo. 3566.\\nSupreme Court of Wyoming.\\nMarch 6, 1967.\\nR. R. Bowman, of Bowman & Garrett, Lovell, for appellant.\\nPaul B. Godfrey, of Henderson & God-frey, Cheyenne, for appellee.\\nBefore GRAY, McINTYRE and PARKER, JJ.\", \"word_count\": \"1620\", \"char_count\": \"9612\", \"text\": \"Mr. Justice McINTYRE\\ndelivered the opinion of the court.\\nAl Berry, claiming to be an employee of Iowa Mid-West Land and Livestock Company, brought suit against his alleged employer for negligence in failing to provide safe equipment. While attempting to make an electrical connection on a 220-volt, power line of the Rural Electrification Administration, Berry claims his ladder slipped causing him to grab one of the electric wires. He received burns and electric shock and was rendered unconscious.\\nThe case was tried to a jury. It found for plaintiff and awarded damages in the amount of $7,000. The trial judge, however, found the evidence insufficient to support the verdict and entered judgment for defendant, notwithstanding the verdict. From this judgment the plaintiff has appealed. He makes it clear the single issue is whether there was substantial evidence upon which the jury's verdict for plaintiff could stand.\\nWe must, of course, give to the evidence every reasonable inference which may be drawn in favor of the plaintiff, and we must resolve conflicts in the evidence in plaintiff's favor. But even when we do so, we fail to find any evidence in the record of negligence on the part of defendant which plaintiff did not contribute to or assume the risk of.\\nThe defendant's farm near Otto, Wyoming, had been sold, but defendant reserved the right to keep a band of sheep thereon for a period of time. Plaintiff-Berry had been working as a ranch employee for defendant-livestock company and was still living on the farm when injured. Defendant admits Berry was paid on April 13, 1965, up to and including April 15, 1965. The accident happened on the morning of April 15, 1965.\\nAlthough defendant contended Berry's services had been terminated and that he was not working for defendant at the time of the accident, the jury found otherwise. We find the evidence on the question of whether plaintiff was an employee of defendant at the time of his accident in conflict, and we are bound by the verdict of the jury as far as that issue is concerned.\\nAlso, the evidence was in dispute as to whether defendant's manager and officer in charge, Jack Goggins, who lived in Montana, had instructed Berry to make the electrical connection he was attempting to make when injured. The new occupant of the farm, LeRoy Vossler, had temporarily moved into the bunkhouse. This house was not wired for his electric stove, and he was desirous of having 220-volt electricity brought in so the electric stove could be used. About two weeks before Berry attempted to do the wiring, there was a conversation about a hookup for this stove.\\nGoggins claims he merely said in casual conversation that Berry, who had previous experience with the kind of electrical work involved, could wire the house. The plaintiff and other witnesses testified Goggins instructed Berry to wire up the stove when he had time. In any event, the total evidence was such that the jury was entitled to believe Goggins had instructed Berry to wire the stove and that Berry was engaged in the performance of work for defendant when injured.\\nHowever, even if we accept the proposition that plaintiff was an employee of defendant engaged in the performance of duties for his employer, when injured, we still find no evidence of negligence on the part of defendant which would not be equally chargeable to plaintiff himself.\\nThe theory advanced by plaintiff in his attempt to charge defendant with negligence is that Goggins instructed Berry to wire up the stove; that Goggins made no effort to determine whether plaintiff had proper tools and equipment for the job; and that climbing irons, a safety belt, and insulated gloves would have been proper equipment and would have prevented the accident.\\nThe plaintiff admits he had previous experience in wiring and knew such extra equipment might be necessary. He testified, however, that his employer was not available at the time for him to request additional equipment. Therefore, he proceeded with the work because he \\\"believed that the wiring could be accomplished with the tools at hand.\\\"\\nIf plaintiff, knowing the dangers involved, nevertheless elected to proceed with what he called the tools at hand because he believed the wiring could be accomplished with such tools, it is difficult to understand why he should he permitted afterward to charge defendant with his own miscalculation. Moreover, with proper care and foresight a ladder can he made sufficiently secure and safe to avoid slipping and the kind of accident plaintiff suffered.\\nFor example, small holes in the ground for legs of the ladder to fit into can prevent slipping at the bottom. At the top, a temporary nail fastening the top crossbar to the power pole, or a tying of the top of the ladder to the pole, could help to prevent the ladder from slipping at the top. And, of course, it always helps for a competent person to hold a ladder. In this-instance such a person was present and available \\u2014 Vossler, the man for whom the wiring was being done.\\nWe do not pretend to say whether Goggins was negligent in failing to furnish safer equipment or whether Berry was negligent in failing to properly secure his ladder. The question of defendant's negligence and the question of plaintiff's contributory negligence are both questions of fact for the jury. Under the circumstances of this particular case, however, we can say it is apparent that if defendant's omission is assumed to constitute negligence, then the acts of plaintiff would necessarily and as a matter of law amount to contributory negligence.\\nWhere a danger is as open and obvious to the servant as to the master, or where the servant has better means of knowledge than the master, he will be charged with such negligence as to bar recovery. 56 C.J.S. Master and Servant \\u00a7 435, p. 1259; Ring v. Kruse, 158 Neb. 1, 62 N.W.2d 279, 285; Freeman v. Smit, 193 Wash. 346, 75 P.2d 575, 577-578. See also Nolen v. Halpin-Dwyer Const. Co., 225 Mo.App. 224, 29 S.W.2d 215, 219, where the court gives as a reason for this rule that if either is guilty of any failure the other is guilty of the same.\\nIn Restatement Second, Agency 2d \\u00a7 521, p. 489 (1958), it is given as a rule that a master is not liable to a servant for harm caused by uns'afe conditions of employment, if the servant, with knowledge of the facts and understanding of the risks, voluntarily enters or continues in the employment. Also, in Chicago & N. W. Ry. Co. v. Ott, 33 Wyo. 200, 237 P. 238, 241, rehearing denied 238 P. 287, certiorari denied 269 U.S. 585, 46 S.Ct. 201; 70 L.Ed. 425, this court adopted the following rule with respect to risks assumed by an employee :\\n\\\"A servant assumes (1) the risk of such dangers as are ordinarily and normally incident to his occupation, and a workman of mature years is presumed to know them, whether he does or not; (2) such extraordinary or abnormal risks \\u2014 usually, at least, arising out of the negligence of the master \\u2014 the conditions and dangers of which he (a) knows and appreciates and faces without complaint, or the conditions and dangers of which (b) are so obvious and apparent that an ordinarily careful person would, under the circumstances, observe and appreciate them. \\\"\\nIn the case before us, it is clear from the evidence and in fact admitted by plaintiff that all dangers present were open and obvious to plaintiff; and that they were as well or better known to him than they were to defendant's manager and officer in charge. Berry himself testified he had previous experience with electrical wiring, having worked in the oil fields for several months where he did a considerable amount of wiring for high-voltage electricity. Also, plaintiff had previously wired one of the buildings on defendant's farm for 220-volt electricity.\\nAccording to plaintiff's further testimony, he had seen a man killed by electricity and knew the dangers involved. With respect to the wires being worked on when plaintiff was injured, they were insulated, but they had bare spots caused by clamps having been placed on the wires at a previous time. The plaintiff could see from the ground that insulation was gone from the wires. The defendant's manager, Gog-gins, was not present when plaintiff undertook to do the wiring.\\nAppellant's attorney relies strongly on the case of Siragusa v. Swedish Hospital, 60 Wash.2d 310, 373 P.2d 767, for the proposition that the doctrine of assumption of risk should not apply in an employer and employee case of the kind here involved. There are, of course, so many cases which discuss the principles of assumption of risk and contributory negligence in employment cases that it would be futile for us to attempt to reconcile and distinguish them.\\nFor purposes of our decision in the case before us, we think the principles and rules we have set forth are sufficient to show, under the circumstances here present, that if negligence is charged to the employer, then equal and contributory negligence would as a matter of law have to be charged to the employee \\u2014 the result being that the employee would be barred from a recovery. The judgment for defendant, notwithstanding the verdict of the jury, must therefore be affirmed.\\nAffirmed.\\nHARNSBERGER, C. J., not participating.\"}"

wyo/10584212.json

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+"{\"id\": \"10584212\", \"name\": \"Cecil S. WOOD, Appellant (Plaintiff below), v. Harold WILLMAN, Appellee (Defendant below)\", \"name_abbreviation\": \"Wood v. Willman\", \"decision_date\": \"1967-01-31\", \"docket_number\": \"No. 3563\", \"first_page\": \"82\", \"last_page\": \"85\", \"citations\": \"423 P.2d 82\", \"volume\": \"423\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T18:00:47.790638+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before GRAY, McINTYRE and PARKER, JJ.\", \"parties\": \"Cecil S. WOOD, Appellant (Plaintiff below), v. Harold WILLMAN, Appellee (Defendant below).\", \"head_matter\": \"Cecil S. WOOD, Appellant (Plaintiff below), v. Harold WILLMAN, Appellee (Defendant below).\\nNo. 3563.\\nSupreme Court of Wyoming.\\nJan. 31, 1967.\\nDonald R. Winship, Jerry A. Yaapy Casper, for appellant.\\nDaniel P. Svilar, of Boyer & Svilar, Lander, for appellee.\\nBefore GRAY, McINTYRE and PARKER, JJ.\", \"word_count\": \"1646\", \"char_count\": \"9919\", \"text\": \"Mr. Justice PARKER\\ndelivered the opinion of the court.\\nCecil S. Wood sued Harold Willman om four promissory notes dated November 20,. 1963, each for $2,062.50, payable to Blu-Chilla, Inc., each endorsed, \\\"Blu Chilla Inc. by Donald L Lucas, Pres.\\\" The complaint set out Willman as maker, alleging that plaintiff was the holder in due course. Defendant answered, denying generally and: alleging as affirmative defenses that prior to the commencement of the action plaintiff had received full payment of the amounts: owing on the obligation for which the promissory notes were taken as security; failure of consideration; and that plaintiff was not a holder in due course or the real party in interest. Defendant also counterclaimed, alleging his agreement to purchase chinchilla animals and certain false representations by Lucas; a joint adventure between Wood, Lucas, Blu-Chilla, and others; payment by defendant to Lucas of $2,600 in cash and the delivery of four promissory notes in the amount of $8,250; and seeking damages in the sum of $10,850- and exemplary damages in the sum of $20,000. Both parties moved for summary judgment, filing certain affidavits, but the motion in each instance was denied and the cause was tried to the court, resulting in a judgment wherein the court found (1) generally for the plaintiff and against the defendant on the complaint and on defendant's counterclaim, (2) that there was no failure of consideration on defendant's contract pursuant to which the notes were issued, (3) that the endorsement and delivery of the notes conveyed less than the transferor's entire interest in the instrument, that the proceeds of the notes were assigned to plaintiff as security for a prior loan in the sum of $50,000 and interest thereon at the rate of 8 percent per annum, made by plaintiff to plaintiff's transferor, and that the sum of $55,884.17 was credited to its repayment, and (5) that the sum of $458.35 remained unpaid on the loan of $50,000; and accordingly judgment was entered against defendant for the $458.35.\\nPlaintiff in his appeal from the judgment urges some five bases of error, the thrust of which is that judgment should have been granted for the full amount of the notes plus interest and attorney's fees since plaintiff was the holder in due course and defendant entirely failed to establish a defense. Before considering the argument of plaintiff, it would seem best to examine some aspects of the Commercial Code, particularly in view of certain misapprehensions of counsel and court who addressed themselves primarily to \\u00a7 34-3-202(3), W.S.1957 (1965 Cumulative Supp.). This court fails to see the pertinency of that section since it is concerned only with the validity and effect of partial assignments. That Wyoming statute deviated from the Uniform Code in order to reflect various holdings that a partial assignment of a contract is valid as between the the parties but that an obligor may not be compelled to perform piecemeal \\u2014 thus an action against an obligor to enforce a contract must join all interested parties as plaintiffs. 14 Wyo.L.J. 198, 205. In the instant case, however, there was no partial assignment; plaintiff as a pledgee in a security transaction was the purchaser of a limited interest, and such a matter was governed not by the previously mentioned statute but by \\u00a7 34 \\u2014 3-302(4), W.S. 1957 (1965 Cumulative Supp.): \\\"A purchaser of a limited interest can be a holder in due course only to the extent of the interest purchased.\\\"\\nWhen the Commercial Code was adopted in this jurisdiction, relatively few changes in the law of negotiable instruments as applied to commercial paper were effectuated. Indeed, it is commonly recognized that the Code merely sought to modernize, clarify, and consolidate various provisions of the Uniform Negotiable Instruments Act. See The Uniform Commercial Code, Wyoming Legislative Research Committee, Research Publication No. 1, July 1960; 11 Am.Jur.2d Bills and Notes \\u00a7 42, p. 65. Long since in Wyoming Inv. Co. v. Wax, 45 Wyo. 321, 18 P.2d 918, 925, Judge Blume recognized the rule that where the obligor proves a defense good as against the pledgor, the pledgee will be allowed to recover only to the extent of the debt for which he holds the collateral as security, but quoted with approval Haas v. Bank of Commerce, 41 Neb. 754, 60 N.W. 85, 88, \\\" Tt is quite well settled that where a note is valid as between the original parties the pledgee may recover the whole amount of the note, retaining any surplus as trustee for the party beneficially entitled' As heretofore noted, under the provisions of \\u00a7 34-3-302(4), the plaintiff was a purchaser of a limited interest and a holder in due course to the extent of the interest purchased; but he could enforce the notes over defenses only to the extent of his interest, defenses good against the pledgor remaining available insofar as the pledgor retained an equity in the instrument. Thus, aside from the limited interest, the defense of want or failure of consideration was open to the defendant here. \\u00a7 34-3-306, W.S. 1957 (1965 Cumulative Supp.).\\nWith this background, we can now return to the argument of plaintiff that defendant entirely failed to establish a defense. It is true that the court in its judgment indicated there was no failure of consideration on defendant's contract. Nevertheless, when this is construed in the light of the court's comments, it is clear that it was considering plaintiff's rights in view of his being a holder in due course of the notes, as plaintiff has consistently held himself to be. Following defendant's presentation of testimony concerning failure of consideration and the plaintiff's motion for judgment, the court said:\\n\\\"There is some question in my mind as to, strictly speaking, there was failure of consideration. However, as between the original parties, they apparently entered into some kind of accord and satisfaction which might or might not be binding upon Mr. Wood if the allegations of the counterclaim and failure of negotiability are sustained. In other words, in interpreting this contract here, are the notes such a part of this contract as t.o constitute an entire transaction, were they within the knowledge of the plaintiff, Wood, and is he therefore bound by the terms of the contract as well as the terms that are in the note alone. I don't think it can be resolved at this time without having evidence to get Mr. Wood's relationship to the chinchilla people before the Court. In other words, to determine whether or not he is a holder in due course. I'll hear the balance of the evidence at this time.\\\"\\nAt the conclusion of the trial, apparently in reference to the agreement signed between the defendant and Blu-Chilla settling the suit instigated by defendant, the court said:\\n\\\"The recitation that the note is considered to be fully paid is probably good between the parties, but I don't think it binds Mr. Wood.\\\"\\nUnder this state of the record, it is our view that the trial court's finding was pertinent only to the limited interest of which plaintiff was a holder in due course. Nevertheless, if the finding were to be considered erroneous it could not be held to be prejudicial since the trial court determined that plaintiff had only a limited interest and gave judgment merely for the amount unpaid on the $50,000 loan.\\nIt should be noted that plaintiff also argues that sums paid toward another loan in the amount of $12,000 from plaintiff to Blu-Chilla were credited by the trial court in arriving at the amount of indebtedness still owing on the $50,000. We have carefully reviewed the record and find that there was substantial evidence upon which the trial court could have based its determination that all - of the original obligation had been repaid to Wood except the $458.35. In that connection, we hold that the trial court was justified when he criticized the bookkeeping methods and explained why he felt obligated to apply all the payments that had been made on the original $50,000 loan.\\nAffirmed.\\nHARNSBERGER, C. J., not participating.\\n. Previous to the institution of this suit on October 7, 1965, the Willmans had sued Blu-Ohilla and Lucas, demanding Judgment against the defendants for $2,-600 and the voidance of the four promissory notes. Subsequently the parties released each other from any claim arising out of the suit and the contracts upon which the suit was based, it having been agreed, inter alia, that there was a lack of consideration when the Willmans entered the contractual agreement with Blu-Ohilla and that the four promissory notes given by Willman were considered paid in full, Blu-Ohilla stating that it would make every effort to obtain these notes from Wood and return them to the Willmans.\\n. The court's finding referred to \\u00a7 3-202 (3), W.S.1957, but apparently meant to refer to \\u00a7 34r-3-202(3), W.S.1957 (1965 Cumulative Supp.).\\n. \\\"An indorsement is effective for negotiation only when it conveys the entire instrument or any unpaid residue. If it conveys less, it is operative as a transfer and, if the payor has not contracted to make a partial performance, no legal proceeding can be maintained by the partial transferee unless all persons having an interest in the instrument are joined in the proceeding.\\\"\\n. \\\"An indorsement is effective for negotiation only when it conveys the entire instrument or any unpaid residue. If it purports to be of less it operates only as a partial assignment.\\\" \\u00a7 3-202(3), Uniform Commercial Code. In his brief, this wording is quoted by plaintiff as \\u00a7 34^3-202(3), W.S.1957 (1965 Cumulative Supp.).\"}"

wyo/10587939.json

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+"{\"id\": \"10587939\", \"name\": \"Tom W. POWERS, E. H. Krumm, George Cole, and Charles W. Lordier, Appellants (Plaintiffs below), v. The CITY OF CHEYENNE, a municipal corporation, Herbert Kingham, as Mayor, and George Dubois and Floyd Holland as Commissioners of the City of Cheyenne, Appellees (Defendants below)\", \"name_abbreviation\": \"Powers v. City of Cheyenne\", \"decision_date\": \"1967-12-19\", \"docket_number\": \"No. 3665\", \"first_page\": \"448\", \"last_page\": \"456\", \"citations\": \"435 P.2d 448\", \"volume\": \"435\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T17:06:40.860286+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before HARNSBERGER, C. J., and GRAY, McINTYRE, and PARKER, JJ.\", \"parties\": \"Tom W. POWERS, E. H. Krumm, George Cole, and Charles W. Lordier, Appellants (Plaintiffs below), v. The CITY OF CHEYENNE, a municipal corporation, Herbert Kingham, as Mayor, and George Dubois and Floyd Holland as Commissioners of the City of Cheyenne, Appellees (Defendants below).\", \"head_matter\": \"Tom W. POWERS, E. H. Krumm, George Cole, and Charles W. Lordier, Appellants (Plaintiffs below), v. The CITY OF CHEYENNE, a municipal corporation, Herbert Kingham, as Mayor, and George Dubois and Floyd Holland as Commissioners of the City of Cheyenne, Appellees (Defendants below).\\nNo. 3665.\\nSupreme Court of Wyoming.\\nDec. 19, 1967.\\nThomas O. Miller, Ellen Crowley, Cheyenne, for appellants.\\nArthur Kline and James A. Tilker, Cheyenne, for appellees.\\nBefore HARNSBERGER, C. J., and GRAY, McINTYRE, and PARKER, JJ.\", \"word_count\": \"3516\", \"char_count\": \"20885\", \"text\": \"Mr. Justice McINTYRE\\ndelivered the opinion of the court.\\nIn order to have a new oil refinery built in the vicinity of Cheyenne at a total cost of $75,000,000, including financing costs, the City of Cheyenne proposes to acquire and finance the venture from funds received through the sale of revenue bonds issued under authority of Ch. 112, \\u00a7 92 to 100, S.L. of Wyoming 1965 (Industrial Development Projects Act), as amended by Ch. 95, S.L. of Wyoming 1967 \\u2014 such facility to then be leased to Husky Oil Company for operation.\\nThe plaintiffs, who are residents, electors, property owners and taxpayers in the City of Cheyenne, brought an action in the district court of Laramie County questioning the validity of the Industrial Development Projects Act as amended and the proposed agreement between Cheyenne and Husky, with prayer for an injunction against consummation of the project. The district court found the proposed project valid and legal in all respects and denied relief. From its judgment plaintiffs have appealed.\\nAppellants have listed and argued to us twelve assignments which need to be considered in passing upon the judgment appealed from. We propose to limit our de- \\u2022 cisi\\u00f3n to the questions raised and will dis cuss each assignment in the order in which argument has been made.\\n1. Payments In Lieu of Taxes\\nand\\n2. Should Projects Be Tax-exempt?\\nArticle 1, \\u00a7 28, Wyo.Const., provides all taxation shall be equal and uniform; and Art. 15, \\u00a7 11, provides all property, except as in the constitution otherwise provided, shall be uniformly assessed for taxation. Chapter 95, \\u00a7 5(b), S.L. of Wyoming 1967, provides in pertinent part:\\n\\\"Projects initiated after the effective date of this act shall be exempt from ad valorem taxes, but the governing body shall negotiate annually with the proposed lessee and provide for an annual charge or fee, in lieu of such taxes, which shall fully compensate the State of Wyoming, the political subdivisions and other recipients of such ad valorem taxes for the respective distributive shares thereof which each would have received had this exemption not been authorized. \\\"\\nAppellants contend, in assignment 1, the 1967 amendment for payments in lieu of taxation is unconstitutional and void because it would result in a form of taxation which would not be equal and uniform.\\nArticle 15, \\u00a7 12, Wyo.Const., specifies that certain properties shall be exempt from taxation, and then these words are added: \\\"and such other property as the legislature may by general law provide.\\\" Appellants have failed to mention this provision in connection with their contention that the 1967 amendment is unconstitutional.\\nHowever, in their second assignment, appellants argue it is unconstitutional for project property to be taxed at all because Art. 15, \\u00a7 12, exempts from taxation the property of cities \\\"when used primarily for a governmental purpose.\\\"\\nThis causes us to wonder whether the parties who have brought this action would be adversely affected regardless of whether \\u00a7 5(b) of the 1967 amendment is declared unconstitutional. If the amendment were declared unconstitutional, then the pre-existing statute, Ch. 112, \\u00a7 99, S.L. of Wyoming 1965, would remain in force and cause the property to be taxable. On the other hand, if we were to hold the amendment constitutional, then that language in \\u00a7 5(b) would be applicable and require that parties shall negotiate for an annual charge, in lieu of the forgiven taxes, which charge shall fully compensate the State of Wyoming, the political subdivisions and other recipients of ad valorem taxes for the respective distributive shares thereof which each would have received' had the exemption not been authorized.\\nThe city states in its brief that it makes no difference whatever, as far as the validity of the financing here in question is concerned, whether the 1967 amendments to \\u00a7 99 are constitutional or not. Section 5.3(b) of the lease agreement between Husky and the city makes it incumbent upon the lessee to pay annually, in lieu of ad valorem taxes, an amount which shall fully compensate the state and political subdivisions to the extent of the distributive shares each would have otherwise received had the lessee been the owner of the project during the period for which such payment is made.\\nThe contract then continues with a stipulation that the city shall cause the project property to be valued and assessed each year by the county assessor or other official charged with the responsibility of assessing privately owned property for ad valorem tax purposes; shall cause to be applied to the taxable value of the property the tax rate or rates which would be applicable for state and local ad valorem tax purposes if the property were then privately owned; and shall cause the county treasurer or other official charged with the responsibility of collecting ad valorem taxes to submit annually to lessee, when other tax notices are submitted, a statement of the ad valorem taxes which would otherwise then he chargeable. It is agreed the amount shown on each such statement shall be paid.\\nIf it makes any difference to the plaintiffs or other taxpayers whether Husky pays taxes or pays a charge equivalent to taxes, appellants have failed to show us what that difference is. In consequence, we need not decide whether their contention in assignment 1 or their contention in assignment 2 is correct. The two contentions are in direct conflict and both cannot be right. Moreover, appellants have not shown themselves to be adversely affected either way, i. e., whether Husky pays taxes under the pre-existing statute or equivalent charges in lieu of taxes under the amendment.\\nPersons who are not adversely affected by alleged unconstitutionality of a provision in a statute are not entitled to complain of the unconstitutionality of the statute. Miller v. Board of County Commissioners of the County of Natrona, 79 Wyo. 502, 337 P.2d 262, 270.\\nThe general rule on this matter, which has been consistently followed in our state, is that constitutionality of a statute may not be attacked by one whose rights are not, or are not about to be, adversely affected by operation of the statute. Walgreen Co. v. St. Bd. of Equalization, 70 Wyo. 193, 246 P.2d 767, 769. See also In re Edelman's Estate, 68 Wyo. 30, 228 P.2d 408, 415; Thomas v. Jultak, 68 Wyo. 198, 231 P.2d 974, 980; Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 140, rehearing denied 102 P.2d 745; and Cuthbertson v. Union Pacific Coal Co., 50 Wyo. 441, 62 P.2d 311, 315.\\nIn the absence of a showing that plaintiffs or any parties similarly situated are going to be adversely affected either by compliance with Ch. 95, \\u00a7 5(b), S.L. of Wyoming 1967, or by compliance with Ch. 112, \\u00a7 99, S.L. of Wyoming 1965, we must uphold the action of the district court in declining to enjoin the Husky project on the grounds asserted by plaintiffs in connection with the taxability of the proposed Husky project.\\n3. Public Purpose\\nAppellants contend the Husky project would be in violation of Art. 13, \\u00a7 3, Wyo. Const., in that it is not for a public purpose as required by \\u00a7 3. The pertinent language contained in Art. 13, \\u00a7 3, is:\\n\\\" no tax or assessment shall be levied or collected or debts contracted by municipal corporations except in pursuance of law for public purposes specified by law.\\\"\\nIt is very apparent that the purpose of this constitutional provision is to protect taxpayers such as plaintiffs from being called upon to pay for activities which do not serve a public purpose. With respect to industrial development projects, however, the act of the legislature, the city ordinances, the revenue bonds themselves, and instruments pertaining to the project all spell out very clearly that the city or county does not incur a pecuniary liability or a charge upon its general credit or against its taxing power, and that the bonds do not constitute a general obligation of the city or county.\\nThis being so, the purpose back of Art. 13, \\u00a7 3, is not present and there is no occasion to invoke its protection on behalf of property owners and taxpayers. Once again then, we can apply the rule relied on in connection with assignments 1 and 2, which is that constitutionality of a statute may not be attacked by one whose rights are not, or are not about to be, adversely affected by operation of the statute.\\nWe must keep in mind that plaintiffs first of all had the burden in district court to show they are adversely affected by operation of the act in question, before they can attack the Husky project on the ground that it violates constitutional provisions. We find nothing in the record or in appellants' arguments which indicates or suggests that plaintiffs are adversely affected by any of the operations contemplated un der the Industrial Development Projects Act.\\nInsofar as a violation of Art. 13, \\u00a7 3, is concerned, even if plaintiffs had shown they are or will be adversely affected, it still would have been necessary for them to prove in district court, before being entitled to the injunction sought, that the Husky project is not \\\"in pursuance of law for public purposes specified by law.\\\"\\nAccording to the record before us, plaintiffs wholly failed to meet this burden of proof. They called as an adverse witness Glenn E. Nielson, chief executive officer of Husky, and no other witness. Nielson's testimony was certainly affirmative on the matter of a public interest, and we find nothing in any of the testimony or numerous exhibits introduced in evidence which tends to show the absence of a public purpose.\\nAlso, on its face, the project is in pursuance of law (the Industrial Development Projects Act as amended); and it is for a public purpose specified by law in the sense that Ch. 95, \\u00a7 1(b), specifies that plants and facilities of industrial development projects are declared to be and constitute public purposes.\\nIn Uhls v. State, Wyo., 429 P.2d 74, 90, Justices Gray and Parker pointed out that there was insufficient basis to hold the questioned legislation to be unconstitutional as it might conceivably apply to permissible, factual situations. On the negative approach that an act of the legislature will not be declared unconstitutional unless its unconstitutionality clearly appears, they said they did not challenge the answers given in that case to. reserved questions.\\nWe think the same reasoning applies in the appeal now being dealt with. On the negative approach that plaintiffs have not shown themselves to be adversely affected; have failed to show that a sufficient public purpose is not present; and have not clearly shown the act and ordinances in question to be violative of Art. 13, \\u00a7 3, we affirm the findings and judgment of the district court with respect to Art. 13, \\u00a7 3.\\n4. Investment of Funds\\nAppellants complain that the trustee for project funds intends to invest moneys on deposit in the Construction Fund in certificates of deposit issued, by commercial banks, trust companies, or national banking associations which are members of the Federal Reserve System. They say this is wrong because . Ch. 130, S.L. of Wyoming 1967, provides \\\"it shall be lawful\\\" for a city treasurer to invest his funds and the moneys in his custody or possession, eligible for investment, in certain securities the list of which does not include certificates of deposit in such banking institutions as those complained against.\\nWe cannot assume that either the city treasurer or the trustee is going to do an unlawful act, and there is nothing in the record of this case to indicate either has done or threatens to do an unlawful act.\\nSection 4.9 of the lease argeement between the city and Husky states, \\\"if then permitted by law,\\\" the trustee may invest moneys on deposit in the Construction Fund in certificates of deposit issued by such banking institutions as those which plaintiffs claim are not lawful depositories. To say that the trustee is permitted to make an investment of the kind questioned, if then permitted by law, is not to say he threatens to make or will make the questioned investment if not then permitted by law.\\nMoreover, the trustee takes his powers under those special statutes pertaining to industrial development projects and under the agreement between the city and Husky. We know of no reason for saying his investment of moneys on deposit in the Construction Fund is controlled by the statute which makes it lawful for the city treasurer to make certain investments.\\nAs far as the city treasurer is concerned, he has no responsibility for the care and custody of project funds after such funds are deposited with the trustee for application, investment and disbursement in accordance with the provisions of the Industrial Development Projects Act and the agreements of the parties. Therefore, the city treasurer will not have construction funds or moneys in his custody or possession which are \\\"eligible for investment\\\"; and Ch. 130, S.L. of Wyoming 1967, will have no application.\\n5.Delegation of Authority\\nThe constitutionality of the act, ordinances and party agreements here involved are challenged on the ground that they cause an unlawful delegation of authority in contravention of Art. 3, \\u00a7 37, Wyo.Const.\\nWe dealt with this identical question in the Uhls case, at 429 P.2d 84\\u201485, and held there was no unlawful delegation of authority. What was said there is applicable here, and we need not repeat the discussion. Our holding is still the same.\\nAppellants say the facts in the instant case take it out of the Uhls case, but the only thing pointed to as a distinguishing factor is the fact that Ch. 95, \\u00a7 5(b), S.L. of Wyoming 1967, purports to amend the Industrial Development Projects Act by providing for the negotiation of payments in lieu of taxes. The granting of power to \\\"negotiate\\\" payments in lieu of taxes is said to be an unlawful delegation of authority.\\nIf \\u00a7 5(b) is adhered to and the parties negotiate payments in lieu of taxes, the negotiation could not possibly amount to the performance of a municipal function. The assessment of property and the fixing of levy rates are governmental in nature, but they are not functions to be performed by representatives of Husky. By contract and by the provisions of \\u00a7 5(b), payments in lieu of taxes would have to be the equivalent of taxes. Anything done by Husky or its representatives, if payments in lieu of taxes are negotiated, would be nongovernmental and the performance of a private rather than a public function. Thus, the answer given in Uhls is sufficient, and the findings and judgment of the district court with respect to Art. 3, \\u00a7 37, should stand.\\n6. Depositories For Money\\nThere is no merit to the contention made by appellants under assignment 6, which is that all project funds must be deposited in banks incorporated under the laws of the State of Wyoming. Article 15, \\u00a7 7, Wyo.Const., is relied on for this contention. It specifies that all money belonging to any city shall, whenever practicable, be deposited in \\\"a national bank or banks or in a bank or banks incorporated under the laws of this state.\\\"\\nAuthorization is expressly granted for deposits in a national bank or banks regardless of whether incorporated under the laws of Wyoming. As a matter of fact, national banks are not ever incorporated under the laws of this state. The fact that the constitutional grant of authority is extended to other banks besides national banks, if such other banks are incorporated in Wyoming, does not detract from the grant to national banks which are incorporated under the laws of the United States.\\n7. Publication of Ordinances\\nThis assignment has to do with appellants' claim that the publication of the city's proposed ordinances was not legally sufficient because the publication did not include the exhibits annexed to the ordinances.\\nSection 15.1-16, W.S.1957 (Compiled 1965) requires every ordinance to be published at least once in a newspaper of general circulation within the city, before becoming effective. The ordinances in question were published, but exhibits annexed thereto were not published. We realize an exhibit referred to in an ordinance can be such an essential part of the ordinance that failure to publish it with the ordinance could invalidate the ordinance. However, we do not think the exhibits involved here are in that category.\\nOur reasons for so holding are stated in the Uhls case at 429 P.2d 89-90. What was said there is equally applicable here.\\nQuestions Previously Answered\\nIn this appeal, appellants have raised three questions which were dealt with and sufficiently answered in Uhls v. State, Wyo., 429 P.2d 74. Nothing is suggested in connection with any of these questions which would distinguish the present case from the Uhls case. We deem our answers there sufficient to cover the same questions raised in this case. The questions referred to are as follows:\\n8. Does Art. 16, \\u00a7 6, Wyo.Const., make it unconstitutional and illegal for Cheyenne to grant to Husky an option to renew its lease or to purchase the project property for the amount required to pay the bonds in full, all costs and expenses incident thereto, and an additional nominal sum? This question is fully answered in Uhls, at 429 P.2d 84.\\n9. Does either \\u00a7 4 or \\u00a7 5 of Art. 16, Wyo.Const., pertaining to debt limitations make consummation of the Husky project unconstitutional on the ground that the debt limitations prescribed in these sections will be exceeded? This question is fully discussed in Uhls, at 429 P.2d 87.\\n10. Is the Industrial Development Projects Act unconstitutional by reason of the fact that the title of Ch. 112, S.L. of Wyoming 1965, is not sufficient to embrace the subject of industrial development projects, as required by Art. 3, \\u00a7 24, Wyo. Const.? This question is fully answered in Uhls, at 429 P.2d 89.\\n11. Endorsement on And Registration of Bonds\\nAppellants advance the argument that the Industrial Development Projects Act, the city ordinances and related documents fail to provide for endorsements on and registration of bonds as required by Ch. 112, \\u00a7 414 and '415, S.L. of Wyoming 1965.\\nIn Reed v. City of Cheyenne, Wyo., 429 P.2d 69, 73, we discussed a similar argument, which was to the effect that Art. 16, \\u00a7 8, Wyo.Const., required bonds to have endorsed thereon a certificate stating that the bond or evidence of debt is issued pursuant to law and is within the debt limit. We held it to be clear that this constitutional provision has reference only to obligation bonds or other evidence of debt where a debt is created.\\nSection 414 is merely the statutory implementation of Art. 16, \\u00a7 8, and the ruling in the Reed case will necessarily apply as far as the contention with respect to \\u00a7 414 is concerned.\\nSection 415 requires the city treasurer to register all bonds issued in a book kept by him. This section follows \\u00a7 414 and is lodged in the midst of statutory provisions governing the issuance of general obligation bonds by municipalities. It is therefore also clear that \\u00a7 415 applies only to general obligation bonds and not to industrial development revenue bonds.\\n12. Bills Against City\\nThe last of appellants' assignments is that the act, ordinances and related documents purport to authorize the payment of bills or claims against the City of Cheyenne without compliance with the provisions of Art. 16, \\u00a7 7, Wyo.Const., which states:\\n\\\" no bills, claims, accounts or demands against the state, or any county or political sub-division, shall be audited, allowed or paid until a full itemized statement in writing, verified by affidavit, shall be filed with the officer or officers whose duty it may be to audit the same.\\\"\\nWe think we have made it clear by frequent repetition in the Uhls case, in the Reed case and in other parts of this opinion that nothing which can be characterized as \\\"bills\\\" or \\\"claims\\\" against the City of Cheyenne can arise in connection with the issuance of revenue bonds as proposed in these cases. The assignment and contention in this regard is without merit.\\nSummary\\nIt will be seen from our review of all assignments of error urged by the appellants that we find no reason to reverse or change the findings and judgment of the district court. Such judgment is therefore affirmed.\\nAffirmed.\\nMr. Justice PARKER concurs in the result.\"}"

wyo/11082089.json

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+"{\"id\": \"11082089\", \"name\": \"WYOMING MEDICAL CENTER, INC., a Wyoming corporation, Appellant (Defendant), v. Melissa MURRAY, Appellee (Plaintiff)\", \"name_abbreviation\": \"Wyoming Medical Center, Inc. v. Murray\", \"decision_date\": \"2001-07-20\", \"docket_number\": \"No. 00-220\", \"first_page\": \"266\", \"last_page\": \"270\", \"citations\": \"27 P.3d 266\", \"volume\": \"27\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T19:33:33.313106+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before LEHMAN, C.J., and GOLDEN, HILL, and KITE, JJ.\", \"parties\": \"WYOMING MEDICAL CENTER, INC., a Wyoming corporation, Appellant (Defendant), v. Melissa MURRAY, Appellee (Plaintiff).\", \"head_matter\": \"2001 WY 63\\nWYOMING MEDICAL CENTER, INC., a Wyoming corporation, Appellant (Defendant), v. Melissa MURRAY, Appellee (Plaintiff).\\nNo. 00-220.\\nSupreme Court of Wyoming.\\nJuly 20, 2001.\\nRepresenting - Appellant: - Seott W. Skavdahl and Scott E. Ortiz of Williams, Porter, Day & Neville, P.C., Casper, WY. Argument by Mr. Skavdahl.\\nRepresenting Appellee: Tom Sedar and Mel Dunn, Casper, WY. Argument by Mr. Dunn.\\nBefore LEHMAN, C.J., and GOLDEN, HILL, and KITE, JJ.\\nThis case was originally assigned to Justice Thomas on December 15, 2000, for the rendering of a proffered majority opinion. The case was reassigned to Justice Golden on February 5, 2001.\", \"word_count\": \"2058\", \"char_count\": \"12349\", \"text\": \"GOLDEN, Justice.\\n[11] Appellant Wyoming Medical Center, Inc. (WMC) appeals the district court's decision that a plaintiff having pre-existing conditions need not provide expert testimony to establish causation for personal injuries suffered in a slip and fall accident. Appellee Melissa Murray received a jury verdict awarding damages in her negligence suit against WMC following her slip and fall in WMC's parking garage.\\n[12] We affirm.\\nISSUES\\n[13] WMC presents this statement of the issues for review:\\n1. Did the District Court err in failing to grant Appellant's Motion for Directed Verdict where Appellee had failed to offer any evidence to establish that the proximate cause of her claimed injuries was Appellant's conduct and not the result of preexisting injuries?\\n2. Did the District Court err in instruct, ing the jury as to future damages in light of Appellee's pre-existing injuries and the absence of any expert testimony to support any future damages?\\n3. Did the District Court err in instructing the jury, over Appellant's objection, as to the recovery of medical expenses where there was no evidence to show that the medical expenses allegedly incurred by Appellee were proximately caused by Appellant's conduct?\\nMurray does not restate or present issues for review.\\nFACTS\\n[14] On January 19, 1995, Murray arrived at WMC to visit her mother, a patient at the facility. Murray parked her car on the fifth level of the parking structure connected to WMC, and as she walked to the elevator, Murray slipped and fell on black ice, suffering injuries to her knee and back.\\n[15] She filed a negligence action against WMC, and a jury trial was held in January of 2000. The jury returned a verdict finding $71,500.00 in damages and apportioning WMC's fault at ninety percent and Murray's at ten percent. The damages were further reduced by the amount of medical expenses that WMC had already paid. WMC filed a motion for judgment as a matter of law or in the alternative a motion for new trial contending that insufficient evidence supported the jury's verdict that the fall caused Murray's injuries. Those motions were denied, and this appeal followed.\\nDISCUSSION\\nStandard of Review\\n[16] WMC contends that the trial court erred in denying its motion for judgment as a matter of law because Murray's injuries were pre-existing and required expert testimony to establish that the fall caused injuries. W.R.C.P. 50(a)(1) provides:\\n(a) Judgment as a matter of laav.-\\n(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.\\n\\\"Despite the fact that judgment as a matter of law should be granted cautiously and sparingly, the district court has an obligation to direct entry of such a judgment where there is legally insufficient evidence to support a verdict on a particular issue. The decision to grant or deny a motion for a judgment as a matter of law is reviewed de novo.\\\" Sayer v. Williams, 962 P.2d 165, 167 (Wyo.1998).\\n[17] We undertake a full review of the record without deference to the views of the trial court. The test to be applied is whether the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable persons could have reached. We view the evidence in the light most favorable to the nonmoving party, and give that party the benefit of all reasonable inferences that may be drawn from the evidence. When the facts permit the drawing of more than one inference, it is for the jury to choose which will be used. Sundown, Inc. v. Pearson Real Estate Co., Inc., 8 P.3d 324, 380 (Wyo.2000); John Q. Hammons Inc. v. Poletis, 954 P.2d 1853, 1356 (Wyo.1998). If the inferences favorable to the movant are subject to doubt, or if parallel inferences can be drawn, the motion appropriately is denied. Sundown, 8 P.3d at 330; Stauffer Chemical Co. v. Curry, 778 P.2d 1083, 1103 (Wyo.1989); Ramirez v. Metropolitan Life Ins. Co., 580 P.2d 1136, 1138 (Wyo.1978).\\n[T8] \\\"In reviewing a sufficiency of-the-evidence question, we assume the evidence in favor of the successful party to be true, leaving out of consideration entirely the evidence in conflict, and assigning every favorable inference to the evidence of the successful party that can be reasonably and fairly drawn from it.\\\" Wal-Mart Stores v. Clark, 969 P.2d 550, 551 (Wyo.1998); City of Kemmerer v. Wagner, 866 P.2d 1283, 1285 (Wyo.1993) (quoting Crown Cork & Seal Co. v. Admiral Beverage Corp., 638 P.2d 1272, 1274-15 (Wyo.1982)). We leave to the jury the duty of ascertaining the facts, reconciling conflicts therein, and drawing its own inferences if more than one inference is permissible. Id. When the facts permit the drawing of more than one inference, then it is for the jury to choose which one will be used; and, if supported by substantial evidence, the jury's choice will be conclusive. Id.\\nCausation\\n[T9] At trial, Murray testified that before her fall, she suffered occasional muscle strains from lifting a person for whom she was providing twenty-four hour home health care. Chiropractic care provided relief from the pain caused by the muscle strains. At the time she fell in WMC's parking structure, she hit the back of her head, her back, and dislocated her knee. She was in pain, and her knee started to swell. Her doctor testified that the fall injured her back and knee. Murray testified that since her fall, she has suffered constantly from back and knee pain, and migraines.\\n[110] The proper rule of law is found in Wal-Mart Stores v. Clark, which said:\\nWal-Mart claims that the evidence adduced at trial was insufficient to establish causation between Clark's fall and his claimed injuries. In Mariner v. Marsden, 610 P.2d 6, 15 (Wyo.1980), and again in Buttrey Food Stores Div. v. Coulson, 620 P.2d 549, 559 (Wyo.1980), we held the testimony of the plaintiff may be sufficient, without the use of experts, to establish the element of causation between an accident and the plaintiffs injuries. As we stated in Mariner, \\\"lf the plaintiff, bearing the risk of nonpersuasion, chooses to present his claim of past pain without medical experts and the fact finder decides to credit his claim, most appellate courts perceive no impediment to upholding the award.\\\" Mariner, 610 P.2d at 18; see also 1 JacoB Stem, Srein On Personat Injury Dam aces, \\u00a7 2:8, at 32 n. 7 (2d ed.1991) and cases cited therein. The jury may reasonably infer that an absence of pain prior to the accident, and the onset of pain after-wards, is evidence that the accident caused the pain.\\nWal-Mart Stores v. Clark, 969 P.2d at 551-52.\\nWMC contends that Wal-Mart Stores v. Clark and the other cases are distinguishable because no pre-existing injuries existed, and the expert testimony requirement of Sayer v. Williams applies to Murray. In Sayer, a medical malpractice claim, the plaintiff contended that the substandard care she received caused her symptoms of dizziness and fatigue. The district court ruled that by failing to provide expert testimony on causation she had failed to prove it as a matter of law and directed a verdict in favor of the defendant. We upheld the ruling that expert testimony is required to satisfy causation in all but extraordinary cases of medical malpractice. Sayer, 962 P.2d at 168. The rationale for this rule was discussed in Harris v. Grizzsle, 625 P.2d 747, 753 (Wyo.1981):\\nThe law of proximate cause in malpractice cases is clear. Malpractice is a form of negligence. Before a physician may be held liable for malpractice, it must be shown that he departed from recognized standards of medical practice. In addition, that departure must be the proximate cause of the incident or occurrence which is the subject of the litigation. Schrib v. Seidenberg, 80 N.M. 573, 458 P.2d 825, 826 (1969).\\nIn an action for malpractice, the plaintiff must establish that an act or omission by a physician has breached a standard of care and that the breach was the cause, both in fact and proximately, of the damage suffered by the patient Keogan v. Holy Family Hospital, 22 Wash. App. 366, 589 P.2d 310, 313 (1979).\\nAppellant failed to prove that the proximate cause of deceased's death was the negligence of appellees. In Keller v. Anderson [554 P.2d 1253 (Wyo.1976)], we held that it is not sufficient to point to bad results as providing the causal link. In Keller we said that expert opinion is necessary to draw the causal link. In the present case, appellant has failed to provide the causal link by expert testimony.\\n[112] The necessity for expert testimony in the typical medical malpractice action is not present in this slip and fall negli-genee action. The trial court properly left it to the jury to decide the causal link between Murray's fall and her injuries based on the adequate evidence provided by her. We find no error.\\nJury Instruction on Future Damages\\n[113] Over WMC's objection, the trial court submitted a jury instruction concerning loss of enjoyment of life. WMC contends that expert medical evidence was required to apportion any loss of enjoyment of life caused by the pre-existing condition from that caused by the fall, and because Murray did not provide this expert testimony, the evidence did not support giving this instruction.\\n[T14] Before any instruction can be given, there must be evidence before the jury to which it may apply the rule of law encompassed by the instruction. Rittierodt v. State Farm Ins. Co., 3 P.3d 841, 844 (Wyo.2000). Loss of enjoyment of life is a compensable damage that the fact finder may either make a separate award for, or take into consideration when arriving at the total general damages. Mariner v. Marsden, 610 P.2d 6, 12 (Wyo.1980). An appellate court must look to determine if the damages awarded are supported by the evidence. Id. at 18. Medical testimony is not necessary to support the damages award; a plaintiff may establish these damages by her own testimony. Id.\\n[115] In this case, Murray and her mother testified concerning her pain and its effect on her life. During the jury instruction conference, the trial court ruled that the plaintiff's testimony concerning her lack of ability to do certain things that she onee did was sufficient to present to the jury an instruction on loss of enjoyment of life. The trial court's decision properly reflected the applicable law on this issue, and we find no error. As just discussed, the jury was properly allowed to determine any causation issues generated by her pre-existing conditions and was properly allowed to make apportionment decisions without benefit of expert testimony.\\nMedical Expenses\\n[T16] WMC's final contention is also based upon the lack of expert testimony establishing causation, claiming insufficient evidence existed to instruct the jury on medical expenses. We again find that the expert testimony was not necessary for the same reasons just discussed.\\nCONCLUSION\\n[T17] In this case, the plaintiff risked relying on evidence other than expert testimony. The jury returned a total general damages amount that the trial court reduced by fault apportionment and offset by the medical expenses already paid by WMC. The evidence was sufficient to support the jury instructions and the damages awarded. We affirm the judgment on the verdict.\"}"

wyo/11125202.json

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+"{\"id\": \"11125202\", \"name\": \"In the Matter of the WORKER'S COMPENSATION CLAIM OF Nancy L. HAMILTON, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent)\", \"name_abbreviation\": \"Worker's Compensation Claim of Hamilton v. State ex rel. Wyoming Workers' Safety & Compensation Division\", \"decision_date\": \"2001-02-27\", \"docket_number\": \"No. 00-91\", \"first_page\": \"637\", \"last_page\": \"641\", \"citations\": \"18 P.3d 637\", \"volume\": \"18\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T22:19:15.209634+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before LEHMAN, C.J., and lTHOMAS, GOLDEN, HILL, and KITE, JJ.\", \"parties\": \"In the Matter of the WORKER'S COMPENSATION CLAIM OF Nancy L. HAMILTON, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).\", \"head_matter\": \"2001 WY 20\\nIn the Matter of the WORKER'S COMPENSATION CLAIM OF Nancy L. HAMILTON, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).\\nNo. 00-91.\\nSupreme Court of Wyoming.\\nFeb. 27, 2001.\\nRepresenting Appellant: H. Richard Hop-kinson of Gorrell & Hopkinson, P.C., Wor-land, WY.\\nRepresenting Appellee: Gay Woodhouse, Wyoming Attorney General; John W. Ren-neisen, Deputy Attorney General; Gerald L. Laska, Senior Assistant Attorney General; Bernard P. Haggerty, Senior Assistant Attorney General.\\nBefore LEHMAN, C.J., and lTHOMAS, GOLDEN, HILL, and KITE, JJ.\\nconcurred prior to retirement\", \"word_count\": \"1792\", \"char_count\": \"11081\", \"text\": \"GOLDEN, Justice.\\n[\\u00b61] The primary issue in this appeal is whether a worker compensation claimant's inconsistent reports of the cause of her injury entitle a hearing examiner to determine an injury is not work-related. We affirm the hearing examiner's decision.\\nISSUES\\n[T2] Appellant Naney L. Hamilton presents this single issue for our review:\\nDid the Wyoming Office of Administrative Hearings (OAH) act arbitrarily, capriciously, or otherwise unlawfully in the meaning of the Wyoming workers' compensation law and contrary to substantial evidence when it entered, on December 30, 1999, a final order, denying appellant, Nancy L. Hamilton's claim for workers compensation benefits in ruling that she had not satisfied her burden of proof in establishing that she had suffered a work-related accident on July 14, 1999, while employed by Crazy Woman Safety Enterprises, Inc.?\\nThe Division contends that the issues are:\\nI. The Employee gave several accounts about the onset of her injury, and the Hearing Examiner denied benefits because he did not believe the injury occurred at work.\\nA. Should the Court defer to the Hearing Examiner's credibility determination?\\nB. Did the Employee fail to prove a material aggravation?\\nC. Was the second compensable injury rule unavailable?\\nFACTS\\n[\\u00b63] Hamilton was employed as a flagger for Crazy Woman Safety Enterprises. Hamilton claims that on July 14, 1999, while lift, ing a barrel, she injured her back. She told her supervisor, left work at 12:30 p.m. and rested the remainder of the day. The next morning her pain was severe, and she was taken to the emergency room. She was admitted to the hospital, administered pain relievers overnight, and discharged the next day. Tests showed that she had a herniated dise. Her timecard on the date of discharge shows that she worked a ten-hour day and worked a normal schedule after that.\\n[\\u00b64] On July 21, 1999, she filed a claim for injury. The employer objected to her claim that she had suffered a work-related injury, and the Division denied benefits. At a hearing, the evidence showed that Hamilton filled out timecards on a daily basis that required her to mark a box \\\"yes\\\" or \\\"no\\\" if she had been harassed or injured. All of her timecards from July 14 through July 22 were marked \\\"no.\\\" Although the date of the time-card marked July 14 was altered, Hamilton testified that she had initialed the \\\"no\\\" box to indicate that she had not been harassed.\\n[T5] The employer produced evidence that Hamilton had begun seeing a chiropractor for lower back pain on May 12, 1999, and reported that her pain had begun on May 4 while tying her shoe at home. Hamilton saw the same chiropractor on July 18, 1999. The doctor's notes indicate that the visit was for left lower back pain that radiated into the left leg at the highest possible pain rating; however, Hamilton claimed that it was another visit to correct pain in her hip that she had been experiencing since May 4.\\n[\\u00b66] Hamilton's coworker testified that he heard her express pain on July 14, and she told him that she had hurt her back. He did the rest of the lifting that day and observed that she appeared to be in pain and was unable to lift barrels. Hamilton argued that the employer altered the date of the timecard to produce one showing that she had initialed \\\"no\\\" to the question of whether she had been injured for that day. The employer contended no evidence showed that it had altered the timecard. It pointed to medical reports in the record showing that Hamilton's injury had been suffered months earlier at home and was not work-related.\\n[T7] The hearing examiner found that, on July 15, 1999, Hamilton reported to the emergency room physician that her pain had begun two months earlier while leaning over to place cones on the highway. Despite her testimony at the hearing that she was seeing the chiropractor for other reasons, the chiropractor's notes indicated he was seeing her for lower back pain that was progressively worsening. The hearing examiner also found that on July 21, 1999, Hamilton reported to a physician's assistant that she had been experiencing the lower back pain for two months after placing cones on the highway and stated that the pain had never really resolved in that time. She had an acute worsening of symptoms on July 15 that required admission to the hospital.\\n[T8] The hearing examiner concluded that Hamilton's statements to her doctors contradicted her testimony that she suddenly experienced the onset of different symptoms following a work-related injury. It concluded that the chiropractor's deposition testimony-that since May of 1999, he had been treating Hamilton for lower back pain symptoms similar to what she now complained of and she had stated then that the symptoms were by an injury suffered while tying her shoe at home-was significant. These several discrepancies and observation of her demeanor led the hearing examiner to find that Hamilton's credibility was suspect and conclude that she had failed to prove she had suffered a work-related injury on July 14, 1999.\\nDISCUSSION\\nStandard of Review\\n[\\u00a59] When reviewing a hearing examiner's decision that a worker's compensation claimant has failed to meet the burden of proof, we apply the following principles:\\nA claimant for worker's compensation benefits has the burden of proving all the essential elements of the claim by a preponderance of the evidence in the contested case hearing. Martinez v. State ex rel. Wyoming Workers' Compensation Div., 917 P.2d 619, 621 (Wyo.1996). When an agency decides that the party charged with the burden of proof has failed to meet that burden, the case is reviewed under the \\\"arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law\\\" language of Wyo. Stat. \\u00a7 16-3-114(c)Gi) (1990). City of Casper v. Utech, 895 P.2d 449, 452 (Wyo.1995). On appeal the complainant . has the burden of proving arbitrary administrative action. Knight v. Environmental Quality Council of State of Wyo., 805 P.2d 268 (Wyo.1991); Wyoming Bancorporation v. Bonham, 527 P.2d 432, 439 (Wyo.1974); Marathon Oil Co. v. Welch, 379 P.2d 832, 836 (Wyo.1963); Whitesides v. Council of City of Cheyenne, 78 Wyo. 80, 319 P.2d 520, 526 (1957). The agency, as the trier of fact, is charged with weighing the evidence and determining the credibility of witnesses. Utech, 895 P.2d at 451, and cases therein cited. The deference normally accorded to the findings of fact by a trial court is extended to the administrative agency, and the agency's decision as to the facts will not be overturned unless it is clearly contrary to the overwhelming weight of the evidence. Wyoming Steel & Fab., Inc. v. Robles, 882 P.2d 873, 875 (Wyo.1994).\\nPederson v. State ex rel. Workers' Compensation Div., 939 P.2d 740, 742 (Wyo.1997); see also, Nissen v. Cheyenne Frontier Days, Inc., 983 P.2d 722, 724-25 (Wyo.1999); Carrillo v. State ex rel. Workers' Safety and Compensation Div., 987 P.2d 690, 692-93 (Wyo.1999).\\n[\\u00a510] On appeal, Hamilton contends that the hearing examiner's decision is not supported by substantial evidence because it failed to consider that an x-ray taken on May 12, 1999, by her chiropractor failed to disclose a dise herniation and none was present when she presented to the chiropractor on July 13, 1999. Hamilton also contends that the hearing examiner failed to consider whether the facts presented a second com-pensable injury or a material aggravation of a preexisting condition.\\n[111] Having examined the entire record, we begin by upholding the hearing examiner's decision to believe the chiropractor's deposition testimony that he was treating Hamilton for lower back pain symptoms. Hamilton's testimony that she was not being treated for lower back pain directly contradicted the chiropractor's testimony. Credibility determinations are the unique province of the hearing examiner, and we eschew reweighing those conclusions. Carrillo, 987 P.2d at 693. Although Hamilton contends that upholding the credibility determination is contrary to our decision in Ikenberry v. State ex rel. Workers' Compensation Div., 5 P.3d 799 (Wyo.2000), this case does not pose the same concerns as Ikenberry where irrelevant inconsistencies led to an irrational finding that the claimant had not suffered a work-related injury. Id. at 809. Ikenberry distinguished between the facts it was considering and a proper denial of benefits because of contradictions by the claimant. Id. Specifically, it found that when the claimant's benefit claim is based on a report of injury caused by work activities and the immediate onset of pain symptoms, and this claim directly contradicts statements made to doctors that the pain could not be attributed to any work-related episode and was reported as progressive over a period of time, denial of benefits is proper. Id. at 810. That situation is very similar to Hamilton's. Her statements to her chiropractor indicated that she suffered an injury at home resulting in lower back pain and began treatment for it in May 1999. She received another treatment on July 13, 1999, for the same symptoms. Her symptoms on July 15 that required hospitalization were not different. The hearing examiner's decision that these inconsistencies resulted in Hamilton's failure to prove by a preponderance of the evidence that she suffered a work-related injury is affirmed.\\n[112] Hamilton next contends that she could have been awarded benefits for a material aggravation of a preexisting condition. She had the burden to prove the material aggravation. The evidence showed that her symptoms in May were the same as those she suffered on July 15 which subsided and allowed her to be discharged on the July 16 and work a ten-hour day that same day. We find that the hearing examiner's decision is supported by substantial evidence.\\n[113] Finaly, Hamilton contends that her statements to the physician's assistant on July 21 indicate that she had suffered a compensable injury in May placing cones on the highway and suffered another on July 14 while lifting the barrels. The hearing examiner determined that Hamilton reported to her chiropractor in May that her symptoms were caused by the shoe-tying incident which is not a first compensable injury. The hearing examiner's decision not to consider this a second compensable injury is supported by substantial evidence.\\n[\\u00b6 14] We affirm the order denying benefits.\"}"

wyo/11147502.json

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+"{\"id\": \"11147502\", \"name\": \"PACIFICORP, INC., Appellant (Petitioner), v. DEPARTMENT OF REVENUE, State of Wyoming, Appellee (Respondent)\", \"name_abbreviation\": \"Pacificorp, Inc. v. Department of Revenue\", \"decision_date\": \"2000-11-15\", \"docket_number\": \"No. 99-279\", \"first_page\": \"256\", \"last_page\": \"262\", \"citations\": \"13 P.3d 256\", \"volume\": \"13\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T00:04:56.816282+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before LEHMAN, C.J., and THOMAS, GOLDEN, HILL, and KITE, JJ.\", \"parties\": \"PACIFICORP, INC., Appellant (Petitioner), v. DEPARTMENT OF REVENUE, State of Wyoming, Appellee (Respondent).\", \"head_matter\": \"PACIFICORP, INC., Appellant (Petitioner), v. DEPARTMENT OF REVENUE, State of Wyoming, Appellee (Respondent).\\nNo. 99-279.\\nSupreme Court of Wyoming.\\nNov. 15, 2000.\\nRehearing Held in Abeyance Dec. 19, 2000.\\nRepresenting Appellant: W. Perry Dray of Dray, Thomson & Dyekman, P.C., Cheyenne, Wyoming; and Richard G. Smith of Hawley, Troxell, Ennis & Hawley, LLP, Boise, ID.\\nRepresenting Appellee: Gay Woodhouse, Attorney General; Rowena L. Heckert, Deputy Attorney General; and Jay Jerde, Assistant Attorney General.\\nBefore LEHMAN, C.J., and THOMAS, GOLDEN, HILL, and KITE, JJ.\", \"word_count\": \"3621\", \"char_count\": \"22860\", \"text\": \"THOMAS, Justice.\\nThe crux of this case is found in the claim of Pacificorp, Inc. (Pacificorp) that the Department of Revenue (Department) is required to apply a Wyoming market to book ratio in valuing Pacificorp's tax-exempt property for 1996. Pacificorp contends that the Department erred in valuing its tax-exempt property for 1996 because in adjusting for depreciation and obsolescence the Department was required to apply the Wyoming market to book ratio of 90.08% instead of the system market to book ratio of 82.4122%. Pacificorp argues that the Department is required to use the higher ratio, which applies specifically in Wyoming, rather than the more general ratio, which is derived from property in Wyoming and other jurisdictions. Pacificorp asserts that the appraisal formula applied by the Department is not rational because of the substitution of a general factor for a specific Wyoming factor in valuing Pacificorp's Wyoming property. The Department, as it did before the Board of Equalization (Board), relies upon the presumption of the correctness of an agency interpretation, the historical: application of the same formula, the notification to taxpayers that the formula would be so constructed, and the failure of Pacificorp to meet its burden of persuasion by presenting evidence that the presumption of correctness was erroneous. It is our conclusion that the Department was not required to invoke the Wyoming market to book ratio to value the property in harmony with the law. We affirm the decision of the Board.\\nThis statement of the issues is found in the Brief of Appellant:\\nI. Did the State Board err in failing to conclude that the 1996 valuation of Pa-cificorp's exempt property by the Department of Revenue was erroneous, and that accordingly Pacificorp's ad va-lorem assessment for the 1996 tax year exceeded the fair market value of Paci-ficorp's property, in violation of W.S. \\u00a7 39-2-102 and 39-2-201(a)?\\nII Did the State Board abuse its discretion and deny Pacificorp due process in denying Pacificorp's motion for leave to present testimony and other evidence at a hearing in this matter?\\nThis Statement of the Issues is found in the Brief of Appellee, filed on behalf of the Department:\\nI. Is the Wyoming State Board of Equalization's decision that PacifiCorp failed to meet its burden of proof in the expedited contested case arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law?\\nII. Did PacifiCorp waive its right to challenge the expedited contested case procedure by participating in the expedited contested case without objecting to the expedited procedure?\\nAt issue in this case is the valuation of Pacificorp's Wyoming property for 1996. For purposes of our discussion, the valuation process began with a unitary valuation of all of Pacificorp's property wherever it was situated. Pacificorp submitted the information utilized by the Department in its required annual report. That valuation was accomplished by the application of appraisal methods that had been used historically for the purpose of arriving at the unitary fair market value of Pacificorp's property. These included the historic cost less depreciation model, the rate base model, the yield capitalization model, the direct capitalization model, and the stock and debt model. From the application of these models, the Department arrived at a system-correlated value of\\n$ 6,400,000. The Department then ap plied an allocation percentage of 22.183% to arrive at a Wyoming base value of $1,419, 712,000 [R. 270] The system correlated value resulted in a market value to adjusted cost ratio of 82.4122%, which the Department then utilized in the exemption adjustment factor in arriving at the adjusted value of the Wyoming exempt property.\\nThe Board found that Pacificorp did not contest the unitary valuation or the Wyoming base value. Those findings rely upon the utilization of the unitary valuation and the Wyoming base value in Exhibit A, PacifiCorp Wyoming Valuation, which was presented by Pacificorp in its Trial Memorandum submitted to the Board. The Board's findings are confirmed by the Brief of Appellant, in which, after alluding to the unitary valuation step, and stating the Department determined it to be $6,400,000,000, Pacificorp states, \\\"that valuation is not in dispute here.\\\" Subsequently, after describing the allocation step, Pacificorp states, \\\"[the formula used by the Department with respect to electric utilities is also not in dispute in this case. That formula results in an allocation to Wyoming of 22.183% of the System Value, producing a Wyoming Value of $1,419,712,000.\\\"\\nThe third step in the Wyoming appraisal was to deduct the value of the tax-exempt property in order to determine the value of the property subject to the Wyoming ad valorem tax. The Department made that computation by reducing the cost of the Wyoming tax-exempt property by the system valuation ratio of market value to adjusted cost, 824122%, which it then applied to the cost of the Wyoming tax-exempt equipment to arrive at the value of the tax-exempt equipment, In its appeal to the Board, Pacificorp described the crux of the case in this way:\\nThe basis for this appeal is that there is no rational or logical reason why exempt property should be deducted based on a system-wide market-to-book ratio, when it is the Wyoming property that is being valued and it is Wyoming property that is being deducted in the exemption calculation.\\n(Emphasis in original.) This claim was based upon Pacificorp's argument that when a portion of the company's system-wide value was allocated to Wyoming, Wyoming costs could be compared to the allocated portion of the system value, which resulted in a market to cost ratio of 90.08%. Pacificorp argued strenuously that the cost of the Wyoming tax-exempt property should have been discounted by that larger percentage which would have valued the tax-exempt property at $332,746,423 rather than the $304,422,470 value assigned by the Department. The result of adopting the methodology advanced by Pacificorp would have been a reduction of valuation of its Wyoming property by $28,-323,953.\\nThe Board, in its Findings of Fact, Conclusion of Law, Decision and Order, capsulized the contention of Pacificorp in Findings of Fact, Nos. 6 and 17:\\n6. There was an exemption adjustment factor applied to the net exempt property value to reduce the value of the exempt property to present-day value. The factor used by the Department was 82.4122%. The Department's adjustment factor was a system to market book ratio. The Department's Adjustment factor was calculated as follows:\\n\\\"The Exemption Adjustment Factor is equal to the System Correlated Value divided by the Total Operating Property and Equipment (Line VI plus Line VIII in the Valuation Section of the HCLD Model).\\\" ,\\nIt is this \\\"Exemption Adjustment Factor\\\" Petitioner asserts is wrong. The Petitioner believes the adjustment factor should be the state equipment value to market book ratio.\\n* os\\n17. Attached to Petitioner's Trial Memorandum and referred to in the Memorandum was The Study of State-Assessed Property, Procedural Audit of Methodologies, December 9, 1994. This is the only evidence before the Board to demonstrate the Department's system to market-book ratio is incorrect and that the ratio Petitioner wants the Department to use, the state to market-book ratio is correct. This study included a recommendation as follows: .\\n\\\"Recommendation # 19\\nIn most cases, it should make little valuation difference whether the deduction for non-taxables is made based upon a relationship between system value or allocated state value and property investment. When a significant difference does arise, the appraiser should first reconsider his/her allocation factor then, when comfortable, base the deduction for non-taxables on the investment relationship between non-taxables and total state investment (Le. state investment in non-taxable assets divided [by] total state investment) and apply this ratio to the allocated state value.\\\"\\n(Emphasis in original.) In its Conclusions of Law, the Board said:\\n22. The Department's valuation established for state-assessed property, is presumed valid, accurate, and correct, a presumption which survives until overturned by credible evidence. evidence to the contrary, it is presumed the official charged with establishing value, be it a county assessor or a Department appraiser, exercises honest judgment in accordance with the applicable statutes, rules, regulations, and other directives which have passed public scrutiny, either through legislative enactment or agency rule making, or both. Chicago Burlington & Quincey Railroad Co. v. Bruch, 400 P.2d 494, 499 (Wyo.1965). In the absence of\\nThe Board then concluded that the Board's rules required Pacificorp to assume the burden of going forward with evidence as well as the ultimate burden of persuasion. It concluded that Pacificorp had failed to present the requisite credible evidence to overcome the presumption of validity, and it had failed to meet its burden of persuasion.\\nWith respect to an asserted procedural right of Pacificorp to have an opportunity to present evidence after it had anticipated the assignment of the matter to the expedited docket, and the Board had so assigned it, the Board ruled that Pacificorp \\\"had ample opportunity to present evidence either in writing or to object to the assignment of expedited docket ,\\\" and it had failed to take advantage of either opportunity. The Board then affirmed the Department's valuation of the property.\\nPacificorp sought judicial review of the Board's decision in the District Court of the First Judicial District, County of Laramie. That court then certified the case to this Court under the provisions of WRAP. 12.09. '\\nIn Basin Elec Power Co-op., Inc. v. Department of Revenue, State of Wyo., 910 P.2d 841, 851 (Wyo.1998), we spoke to our function as a reviewing court in this way:\\n\\\"In examining the propriety of the valuation method, 'our task is not to determine which of 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. \\\" Amoco Prod. Co. v. State Bd. of Equalization, 899 P.2d 855, 858 (Wyo.1995) (quoting Holly Sugar Corp. v. State Bd. of Equalization, 839 P2d 959, 963 (Wyo.1992)). However, the disagreement between the parties here does not concern the Department's choice of appraisal methods. The controversy concerns the proper application of those methods to the facts, which is an issue of ultimate fact, requiring de novo review.\\n(Footnote omitted.) In addition, the Department reminds us of the standard adopted when reviewing a failure to meet the burden of proof assigned to a party:\\n\\\"When an agency decides that the party charged with the burden of proof has failed to meet that burden, the case is reviewed under the '[alrbitrary, capricious, an abuse of discretion or otherwise not in accordance with law' language of Wyo. Stat. \\u00a7 16-3-114(c)(ii) (1990). City of Casper v. Utech, 895 P.2d 449, 452 (Wyo.1995). On appeal the complainant, Pederson in this instance, has the burden of proving arbi trary administrative action. Knight v. Environmental Quality Council of State of Wyo., 805 P.2d 268 (Wyo.1991); Wyoming Bancorporation v. Bonham, 527 P.2d 482, 489 (Wyo.1974); Marathon Oil Co. v. Welch, 379 P.2d 832, 836 (Wyo.1963); Whitesides v. Council of City of Cheyenne, 78 Wyo. 80, 319 P.2d 520, 526 (1957). The agency, as the trier of fact, is charged with weighing the evidence and determining the credibility of witnesses. Utech, 895 P.2d at 451, and cases there cited. The deference normally accorded to the findings of fact by a trial court is extended to the administrative agency, and the agency's decision as to the facts will not be overturned unless it is clearly contrary to the overwhelming weight of the evidence. Wyoming Steel & Fab, Inc. v. Robles, 882 P.2d 873, 875 (Wyo.1994).\\\"\\nPederson v. State ex rel. Wyoming Workers' Compensation Div., 939 P.2d 740, 742 (Wyo.1997). Pederson has been followed as recently as Murray v. State ex rel. Wyoming Workers' Safety and Compensation Div., 998 P.2d 327, 329-80 (Wyo.1999).\\nHat Six Homes, Inc. v. State, Dept. of Employment, Unemployment Ins. Com'n, 6 P.3d 1287, 1292 (Wyo.2000).\\nIn arguing its claim of error in this Court, Pacificorp relies upon Recommendation # 19 from the Study of State-Assessed Property, Procedural Audit of Methodologies, December 9, 1994, quoted by the Board in its Findings of Fact, Conclusion of Law, Decision and Order. Claiming a significant difference in valuation, it asserts that the Department should be bound by the principle articulated in the study:\\nWhen a significant difference does arise, the appraiser should first reconsider his/ her allocation factor then, when comfortable, base the deduction for non-taxables on the investment relationship between non-taxables and total state investment (Le. state investment in non-taxable assets divided [by] total state investment) and apply this ratio to the allocated state value.\\nPacificorp couples this assertion with reliance on Holly Sugar Corp. v. State Bd. of Equalization for State of Wyo., 889 P.2d 959, 966 (Wyo.1992) and J. Ray McDermott & Co. v. Hudson, 370 P.2d 364, 370 (Wyo.1962), contending that those cases demonstrate that the Board must use specific valuation information when it is available, and must take into account factors peculiarly applicable to the taxpayer in arriving at valuations. Paci-ficorp also argues that under Basin Elec. Power Co-op., Inc., 970 P.2d at 852, this controversy involves the application of the appraisal method to the particular facts, which is reviewable de novo.\\nIn its appellate brief, Pacificorp advises this Court that, \\\"[the correct answer in this case should be derived from logic, common sense and the application of simple mathematics.\\\" This Court then is favored with mathematical wizardry that, on the surface, appears to demonstrate the logic and common sense that Pacificorp contends leads to the result that it claims. We are not satisfied so readily by the record and the arguments which are propounded on behalf of Pacificorp.\\nThe essential fallacy in the valuation method proposed by Pacificorp in Exhibit A to its Trial Memorandum before the Board is that it purports to identify Wyoming plant costs and the cost of Wyoming non-taxable assets, which it then substitutes, after netting those figures, as the cost factor in determining the Wyoming market to book ratio while retaining the Wyoming base value as determined by the Department as the market factor. This substitution results in what Pacificorp describes as a \\\"significant difference\\\" between the Wyoming market to book ratio and the system market to Wyoming book ratio. This approach gives little cre-denee to the caveat appearing on page 74 of the Study of State-Assessed Property, Procedural Audit of Methodologies:\\nThe rationale for this approach [multiply the net book investment in non-taxable property (as reported in the annual report) by the ratio of total system value to total system investment] is to deduct value from value rather than cost from value. Having determined the market value of the property in Wyoming, it would be inappropriate to deduct the cost, rather than the market value, of the non-taxable property.\\n(Emphasis in original.) By relying upon the Wyoming base value, which is a product of the adjustment previously made by applying the system market to Wyoming book ratio, while invoking Wyoming costs for the nontaxable property, Pacificorp is comparing it to Wyoming costs, which results in an inappropriate deduction of Wyoming \\\"cost, rather than the market value, of the non-taxable property.\\\" In arriving at the critical ratios for the valuation method that Pacificorp proposes, it is using the Wyoming adjusted value from the Department formula, but instead of using Wyoming costs adjusted by the same factor, it is using actual costs. This despite the fact that the non-taxable assets were discounted by the system market to Wyoming book ratio formula before they were included in the assets allocated to Wyoming.\\nThe method proposed by Pacificorp, if it had been invoked by the Department, would have resulted in substantially the same criticism of the Department that we voiced in Basin Elec. Power Co-op., Inc., 970 P.2d at 856-57:\\nHowever, the Department imputed a for-profit income to Basin, then applied a direct capitalization rate, different from the yield capitalization rates it applied to for-profit utilities, because Basin is a nonprofit company. It is logically inconsistent to impute a for-profit income and then to apply a capitalization rate which appears to be designed for use with a non-profit stream of income. Additionally,\\n\\\"[The direct capitalization] model requires the use of P/E (price/earnings) ratios, ie., mathematical ratios derived from comparing the price at which particular companies' stock sold with the earnings of those companies. If an appraiser uses P/E ratios, it is vital that the ratios be for 'comparable' companies, i.e., be derived from companies sufficiently similar to the company being evaluated to make use of the ratios analytically meaningful.\\\"\\nUnion Pacific Railroad Co. v. Dept. of Rev., 315 Or. 11, 843 P.2d 864, 874 (Or.1992).\\nThe Department takes the untenable position that non-profit utilities are sufficiently different from investor-owned utilities to justify use of different valuation methodologies and capitalization rates, yet uses investor-owned utilities as \\\"comparables\\\" in its direct capitalization approach.\\nThe Board's rationale for using a direct capitalization rate, rather than the same yield capitalization rate it uses for those purportedly \\\"comparable\\\" companies, is arbitrary, capricious and not in accordance with the law.\\nThe method proposed by Pacificorp in this case is indeed a comparison of apples with oranges, and it is an anathema in terms of a logical and consistent appraisal method.\\nIt is clear from the record, and Pacificorp does not dispute the fact, that the same valuation methodology was applied to all public utilities of the same class. To adopt for Pacificorp the adjustment it sought would have resulted in a deviation from the uniformity requirement of Wyo. Const. art. 15, \\u00a7 11. See Gray v. Wyoming State Bd. of Equalization, 896 P2d 1347, 1851 (Wyo.1995). We hold that the ruling by the Board was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law so as to require correction pursuant to Wyo. Stat. Ann. \\u00a7 16-3-l14(c)@ii) (Lexis 1999). Even applying the de novo review suggested in Basin Elec. Power Co-op., Inc., we are in accord with the Board that Pacifi-corp failed to carry its burden of producing evidence to overcome the presumption of correctness that attaches to the valuation methodology used by the Department.\\nThis latter holding brings us to consideration of the claim by Pacificorp that the Board abused its discretion and deprived Pa-cificorp of due process \\\"in denying Pacifi-corp's motion for leave to present testimony and other evidence at a hearing in this matter[ .]\\\" The Matter of the Appeal of Pacifi-corp was assigned to the Expedited Docket by the Briefing Order (Expedited Docket) entered by the Board on May 7, 1997, in accordance with the Rules and Regulations of the Board, which provide in pertinent part:\\nSection 14. Expedited Contested Case.\\n(a) A contested case may be expedited if the case is:\\n(i) A matter in which there are no disputed issues of material fact; or\\nM) A matter in which the parties agree to an expedited proceeding, provided the Board retains the authority to convert at any time the proceeding to a regular contested case when it appears essential facts must be determined in order to permit adequate presentation and disposition of the case.\\n(b) Any party shall have ten (10) days from the date of the Board order scheduling a matter as an expedited case to request reconsideration.\\n(c) An expedited contested case shall consist of review of any written argument and evidence. Limited oral argument to the Board after submission of all written material shall be permitted upon written request of a party.\\nPacificorp did not request reconsideration of the assignment of the matter to the expedited docket within the ten-day period provided in the rules of the Board. That was consistent with the anticipation by Pacificorp, that the case would be expedited, set forth in its transmittal letter for its notice of appeal on July 16, 1996. It was not until July 11, 1997, that Pacificorp sought leave to present testimony concerning the issues in its Trial Memorandum filed on that day.\\nOn this question, the Department relies upon In re Wright, 983 P.2d 1227, 1281 (Wyo.1999), for the proposition that Pacificorp waived its right to object to the assignment of the matter to the expedited docket. We hold that Pacificorp actively participated in the expedited docket assignment without objection, with knowledge of its right to request reconsideration of that assignment within ten days, and manifested an intention to relinquish that right. Furthermore, in light of our analysis of the claim of Pacificorp that the valuation by the Department was erroneous, we cannot visualize any evidence that Pacificorp could have submitted at a contested case hearing that would have justified the erroneous appraisal methodology that it proposed. We hold no error occurred with respect to the assignment of the matter to the expedited docket neither by the Board nor in its Order Denying Petitioner's Request to Present Testimony.\\nThe determination set forth in the Findings of Fact, Conclusion of Law, Decision and Order of the Board of Equalization is affirmed.\\n. Wyo. State Bd. of Equal., Rules and Regulations, ch. XXXII, \\u00a7 5 (Oct. 12, 1995).\\n. Wyo. State Bd. of Equal., Rules and Regulations, ch. XXXIII, \\u00a7 6 and 7 (Oct. 12, 1995).\\n. Wyo. State Bd. of Equal., Rules and Regulations, ch. XXXIII, \\u00a7 8 (Oct. 12, 1995).\\n. Wyo. State Bd. of Equal, Rules and Regulations, ch. XXXIII, \\u00a7 9 (Oct. 12, 1995).\"}"

wyo/11173167.json

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+"{\"id\": \"11173167\", \"name\": \"Donald E. BENDER, Appellant (Petitioner), v. The UINTA COUNTY ASSESSOR; the Uinta County Board of Equalization; and Wyoming State Board of Equalization, Appellees (Respondents)\", \"name_abbreviation\": \"Bender v. Uinta County Assessor\", \"decision_date\": \"2000-12-07\", \"docket_number\": \"No. 00-73\", \"first_page\": \"906\", \"last_page\": \"911\", \"citations\": \"14 P.3d 906\", \"volume\": \"14\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T22:22:23.494952+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before LEHMAN, C.J., and THOMAS, GOLDEN, HILL and KITE, JJ.\", \"parties\": \"Donald E. BENDER, Appellant (Petitioner), v. The UINTA COUNTY ASSESSOR; the Uinta County Board of Equalization; and Wyoming State Board of Equalization, Appellees (Respondents).\", \"head_matter\": \"Donald E. BENDER, Appellant (Petitioner), v. The UINTA COUNTY ASSESSOR; the Uinta County Board of Equalization; and Wyoming State Board of Equalization, Appellees (Respondents).\\nNo. 00-73.\\nSupreme Court of Wyoming.\\nDec. 7, 2000.\\nRepresenting Appellant: Donald E. Bender, pro se.\\nRepresenting Appellee Uinta County Assessor: V. Anthony Vehar of Vehar Law Offices, P.C., Evanston, WY.\\nRepresenting Appellees Uinta County Board of Equalization and Wyoming State Board of Equalization: No appearance.\\nBefore LEHMAN, C.J., and THOMAS, GOLDEN, HILL and KITE, JJ.\", \"word_count\": \"2955\", \"char_count\": \"18252\", \"text\": \"KITE, Justice.\\nAppellant Donald E. Bender appealed to the State Board of Equalization (SBOE) from the Uinta County Board of Equalization's (CBOE) decision that Appellee Uinta County Assessor's refund calculations for the 1995 and 1996 residential property taxes were correct, The assessor's calculations were based on an earlier SBOE decision which affirmed the property's 1995 and 1996 construction classifications of 8.0 and fair market values of $128,000. The SBOE dismissed this second appeal concluding Mr. Bender was collaterally estopped from challenging the refund calculation because it constituted a relitigation of the valuation issue which had been fully and finally adjudicated. We affirm and award the assessor costs pursuant to W.R.A.P. 10.05.\\nISSUES\\nMr. Bender frames the issues as follows:\\n1. Did the Uinta County Assessor use the WYS CAMA system that was provided to her by the Wyoming State Department of Revenue pursuant to W.S. 89-183-108(b)(i) to determine the \\\"Total Value Used to Calculate Tax\\\" for 1995 and 19967\\n2. Did the Uinta County Assessor calculate the \\\"Total Value Used to Calculate Tax\\\" for 1995 and 1996 in accordance with Chapter 9 Ad Valorem Valuation Methodology and Assessment (Local Assessments) rules and regulations of the Wyoming State Department of Revenue pursuant to W.S. 39-13-108(b)(i)?\\n3. Whether there is statutory or other legal authority superior to W.S. 89-18-103(b)G) to support the July 26, 1999 dismissal decision of the Uinta County Board of Equalization without a hearing, or briefing of the facts and the law?\\n4, Whether there is statutory or other legal authority superior to W.S. 39-183-108(b)(ii) to support the February 12, 1999 \\\"affirmed\\\" Order, and the November 30, 1999 \\\"dismissed with prejudice\\\" Order of the Wyoming State Board of Equalization without a hearing, or briefing of the facts and the law, when it is acting in [its] \\\"adjudicatory capacity?\\\"\\nThe assessor presents the issues in the following manner:\\nA. Was the decision of the State Board of Equalization finding Appellant collaterally estopped from pursuing his petition for review and dismissing Appellant's peti tion for review according to procedures required by law, supported by substantial evidence and neither arbitrary, capricious nor inconsistent with law?\\nB. Is there a lack of reasonable cause for Appellant's appeal such that he should be sanctioned pursuant to W.R.AP. Rule 10.05?\\nFACTS\\nIn 1995 and 1996, the assessor valued Mr. Bender's residential property located in Uin-ta County. Mr. Bender appealed from both valuations to the CBOE. On August 5, 1996, the CBOE issued two separate decisions for the 1995 and 1996 valuations pursuant to which it determined the 8.5 construction classifications applied by the assessor were incorrect and the proper classifications were 8.0. The assessor appealed from both decisions to the SBOE. The SBOE consolidated the appeals and remanded the matters back to the CBOE, instructing it to supplement its factual bases for the decisions. The CBOE complied, submitting its Supplemental Findings of Fact. Throughout the course of these first SBOE proceedings, Mr. Bender contended the CBOE decisions should be affirmed. On February 12, 1999, the SBOE issued its Findings of Fact, Conclusions of Law, Decision and Order (SBOE Value Decision) affirming the CBOE's decisions for 1995 and 1996 as supplemented. Specifically, the SBOE affirmed the CBOE's determination that the evidence justified a construction class of 8.0 and a fair market value of $128,000 for tax years 1995 and 1996 No appeal was taken from the SBOE Value Decision. |\\nSix months later, on August 24, 1999, Mr. Bender filed a second \\\"protective\\\" appeal with the SBOE from a CBOE letter dated July 26, 1999. The letter advised Mr. Bender that the assessor's computation of the residential property tas refunds, totaling $94.35 for 1995 and 1996, was computed based on the $128,000 property value affirmed by the unchallenged SBOE Value Decision. On November 3, 1999, the SBOE issued a notice of intent to dismiss this see- ond appeal with prejudice The notice advised the parties that, despite Mr. Bender's description of his appeal issue as \\\"the correct method to calculate the 1995 and 1996 refund,\\\" it was in fact a second appeal of the 1995 and 1996 fair market values and was therefore barred by the doctrine of collateral estoppel. The parties were provided fifteen days to file written objections to the dismissal. Mr. Bender filed an objection in which he asserted the new appeal was not an attempt to relitigate the 1995 and 1996 fair market values of his property. He further contended the SBOE Value Decision, which he did not appeal, was erroneous and not supported by the prior CBOE decisions and the Supplemental Findings of Fact. The SBOE dismissed this second appeal with prejudice (SBOE Dismissal). Mr. Bender filed a request for reconsideration which was denied. He appealed to the district court which certified the case to this Court pursuant to W.R.A.P. 12.09(b).\\nSTANDARD OF REVIEW\\nWhen a case is certified to this Court pursuant to W.R.A.P. 12.09(b), we examine the decision as if we were the reviewing court of first instance and will affirm the decision on any legal ground appearing in the record. Van Gundy v. Wyoming Workers' Safety and Compensation Division, Department of Employment, State of Wyoming, 964 P.2d 1268, 1269 (Wyo.1998); Sheridan Planning Association v. Board of Sheridan County Commissioners, 924 P.2d 988, 990 (Wyo.1996).\\nDISCUSSION\\nA. Collateral Estoppel\\nThe SBOE Value Decision held in pertinent part as follows:\\nThe decisions of the Uinta County Board of Equalization for both 1995 and 1996 establishing a 3.0 construction classification for the residential property located at Evanston, Uinta County, Wyoming and fair market value of $128,000.00, shall be, and the same are hereby affirmed.\\nThis holding was consistent with Mr. Bender's argument urging the SBOE to affirm the CBOE's decisions. The SBOE Value Decision also reflected the following notice to the parties:\\nPursuant to Wyo.Stat. \\u00a7 16-3-114 and Rule 12, Wyoming Rules of Appellate Procedure, any person aggrieved or adversely affected in fact by this decision may seek judicial review in the appropriate district court by filing a petition for review within 30 days of the date of this decision.\\nNeither the assessor nor Mr. Bender filed an appeal from the SBOE Value Decision. However, Mr. Bender's second appeal to the SBOE, in effect, challenged the original SBOE Value Decision. It is evident from the manner in which Mr. Bender framed this second appeal that he was challenging the validity of the property value established by the SBOE Value Decision and the subsequent application of that value by county officials to determine the 1995 and 1996 tax refunds. For example, Mr. Bender contends the CBOE application of the $128,000 as the fair market value constituted a violation of Wyo.Stat.Ann. \\u00a7 39-2-102 (Michie 1997) This tax code provision mandates annual valuation of all property at its fair market value pursuant to the rules and regulations as promulgated by the Department of Revenue. Mr. Bender's argument that the $128,000 valuation affirmed by. the SBOE Value Decision violated \\u00a7 89-2-102 can have only one possible interpretation: It is a renewed attack on the question of value.\\nMr. Bender also argues that the SBOE Value Decision was in error because it incorporated the CBOE's Supplemental Findings of Fact regarding the $128,000 value and the original CBOE decisions of August 5, 1996, were not separately amended or supplemented to include those findings. Therefore, he argues the only CBOE holding the SBOE could affirm was the determination of the 8.0 construction class which did not refer to the $128,000 value. Mr. Bender provides no authority for the proposition that the SBOE cannot base its decision on the CBOE's Supplemental Findings of Fact in addition to the underlying CBOE decisions. Furthermore, this argument again presents what can only be construed as a blatant effort to relitigate the value established by the unchallenged SBOE Value Decision.\\nWe conclude this case is not the proper or timely vehicle for presentation of these arguments.\\nWe have held that the related doctrines of res judicata and collateral estoppel apply to final determinations by administrative agencies. In [Slavens v. Board of County Commissioners for Uinta County, 854 P.2d 683 (Wyo.1993) ], we applied collateral estoppel, sometimes described as issue preclusion, in reviewing the final decision of the board of county commissioners because such agencies deal primarily with issues rather than with claims that can be pleaded in an action in court. The doctrine of issue preclusion prevents the relitigation of issues actually and necessarily decided previously in an action between the same parties. Collateral estoppel forecloses relitigation when the issue presented is identical to one determined in a prior proceeding; when the prior proceeding produced a decision on the merits of the issue; when the party against whom issue preclusion is asserted was a party, or in privity with the party, in the prior proceeding; and when the party against whom issue preclusion is asserted had a full and fair opportunity to litigate the issue in the prior proceeding.\\nUniversity of Wyoming v. Gressley, 978 P.2d 1146, 1153 (Wyo.1999) (citations omitted). The SBOE made the following analysis in the SBOE Dismissal:\\n9. The four part test set out in Gress-ley is met in this matter. The issue presented in the present appeal, at its heart, is the 1995 and 1996 fair market valuation of Petitioner's property. This is identical to the issue which was presented to the SBOE in consolidated dockets 95-187 and 96-114. The prior proceeding reached a decision on the merits as evidenced by the February 12, 1999 decision.... [Mr. Bend-eri, the party against whom issue preclusion is asserted, was clearly a party in the prior proceedings. Finally, [Mr. Bender] was provided a full and fair opportunity to litigate the issue in the prior proceedings.\\nWe agree with this analysis. \\\"A full and fair opportunity to litigate an issue is all that is required for the collateral estoppel doctrine to apply.\\\" Wilkinson v. State ex rel. Wyoming Workers' Safety and Compensation Division, 991 P.2d 1228, 1284 (Wyo.1999).\\nFaced with the SBOE Dismissal based solely on the doctrine of collateral estoppel, Mr. Bender failed to even address this issue in his opening brief before this Court. He eventually addressed the issue in his reply brief, in response to the assessor's argument, and then only in the most deficient and cursory manner. Mr. Bender's failure to provide any degree of cogent argument to refute the application of collateral estoppel is remarkable. He instead spends his efforts, and this Court's time, challenging the $128,000 valuation which he failed to contest within thirty days of the SBOE Value Decision. Subsequent actions are barred when no appeal was taken from the initial administrative decision. See Slavens v. Board of County Commissioners for Uinta County, 854 P.2d 683, 686-87 (Wyo.1993). The SBOE properly applied the doctrine of collateral estoppel to dismiss the appeal with prejudice, and for this reason we will not address Mr. Bender's additional issues.\\nB. Sanctions\\nThe assessor has asked this Court to sanction Mr. Bender pursuant to W.R.A.P. 10.05 and award it costs and attorneys fees. W.R.A.P. 1.02(a) provides in relevant part:\\n(a) All appeals, reviews pursuant to Rule 12, certifications under Rules 11 or 12, and petitions for review shall be governed by these rules.\\nThis case was certified to this Court pursuant to the provisions of W.R.A.P. 12.09(b). As provided in W.R.AP. 1.02(a), W.R.AP. 12.09(b) certifications are governed by the Wyoming Rules of Appellate Procedure. On this authority, we conclude that the sanctions provided in W.R.A.P. 10.05 govern certifications arising under W.R.A.P. 12.09(b).\\nAs reflected by this Court's docket, during the past two years Mr. Bender has appeared as an appellant in numerous cases of various kinds and character. He seems to personify the term \\\"litigious\\\" to the effect it describes one who is \\\"fond of litigation; prone to engage in suits.\\\" We are confronted with a case clearly barred from review by the doctrine of collateral estoppel. Even if review were not barred, his claim of error is unsupported by cogent argument and fails to meaningfully address the primary issue, namely the SBOE application of collateral estoppel. See Mead v. State, 2 P.3d 564 (Wyo.2000). In the best light, this case is an intentional rehash of the valuation cases previously litigated.\\nMr. Bender appears pro se. As we noted in Stone v. Stone, 7 P.3d 887, 890-91 (Wyo.2000) (citations omitted):\\n[Wle expect pro se litigants to comply with the Wyoming rules of appellate procedure in the same way that trained lawyers are expected to perform. While we may make allowances for pro se litigants, they are not excused from the requirement that their brief be supported by cogent argument and citations to pertinent authority.\\nWe conclude there is no reasonable ground for this certification and this is one of those rare cireumstances where sanctions pursuant to WRAP. 10.05 are appropriate. See Small v. Convenience Plus Partners, Ltd., 6 P.3d 1254 (Wyo.2000).\\nThe SBOE Dismissal is affirmed. The assessor shall submit a statement of costs and attorney fees associated with the response to this certification to this Court. Upon review, we will award an appropriate amount in the form of sanctions.\\n. In 1995, Mr. Bender appealed from the 1995 valuation to the CBOE. The CBOE issued an order affirming the assessor's valuation. Mr. Bender appealed to the SBOE. The parties (the assessor and Mr. Bender) then requested that the 1995 valuation be remanded to the CBOE for rehearing. The SBOE remanded the case. In the meantime, the 1996 valuation was issued, and Mr. Bender appealed to the CBOE. The CBOE held a rehearing on the 1995 valuation and an initial hearing on the 1996 valuation.\\n. Construction classification is one factor input into the Assisted Mass Appraisal System maintained by the Department of Revenue and used by assessors to annually develop residential property fair market values. It reflects the quality of construction as it impacts the physical attributes and relevant physical data of the property. See Department of Revenue Rules, Ad Valorem Valuation Methodology and Assessment (Local Assessments), ch. 9, \\u00a7 6(a) & (b)(it).\\n. The specific language of the CBOE's Supplemental Findings of Fact affirmed by the SBOE Value Decision was as follows: \\\"The preponderance of evidence as presented in [this] case justifies a construction class type 3.0 and a fair market value of $128,000.00.\\\"\\n. The July 26, 1999, CBOE letter stated in its entirety:\\nWe have reviewed your July 21 letter. We are of the opinion that you are due ninety-four dollars and thirty-five cents ($94.35). The only difference in your calculations and the Assessor's calculations is the value placed on the land in question. The Assessor uses the figure of $128,000 for 1995 and 1996. You use the figures $123,855 and $123,124, respectively. You make several interesting points about how that figure was arrived at and the authority of the State Board of Equalization, but we are not the proper body to address the points.\\nAfter the State Board of Equalization's decision declared the value of your property to be $128,000, you had thirty (30) days to appeal that decision to the Wyoming Court System. For whatever reason you chose not to appeal. We will not now take up a de[ Jfacto appeal on this issue.\\nFurther, the Board will no longer entertain or respond to issues dependent on a 1995 or 1996 value different than the adjudicated $128,000.\\nWe thank you for your time and effort put forth in your explanation. Enclosed is the check for $94.35.\\n. State Board of Equalization Rules, Rules of Practice and Procedure for Appeals Before the State Board of Equalization from a County Board of Equalization, ch. 3, \\u00a7 5(c) states:\\n(c) Board Action on Own Motion For good cause, the Board may take action on its own motion by providing notice of its intent to take the action and the reasons therefore to all parties. The notice of intent shall advise the parties they may file written objections within fifteen (15) days of service of the notice.\\n. Section 39-2-102 provided: \\\"All taxable property shall be annually valued at its fair market value. Except as otherwise provided by law for specific property, the department shall prescribe by rule and regulation the appraisal methods and systems for determining fair market value using generally accepted appraisal standards.\\\" This section was repealed by 1998 Wyo. Sp. Sess. Laws ch. 5, \\u00a74 and recreated at \\u00a7 39-13-103(b)(ii) by 1998 Wyo. Sp. Sess. Laws ch. 5, \\u00a7 1 effective March 6, 1998.\\n. WRAP. 10.05 provides:\\nIf the judgment or appealable order is affirmed in a civil case, appellee shall recover the cost for publication of the brief with the cost to be computed at the rate allowed by law for making the transcript of the evidence. If the court certifies there was no reasonable cause for the appeal, a reasonable amount for attorneys' fees and damages to the appellee shall be fixed by the appellate court and taxed as part of the costs in the case. The amount for attorneys' fees shall not be less than one hundred dollars ($100.00) nor more than five thousand dollars ($5,000.00). The amount for damages to the appellee shall not exceed two thousand dollars ($2,000.00).\\n. Black's Law Dictionary 934 (6th ed.1990).\"}"

wyo/11263125.json

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+"{\"id\": \"11263125\", \"name\": \"O'MALLEY v. EAGAN, ET AL.\", \"name_abbreviation\": \"O'Malley v. Eagan\", \"decision_date\": \"1931-11-24\", \"docket_number\": \"No. 1677\", \"first_page\": \"350\", \"last_page\": \"352\", \"citations\": \"43 Wyo. 350\", \"volume\": \"43\", \"reporter\": \"Wyoming Reports\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T23:10:26.789576+00:00\", \"provenance\": \"CAP\", \"judges\": \"Kimball, Ch. J., and Renee, J., concur.\", \"parties\": \"O\\u2019MALLEY v. EAGAN, ET AL.\", \"head_matter\": \"O\\u2019MALLEY v. EAGAN, ET AL.\\n(No. 1677;\\nNov. 24, 1931;\\n5 Pac. (2d) 276)\", \"word_count\": \"834\", \"char_count\": \"4664\", \"text\": \"Blumb, Justice.\\nThe appellant has filed a petition for rehearing herein. Counsel have cited us to Shirley v. American Automobile Ins. Co., (Wash.) 300 Pae. 155 and Thompson v. Schirber, (Wash.) 2 Pac. (2d) 664, and claim that our decision in this case is inconsistent therewith. But we are unable to see how these cases can have any possible application in the case at bar. In the Shirley case the road was 187% feet wide and the accident happened in the day time. The driver of the Shirley car was held to have been negligent in turning to his left instead of to his right. The trial court excused him on account of becoming confused by the sudden peril in which he was placed. But the Supreme Court said:\\n\\\"But we cannot think this doctrine has application here. There was no sudden peril. The driver of the Shirley automobile saw the other automobile approaching for a long distance away and observed the eccentric manner in which it was being driven. He had almost a hundred feet of un-incumbered highway to his right into which he could have turned with safety. Instead of doing so, he drove straight towards the oncoming automobile, and made no effort to avoid it until it was directly upon him. ' '\\nTbe decision was, of course, correct under tbe facts in tbe case. In tbe Thompson case, Scbirber, tbe appellant, was by tbe court found to bave been on tbe wrong side of tbe road, and tbe trial court, as well as tbe Supreme Court, beld bim liable for tbe collision wbicb occurred with tbe respondent's car, and it was correctly pointed out, in full accord with tbe principle stated in our original opinion, that Thompson, tbe respondent, who was on tbe right side of tbe road, bad a right to presume that Scbirber would turn away from bis wrong side in order to avoid the collision. \\\"What tbe court said is very apropos in the ease at bar:\\n\\\"Appellant husband saw respondent's automobile when it was one fourth of a mile distant, yet continued to drive on tbe wrong side of tbe highway, occupying so much thereof that it was impossible for tbe respondent to pass. Had tbe automobile of tbe respondent been standing still at the point where tbe collision occurred, where tbe respondent bad a right to be, tbe accident would bave happened just as it did happen. ' '\\nIn tbe case at bar counsel seek to hold liable tbe driver who was on bis right side of tbe road until be came within fifty feet of tbe car wbicb was on its wrong side, and, contrary to the principle stated in many cases cited in our original opinion, argue that he should not bave turned to tbe left even then, though be had no room, or little room, to bis right. They claim that it should be presumed that, bad the respondent slowed down or stopped, Eagan would then bave turned to his right. We are unable to see bow there is any room for any such presumption under tbe facts in tbe case. Under the evidence, he bad not so turned when be was within fifty feet of respondent's car, without any indication that even then be made tbe slightest move in that direction. But though we might indulge in tbe presumption that Eagan would bave turned to bis right, if tbe respondent bad not turned to tbe left, all tbe probabilities are, in view of tbe extreme shortness of time, that tbe col lision would have occurred anyway, and merely in a slightly different manner.\\nCounsel take exception to our statement in the original opinion that they should have been able to point out how the accident could have been avoided. But surely, if the ingenuity of counsel cannot do so, it is hardly to be expected that a jury would have had any reasonable grounds for so finding. Counsel say further: \\\"We submit that it is not incumbent on the plaintiff to show how the accident could have been avoided, if the negligence presented could reasonably have been the proximate cause of the injuries. ' ' Counsel perhaps did not mean that. To point out the proximate cause of the injuries as a result of defendant's negligence results in pointing out how the accident could have been avoided, had the respondent been in the exercise of reasonable care.\\nWe have given the case the most careful consideration. The evidence is comparatively meager. The main testimony is that of the respondent himself. We must necessarily give our decision upon the evidence in the record, and that evidence, so far as we can see, fails to show how any negligence of the respondent was the proximate cause of the injuries in this case. We see no reason for a rehearing, and it must accordingly be denied.\\nRehearing Denied.\\nKimball, Ch. J., and Renee, J., concur.\"}"

wyo/11263805.json

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+"{\"id\": \"11263805\", \"name\": \"HECHT v. CAREY\", \"name_abbreviation\": \"Hecht v. Carey\", \"decision_date\": \"1904-12-12\", \"docket_number\": \"\", \"first_page\": \"154\", \"last_page\": \"165\", \"citations\": \"13 Wyo. 154\", \"volume\": \"13\", \"reporter\": \"Wyoming Reports\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T23:32:04.323004+00:00\", \"provenance\": \"CAP\", \"judges\": \"Potter, J., concurs.\", \"parties\": \"HECHT v. CAREY.\", \"head_matter\": \"HECHT v. CAREY.\\nEstates or Decedents \\u2014 Executors \\u2014 When Non-Resident May Be Appointed \\u2014 Removal \\u2014 Statutory Construction \\u2014 Supreme Court \\u2014 Jurisdiction'\\u2014Appeal and Error.\\n1. A non-resident of the state in which a will is admitted to probate, who is named in the will as executor, may qualify and act as such, unless otherwise provided by statute.\\n2. A non-resident of this state, who is named in a will as executor, may qualify and serve as such, if he is a resident and citizen of the United States; since the statute (R. S., Sec. 4570) authorizes any resident and citizen of the United States to be named in a will as executor, requiring him, if a non-resident of this state, to designate some resident as agent or attorney, upon whom orders, notices or process may be served, and in detailing the disqualifications which debar a person from serving as executor omits from such enumeration the fact of non-residence (R. S., Sec. 4628), while a non-resident is expressly declared incompetent to serve as an administrator. (R. S., Sec. 4637.) But such non-resident must come into the state within a reasonable time, and personally submit himself to the jurisdiction of the court, and personally conduct the settlement of the estate.\\n3. Where, as authorized by statute, letters testamentary have been issued to a 11011-resident of this state who is named in the will as executor, it is not competent for the court to suspend or remove him as executor upon the sole ground of his continued non-residence.\\n4. Where such a non-resident executor comes into the state within a reasonable time, personally submits himself to the jurisdiction of the court,-and personally conducts the settlement of the estate, the mere fact of his continued non-residence will not amount to a permanent removal from the state within the meaning of the statute (R. S., Secs. 4622, 4623) providing' for the suspension and removal of an executor who \\u201chas permanently removed from the state.\\u201d\\n5. Such statute, in its application to a 11011-resident executor who has come here within a reasonable time, personally submitted himself to the jurisdiction of the court, and personally conducted the business of the estate, authorizes his suspension or removal, on the ground of permanent removal \\u25a0 from the state, only in case he shall have subsequently permanently removed in the sense of having permanently absented himself from the place where the business of the estate is to be transacted, or withdrawn himself beyond the process of the court.\\n6. The word \\u201cremoved\\u201d in such statute implies the necessity of some change in the status of the executor\\u2019s residence since his appointment.\\n7. A construction of the statute which would require the issuance of letters testamentary to one known to be \\u00e1 nonresident, and then immediately thereafter, the suspension of his powers as a step toward his removal, should not be adopted unless imperatively demanded by the language of the statute.\\n8. An order removing such non-resident executor reciting his presence in court at the hearing, and it appearing that within a month of his suspension he was personally present in the state attending to the business of the executor-ship, and that he personally participated in the last business of the estate prior to his suspension; Held, that his suspension and removal on the sole ground of non-residence was error.\\n9. The Supreme Court has no original jurisdiction to remove an executor, but its jurisdiction in such matter is purely appellate.\\nto. Though the Supreme Court is empowered by statute in certain cases to render such judgment as the court below should have rendered, it can only do so when the issue has been heard and determined in the inferior court upon proper proceedings in error.\\n11. Where, by the express terms of an order of the District Court removing an executor, the only issue heard or determined by that court was the question of the executor\\u2019s non-residence, Held,\\n(1) That on error to. the Supreme Court from such order evidence, if any, received by the court below to show misconduct would be irrelevant and immaterial as affecting the controversy in the Supreme Court.\\n(2) That the orders of the District Court erroneously suspending and removing the executor upon the sole ground of his non-residence must be reversed and vacated, notwithstanding that the evidence, if considered, would have justified such suspension and removal upon other grounds.\\n12. The order of the District Court erroneously removing an executor solely on the ground of his non-residence, reciting that it was admitted on the hearing that the executor was a non-resident, and had been ever since a time prior to his appointment, no other question than that of such non-residence having been considered or determined, and the finding as to non-residence not having been excepted to, the weight or sufficiency of the evidence is not involved in a proceeding in error to review such order, and the fact, therefore, that all the evidence taken in the court below is not before the Supreme Court is not a ground for affirmance of the erroneous order.\\n[Decided December 12, 1904.]\\n(78 Pac., 705.)\\nERROR to the District Court, Laramie Count}'-, Hon. Richard Ii. Scott, Judge.\\nThe material facts are stated in the opinion.\\nW. R. Stoll, for plaintiff in error.\\nSo far as the matter of residence is concerned, a testator has the right under the laws of this state to nominate anyone he pleases as executor of his estate. The statutes expressly permit a testator to name in his will any person who is a resident or citizen of the United States, and that per mission is not limited or qualified in any way. (R. S. 1899, Sec. 4570.) It is the duty of the court so far as possible to carry out the will of the testator, and an executor chosen by him should not be removed unless required by the express or implied terms of the statute. Where the statute does not so provide, the court cannot remove an executor solely because he is a non-resident. Section 4616, with reference to the performance of the duties pertaining to the trust by the remaining executors or administrators when several have been appointed, and when one or more of them die or become insane, convicted of an infamous crime, or otherwise become incapable of acting, has no application in the case at bar. Neither has Section 4618, providing for the resignation of an executor or administrator. The plaintiff in error does not come within the provisions of Section 4622, for it is clear that the words \\u201chas permanently removed from the state\\u201d refers to an executor who at the time of his appointment was a resident of the state. Section 4627 requires the court to issue letters to the persons named in the will as executors who are competent to discharge the trust. The court is given no discretion in the matter. Section 4628, which specifies the various matters constituting disqualifications of an executor, does not include non-residence of an executor named in the will.\\nIt is, we think, therefore, perfectly clear that there is nothing in the statute which prevents a non-resident named in the will from acting as an executor or which authorizes the removal of such an executor on account of his continued non-residence. Such has been the holding in California, from which state our statute upon the subject was taken. (Brown\\u2019s Est., 80 Cal., 384; Kelley\\u2019s Est., 122 id., 379; Bell\\u2019s Est., 135 id., 194; Atwood\\u2019s Est., 127 id., 427; Rathgeb\\u2019s Est., 125 id., 302; Est. of Palomares, 63 id., 402.)\\nH. Donzelmann, amicus curise.\\nIf all the testimony had been incorporated in the record, it would show that the plaintiff in error wilfully failed to inventory property belonging to the estate, and that he appropriated the same to his own personal use and benefit; and, further, that he charged up against the estate his own personal bills contracted since the death of the decedent. It would further appear that certain promissory notes belonging to the estate had been withheld by the plaintiff in error, who gave as his excuse therefor that they had been presented to his wife by the decedent in her lifetime. It is wholly immaterial whether the statute or the laws of this state 'provide f\\u00f3r an order of suspension, since that is the inherent power of the court. (Rathgeb\\u2019s Est., 125 Cal., 302.) And the discretion of the court in such matter will not be interfered with on appeal unless it shall clearly appear to have been abused. (Bell\\u2019s Est., 135 Cal., 194.)\\nThe intent of the Legislature in enacting the probate code can only be gathered from reading- the entire act, and a reasonable construction should be given to the various sections. How can it be said that a non-resident may be nominated as \\u25a0 an executor by a testator and yet that when an executor becomes a non-resident such fact would be cause for a removal? Such a construction would be inconsistent. If the record contained all of the testimony which was received at the various hearings it would show that the plaintiff in error had removed from the state within the meaning of Section 4622, Revised Statutes, as the same is construed bji'-the Supreme Court of California. (Kelley\\u2019s Est., T22 Cal, 379.)\\nWhen it appears to the appellate court that a decision appealed from was not made upon the record alone as presented to the appellate court, and that such record is not full and complete, so as to advise the court of all the proceedings had in the court below, the appellate court will refuse to act upon such in completed record. (Underwood v. David, 9 Wyo., 178.) Can it be assumed that if a complete record shows the facts as above stated as to the conduct of the plaintiff in error that an appellate court would undertake to set aside the order of removal, even if it should be found that the cause stated for such removal could not have been the real cause, in view of all the testh mony? Even though this court should find that the order-of removal was erroneous so far as the statement of the ground therefor is concerned, yet the previous order suspending the executor from further acting- should stand. .\\nW. R. Stoll, for plaintiff in error, in reply.\\nThe amicus curice has no standing in this court to suggest a diminution of the record. But he seeks a transcript of voluminous evidence relating only to the value of certain property, to produce which would cost a considerable sum and which would serve no useful purpose, since it could have no possible bearing upon the question arising in the case. Whenever it is sought to bring up an additional record, there must always be pi-oof of the alleged defects, unless they would appear upon a mere inspection of the record. (2 Ency. PI. & Pr., 310, 311.) The defect does not appear upon the present record; on the contrary, it is affirmatively shown that no defect exists; and the motion is not supported by affidavit.\\nTt cannot be assumed that the District Court removed the plaintiff in error for any other cause than that stated in the order, and surely it cannot be assumed that the District Court would have stated in its order that the executor was removed for one reason when in fact the court was actuated by an altogether different one.\\nTt is clear from the expressions contained in the record that the only question considered by the District Court, and the only reason assigned for its order, was the non-residence of the plaintiff in error, and that he was removed for that reason and for no other. This being so, the assertion at this time of any other ground for removal introduces an immaterial matter.\", \"word_count\": \"4117\", \"char_count\": \"23807\", \"text\": \"Corn, Ci-t ntp Justice.\\nCharles Hecht and John F. Carey, respectively plaintiff and defendant in error, were named as executors in the will of Julia F. Scliweicker't. Subsequently to her death the will was probated and they were duly appointed and qualified as such executors. Afterwards, on April 27th, 1903, the court made the following order: \\\"It having come to the knowledge of the court by the testimony of Charles Hecht, one of the executors of the above named estate, which testimony was heretofore given under oath at a hearing in which the question of the confirmation of a sale of property made by the executors of said estate, was under consideration ; that said Charles Hecht is not a resident of the State of Wyoming, but is now present by counsel, it is now and here ordered, under the provisions of Section 4622 of the Revised Statutes of Wyoming, 1899, that the powers of the said Charles Hecht as such executor be suspended until the 29th day of April, A. D. 1903, at the hour of ten o'clock a. m., at which time the question of the removal of said Charles Hecht as such executor will be heard and considered by the court.\\\" And, on April 29th, the court made the following order: \\\"It having come to the knowledge of the court bj' the testimony of Charles Hecht, one of the executors of the above named estate, and who was nominated as such executor by the will of the said Julia F.-Schweickert, deceased, which testimony was heretofore given under oath at a hearing in which the question of the confirmation of a sale of property made by the executors of said estate was under consideration; that said Charles Hecht is not a resident of the State of Wyoming, and the court having thereafter, on the 27th day of April, A. D. 1903, made an order suspending the said Charles Hecht as executor of said .estate, and' setting the matter for a final hearing on the 29th day of April, A. D. 1903, at which time the said Charles Hecht was present in court, and the matter came on to be heard upon the record and papers on file in the matter, and no evidence other than such record and papers on file being introduced, and it being admitted by the said Charles Hecht and it appearing to the court that the said Charles Hecht is a non-resident of the State of Wyo ming and has been such non-resident ever since a time prior to the date of his appointment as such executor, and the matter being fully argued by counsel, and the court being fully advised in the premises, it is ordered that said Charles Hecht be and he is forthwith removed as executor of the estate of the said Julia F. Schweickert, deceased, expressly upon the ground and for the reason that he is a non-resident of the State of Wyoming, to all of which the said Charles Hecht, by his attorney, now and here excepts.\\\"\\nSection 4622, Revised Statutes, above referred to, provides for the suspension of the powers of the executor when, among other causes, the judge has reason to believe that such executor \\\"has permanently removed from the state.\\\" And Section 4623 provides that if upon the hearing the court \\\"is satisfied that there exists cause for his removal, his letters must be revoked.\\\" Plaintiff in error alleges that the orders suspending and removing him were erroneous.\\nThere can be no question that, under the general rule, and independent of statute, a non-resident of the state in which the will is admitted to probate may qualify and act as executor. (11 Am. & Eng. Ency., 753, and authorities cited.) Our statute (Section 4570) clearly authorizes the appointment of a non-resident as executor, provided he is a resident and citizen of the United States. Moreover, while Section 4637 expressly declares that no person is competent to serve as administrator who is not a bona fide resident of this state, Section 4628, in detailing the disqualifications which debar a person from serving as executor, significantly omits the fact of non-residence from the enumeration. It being the law of this state, then, that a non-resident may qualify and serve as an executor, is it competent for the court, by virtue of Section 4622, providing for his suspension when he \\\"has permanently removed from the state,\\\" to suspend or remove an executor who was a non-resident when letters testamentary were issued to him, upon the sole ground of his continued non-residence? Very clearly, we think, it is not, and that the statute does not require or permit such a construction.\\nIn the first place, the expression itself, that he has \\\"removed,\\\" does not fairly cover the case in question, but seems to imply the necessity of some change in the status of his residence since .his appointment. And, in the second place, such an interpretation involves consequences which are absurd. As said in New York, in construing provisions similar to ours: \\\"If Section 2685 covers cases of non-residence which existed at the time of the grant of letters, this result follows : that, though in the absence of objection, a non-resident has an absolute right to letters even without giving a bond, and though he has that right, even in the face of objection, upon furnishing such bond, the letters must as soon as granted be taken awa)'- if any person interested in the estate demands it. An interpretation which involves such absurd consequences should certainly be avoided, if the language to be interpreted is capable of some other sensible construction.\\\" (Postly v. Cheyne, 4 Demarest, 492.) Under such a construction, the absurdity is even more glaring in this state, for not only has the nonresident an absolute right to letters under Section 4570, but by Section 4622 whenever the judge \\\"has reason to believe, from his own knowledge or from credible information,\\\" that the executor has removed from the state, \\\"he must, by an order entered upon the minutes of the court, suspend the powers of such executor or administrator until the matter is investigated,\\\" and it is not necessary that anyone should have demanded such suspension. So that it might readily occur that the judge, knowing in advance that the applicant was a non-resident, would find himself bound to issue the letters and immediately afterwards, upon his own motion, to suspend the executor's powers as a step toward his removal. Such a construction ought not to be adopted unless the language imperatively demands it, which, as we have already seen, it clearly does not.\\nThese provisions of our code were adopted from that of California, and we think the view taken of the matter by the Supreme Court of that state is the reasonable one. A non-resident may be appointed and act as executor in this state, but he must come here within a reasonable time and personally submit himself to the jurisdiction of the court and personally conduct the settlement of the estate. (In re Brown, 80 Cal., 381.) They further hold, however, and we think reasonably', that while the phrase \\\"has permanently removed from the state\\\" may more properly refer to a resident executor who has permanently removed from the state, the reason for revoking the letters in such case applies equally to a non-resident executor who comes here to receive his appointment and then permanently withdraws from the state and remains away. It is his permanent absence from the place where the business is to be transacted, beyond the process of the court and where the creditors of the estate and others having business' with it cannot reach him, that creates the disqualification; and this is equally true of both resident and non-resident executors. The California court disclaim any intention to. destroy, by construction, the right of a testator to name a non-resident as his executor, but say that the statute should be so construed as to give ground of removal of a non-resident executor when he fails to come to this state and personalty conduct the business of the estate at such times and as frequently as the interests of the estate and of those concerned In its settlement may require. (Estate of Kelley, 122 Cal., 379.)\\nIn the case under consideration, however, it is not only recited in the order that the plaintiff in error was removed \\u2022expressly upon the ground and for the reason of his non-residence, and that no other evidence was introduced upon the hearing than the record and papers on file in the matter, but it is also recited that he was present in court at the hearing, and it appears from the papers in the cas\\u00e9 filed In this court that, within a month of his suspension, he was personally present in the state and attending to the business of the executorship. Indeed, he seems to have participated personally in the last business of the estate prior to the suspension, so far as it is shown by the papers in the case. It is apparent, therefore, that he had not permanently removed from the state in the sense of having permanently absented himself from the place where the business was to be transacted or withdrawn himself beyond the process of the court. We are of the opinion, therefore, that the orders suspending and removing the plaintiff in error from his executorship were erroneous and without authority of law.\\nBut counsel for defendant in error alleges in his brief that a hearing was had on the petition of one Sophia Pickard pr\\u00e1ying that the inventory and appraisement filed by the executors be set aside and that the order of the court confirming the sale of certain real estate be vacated; and that evidence was taken on this and other hearings in the course of the 'administration which, if before this court, would show such misconduct as executor upon the part of plaintiff in error as made it the duty of the court under the law to suspend his powers. That, therefore, even if it should be found that the cause of removal stated in the order was not sufficient, or was not the real cause upon which the court acted, this court ought not to set aside such order. And counsel has filed a motion \\\"for an order to the clerk of the District Court directing said clerk to send up a full transcript of the record and the testimony taken in this case.\\\"\\nBut it must be borne in mind that this court has no original jurisdiction in the matter, but its jurisdiction is purely appellate. Under the statute, in the case of charges against an executor, he must be cited to appear and show cause why he should not be removed. Pie may answer or demur, and the issue thus raised must be determined by the court or judge. By the express terms of the order of removal in this case, the only issue heard or determined was the question of his non-residence. No issue involving misconduct upon his part was determined by the court below. So that, if evidence upon that question was received by the District Court and if it were before us, it would be entirely irrelevant and immaterial as affecting the controversy in this court, for the reason that we are without jurisdiction or authority to go into the lower court and remove the executor for misconduct, and no such judgment or determination of that court is before us by any proceeding in error. It does not affect the question that this court is empowered by statute in certain cases to render such judgment as the court below should have rendered. It can only do so when the issue has first been heard and determined in the inferior court and is before this court upon proper proceedings in error.\\nIt is also urged that all the evidence taken in the court below not being before this court, the judgment of the lower court ought not be disturbed. But it is sufficient to say that no question of the weight or sufficiency of evidence is involved in the proceedings in this court. The order itself recites that it was admitted upon the hearing that plaintiff in error was a non-resident of the state and had been ever since a time prior to \\\"the date of his appointment. There is 110 exception or objection to that finding and he was removed solely upon that ground. No amount of evidence would tend to illuminate the proposition. It is purely a question of law.\\nThe several orders of the court below suspending the powers of the plaintiff in error as executor and removing him from his executorship will be set aside and reversed.\\nReversed.\\nPotter, J., concurs.\"}"

wyo/11264020.json

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+"{\"id\": \"11264020\", \"name\": \"SUMMERS v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK\", \"name_abbreviation\": \"Summers v. Mutual Life Insurance Co. of New York\", \"decision_date\": \"1904-03-28\", \"docket_number\": \"\", \"first_page\": \"369\", \"last_page\": \"396\", \"citations\": \"12 Wyo. 369\", \"volume\": \"12\", \"reporter\": \"Wyoming Reports\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T00:03:10.188602+00:00\", \"provenance\": \"CAP\", \"judges\": \"Corn, C. J., concurs.\", \"parties\": \"SUMMERS v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK.\", \"head_matter\": \"SUMMERS v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK.\\nPleading \\u2014 Demurrer \\u2014 Rife Insurance \\u2014 Policy op Insurance, Failure to Deliver \\u2014 \\u2019Damages \\u2014 Action for Return op Premium \\u2014 Money Had and Received \\u2014 Completed Contract.\\n1. If any one of several causes of action separately stated in a petition be sufficient, a general demurrer to the petition as a whole should be overruled.\\n2. Under the code, pleadings are to be liberally construed, and the common law rule requiring that they be construed most strongly against the pleader is not applicable.\\n3. A petition based upon the theory that the defendant insurance company is liable in damages for breach of contract to issue a policy of life insurance, but sufficient for money had and received, is not demurrable, though the amount of recovery should be held limited to the premium paid or a proportionate part thereof.\\n4. A petition being sufficient for money had and received, it is not material on demurrer whether the amount sued for is recoverable, if at all, as damages for breach of contract, or as money had and received.\\n5. The action having been brought against a foreign life insurance company for its failure to issue a life insurance policy, and the petition alleging that plaintiff dealt with agents of the company, and that the policy was to be subsequently written, that the agents were authorized to solicit contracts of insurance, make contracts for policies of insurance, and to receive and receipt for money and premiums thereon; Held, that the further allegation that they were authorized generally to transact defendant\\u2019s business in Wyoming is not to be construed as averring their authority to write and issue policies.\\n6. Where plaintiff executed and delivered to the agents of defendant insurance company a note in consideration of an agreement to deliver to plaintiff a life insurance policy within a stated time, and the defendant received and appropriated the proceeds of the note, and failed to deliver the policy, the plaintiff, being without fault, is entitled to consider the contract as rescinded by the defendant, and recover the sum advanced as money had and received.\\n7. Where the parties intend that a contract shall be closed and consummated prior to the formal signing of a written draft, the terms having been mutually understood and agreed upon, they will be bound by the contract actually made, though it be not reduced to writing; but if they do not intend to close the contract until it shall be fully expressed in a written instrument properly attested, then there will be no completed contract until the agreement shall be put into writing and signed.\\n8. The petition alleging that, in consideration of plaintiff\\u2019s note for the first year\\u2019s premium, defendant\\u2019s agents promised that the defendant would issue and deliver to plaintiff within a stated time a policy of life insurance containing certain alleged stipulations, and that, as a part of the oral contract, it was agreed that the premium note should not be transferred or negotiated, but should remain in defendant\\u2019s possession until the policy should be written and delivered, found to be satisfactory, and approved and accepted, and that the defendant received the note and appropriated its proceeds, but failed and refused to deliver the policy; Held, on demurrer, that a completed contract of insurance was not shown so as to bind the defendant, notwithstanding the failure to deliver the policy, and that a cause of action was alleged for a return of the premium, as for money had and received.\\n[Decided March 28, 1904.]\\n(75 Pac., 937.)\\nError to the District Court, Uinta County, HoN. David H. Craig, Judge.\\nWilliam M. Summers brought this action against the Mutual Life Insurance Company of New York. A demurrer was sustained to an amended petition, and the plaintiff refusing to further plead, judgment was rendered in favor of defendant for costs. Plaintiff instituted proceedings in error. The facts are stated in the opinion.\\nJ. H. Ryckman, for plaintiff in error.\\nParol contracts of insurance are valid. (Ellis v. Ins. Co., 50 N. Y., 402; Trustees, &c., v. Ins. Co., 19 N. Y., 305; Ins. Co. v. Ins. Co., 19 How., 318; Potter v. Ins. Co., 63 Fed., 382; Worth v. Ins. Co., 64 Mo. App., 583; Hicks v. Assur-' anee Co., 162 N. Y., 284; Newark Mach. Co. v. Ins. Co., 50 O. St., 549; Ruggles v. Ins. Co., 114 N. Y., 415; Ins. Co. v. Shaw, 94 U. S., S74-)\\nWhether this is a parol contract of insurance, or a contract to issue a certain kind of a policy, is immaterial. The plaintiff may either bring, a suit for specific performance or for damages for breach of the contract. He has chosen to do the latter. (Ins. Co. v. Ins. Co., 7 Bush., 81; Ins. Co. v. Colt, 20 Wall., 560.) And a parol contract of insurance is like any other contract and governed by the same rules; if one party denies the contract or refuses to perform, the other may take him at his word and bring his action for damages. (Angel\\u00ed v. Ins. Co., 59 N. Y., 171; Hubbell v. Ins. Co., 100 N. Y., 41; Ins. Co. v. Shaw, 94 U. S-, 574-)\\nA petition setting up a parol contract to insure plaintiff\\u2019s life, and to issue a policy in accordance with said contract, and alleging the payment by plaintiff to the defendant of the first annual premium, and the breach of such contract, and claiming damages therefor, states a legal cause of action. (Humphry v. Ins. Co. (15 Blatch.), 35 Fed. Cas., 6874.)\\nThe authority of the agents to make such a contract as is alleged cannot be raised by a general demurrer to the petition. \\u201cNo case can be found which holds that where the agent * * * takes the property of one and gives it to his principal, the principal is not liable for such property or its value.\\u201d (Min. Co. v. Min. Co., 11 Colo., 223; Brown v. Ins. Co., 165 Mass., 565; Austrian v. Springer, 94 Mich., 343; Ins. Co. v. Wilkinson, 13 Wall., 234; Sawyer v. Equitable Co., 42 Fed., 30; La Marche v. Ins. Co., 58 Pac., 1053; O\\u2019Brien v. Ben. Soc., 22 N. E., 954; Maxson v. Llewelyn, 54 Pac., 732; 1 Black Com., 431; R. Co. v. Dunn, 19 O. St., 162; Ayers v. Ins. Co., 17 la., 176; Moir v. Hopkins, 16 Ill., 313; Ins. Co. v. Minch, 53 N. Y., 144; Ins. Co. v. Cellerd, 38 N. J. L., 480; Root v. French, 13 Wend., 570; Walsh v. Ins. Co., 73 N. Y., 5; Ins. Co. v. Gorman, 40 S. W., 571; Mathers v. Ins. Co., 11 L. R. A., 83; Halloway v. Griffith, 32 la., 409; Day v. Ins. Co., 29 A. R., 694; McKee v. Ins. Co., 75 A. Dec., 129; Master-son v. Mayor, 42 A. Dec., 48; R. R. Co. v. Richardson, 135 Mass., 473; Philpot v. Taylor, 75 Ill., 309; Bennett v. Lockwood, 20 Wend., 223; Kaiser v. New Orleans, 17 La. Ann., 178; Lightbody v. Ins. Co., 23 Wend., 18; Lister v. Allen, 31 Md., 543; 100 A. Dec., 78; Carmichael v. Buck, 70 A. Dec., 227; Newman v. Smith, 18 P., 792; Ins. Co. v. Neiberger, 74 Mo., 167; 3 Pars. Con., 167; Cooley Torts (2d Ed.), 105; Rich v. R. R. Co., 87 N. Y., 382; Crater v. Benninger, 38 N. J. L., 513; Bank v. Williams, 63 Pac., 744; Church v. Beach, 26 Conn., 355; Welch v. Durand, 36 Conn., 182; 4 A. R., 55; Anson Cont. (2d Am. Ed.), 406.)\\n\\u201cEvery consideration of public policy demands that insurance companies should be required to deal with their customers with entire fairness and frankness.\\u201d (Brink v. Ins. Co., 8 N. Y., 113.)\\nT. S. Taliaferro, Jr., and John W. Laceyf for defendant in error.\\nIt is clear from the authorities cited by counsel and from innumerable others which might be cited to the same purport, that a contract of insurance may exist in parol and be shown by parol, and that the policy is merely an evidence of the contract of insurance. (Newark Machine Co. v. Kenton Insurance Co., 50 O. St., 549; Ruggles v. Insurance Co., 114 N. Y., 415; Insurance Co. v. Shaw, 94 U. S., 574; Ins. Co. v. Kuessner (Ill.), 45 N. E., 540.)\\nIn each of the cases cited the parol contract of insurance was enforced after a loss had occurred, and the enforcement was upon the ground that the insurance itself was in force upon the parol contract to issue a policy. There is the same rigid of action as if the policy had issued. (Sproul v. Assur. Co. (Or.), 54 Pac., 180; Ins. Co. v. Stone (Kan.), 58 Pac., 986.)\\nThis action is not an equitable one for specific performance, but is an action at law for damages. It becomes, therefore, important for us to consider what damages may be recoverable in such a case. In a loose way it has been sometimes said that in case of a failure to issue a policy when a clear parol contract has been made agreeing to issue such policy, and, in case, further, that a loss has actually occurred after the execution of the parol contract, an action may be sustained for the failure to issue the policy. In all such cases, however, the damages recovered have been for the loss sustained just as though a policy had in fact issued. (See Hicks v. Assur. Co. (N. Y.), 56 N. E., 743; Humphrey v. Ins. Co., 12 Fed. Cases, No. 6874.)\\nUnder the averments of the amended petition the action is an action upon the policy as if issued. But the plaintiff has suffered no loss against which the policy insured him; therefore, he has sustained no damages which can be recovered. He had at all times a clear and specific contract of insurance which was applicable to him and which insured his life in the same manner as if the policy had actually issued. Now, when seven years have expired, with but a single payment of premium, with the policy long since, under the terms pleaded, lapsed, the plaintiff comes into court without having suffered any loss whatever and brings not an action for specific performance to compel us to give him his evidence of his contract, but with an action for damages when he has sustained none, since we had carried his risk in as broad and ample a manner as we had agreed and were at all times during the period covered by the payments so far made bound to stand responsible for a loss sustained within the policy. And by his silence he admits that the demands which he had made upon us for a policy were made just before bringing his action, seven years after the parol contract of insurance, when he had failed to make any of the annual payments required under the terms of the agreement, and likewise by his silence admits that his demand for a return of his premiums paid was made just before the bringing of the action. And this without any averment that the company in carrying his risk had failed to earn the premium paid. By this silence the plaintiff admits that the full premium paid had been earned by the company in carrying plaintiff\\u2019s risks. The whole failure alleged against the defendant was a failure to give to the plaintiff the written evidences of the contract between the parties, the contract itself being at all times in full force and available to the plaintiff as broadly as if the written evidences had been delivered to him. Moreover, in this case, even if the plaintiff had suffered a loss, it is not averred that there was any difficulty whatever in proving the terms of this contract. Indeed, plaintiff sets forth the contract very explicitly and is himself a witness capable of proving its terms, and it is not shown that the defendant ever denied these terms. Therefore, even if the plaintiff had suffered loss, he would, so far as this petition discloses, have had no difficulty in requiring us to make good the loss, no difficulty in proving very clearly his contract. In every aspect of the case, then, as a suit for damages upon the contract or for its breach, within the principles laid down even by the authorities of the plaintiff, there were no damages which he could recover, and hence no cause of action.\\nEven if demand for the policy had been made within a short time after the consummation of the oral agreement, and if upon such demand the defendant failed and refused to deliver the policy, then, under the averments in this petition, if an action could be maintained at all at law when no loss had occurred from such failure to deliver the policy, the damages would be only nominal, because the measure of damages would be in that case the amount of loss sustained by the plaintiff under the policy.\\nThe plaintiff\\u2019s position will not be in any wise improved by any consideration of the principles of rescission. In the absence of an averment that the contract was- upon the plaintiff\\u2019s part rescinded, this court cannot find that it was so rescinded. It is true that the plaintiff avers that at some time not stated, which means seven years after the consummation of the agreement, he demanded the repayment to him of the $454, but this averment does not amount to an averment of rescission \\u2014 first, because it is not shown that he offered to release the defendant from its agreement and burden of carrying his risk; second, because the defendant had already carried his risk, and, so far as the petition shows, had carried it for seven years, although the plaintiff had made but a single one of the premium payments and by his contract, as he sets it forth, had agreed to pay an equal amount annually. There is no averment that the payment of the single premium would carry the risk beyond the first 3'ear, and there is certainly no presumption that it would carry it beyond the seven years. It is certain that the defendant earned something by carrying the risk of the plaintiff, as the petition shows it was carried. It is not averred that the defendant abandoned the contract itself or refused to carry the risk. On the contrary, the averments, as far as they go, are that the risk was still being carried. (Lovell v. Ins. Co., ill U. S., 264.)\\nIf. the case be considered one upon rescission of the contract, there would be nothing more than nominal damages due to the plaintiff, and hence this court should not reverse. (Ins. Co. v. McHugh, 7 Neb., 66; Rumbold v. Ins. Co., 7 Mo. App., 71.)\\nEven if the averments had been sufficient to show that at some unknown time the contract was rescinded or abandoned by the defendant, still with no averment as to time of rescission or abandonment there is no basis for ascertaining how much of the premium paid was actually earned prior to the rescission. Hence, there is no basis for calculating that there is any unearned balance of the premium paid which ought to be repaid to the plaintiff because unearned at the supposed rescission or repudiation of the contract.\\nThe plaintiff could not have recovered costs against the defendant upon a recovery of nominal damages. (Rev. Stat. 1899, Sec. 3790.) But this court, as well as all the other courts in the State, \\u201cmust in every stage of every action disregard an)r error or defect in \\u25a0 the pleadings or proceedings which does not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect.\\u201d And upon this ground it is that this court and other courts under similar codes have refused to reverse when the only matter that could be recovered was nominal damages. (Hecht v. Harrison, 5 Wyo., 279; Elliott\\u2019s App. Proc., Sec. 636; Bacon\\u2019s Abridgement, Title Trial; Jennings v. Loring, 5 Ind., 250; State v. Miller, 5 Blackf., 381; Smith v. Mach. Co., 26 O. St., 562; Hibbard v. W. U. Tel. Co, 33 Wis, 558; Haven v. Mfg. Co, 40 Mich, 286.)\", \"word_count\": \"9855\", \"char_count\": \"56110\", \"text\": \"Potter, Justice.\\nTo the amended petition filed in this action, containing seven causes of action, a general demurrer was sustained, and thereupon, the plaintiff declining to plead further, a judgment was rendered in favor of defendant for costs. Of that judgment the plaintiff complains, and assigns as error the order sustaining the demurrer, and the rendition of judgment for defendant. If no error was committed in sustaining the demurrer, there is no error in the judgment. The demurrer being general to the entire petition, it follows that if any one of the several causes of action is sufficient, the demurrer should have been overruled.\\nThe first cause of action sets out that in the months of February, March, April and May, 1896, the defendant was engaged in the general life insurance business as a life insurance company, and that A. B. Ragsdale and H. H. Wright were the authorized general agents of the defendant to solicit contracts of insurance in this State, to make contracts for policies of insurance, and to receive and receipt for money and premiums thereon, and generally to transact defendant's business in Wyoming. That on or about February 27, 1896, the defendant and said Ragsdale and Wright, as its agents, at Uinta County, in this State, solicited the plaintiff to contract for a policy of insurance on his life with said defendant company in the sum of ten thousand dollars; said defendant and said Ragsdale and Wright representing to plaintiff that defendant greatly desired to have the plaintiff to become a patron of defendant company, and to take out a policy on his life in said company; and further representing that defendant intended making a general canvass among plaintiff's neighbors and friends, to secure contracts of life insurance, and it would aid and facilitate defendant in securing such contracts to have the name of plaintiff as one of its patrons.\\n\\\"That in consideration that the plaintiff would contract with the defendant and with the said Ragsdale and Wright, as the agents of the said defendant, for a policy of insurance with the defendant company in the sum of ten thousand dollars, and would then and there make, execute and deliver to the defendant and the said Ragsdale and Wright, as the agents of the said defendant, the plaintiff's promissory note in the sum of $454, payable in sixty-five days thereafter, in payment of the first annual premium on such ^policy of insurance, then and'thereupon the defendant would issue to the plaintiff as soon as said plaintiff should pass the necessary medical examination, and within sixty-five days from and after the said 27th day of February, 1896, and before said promissory note should become due and payable, a specialty favorable life insurance policy in the sum of ten thousand dollars, which said policy of insurance, the defendant and the said Ragsdale and Wright, as the agents of the defendant, in consideration of the premises, then and there stated, promised and represented to the plaintiff should contain, among other stipulations, promises and agreements on the part of the said defendant company, the following' provisions, to-wit:\\n\\\"a. That if the plaintiff should live ten years and should pay to the defendant each year the sum of $454, plaintiff should, at the end of the ten-year period, have the right and option to demand of the defendant, and the defendant would pay him the full sum of ten thousand dollars in cash, or, if the plaintiff preferred, he should have the right to leave said sum of ten thousand dollars with the defendant and receive from the defendant annualty the legal interest thereon until such time as plaintiff wished to draw the same from defendant in cash.\\n\\\"b. That if plaintiff should not live ten years, but should each year until his death pay the said annual premium of $454 to the defendant, then and in that event the said sum of ten thousand dollars should be paid to the surviving wife of plaintiff in installments of five hundred dollars per j^ear.\\n\\\"c. That if plaintiff should pay to the defendant the annual premium of $454 for three years and should be unable to pay further or become dissatisfied, plaintiff should then have the right to demand and would receive from the defendant the premiums paid by him to the defendant company in full without interest.\\\"\\nThat said Ragsdale and Wright represented themselves as agents, to have authority to malee such specially favorable contract for said policy of insurance, on behalf of the defendant ; and the plaintiff, relying upon said representations and promises, and on the integrity and honesty of defendant and said agents, made, executed and delivered to said Rags-dale and Wright, as the agents of defendant, his promissory note for $454, payable to plaintiff's order in sixty-five days thereafter, and, at the request of said agents, endorsed the same in blank, and delivered it to Ragsdale and Wright as defendant's agents, in full payment and satisfaction of the first annual premium upon said policy of insurance. \\\"And said defendant and said agents, on the part of the defendant, then and there represented and promised to the plaintiff that said promissory note should not be sold, transferred or negotiated by the defendant or the said agents before maturity, but should be held by and kept in the possession of said defendant until said special policy of insurance should be written and delivered by the defendant to the plaintiff and should be by him found in all respects satisfactory to him, and in conformity to the said parol promises made by the defendant and its said agents, and should be by the plaintiff approved and accepted.\\\"\\n\\\"That in the execution and delivery of the foregoing promissory note said contract for said policy of insurance between the plaintiff and the defendant was, upon the part \\u2022of plaintiff, completed, and plaintiff thereby and in all other respects fulfilled his obligations, promises and agreements as to said policy of insurance, and passed said medical examination; but that the defendant, in disregard of its promises and agreements by it made as aforesaid, has failed and neglected, and still fails and neglects, to issue to the plaintiff said policy of insurance, though often requested so to do by the plaintiff.\\\"\\nThat said Ragsdale and Wright, as agents of defendant, in disregard and violation of said promises and contract for said policy of insurance, did, on or about March 1, 1896, sell and discount said note to North & Stone, bankers at-Evans-ton, Wyoming, and paid the proceeds thereof to the defendant, and that thereafter said North & Stone, claiming to be innocent purchasers of said note for value before maturity, made demand upon plaintiff for payment thereof, and plaintiff paid them the said sum of $454 under protest.\\nThat plaintiff frequently made demand upon defendant that it issue to him said policy of insurance, but it has failed and neglected so to do; that thereupon plaintiff demanded the return of the said sum of $454 paid by him for said policy of insurance, but defendant has refused and neglected to return the same to plaintiff's damage in the sum of $454 and interest thereon from February 27, 1896. A subsequent paragraph alleges, by way of special damages, that certain expenses were incurred by plaintiff for court costs and attorney fees, -loss of time and mental annoyance; and the prayer is for the recover}'- of- $2,000, and costs of suit.\\nThe other causes of action are based upon similar claims held by other parties against the defendant company, and assigned to plaintiff. The allegations as to those causes of action are substantially the same as the first above set out. There are some slight exceptions. For instance, the second cause of action is founded upon the claim of one George Finch, whose note was for $438, given at the same time as the note of plaintiff, to mature October 1, 1896; and in his case also it is alleged that the policy was agreed to be issued before the maturity of the note, and was agreed to be held and not negotiated until the delivery and acceptance of the policy. In that cause of action the time when said Finch submitted to a medical examination is stated as having occurred in the month of March, 1896, and said examination is alleged to have been satisfactorily passed by him. If, therefore, the failure to allege in the first cause of action the date of plaintiff's medical examination is material, which we'do not decide, the defect, if any, does not appear in the second cause of action; and the latter contains substantially all the averments above set out as contained in the first cause of action. In the sixth and seventh causes of action it is alleged that plaintiff's assignors therein named paid the premium in cash. We think it will be unnecessary to consider whether that fact will make any difference in regard to the right of recovery. Those causes of action are more concisely stated. It is alleged that said agents solicited plaintiff's assignor, to insure his life with defendant company, and to make a parol contract for a policy of insurance, and that the agents represented that defendant was prep\\u00e1red to issue a policy to said assignor, specially favorable to him, which should contain a certain provision, set out in the petition, among other provisions not set out; and that the first annual premium was paid in cash, and the medical examination was passed; but that defendant has failed and neglected to issue the policy. The damage alleged in the sixth cause of action is $500, while the premium paid was $193; and in the seventh cause of action the premium paid was $211, and damages are claimed in the sum of $500.\\nThe theory of the petition seems to be that defendant is liable, in damages for the breach of its contract to issue the policy of insurance. But if the measure of damages, assuming that the right of recovery is shown, should be held limited to the amount of the premium paid, or even a proportionate part of it, that would not warrant the sustaining of a demurrer, provided sufficient facts are set out to constitute a cause of action for the recovery of some amount. Notwithstanding the evident theory of the pleader, the petition would seem sufficient to' support a judgment for money had and received, if sufficient for any purpose. Therefore, we do not deem it very material, upon the demurrer, to consider whether the amount sued for is recoverable, if at all, as damages for breach of contract, or as money had and received. Nor is it necessary to consider the measure of damages, or the amount recoverable, unless, indeed, it should appear, as contended by counsel for defendant in error, that the only right shown, if any, is to recover nominal damages merely; in which event, it is insisted, the judgment ought not to be reversed. In plaintiff's brief it seems to be admitted that the measure of damages is the premium paid.\\nPlaintiff's counsel maintain that whether the petition sets up a parol contract of insurance, or a contract to issue a certain kind of policy, is immaterial, but that a suit for specific performance or for damages was open to the plaintiff. He contends that parol contracts of insurance are valid, and that a policy is only evidence of the contract, which may exist in parol, citing: Ellis v. Ins. Co., 50 N. Y., 402; Newark Mach. Co. v. Kenton Ins. Co., 50 O. St., 549; Ruggles v. Ins. Co., 114 N. Y., 415; Insurance Co. v. Shaw, 94 U. S., 574; Ins. Co. v. Ins. Co., 7 Bush, 81; 3 Am. R., 301; Angell v. Ins. Co., 59 N. Y., 171; 17 Am. R., 322; Humphrey v. Ins. Co., 15 Blatch., 35; 12 F. Cas., No. 6874.\\nCounsel for defendant do not dispute the principle laid down by those authorities, but rely thereon, contending that, as in the cases cited, the insurance was held to be in force, notwithstanding the policy had not issued, and the insured entitled to recover upon such parol contract for the loss which had been insured against and had occurred; so, in this case, the contract was in force, and had the death of the insured occurred while so in force, recovery might have been had regardless of the non-issuance or non-delivery of the policy. Hence, it is argued that, upon the allegations of the petition, the plaintiff and his assignors were insured, the company had carried the risk of their deaths respectively, and no recovery is permissible for a return of the premium paid in the absence of a rescission of the contract, or a showing of absolute abandonment on the part of defendant; and that such rescission, or abandonment, and demand for return of the premium must have occurred before the premium had been earned. It is insisted that the petition, failing to show that the premium paid entitled the plaintiff or his assignors to insurance beyond the year for which it was paid, and to show a rescission or abandonment and demand within such year, does not present any right of recovery, since for all that appears the company fully earned the premium by carrying the risk agreed on for the full period required under the contract by the amount of premium paid. Defendant's counsel, therefore, treat the action as an action upon the contract to the same effect as if the policy had issued, and as no loss was sustained against which the contract insured, it is urged that no damages can be recovered; and that it would be impossible to aver a damage from a failure to have the evidence of his contract, because no loss covered by the contract was sustained, and the policy was never needed to enforce his contract.\\nCounsel further argue that had demand been made shortly after the consummation of the oral agreement, and if, upon such demand, the defendant failed and refused to deliver the policy, then, under the present averments, no loss having occurred, the damages would be merely nominal.\\nThe argument presents a question of considerable nicety. The great weight of authority sustains the proposition upon which counsel are agreed, that an oral contract of insurance may be valid, and if completed by a meeting of the minds of the parties, the company will be liable for a loss occurring before the issuance and delivery of the policy. That result follows in case it is understood that the insurance is to date from the oral agreement. But it is not unusual for applications for insurance, particularly life insurance, to provide that the insurance shall not take effect until the delivery of the policy; and in such cases it is reasonably held that no risk is assumed until such delivery. Quite frequently it is provided in the application for life insurance, and occasionally for insurance against loss of property by fire, that the insurance shall not become effective until the application shall be accepted by the home office or a principal officer of the company, or the application is made subject to a provision for such acceptance, and sometimes the agent has authority, and exercises it, to provide that, pending acceptance or rejection, the applicant shall be considered insured. Where acceptance or delivery is necessary to put the insurance into effect there will, of course, be no risk until the things precedent agreed upon shall happen. Instances are to be found where the payment of premium is made a condition precedent to the consummation of the insurance contract, or to the delivery of the policy.\\nThe rule is' not, therefore, that every contract for insurance will authorize recovery in case of loss in the absence of a policy, independent of other agreements or conditions. The agreement itself, or the application, may show that the contract was not one for present insurance, but for insurance to take effect in the future, depending upon some condition, such as the acceptance of the application, or delivery of the policy, or upon the performance of some act, such as the pajanent of premium.\\nAgain, it is often a nice question whether the negotiations of the parties have resulted in a complete contract-\\u2014 whether there has been such a meeting of minds as to render nothing else necessary to completion of the agreement. And the difficulty usually encountered, in attempting to recover for a loss occurring in the absence of a policy of insurance, has been to establish the making of a complete and binding contract, as to which the policy would be but a mere memorial covering an agreement already fully and completely entered into. This has generally been an easier matter, in cases of fire insurance, than in insurance upon, life, on account of the usual larger authority of fire insurance agents, the custom of such agents to issue policies already in their possession, and the greater facility with which such business is ordinarily conducted.\\nIt is probably safe to say that it is 'a matter of common knowledge that policies of life insurance aire generally written at the home office, or at least by some principal officer, which also usually has the right of acceptance or rejection of the risk; and there is nothing in the petition in this case to show a different custom as to defendant. Indeed, the business is shown to have been transacted with agents, and the policy was thereafter to be written, and it is not to be assumed from any averment of the petition, we think, that the agents themselves were to write and issue the policies. Under the code, pleadings are to be liberally construed, and the common law rule that they are to be construed most strongly against the pleader is not applicable. (Cone v. Ivinson, 4 Wyo., 203.) Moreover, the petition does not charge any such authority in the agents, but, if anything, rather negatives it. It is alleged that the agents were authorized to solicit contracts of insurance, to make contracts for policies of insurance, and to receive and receipt for money and premiums thereon, on behalf of defendant. The added averment that they were authorized generally to transact defendant's business in Wyoming might mean much or little under different circumstances. We think, in its connection, it is not to be construed as averring their authority to write and issue policies.\\nIt is not entirely clear that, because an action may be brought upon an oral contract for insurance for a loss occurring before the issuance of the policy, an action may not be maintainable to recover the premium, or at least a proportionate part of it, if no such loss has occurred, upon the failure or refusal of the company to write and deliver the policy as agreed, or that in every such case the damage can be only nominal. That such is the law has been denied in a few cases where the direct question has been to some extent involved.\\nIn Lawrence v. Griswold, 30 Mich., 410, suit was brought upon a premium note for life insurance. The note provided that the policy should be void unless the note was paid at maturity. It was given for three months to the superintendent of agencies of the company. Defendant testified that he had never received any policy, and had received no consideration for the note. It seems that he endeavored to show that, as a part of the consideration of the note, he was to receive an appointment as agent for the company. That defense was ruled out. The plaintiff's testimony was to the effect that the policy had been sent to the company's agent, the payee of the note, and he had sent it, with the note, to another party to be delivered on payment of the note. With reference to the point here made by defendant in error, Mr. justice Christiancy, in delivering the unanimous opinion of the court, said: \\\"If (under the agreement stated in the receipt) the payment of the premium by defendant below would have rendered the company liable for the amount insured, in case of death, as assumed by the court, but which we do not think entirely clear, in an \\u2022 action at law, at least; still, if the evidence shows, as we think it tended to show here, that what the defendant contracted for was a policy of insurance, instead of any such resulting liability, he was entitled to have what he contracted for, and was not bound to accept any such resulting liability as a substitute for the policy. A policy might be much better and more available to him than any such liability, to be shown only by evidence of all the, circumstances. He might be able to assign a policy as security for a loan, but such doubtful or resulting liability would not be worth as much for this purpose, if for any other, as the policy itself; and the court erred in treating it as of equal value to the defendant, and denying to him the right of insisting upon what he had contracted for.\\\" A judgment for the plaintiff on the note was reversed. The receipt referred to in the opinion acknowledged the receipt of the premium. There was a balance over and above the note and some cash paid, which balance, the receipt stated, was to be paid on delivery of the policy; and it was also recited therein that the policy was to be binding when the application is accepted by the company and policy issued, and if no policy is written said note and money to be returned.\\nIn Collier v. Bedell, 39 Hun., 238, suit was brought to recover an insurance premium paid to the defendant as agent of an insurance company. Plaintiff contended that he had never received the policy or renewal receipt. Defendant insisted, among other things, that, as he was the agent of the company, his receipt of the money and the parol agreement to insure, bound the company, and, therefore, that the plaintiff was, in fact, insured, although he never received any policy or renewal receipt; and hence he could not recover, citing: Ellis v. Ins. Co., 50 N. Y., 402. The court said: \\\"Now, it may be true that, if a fire had occurred and the plaintiff had chosen to insist upon the facts of verbal agreement and payment, he might have recovered, even though the defendant had never delivered the policy or a renewal receipt. But he had a right to insist that the defendant should procure for him and deliver to him a policy, or it might be a renewal receipt. He was not obliged to rest on the verbal agreement when he had bargained for something more. He was left in uncertainty and insecurity, with no safe evidence on which to rely. The possession of the policy or the renewal receipt was of value. And the plaintiff ought, if his story be true, to recover what he paid.\\\"\\nIn a recent case decided by the Supreme Court of Iowa, the plaintiff sued to recover from a life insurance company the amount of several notes given by him and his assignors in payment of the first premium upon certain policies of life insurance applied for by the makers of the notes respectively. In the case of the plaintiff and one of his assignors, policies had been delivered and returned, and the question was whether there had been an acceptance thereof by the insured. In the case of the other assignor of plaintiff, it was alleged that no policy was ever delivered to him. In regard to the cause of action based upon the note of that party, the discussion in the opinion is meager, so far as the question now under consideration is concerned. But it is said by the court as follows:\\n\\\"It will be observed that the issue tendered in the second count of the petition is predicated upon the allegation that there was an entire failure on the part of the defendant company to deliver a policy as applied for, and in payment of which the note was given. Counsel for appellant (the company) does not question the right of plaintiff to recover upon proof of tjie matter alleged in said count.\\\"\\nHowever, it appeared by the evidence that such a policy had in fact been issued as applied for and sent by mail, but the applicant refused to receive it from the postof\\u00f1ce and ordered it sent back. The court charged the jury upon this count that, if the company had not delivered the policy in a reasonable time, the applicant was not bound to receive it when it was tendered, and, if he did not accept the tendered policy, recovery could be had by the plaintiff for the amount of the note of such applicant. This instruction was held to be erroneous on the ground that it was wholly foreign to the issues presented by the pleadings; since a failure to deliver was the only matter complained of, delivery was in fact made and the subject of unreasonable delay was not suggested except by the instruction. (Armstrong v. Mutual Life Ins. Co., 96 N. W., 954.)\\nNow, it is true that actions to recover in case of loss are maintainable where an application for insurance has been accepted or an agreement to insure has been entered into, although no policy may have been delivered. While it is sometimes said that the action is in reality upon the con tract of insurance, the same as though it had been brought upon an executed policy (Fireman's Ins. Co. v. Kuessner, 164 Ill., 275), in other cases it has been held that the action is properly brought upon the agreement to insure, the damages recoverable in case of loss being the same as if based upon a loss under the policy. In other words, where loss has occurred by fire, in case of fire insurance, or where death has occurred, if it be an agreement for life insurance, the applicant for the insurance or the beneficiary may, upon showing a breach of the contract to insure by failure to deliver the policy, recover as damages the same amount that would have been recoverable upon the policy, had it been issued. And it is usually held, where the company has failed to issue a policy, that recovery does not depend upon making proofs of loss in the manner and at the time which would have bee'n required under the policy. (Campbell v. Ins. Co., 73 Wis., 100; Commercial Ins. Co. v. Morris, 105 Ala., 498; Ellis v. Ins. Co., 50 N. Y., 402; Humphrey v. Ins. Co., 15 Blatch., 504, 12 Fed. Cas. No. 6875; 1 Joyce on Ins., Sec. 38.) This general principle does not seem to be opposed by the case of Hicks v. British Am. Assur. Co., 56 N. E., 743, cited by counsel for defendant in error. The rule laid down in that case was based entirely upon a consideration of the standard policy, which was required by statute to be used in all cases of fire insurance; and in consequence thereof, it was held that a parol contract called for such a policy, whose terms were established by law. However, thre\\u00e9 of the justices dissented, holding that, notwithstanding the legislative provisions for the standard policy, where none had been issued, and loss occurred, proofs of loss as required by such policy were not necessary as a condition precedent to recovery.\\nAgain, it is well established that a parol agreement to insure may be specifically enforced in a court of equity by requiring the issuance of the policy as agreed, either before or after loss; and that, in such a case, the court, having acquired jurisdiction, will afford full relief by awarding- proper damages in case of loss. (Taylor v. Ins. Co., 9 How. (U. S.), 390; Commercial Fire Ins Co. v. Morris, 105 Ala., 498; Commercial Mutual, &c., Ins. Co. v. Union Mutual, &c., Ins. Co., 19 How., 318; Woodby v. Ins. Co., 31 Gratt., 362; 16 Ency. L., 853.) It was said in Commercial, &c., Co. v. Morris, supra, that there would be no necessity for courts of equity to entertain jurisdiction to enforce specific performance if an agreement to insure was in legal effect the same as a contract of insurance.\\nIt is also held that where a company delivers a policy different from that contracted for, the applicant may refuse to accept it, and sue to recover the premium paid. (LaMarche v. Ins. Co., 126 Cal., 498; 58 Pac., 1053; Mutual Life Ins. Co. v. Gorman (Ky.), 40 S. W., 571; Gentry v. Ins. Co., 15 Mo. App., 215; Tifft v. Ins. Co., 6 Lans. (N. Y.), 198.) And when a contract of insurance is void ab initio, or where the risk never attached, the premium paid may be recovered back as money had and received. (Waller v. Northern Assurance Co., 64 Ia., 101, and cases cited.)\\nThere is a long line of decisions to the effect that if an insurer wrongfully refuses to accept a premium when it is tendered, or wrongfully declares a life policy forfeited and refuses further to recognize it as an existing contract, such insurer is liable to the insured or the policy holder for the full amount of premiums paid, notwithstanding that the insurance may have been in force for some time. (Am. Life Ins. Co. v. McAden, 109 Pa. St., 399; 3 Sutherland on Damages (3d Ed.), Sec. 838, and cases cited.) But a different rule is maintained by other courts, viz: that the insured is entitled to recover, in such cases, what is known in the life insurance business as-the value of his policy; thus allowing- him only the amount in excess of the value of the insurance earned by the company in carrying the risk. (Lovell v. Ins. Co., 111 U. S., 264.) The author of Sutherland on Damages considers this the more reasonable rule.\\nIf there is any substantial foundation for a suit in equity for specific performance to enforce the issuance and deliver}- of the policy before, as well as after, a loss insured against, it would seem to necessarily follow that an action at law would lie under the same circumstances for the recovery of whatever damages may have accrued on account of the failure to issue and deliver the policy. And, in view of the various elements which ordinarily aid in determining- the rate of annual premium upon a life insurance contract, we think it might be difficult upon the averments in this case to find justification for holding that nothing but nominal damages could be recovered. It appears that the entire premium was to be paid in the course of ten years, although plaintiff's life might be prolonged beyond that period. It is not clear, therefore, that the court ought arbitrarily to conclude that the policy would possess no value after the year for which the premium was paid.\\nThe time of the maturity of the note is stated in the petition, and it is alleged that the policy was agreed to be delivered before such maturity; and that it was agreed that the company should not sell the note before maturity, but should hold it until the policy should be written and delivered, and approved and accepted by plaintiff. It is also alleged that they did sell the note and appropriate the proceeds, and that the policy was never issued or delivered. In such case, it is doubtful, to say the least, if a demand for the policy was necessary, the time for delivery being fixed by agreement. (Western Mass. Ins. Co. v. Duffey, 2 Kan., 347.) Demand, however, is alleged.. It is urged that, as time of demand is not stated, it must be presumed to have occurred immediately before filing the petition; but the petition before us is an amended petition, and there is nothing in the record to show when the suit was instituted, or the original petition filed. If such' a presumption attaches at all, it would refer to the commencement of suit, rather than to the time of filing an amended petition. If essential to defendant's case, it may require the petition in this respect to be made more definite and certain.\\nThe plaintiff having executed and delivered a note to defendant's agents in consideration of an agreement that the defendant would issue and deliver to plaintiff a life insurance policy within a stated time, and the defendant having received and appropriated the proceeds of the note, and failed and neglected to deliver the policy, the plaintiff being without fault, we think, upon reason and authority, that the plaintiff would be entitled to consider the contract as rescinded by the defendant, and recover the sum advanced as money had and received. (Chitty on Contracts, 689; Randlet v. Herren, 20 N. H., 102; Nash v. Towne, 5 Wall., 689; Carter v. Carter, 14 Pick., 424; Armstrong v. Mutual L. Ins. Co., 96 N. W., 994; Lawrence v. Griswold, 30 Mich., 410; Collier v. Bedell, 39 Hun., 238; Stillwell v. Ins. Co., 83 Mo. App., 215.) Under the contract pleaded, the note was to be held until the delivery and acceptance of the policy. This event never occurred, if the averments be true. Chief Justice Shaw said, in Carter v. Carter, supra, that it is well settled that where one receives money to hold upon a condition, and the condition does not happen, whether through his own default or otherwise, or for a special purpose, and that purpose is not accomplished, the party receiving cannot conscientiously retain the money, and thenceforth holds it in trust for the party who paid it, and is bound ex aequo et bono, to repay it on demand.\\nShould there be any reason to doubt the correctness of this view of the case, there is another consideration that leads to the same result and clearly requires a reversal of the judgment'. We are unable to assent to the proposition that the allegations of the petition show a completed contract of insurance, so .that the defendant would have been liable, had death occurred during the period covered by the premium paid, or within any period, to pay the amount of the insurance to the beneficiary. And hence there is no showing- that the plaintiff had received any benefit from the contract. In general, the principle is well settled that where the parties to a contract intend that it shall be closed and consummated prior to the formal signing of a written draft, the terms having been mutual^ understood and agreed upon, the parties will be bound by the contract actually made, although it be not reduced to writing; but, on the other hand, if the parties do not intend to close the contract until it shall be fully expressed in a written instrument, properly attested, then there will be no completed contract until the agreement shall be put into writing and signed. The Supreme Court of Maine state the principle briefly as follows: \\\"If the written draft is viewed by the parties merely as a convenient memorial or record of their previous contract, its absence does not affect the binding force of the contract; if, however, it is viewed as the consummation of the negotiation, there is no contract until the written draft is finally signed.\\\" And that court mentions some circumstances as helpful in determining which view is entertained in a particular case; such as whether the contract is one usually put in writing; whether there are few or many details; whether the amount involved is large or small; whether it requires a formal writing for a full expression of the covenants and promises; and whether the negotiations themselves indicate that a written draft is contemplated as the final conclusion of the negotiations. (Steamship Co. v. Swift, 86 Me., 248; 9 Cyc., 280-282; Hodges v. Sublett, 91 Ala., 588; Sanders v. Pottlitzer, 144 N. Y., 209; Spinney v. Downing (Cal.), 41 Pac., 797.)\\nThis general principle has been frequently applied to insurance contracts. From the man)^ cases denying the consummation of such a contract, upon particular facts, in the absence of a delivery or acceptance of the policy, we cite the following, as illustrating the application of the principle, and somewhat persuasive upon the facts in this case: Farmers', &c., Ins. Co. v. Graham, 50 Neb., 818; Dickerson's Admr. v. Provident, &c., Life Assur. Soc. (Ky.), 52 S. W., 825; Harmickell v. N. Y. Life Ins. Co., 111 N. Y., 390; Insurance Co. v. Young's admr., 23 Wall., 85; McCully's Admr. v. Phoenix Mut. Life Ins. Co., 18 W. Va., 782; Commercial Fire Ins. Co. v. Morris, 105 Ala., 498; Rogers v. Ins. Co., 41 Conn., 97; Stillwell v. Ins. Co., 83 Mo. App., 215.\\nWhat are the allegations of the petition? In the first place, it is to be observed that the petition nowhere states that there was any agreement that the insurance would be in force before the issuance of a policy; nor is there any averment showing what, if any, agreement there was as to the time when the insurance should take effect. It is hardly to be assumed that it was understood to run from the date of the oral agreement, since the applicant was required thereafter to submit to a medical examination; and it was not then known whether he would be found to be an acceptable risk.\\nBut the controlling- circumstance in this respect is the fact, as alleged, that as a part of the oral contract, it was agreed that the premium note should not be transferred or negotiated, but should remain in the possession of the defendant until the policy should be written and delivered, found to be satisfactory, and approved and accepted. Can there be anything- clearer, if this averment be true, than that the plaintiff declined to rely upon the oral negotiations or promises, and insisted that before the appropriation of the premium by the company, he should receive and accept the policy; and that he should find it to conform to the promises made by the agents. The conclusion seems irresistible that the plaintiff refused to be bound until the promises of the company's agents should be confirmed by the policy itself; and if he was not-bound, the company was not. (23 Wall., 85.)\\nThere can be no doubt but that a life insurance company has the absolute right to insist that it shall accept an application and issue a policy before it shall be bound as an insurer; neither can there be any doubt of the right of one desiring or applying for insurance to require a delivery to him, and acceptance by him of the policy before he will be bound.\\nIt is true a negotiable note was executed for the first year's premium; but it was so executed and delivered upon condition that the representations of the agent would be confirmed by and expressed in a policy to be delivered to and accepted by the maker.\\nIt is to be said that in this country parties do not customarily procure life insurance for a limited period of time. These parties were not intending to contract for an insurance upon their lives for a few months or a year; nor were the)' expecting that such insurance was to be based solely upon their oral negotiations with the agents. It is usual, if not universal, for a contract of life insurance to be at some time expressed in a written policy to be held by the insured or the beneficiary. A reasonable time is ordinarily required for the preparation and delivery of the policy; and it may happen in occasional instances that death occurs before the policy can be written and transmitted, and that under the stipulations of the parties the insurer will be liable.\\nIn this case, however, a- time for delivery of the policy was stipulated; and provision was made for its acceptance before the right of the company to the premium should attach. We think that, had death occurred, the proposition could not have been successfully maintained upon the present allegations that there was a completed contract of insurance so as to bind the company, notwithstanding the failure to deliver the policy; at least as to plaintiff and those of his assignors who were in the same position.\\nIn the case of Dickerson's Admr. v. Provident, &c., Soc., supra, suit was brought to compel the delivery of a policy of life insurance on the life of the decedent, and to recover the amount thereof. It appears that when the application for insurance was made the decedent was undecided as to whether he would take it, and it was understood between himself and the agent that he could finally decide when the policy came, if his application was approved and accepted. It was accepted and a policy issued and sent to the agent, being received by the latter before the death of the decedent. But it was never otherwise delivered. It was held that, as the decedent was under no obligation to take the policy when it came, there was no meeting of minds that is essential to the formation of every contract.\\nIn Harnickell v. N. Y. Life Ins. Co., supra, the agent of defendant entered into an agreement with the plaintiff by which two policies of inusrance subsequently issued by defendant were to be accepted by plaintiff, only upon condition that certain other policies then delivered by plaintiff to the agent should be surrendered by him to the issuing companies, and their surrender value in' cash paid to him or paid-up policies given in exchange therefor, in either case in amounts satisfactory to plaintiff. The agent failed to make satisfactory arrangements as to the surrender of the other policies; and the action was brought to have it adjudged that he had the right to return the policies issued by defendant, and to obtain the surrender to him of certain notes and a check given by him. His right was sustained. The court said that an individual may refuse to be bound by a policy of insurance until he has absolutely received and accepted it.\\nThe demurrer should have been overruled. For the error committed in sustaining it, the judgment will be reversed, and the cause remanded with directions to the District Court to overrule the demurrer. Reversed.\\nCorn, C. J., concurs.\\nKnxgi-it, J., did not sit.\"}"