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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.\"}"
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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.\"}"
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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.\"}"
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diff --git a/wyo/10346104.json b/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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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diff --git a/wyo/10369650.json b/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).\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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diff --git a/wyo/10388139.json b/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.\"}"
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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.\"}"
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diff --git a/wyo/10392019.json b/wyo/10392019.json
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+"{\"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.\"}"
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diff --git a/wyo/10397106.json b/wyo/10397106.json
new file mode 100644
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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.\"}"
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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.\"}"
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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.\\\"\"}"
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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.\\\"\"}"
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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.\"}"
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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).\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\\\"\"}"
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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).\"}"
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diff --git a/wyo/10476210.json b/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.\"}"
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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.\"}"
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diff --git a/wyo/10492851.json b/wyo/10492851.json
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@@ -0,0 +1 @@
+"{\"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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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diff --git a/wyo/10573194.json b/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.\"}"
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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.\"}"
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diff --git a/wyo/10579377.json b/wyo/10579377.json
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index 0000000000000000000000000000000000000000..115d3c6d1b850b7f0f0f5f392c0394f2b3ed1868
--- /dev/null
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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.\"}"
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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.\"}"
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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.\"}"
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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.).\"}"
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diff --git a/wyo/10587939.json b/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.\"}"
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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.\"}"
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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.\"}"
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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).\"}"
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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).\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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+"{\"id\": \"11380486\", \"name\": \"Francis B. AHEARN, Appellant (Plaintiff), v. James D. HOLLON, Jane N. Hollon and J. Hollon Enterprises, LLC, Appellees (Defendants)\", \"name_abbreviation\": \"Ahearn v. Hollon\", \"decision_date\": \"2002-08-26\", \"docket_number\": \"No. 01-150\", \"first_page\": \"87\", \"last_page\": \"94\", \"citations\": \"53 P.3d 87\", \"volume\": \"53\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T20:12:30.634860+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.\", \"parties\": \"Francis B. AHEARN, Appellant (Plaintiff), v. James D. HOLLON, Jane N. Hollon and J. Hollon Enterprises, LLC, Appellees (Defendants).\", \"head_matter\": \"2002 WY 125\\nFrancis B. AHEARN, Appellant (Plaintiff), v. James D. HOLLON, Jane N. Hollon and J. Hollon Enterprises, LLC, Appellees (Defendants).\\nNo. 01-150.\\nSupreme Court of Wyoming.\\nAug. 26, 2002.\\nFrancis B. Ahearn, Pro se.\\nH. Rick Hollon, Douglas, WY, Representing Appellee.\\nBefore HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.\\nChief Justice at time of expedited case conference.\", \"word_count\": \"4314\", \"char_count\": \"25602\", \"text\": \"LEHMAN, Justice.\\n[\\u00b6 1] This is an appeal from a judgment of the district court ruling, in part, that appellee J. Hollon Enterprises, LLC. (JHE) had provided the required notice of default to appellant Francis B. Ahearn (Ahearn) concerning a sales contract entered into between those parties; that Ahearn failed to cure his default under such contract; and that JHE was entitled to take possession of the involved premises, including the lot, mobile home, and personal property at issue. We affirm and assess sanctions on appeal.\\nISSUES\\n[\\u00b6 2] Abearn sets forth the following issues on appeal:\\nI. Does a Purchaser under a Contract for Deed have to pay the amount shown on a Notice of Default if the amount shown on the Notice of Default does not conform to the terms of the Contract for Deed?\\nII. Does a Seller under a Contract for Deed have the right to retake possession and control of the premises by force and change the locks of the personal residence of the Buyer without first filing an action in court to do so when the Contract calls for such an action to be filed in the event of an alleged default?\\nJHE phrases the issues on appeal as:\\nI. The District Court did not err in finding that Defendant J. Hollon Enterprises, LLC, provided proper notice of default. II. The District Court did not err in finding that Plaintiff Ahearn had no right to the premises once Plaintiff Ahearn failed to timely eure the default and that Plaintiff wrongfully kept Defendant J. Hollon Enterprises, LLC, out of possession of the same; as well as finding that Defendant J. Hollon Enterprises, LLC, had the right to change the locks.\\nFACTS\\n[\\u00b6 3] On September 26, 1998, Ahearn and JHE entered into a Contract For Deed and Title (\\\"Contract\\\") concerning a lot, mobile home, and personal property. Under the Contract, Ahearn was to pay JHE the amount of $24,000.00 which included a $250.00 earnest money deposit and a $250.00 amount at closing. The remaining $23,500.00 was then to be paid by Ahearn to JHE, plus interest at the rate of ten percent per annum, in 180 equal monthly installments of $252.64 beginning on November 10, 1998, and continuing on the 10th day of each month thereafter until paid in full. Also attached to the Contract was an Amortization Schedule. As a part of this arrangement, Ahearn and JHE established an escrow account at Converse County Bank (eserow agent).\\n[\\u00b6 4] The escrow agent was to hold a copy of the Contract, a Warranty Deed from JHE to Ahearn, a Quit Claim Deed from Ahearn to JHE, and a Certificate of Title to the mobile home. Under the Contract and Escrow Instructions given to the escrow agent, the escrow agent was to deliver all escrow items to Ahearn upon full and complete payment and performance by Ahearn under the Contract. Conversely, the escrow agent, at the option of JHE, was to deliver all escrow items to JHE in the event that Ahearn continued for more than thirty days to remain in default under the Contract after written notice had been given to him.\\n[T5] Ahearn made only two payments. The first payment was in the amount of $255.00 and was credited as of November 10, 1998, with the second payment being made in the amount of $280.00, credited as of December 21, 1998. These two paymients plus the $250.00 earnest money deposit and $250.00 at closing were the only payments made by Ahearn. Since Ahearn did not make the November 1998 payment in the correct amount and Ahearn was late making the December 1998 payment, JHE advised the escrow agent that it would no longer be able to rely on the Amortization Schedule attached to the Contract. Instead, JHE would accept simple interest at ten percent per annum to be figured based upon the actual amount of the payments and the dates those were received.\\n[\\u00b6 6] On July 26, 2000, JHE sent Ahearn a Notice of Default via certified mail, return receipt requested, since Ahearn was then in arrears under the Contract. The Notice of Default indicated, in part, that if Ahearn failed to pay $4,770.44 through the escrow agent within thirty days of the date on the Notice of Default, he would be required to immediately vacate the premise and return possession of the premises to JHE. Ahearn acknowledged receipt of the Notice of Default on August 8, 2000. A copy of the Notice of Default, along with a letter, was also sent to the escrow agent on this date by JHE. In addition, on August 8, 2000, JHE sent Ahearn a letter which enclosed a copy of the Notice of Default via regular mail. This letter explained that the effectiveness of the Notice of Default was not dependent upon Ahearn's acknowledging his receipt of the Notice of Default or upon Ahearn's actual receipt of the Notice of Default. Rather, under the Contract, the Notice of Default was effective as of the date that it was mailed.\\n[\\u00b67] Ahearn failed to cure his default under the Contract or make any additional payments to the escrow agent or otherwise. On August 29, 2000, JHE delivered a Seller's Written Instruction to the escrow agent. This Seller's Written Instruction notified the escrow agent that pursuant to the Contract and Notice of Default, Ahearn had remained in default under the Contract for more than 30 days after written notice of such had been sent by mail to Ahearn. Therefore, the escrow agent was instructed to deliver all es-crowed items to JHE. A copy of this instruction was also sent to Ahearn by JHE. On this date, the escrow agent delivered the es-crowed items to JHE as demanded.\\n[T8] On August 30, 2000, JHE recorded the Quit Claim Deed from Abearn to JHE with the county recorder's office. On August 31, 2000, JHE sent two letters to Ahearn. These letters were identical except one indicated it was being sent certified mail, \\\"return receipt requested,\\\" while the other was sent via regular post. These letters advised Ah-earn that he had failed to timely cure his default under the Contract; that the Seller's Written Instruction had been delivered to the escrow agent; and that the escrow agent had delivered the escrowed items to JHE. These letters also advised that JHE retained title and ownership of the subject property; that the Quit Claim Deed from Ahearn to JHE had been recorded; and that Ahearn's contractual interest in the involved property had been cancelled and terminated. Finally, these letters notified Ahearn that if he had not already vacated the premises, he was required to do so immediately.\\n[T9] On September 80, 2000, Jane Hollon on behalf of JHE, went to the premises with the intent of cleaning it, changing the locks on the mobile home, and marketing it for sale. Ms. Hollon believed at that time that Ahearn had vacated the property as required. When Ms. Hollon arrived, she noticed that Abearn's personal belongings still remained within the mobile home, thus she did not enter the mobile home. Ms. Hollon had a locksmith change the locks on the mobile home and left a handwritten note on the door which advised Ahearn that she had changed the locks and that if he needed to get his personal belongings, he should contact JHE's realtor. Ms. Hollon then left the premises but ensured that the doors to the mobile home were locked.\\n[\\u00b6 10] Later that day, the realtor for JHE spoke to Ahearn at the mobile home. Ms. Hollon then returned to the trailer and spoke with Ahearn. During this conversation, it was agreed between Ahearn and JHE that Ahearn would vacate the premises by October 7, 2000. On October 2, 2000, JHE sent Abearn two letters, one via certified mail return receipt requested and the other via regular mail, which restated the October 7, 2000 deadline. Ahearn acknowledged receipt of the certified letter sent to him on October 8, 2000.\\n[\\u00b611] On October 8, 2000, Ahearn's adult daughter, who resided within the premises with Ahearn, contacted JHE by telephone and requested that the vacate deadline be extended. On October 4, 2000, JHE agreed to extend the deadline until October 29, 2000, and that Ahearn would pay to JHE the amount of $250.00 for rent for the three-week extension period. On this same date, JHE mailed Ahearn and his daughter letters confirming this arrangement.\\n[\\u00b6 12] Further, on October 4, 2000, Ab-earn telephoned James D. Hollon on behalf of JHE. Ahearn advised Mr. Hollon that he wanted to get together. Mr. Hollon asked what Ahearn wanted to discuss, and Ahearn replied that he would send Mr. Hollon a letter. Shortly, thereafter, JHE received a letter from Ahearn dated October 4, 2000. This letter acknowledged that the $250.00 being sent was to be used as rent until the end of October and would not be applied to amounts owed under the Contract,. Soon after this letter was received by JHE, Mr. Hollon, on behalf of JHE, and Ahearn spoke again via telephone. Ahearn inquired if they could get to together and renegotiate. Mr. Hollon declined, indicating that he was not interested in renegotiating and that JHE would stick to those terms that had been previously agreed upon.\\n[\\u00b6 13] Ahearn did not vacate the premises by October 29, 2000; instead, he filed his complaint in this action on October 25, 2000. On November 21, 2000, JHE filed its answer to Ahearn's complaint and a counterclaim seeking possession of the premises, to eject Ahearn from the property, and damages. On December 29, 2000, JHE filed a second answer to the complaint of Ahearn and refiled its counterclaim.\\n[\\u00b6 14] After a trial was held, the district court entered a judgment which, in part, ruled that JHE had provided the required Notice of Default to Ahearn under the Contract; that Ahearn failed to cure his default under the Contract; and that JHE was entitled to take possession of the subject property. This appeal followed.\\nSTANDARD OF REVIEW\\n[\\u00b6 15] After trial, the district court issued specific findings of fact and conclusions of law. In its recently published case of Hutchings v. Krachun, 2002 WY 98, 10, 49 P.3d 176, 110 (Wyo.2002), this court reiterated our standard of review:\\nThe purpose of specific findings of fact is to inform the appellate court of the underlying facts supporting the trial court's conclusions of law and disposition of the issues. Hopper v. All Pet Animal Clinic, Inc., 861 P.2d 581, 538 (Wyo.1998). While the findings of fact made by a trial court are presumptively correct, we examine all of the properly admissible evidence in the record. Because this court does not weigh the evidence de novo, findings may not be set aside because we would have reached a different result. Rather, the appellant has the burden of persuading the appellate court that the finding is erroneous. Id. See also Maycock v. Maycock, 2001 WY 103, \\u00b6 11, 33 P.3d 1114, \\u00b6 11 (Wyo.2001). Findings of fact are not set aside unless inconsistent with the evidence, clearly erroneous, or contrary to the great weight of the evidence. The definitive test of when a finding of fact is clearly erroneous is when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. A determination that a finding is against the great weight of the evidence means that a finding will be set aside even if supported by substantial evidence. Id.See also Mathis v. Wendling, 962 P.2d 160, 163 (Wyo.1998). Conclusions of law made by the trial court are not binding on this court and are reviewed de novo. Maycock, T 12.\\nDISCUSSION\\nSufficiency of the Notice of Default\\nIn his first issue on appeal, Ahearn asserts that because the amount of the default specified in the Notice of Default was incorrectly stated too high, the Notice of Default did not conform to the Contract and it was, therefore, void and of no effect. Specifically, Ahearn erroncously contends that there could be no operative default until he received proper notice of his default pursuant to the Contract.\\n[\\u00b6 17] In this instance, it is appropriate to apply that reasoning used in the case of Kost v. First Nat'l Bank of Greybull, 684 P.2d 819, 828 (Wyo.1984) wherein we stated:\\nWe agree with appellant that failure to make payments, while constituting grounds for forfeiture of a conditional sales contract, does not operate to terminate the contract absent appropriate notice to the nonperforming party. Angus Hunt Ranch, Inc. v. Bowen, Wyo., 571 P.2d 974, 978 (1977); Younglove v. Graham & Hill, Wyo., 526 P.2d 689 (1974). We cannot agree, however, that the letters from Stahl and her attorney, invoking the default clause and requesting payments, failed to satisfy the notice requirements under the contract in this case.\\nLike in Kost, Ahearn's failure to make payments, while constituting grounds for forfeiture of the Contract, did not operate to terminate the Contract absent appropriate notice to Ahearn. Similarly as in Kost, we also hold that the Notice of Default sent by JHE to Ahearn invoking the default clause and requesting payment satisfied the notice requirements under the Contract.\\n[\\u00b6 18] As set forth in Kost, at 823 (citing Amoco Prod. Co. v. Stauffer Chemical Co., 612 P.2d 463, 465 (Wyo.1980) and cases cited therein) our appellate obligation in cases of this sort is to interpret and construe the contract as a matter of law in order to shed light on the intention and understanding of the parties. Intention is determined from the words of the contract if the language is clear and unambiguous, considering the contract as a whole, and taking into account the relationships between the various parts. In this instance, as was the case in Kost, the default provision in the Contract contemplates Ahearn's breach of any term of the Contract, including payment of money. The purpose of the notice requirement with respect to default was to put Ahearn on notice that the default clause was being invoked by JHE, why such action was being taken, and how Ahearn might remedy the problem within the time allotted. See also Angus Hunt Ranch, Inc. v. REB, Inc 577 P.2d 645, 650 (Wyo.1978).\\n[\\u00b6 9] The Contract provided, in applicable part:\\n27. NOTICES/ADDRESSES. Any and all notices or other communications required or permitted by this Contract or by law to be served on or given to either party hereto shall be in writing and shall be deemed actual notice and duly served, given, and received when and as of the date deposited in the United States mail, postage prepaid, certified, return receipt requested, addressed to the respective party in accordance with the addresses listed as follows:\\nBuyer: Mr. Francis B. Ahearn\\n[Address]\\nSeller: J. Hollon Enterprises, LL.C.\\n[Address]\\n28. RIGHTS UPON DEFAULT. In the event of a default by Buyer, Seller shall notify Buyer in writing of such a default and Buyer shall have 30 (Thirty) days after such Notice of Default to cure the default. Seller shall also send a copy of said notice to the Eserow Agent by U.S. mail, certified, return receipt requested. Should Buyer fail to timely cure such a default in the performance of this Contract, Buyer shall immediately and peaceably vacate the premises and return possession of the real property, mobile home, and personal property to Seller in good, sound, and acceptable condition, repair and order; in addition, both Buyer and Seller agree that it would be impractical or extremely difficult to determine the actual damages suffered by Seller because of such default, that the amounts paid by Buyer to Seller on execution and acceptance of this Contract and at closing plus any amounts paid monthly as specified above constitute a reasonable estimate of such damages, that Seller may retain such amounts as rents and liquidated damages in the event of such a default, that Seller may retake possession of the premises pursuant to Wyoming law for Forcible Entry and Detainer or otherwise, that Seller shall retain title and ownership of the real property, mobile home, and personal property, that Seller shall have any other rights accorded by Wyoming law, and that this Contract shall be cancelled and terminated .\\nThis language used within the Contract is absolutely clear and unambiguous.\\n[\\u00b6 20] The Notice of Default informed Ahearn of the nature of his default, namely that he was delinquent in his monthly payments. The Notice of Default also informed him of the amount that Ahearn had to pay to cure the default and the applicable time-frame. Since Abearn knew the amount of each monthly installment, he cannot reasonably maintain that the Notice of Default failed to inform him of the extent of his default. In addition, a subsequent letter sent on behalf of JHE reaffirmed the nature of Abearn's default and indicated that he could avoid cancellation and termination of the Contract by making payment within thirty days from the date in which the Notice of Default had been mailed.\\n[\\u00b6 21] Nonetheless, Ahearn complains that the amount of $4,770.44 indicated as his required payment to cure within the Notice of Default is too high and, therefore, the Notice of Default was ineffective. In support of this argument, Abearn makes numerous sundry calculations within his brief filed with this court and asserts that the $4,770 44 amount under each of these proffered calem-lations was inappropriately inflated. However, a simple review of Ahearn's posed calculations makes it patently clear that they are all incorrect. Namely, each of Ahearn's professed calculations fail to take into account both the amount of principal and interest owed by him to JHE under the Contract and property taxes paid by JHE although payment of such taxes was the obligation of Ahearn under the Contract. The correct calculation of the amount to cure totaled an amount higher than the $4,770.44 demanded by JHE to be paid by Ahearn. Obviously, JHE had every right to accept an amount less than that owed by Ahearn under the Contract. Had Abearn timely paid the amount of $4,770.44 as stated in the Notice of Default, the default would have been required to be deemed cured.\\n[\\u00b6 22] Simply put, the Notice of Default and subsequent letter sent by JHE to Ab-earn notified Ahearn of the manner in which he had breached the Contract and of the performance necessary to cure his default. Such notice fully satisfied the express provisions set forth in the Contract and served to trigger the remedies under the default clause afforded to JHE. Therefore, we hold that the district court did not err in finding that the Notice of Default was sufficient under the terms enunciated within the Contract; that Abearn was unquestionably in default; and that he failed to cure the default in a timely fashion causing the cancellation and termination of the Contract under its express terms.\\nObtaining Possession of the Premises\\n[\\u00b6 23] In his last issue on appeal, Ahearn asserts that JHE improperly took possession of the premises by changing the locks on the mobile home. According to Ahearn, JHE was required to bring a Foreible Entry and Detainer action or similar court approved procedural action to appro priately take possession of the property. This argument also lacks merit.\\n[\\u00b6 24] As set forth above, paragraph 28 of the Contract plainly and clearly provides that upon Ahbhearn's failure to cure his default under the Contract, the Contract would be cancelled and terminated. Upon cancellation and termination of the Contract, Abearn was mandated to \\\"immediately and peaceably vacate the premises and return possession of the real property, mobile home, and personal property\\\" to JHE \\\"in good, sound, and acceptable condition, repair and order.\\\" The Contract at paragraph 28 further states that upon cancellation and termination of the Contract, JHE \\\"may retake possession of the premises pursuant to Wyoming law for Foreible Entry and Detainer or otherwise\\\" and that JHE \\\"shall have any other rights accorded by Wyoming law\\\" (emphasis added). Finally, the Contract provides that JHE \\\"shall retain title and ownership of the real property, mobile home, and personal property\\\" upon cancellation and termination of the Contract.\\n[\\u00b6 25] The language of the Contract could not be any more unambiguous. Upon Ah-earn's failure to cure his default under the Contract, the Contract was cancelled and terminated by its explicit terms. Ahearn then had an affirmative duty to return possession of the property to JHE but failed to do so even in the face of numerous requests by JHE that Ahearn take this action. In addition, as soon as the Contract was can-celled and terminated, JHE immediately retained title and ownership to the subject property. Moreover, upon the cancellation and termination of the Contract, while JHE had an ability to instigate a Forcible Entry and Detainer action or other procedural action in a court of law, the Contract indicated that was not JHE's only right. JHE had the right to take any other action in an attempt to take possession of the property as it so chose. This included the right to change the locks on the mobile home and giving Ahearn notice that if he wanted to obtain his personal effects, he should contact JHE's realtor.\\n[\\u00b6 26] Finally, Abearn argues that allowing JHE to change the locks on the mobile home in an attempt to take possession of the property violates his constitutionally protected right to be secure in his person, possessions, and property and did not afford him due process. Ahearn voluntarily entered into the Contract with JHE and, by doing so, must be accountable for understanding and abiding by the terms provided within that Contract. Here, Ahearn clearly voluntarily contracted to abide by the terms of the Contract thereby waiving any asserted constitutional protections afforded him, whether real or imagined, as asserted by Ahearn. Again, we find no merit in this aspect of Ahearn's argument.\\n[\\u00b6 27] As stated previously, this Contract provided that upon cancellation and termination of the Contract, Abearn had an affirmative duty to return possession of the property to JHE, and JHE had the right to take possession of the property by Forcible Entry and Detainer, other legal procedural action in the courts, or otherwise. Indeed, it is further recognized by this court that JHE ultimately took legal action with the court system to effectuate its obtaining possession of the involved property by filing its counterclaim in this case.\\nAccruing Rent\\n[\\u00b6 28] In its brief, JHE requests that this court require Ahearn to pay rent for the period of time he has apparently remained in possession of the premises since May 1, 2000, at the rate of $250.00 per month. A similar prayer for relief is contained within the counterclaim and refiled counterclaim of JHE filed in this action. This court, however, is not in the position to act as a fact finder and, therefore, may not take the action requested by JHE. Notwithstanding, JHE may have appropriate remedy before the district court under its counterclaims or otherwise in order to effectuate the collection of those damages incurred by JHE as a result of Ahearn's remaining in possession of the premises since May 1, 2000.\\nImposition of Sanctions\\n[\\u00b6 29] This court has previously well established that while we are generally relue-tant to impose sanctions, we will make such an award in those rare circumstances where an appellate brief lacks cogent argument, is devoid of pertinent authority to support the claims of error, and/or fails to make adequate references to the record. Gray v. Stratton Real Estate, 2001 WY 125, \\u00b6 11, 36 P.3d 1127, \\u00b6 11 (Wyo.2001) (citing Small v. Convenience Plus Partners, Ltd., 6 P.3d 1254, 1256 (Wyo.2000). This is such a rare cireumstance. Moreover, 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. Stone v. Stone, 7 P.3d 887, 891 (Wyo.2000).\\n[130] In this case, upon our review of those issues raised by Ahearn and the absolute lack of cogent argument and recitation of any pertinent authority in support of such issues, we have taken long pause to consider whether such sanctions should be properly imposed against Ahearn. Further, we note that we have granted Ahearn considerable leeway in reviewing his brief and addressing those issues presented therein. Simply stated, there is no basis in law, equity or public policy for Ahearn to defeat the contractual obligations into which he freely entered with JHE. Ahearn's arguments against non-enforeement of the Contract as adjudicated by the district court are not supported by pertinent authority and are completely lacking in merit. We, therefore, certify that there is no reasonable basis for this appeal and that sanctions are appropriate. W.R.A.P. 10.05.\\n[\\u00b6 31] JHE is directed to submit a statement of costs and attorney fees associated with responding to this appeal. W.RAP. 10.06. Upon review, we will award an appropriate amount in the form of sanctions.\\nCONCLUSION\\n[\\u00b6 32] Given those reasons set forth above, the judgment of the district court is affirmed and appellate sanctions pursuant to W.R.A.P. 10.05 are awarded in favor of JHE and against Ahearn.\\n. The August 31, 2000 letter sent to Ahearn via certified mail, return receipt requested, was returned to JHE marked \\\"unclaimed.\\\"\\n. Apparently Ahearn has remained on the premises since October 29, 2000, until this day.\"}"
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+"{\"id\": \"11844275\", \"name\": \"Gary Dean DOYLE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff)\", \"name_abbreviation\": \"Doyle v. State\", \"decision_date\": \"1998-02-26\", \"docket_number\": \"No. 96-246\", \"first_page\": \"969\", \"last_page\": \"976\", \"citations\": \"954 P.2d 969\", \"volume\": \"954\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T23:20:57.895357+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN and LEHMAN, JJ.\", \"parties\": \"Gary Dean DOYLE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"Gary Dean DOYLE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\\nNo. 96-246.\\nSupreme Court of Wyoming.\\nFeb. 26, 1998.\\nRehearing Denied April 21, 1998.\\nSylvia Haekl, State Public Defender; Donna D. Domonkos, Assistant Appellate Counsel (argued); and Scott P. Klosterman, Special Assistant Appellate Counsel, for Appellant.\\nWilliam U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Hugh Kenny, Senior Assistant Attorney General (argued), for Appellee.\\nBefore TAYLOR, C.J., and THOMAS, MACY, GOLDEN and LEHMAN, JJ.\", \"word_count\": \"3796\", \"char_count\": \"22993\", \"text\": \"LEHMAN, Justice.\\nGary Dean Doyle appeals the Judgment and Sentence entered for his conviction of grand larceny in violation of W.S. 6-3-402(a) and (c)(i) (1997). We affirm.\\nISSUES\\nDoyle presents these issues:\\nI. Were the incriminating statements made by the Appellant to Officer Broz while in custody and without being read his Miranda rights voluntary under the totality of the circumstances?\\nII. Was the arrest of Appellant unlawful because the affidavit supporting the arrest warrant was false and misleading and signed by a judge who was not neutral and detached?\\nIII. Was the Appellant denied his right to a speedy trial as guaranteed by the Sixth Amendment of the United States Constitution and Article 1 Section 10 of the Wyoming Constitution?\\nThe State responds:\\n1. Was Appellant's incriminating statement a product of interrogation and thus subject to suppression under Miranda?\\n2. Was Appellant's arrest lawful? Did Appellant waive any irregularities relating to his arrest by his failure to object prior to trial?\\n3. Was Appellant denied-his right to a speedy trial on the facts as disclosed by the record in this case?\\nFACTS\\nDoyle had lived and worked on the Dum-bell Ranch near Casper for about eleven days in September 1994 when the owners of the ranch had to leave to seek medical attention. Shortly thereafter, approximately $15,000 worth of saddles, tack and tools were discovered missing from the barn and stables, and Doyle had disappeared. Officer Jim Broz investigated the theft and placed a notice in a regional law enforcement agency bulletin requesting assistance in locating Doyle. In March of 1995, the Lincoln County, Colorado Detention Center contacted Broz and advised him that Doyle was in custody on forgery charges.\\nOn March 30, 1995, Broz went to the detention center to interview Doyle. Upon Broz's arrival, Doyle was escorted to the interview room. While still standing in the hall at the interview room doorway, Broz and Doyle had a brief interaction. Broz then called the Natrona County authorities; and, based on the information Doyle conveyed to Broz, the district attorney's office filed a complaint and obtained an arrest warrant that same day. The arrest warrant was executed November 1,1995.\\nDoyle was arraigned on December 15, 1995, and pled not guilty. Doyle filed a motion to suppress the statements made during the March 30 contact between Doyle and Broz. The court, after a hearing, denied Doyle's motion. The district court held a jury trial on the grand larceny charge on February 12 and 13,1996, and the jury found Doyle guilty.\\nSentencing was set for June 6, 1996. The day before sentencing, Doyle moved to vacate the judgment based on speedy trial grounds and upon allegations going to the validity of the arrest warrant. Doyle also moved for reconsideration of his previously denied motion for a new trial. Doyle had requested a new trial based primarily on his contention that certain trial testimony conflicted with testimony presented at the suppression hearing and demonstrated that his motion to suppress should have been granted. At Doyle's sentencing hearing, the court denied Doyle's motions, then sentenced Doyle to not less than eight years nor more than ten years to run consecutively to the sentence he was currently serving in Colorado for forgery. This timely appeal followed.\\nDISCUSSION\\nI. Motion to Suppress\\nThe Fifth and Fourteenth Amendments to the United States Constitution and article 1, sections 6 and 11 of the Wyoming Constitution require confessions, admissions and statements to be voluntary. Simmers v. State, 943 P.2d 1189, 1195 (Wyo.1997). \\\"A statement that is not the product of interrogation or compulsion attributable to authorities or some other improper action is voluntary and admissible.\\\" Ramos v. State, 806 P.2d 822, 828 (Wyo.1991) (quoting Griffin v. State, 749 P.2d 246, 254 (Wyo.1988)). Doyle claims his incriminating statements to Broz were not voluntarily made and, therefore, should have been suppressed. He challenges the admission of his statements on two grounds. First, he contends the statements were the product of a custodial interrogation and he was not advised of his Miranda rights. Second, he argues his confession was violative of due process because it was the product of police coercion and deception.\\nWe review de novo a district court's ruling on a motion to suppress for involuntariness. Simmers, 943 P.2d at 1194 (citing State v. Evans, 944 P.2d 1120 (Wyo.1997)). We will not disturb a district court's findings on the factual issues of a motion to suppress unless the .findings are clearly erroneous. Simmers, at 1194. Because the trial court has the opportunity to assess the witnesses' credibility, to weigh the evidence, and to make the necessary inferences, deductions and conclusions, we view the evidence in the light most favorable to the district court's determination. Id.\\nWe turn first to Doyle's Miranda argument. Statements elicited during a custodial interrogation are inadmissible unless the accused has been advised of his Miranda rights. Kolb v. State, 930 P.2d 1238, 1243 (Wyo.1996). In the case at bar, the State does not dispute the fact that Doyle was in custody when he made the incriminating statements or that Broz did not inform Doyle of his Miranda rights. The pivotal determination, therefore, is whether the encounter between Broz and Doyle amounted to an interrogation.\\nIn Rhode Island v. Innis, the United States Supreme Court defined the term \\\"interrogation\\\" for constitutional purposes. 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980); see also Daniel v. State, 644 P.2d 172, 176 (Wyo.1982). The Court recognized that the term \\\"must reflect a measure of compulsion above and beyond that inherent in custody itself.\\\" Daniel, 644 P.2d at 176 (quoting Rhode Island v. Innis, 446 U.S. at 300, 100 S.Ct. at 1689). The Court then concluded that\\nthe Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. [Ijnterrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily on the perceptions of the suspect, rather than the intent of the police.\\nDaniel, at 176 (quoting Innis, 446 U.S. at 300-01, 100 S.Ct. at 1689-90).\\nAt the suppression hearing, Officer Broz offered the following testimony on cross examination:\\nA [Broz]: I introduced myself. I told him who I was, where I was employed.\\nI told him that I was here to talk to him about the Dumbell Ranch, the property \\u2022that was missing from that ranch \\u2014 well, I said the property that he had taken from the ranch, and when and if we could recover that property.\\nQ: Did you \\u2014 was that a question you had asked him, or was that a statement you told him?\\nA: No. I told him why I was there. There were no questions, no interrogatives.\\nQ: At the end of that statement, what did Mr. Doyle say, or how did he react?\\nA: Mr. Doyle's first answer to me was, he said, \\\"The stuff I took from that ranch I sold at a flee [sic] market on Indian School Road, in Phoenix, Arizona.\\\"\\nOn redirect, Officer Broz further described the exchange:\\nIt wasn't one continuous statement. As soon as I told him who I was, where I was from, what I needed to talk to him about, he told me \\u2014 his first words to me were that he had taken the stuff from the Dumbell Ranch to a flee [sic] market on Indian School Road in Phoenix, and sold it.\\nHe continued, at that point uninterrupted, with the fact that he was drunk or on a drunken binge and drunk most of the time he was at the Dumbell Ranch, and that he doesn't remember where all the stuff is. And he says, \\\"You're not going to be able to find it anyway.\\\"\\nAt the close of the suppression hearing, the district court denied Doyle's motion to suppress, finding that \\\"the statements made by the defendant were made voluntarily, and were not the product of interrogation by the officer, as the defendant made the statements without being questioned and before the conversation had reached a point where the officer would have advised him of his rights.\\\"\\nThe question is whether Broz should have known his remarks would elicit an incriminating response. Viewing the evidence in the light most favorable to the district court's determination, the court's finding was not clearly erroneous. Broz merely introduced himself to Doyle and stated his purpose for being there. The exchange took place before Broz and Doyle even entered the interview room and lasted, at most, two to three minutes. Broz testified he did not expressly question Doyle, and we do not view his remarks as the functional equivalent of express questioning. Broz's introduction does not appear designed to elicit any response, much less an incriminating one. The fact that Doyle spontaneously responded to Broz's introduction with incriminating statements does not render the statements inadmissible. \\\"Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by [Miranda].\\\" Bland v. State, 803 P.2d 856, 860 (Wyo.1990) (quoting Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966)).\\nDoyle thrice renewed his motion to suppress his statements to Broz, once during trial, once at the close of the evidence, and again in a post-trial motion for reconsideration. The district court stood by its earlier ruling with no further elaboration. Broz's testimony at trial was essentially the same as his testimony at the suppression hearing. However, Doyle contends that testimony given at trial by Officer Beverley Raines, who witnessed the encounter between Broz and Doyle, contradicted Broz's testimony and demonstrated that Broz's statements amounted to an interrogation.\\nRaines' account of what happened did not vary substantially from Broz's account. She confirmed that the encounter took place outside the interview room and lasted only a couple of minutes. With respect to whether Broz questioned Doyle, Raines' testimony was equivocal:\\nA [Raines]: Mr. Broz advised Mr. Doyle who he was, and he told him he was from Natrona County.\\n\\u215d* \\u215c \\u215c \\u215c\\nQ: Relate again for me, if you will, Ms. Raines, the conversation you overheard.\\n# *\\nA: Mr. Doyle again acknowledged who he was. Officer Broz asked him what he had done with the stuff he had taken from the Dumbell Ranch. And Mr. Doyle then said that he had taken it and sold it in Phoenix.\\n\\u215c \\u215c \\u215d \\u215c \\u215c\\nQ: Okay. Did Officer Broz ask the defendant any questions, or did he just generally make a statement?\\nA: He generally made a statement.\\nQ: Okay. And the defendant reacted to that statement?\\nA: He did. And he was very civil about it.\\nRaines testified that Broz \\\"asked\\\" Doyle what he had done, and later said he made a \\\"statement.\\\" To the extent Raines' testimony contradicted Broz's testimony, resolution of that conflict was within the province of the district court. Garcia v. State, 777 P.2d 603, 606 (Wyo.1989). The court had the opportunity to hear and observe the witnesses, assess their credibility and determine the weight to be given to their testimony. Bravo v. State, 897 P.2d 1303, 1305 (Wyo.1995). The court did not err when it denied Doyle's trial and post-trial motions for reconsideration of his motion to suppress based on Raines' testimony.\\nDoyle's due process argument is also without merit. Doyle correctly states that the due process clause stands as an independent limitation on the use of a defendant's pretrial statement. \\\"A confession may be found involuntary because of the means used to obtain it.\\\" Simmers, 943 P.2d at 1195. Doyle asserts that Broz's remarks were coercive and deceptive because Broz suggested he knew Doyle had stolen the property when he in fact had no evidence to link Doyle to the crime. He also maintains that because he was not informed of his Miranda rights, he did not make the incriminating statements with a full awareness of the nature of his rights and the consequences of abandoning those rights. Because the due process argument is raised for the first time on appeal, we apply a plain error standard of review:\\nFirst, the record must clearly present the incident alleged to be error. Second, appellant must demonstrate that a clear and unequivocal rule of law was violated in a clear and obvious, not merely arguable, way. Last, appellant must prove that he was denied a substantial right resulting in material prejudice against him.\\nSanchez v. State, 751 P.2d 1300, 1304 (Wyo.1988) (citations omitted).\\nThe record clearly presents the incident Doyle claims as error: Broz testified that he told Doyle he was there to ask him about the property he took and find out when and if it could be recovered and, further, that he did not advise Doyle of his Miranda rights. However, Doyle has not demonstrated violation of a clear and unequivocal rule of law in a clear and obvious way.\\nThe voluntariness of an accused's statements is determined by examining the totality of the circumstances. Simmers, 943 P.2d at 1195. In Simmers, we delineated several factors that courts might consider under the totality of the circumstances. Id. at 1195-96. Whether a defendant has been informed of his rights under Miranda is one factor, as is whether the challenged statement was volunteered. We have already determined that because Broz's introductory remarks to Doyle did not amount to an interrogation, Miranda warnings were not required. Additionally, the record demonstrates that the encounter between Broz and Doyle was civil, not adversarial. The two were standing in a hallway outside an interview room, and the exchange lasted two to three minutes at most. There is no suggestion that Broz used violence, threats, promises, improper influence, or engaged in official misconduct. Finally, there was nothing deceptive in Broz's identification of the purpose of his visit; circumstantial evidence linked Doyle to the crime, and Doyle was the only suspect. Given the totality of the circumstances in this case, Doyle has failed to demonstrate that his statement was not voluntarily made. He, therefore, has not demonstrated a clear and obvious violation of a clearly established rule of law. We conclude that the denial of Doyle's motion to suppress did not amount to plain error.\\nII. Objections Based on Defects in the Institution of Prosecution\\nDoyle asserts that he was unlawfully arrested because the affidavit supporting the arrest warrant contained false information and the judge who signed the warrant was not neutral. Doyle did not raise these objections, however, until he moved to vacate the judgment against him. Wyoming Rule of Criminal Procedure 12 specifically provides that a defendant waives such objections if he does not bring them prior to trial:\\n(b) Pretrial motions. \\u2014 Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the\\ndiscretion of the judge. The following must be raised prior to trial:\\n(1) Defenses and objections based on defects in the institution of the prosecution;\\n\\u215d * \\u215d\\n(g) Effect of failure to raise defenses or objections, or to make requests. \\u2014 Failure by a party to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court pursuant to subsection (d), or prior to any extension thereof made by the court, shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.\\n(Emphasis added.) Doyle's objections to the affidavit supporting the arrest warrant are \\\"objections based on defects in the institution of the prosecution,\\\" and thus his failure to timely object constitutes a waiver. Accord United States v. Kohl, 583 F.2d 1351, 1356 (5th Cir.1978) (under Federal Rules of Criminal Procedure 12(b)(1), the defendant's failure to raise objections to the validity of a warrant prior to trial constituted a waiver of the objection).\\nWe have held that where an appellant attacks the validity of a warrant on appeal, but offered no motion prior to trial, we will review appellant's claim under a plain error standard. See Lobatos v. State, 875 P.2d 716, 721 (Wyo.1994). Also, see generally Bradley v. State, 635 P.2d 1161, 1163-64 (Wyo.1981) (a failure to object constitutes a waiver to whatever error occurred, unless the error rises to the level of plain error). In order for us to enter into a plain error analysis, however, the record must indicate what occurred without speculation. Madrid v. State, 910 P.2d 1340, 1345 (Wyo.1996). In cases such as this, where the appellant has failed to timely raise objections, has not argued plain error, and has not supported his allegations with the record, we decline to consider the issue further. See e.g., Billis v. State, 800 P.2d 401, 433-34 (Wyo.1990).\\nIII. Speedy Trial\\nDoyle's final argument is that his right to speedy trial was violated because 349 days passed from his arrest to the start of his trial and because the Natrona County sheriffs office delayed transporting him to Wyoming, despite the fact that he immediately waived extradition. Both the Sixth Amendment to the United States Constitution and article 1, section 10 of the Wyoming Constitution guarantee a defendant the right to a speedy trial. In determining whether an appellant's right to speedy trial has been violated, we are guided by the four-part test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and adopted by this court in Cosco v. State, 503 P.2d 1403, 1405 (Wyo.1972). This test requires us to balance 1) the length of delay; 2) the reason for the delay; 3) the defendant's assertion of his right; and 4) the prejudice to the defendant. Yung v. State, 906 P.2d 1028, 1032 (Wyo.1995); Roderick v. State, 858 P.2d 538, 542 (Wyo.1993); Osborne v. State, 806 P.2d 272, 277 (Wyo.1991).\\nDoyle's argument contains assertions that are unsupported by or contradictory to the record. Doyle claims he was arrested on March 30, 1995, but the arrest warrant was not executed until November 1, 1995. His arraignment took place on December 15,1995, and the trial began on February 12, 1996. Thus, the record reflects that 103 days passed from the date of arrest to the date of trial, and 59 days passed from the date of arraignment to the date of trial. Wyoming Rule of Criminal Procedure 48 requires that criminal charges be brought to trial within 120 days following arraignment. Compliance with the time frame established in the rule, as here, is a strong indication that no speedy trial violation has occurred. See Hogan v. State, 908 P.2d 925, 930-31 (Wyo.1995).\\nDoyle then asserts that because he immediately waived extradition, Wyoming authorities had no good reason to delay bringing him to Wyoming. The record contains absolutely no evidentiary support for Doyle's allegation that he immediately waived extradition. We will not presume allegations that are unsupported by the record. Madrid v. State, 910 P.2d 1340, 1343 (Wyo.1996). The record does not reflect any reason for the delay, let alone any reason that could be attributed to the prosecution. According to the record, when Broz spoke to Doyle on March 30, Doyle had been arrested on forgery charges in Colorado. The judgment and sentence entered in this case implicitly recognized that at some point Doyle was convicted on the forgery charge by its provision that Doyle's Wyoming sentence was \\\"to run consecutively to the sentence the Defendant is presently serving for the charge of Forgery in the State of Colorado.\\\" The record is otherwise silent regarding the time period between March 30, 1995, when the arrest warrant was issued, and November 1, 1995, when the arrest warrant was executed, undermining Doyle's ability to show he was prejudiced by the delay.\\nFinally, Doyle first asserted his right to speedy trial in a post-conviction motion filed a day before his sentencing. In applying the four-part test, we have held that it is not absolutely necessary for a defendant to demand a speedy trial in order to establish a violation of the right. Yung v. State, 906 P.2d at 1032-33 (\\\"Although a defendant need not demand a speedy trial in order to establish a violation of the right, the question of whether he did so, and if so when, is relevant to our inquiry.\\\"); Osborne v. State, 806 P.2d at 278. On the other hand, \\\"[l]ess than vigorous assertions of the right to a speedy trial are given little weight.\\\" Yung v. State, 906 P.2d at 1033.\\nWe have held that appellant has an affirmative duty to make certain a speedy trial violation does not occur. Cook v. State, 631 P.2d 5 (Wyo.1981). Failure to fulfill that duty within a reasonable time operates as a waiver. In this case appellant's failure to assert his right to a speedy trial until the \\\"eleventh hour\\\" [about three weeks prior to trial] weighs heavily against him.\\nSodergren v. State, 715 P.2d 170, 178 (Wyo.1986). Here, where the appellant did not assert his right until 113 days after trial, this factor could not weigh against him more heavily. Thus, under the facts of this case, no violation of Doyle's right to speedy trial occurred.\\nCONCLUSION\\nWe hold that Doyle's incriminating statements were not obtained during a custodial interrogation and were voluntary and admissible. We also hold that Doyle waived his right to contest alleged defects affecting the validity of the arrest warrant because he failed to timely object. Finally, under the facts of this case, no violation of Doyle's right to speedy trial occurred.\\nAffirmed.\\n. Doyle erroneously frames his argument in terms of the two-part test we use to analyze whether a defendant has voluntarily waived Miranda warnings. It is undisputed that Miranda warnings were not given in this case and, therefore, waiver is not an issue. However, whether examining the voluntariness of a confession or the voluntariness of a waiver, we do look for evidence of police coercion and deception. See, e.g., State v. Evans, 944 P.2d 1120, 1125 (Wyo.1997) (confession); Frias v. State, 722 P.2d 135, 141-42 (Wyo.1986) (waiver).\"}"
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+"{\"id\": \"11891812\", \"name\": \"Francis B. AHEARN, Appellant (Plaintiff), v. ANDERSON-BISHOP PARTNERSHIP, a general partnership, Appellee (Defendant); Francis B. AHEARN, Appellant (Plaintiff), v. FIRST STATE BANK OF WHEATLAND, WYOMING, Appellee (Defendant)\", \"name_abbreviation\": \"Ahearn v. Anderson-Bishop Partnership\", \"decision_date\": \"1997-10-08\", \"docket_number\": \"Nos. 96-53, 96-217\", \"first_page\": \"417\", \"last_page\": \"426\", \"citations\": \"946 P.2d 417\", \"volume\": \"946\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T21:00:07.544947+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN and LEHMAN, JJ.\", \"parties\": \"Francis B. AHEARN, Appellant (Plaintiff), v. ANDERSON-BISHOP PARTNERSHIP, a general partnership, Appellee (Defendant). Francis B. AHEARN, Appellant (Plaintiff), v. FIRST STATE BANK OF WHEATLAND, WYOMING, Appellee (Defendant).\", \"head_matter\": \"Francis B. AHEARN, Appellant (Plaintiff), v. ANDERSON-BISHOP PARTNERSHIP, a general partnership, Appellee (Defendant). Francis B. AHEARN, Appellant (Plaintiff), v. FIRST STATE BANK OF WHEATLAND, WYOMING, Appellee (Defendant).\\nNos. 96-53, 96-217.\\nSupreme Court of Wyoming.\\nOct. 8, 1997.\\nSteven K. Sharpe of Nicholas Law Offices, L.L.C., Cheyenne, for Appellant (Plaintiff).\\nStephen N. Sherard of Sherard, Sherard & Johnson, Wheatland, for Appellee (Defendant) Anderson-Bishop Partnership.\\nJulie Nye Tiedeken, Cheyenne, for Appel-lee (Defendant) First State Bank of Wheat-land, Wyoming.\\nBefore TAYLOR, C.J., and THOMAS, MACY, GOLDEN and LEHMAN, JJ.\", \"word_count\": \"5027\", \"char_count\": \"30823\", \"text\": \"LEHMAN, Justice.\\nThese cases arise out of the sale of property owned by Francis B. Ahearn (Ahearn) near Wheatland, Wyoming. Ahearn contends that Anderson-Bishop Partnership (Partnership) wrongfully obtained confidential information from the First State Bank of Wheatland (Bank) and used that information to purchase Ahearn's property at a grossly deflated price. The district court entered summary judgment in favor of the Partnership and the Bank. Finding the notice of appeal as to the Bank was not timely filed, we dismiss No. 96-217 in this consolidated appeal for lack of jurisdiction. We affirm the summary judgment in favor of the Partnership.\\nIn his opening brief, Appellant Ahearn presents the following issues:\\n1. Whether the district court erred in granting summary judgment in favor of First State Bank of Wheatland?\\na. Did the district court err in granting summary judgment to the bank on the issues of proximate cause and damages (which issues had never been raised in the bank's summary judgment motion), without first giving the Appellant notice and an opportunity to present evidence or legal argument?\\nb. Does a genuine issue of material fact exist with respect to the issues of proximate cause and damages which precludes the entry of summary judgment?\\n2. Whether the district court erred in granting summary judgment in favor of the Anderson-Bishop Partnership?\\na. Did the district court err in granting summary judgment in favor of the partnership on account of the Appellant's alleged failure to state a claim, when that issue had never been raised by the partnership in its motion and where the Appellant was never given notice or an opportunity to amend his complaint or present argument or evidence in opposition?\\nb. Did the Appellant state claims against the partnership upon which relief could be granted?\\nc. Did the district court err in granting summary judgment in favor of Anderson-Bishop Partnership on its affirmative defense of laches?\\n3.Whether this Court has jurisdiction to hear Appellant's argument with respect to First State Bank of Wheat-land, Wyoming?\\nThe First State Bank of Wheatland, appel-lee, presents six issues for review:\\n1. Does this Court have jurisdiction to hear the appeal?\\n2. Did Ahearn have sufficient notice of the Bank's Motion for Summary Judgment and have an opportunity to present evidence and legal argument?\\n3. Is the Bank entitled to Summary Judgment because Ahearn cannot prove proximate cause or damages?\\n4. Is there a question of material fact on whether the Bank breached its duty of confidentiality?\\n5. Did the Bank have a duty to keep facts pertaining to a debtor/creditor relationship confidential?\\n6. Is the Bank entitled to Summary Judgment on the Plaintiffs claims of fraud?\\nThe Anderson-Bishop Partnership, also an appellee in this appeal, responds with a single issue:\\nDid the district court err in granting Anderson-Bishop's (Defendant/Appellee) Motion for Summary Judgment?\\nFACTS\\nIn the mid-1980s, Ahearn and his wife purchased two separate parcels of land near Wheatland \\u2014 Tract F and Tract G. Tract F consists of 2.65 acres and Tract G about 4.84 acres. Ahearn constructed a gasoline station/convenience store, the Wheatland Travel Stop, on approximately 2.67 acres of Tract G.\\nIn November 1991, John Bishop (Bishop) approached Ahearn about purchasing property on which to put a bulk plant. At the same time, Ahearn and his wife were contemplating a divorce and had discussed selling the Wheatland Travel Stop. Ahearn later asked Bishop if he had any interest in purchasing the Travel Stop, and Bishop indicated that he did. Ahearn contends that he and Bishop reached an oral agreement whereby Bishop would purchase the Wheatland Travel Stop for $400,000 plus inventory. During mid-January 1992, Bishop advised Ahearn that he intended to enter a partnership with Andrew Anderson (Anderson) to purchase the Travel Stop. Ahearn knew Anderson because Anderson was his fuel supplier, and Ahearn told Bishop he had no problem with that arrangement so long as the deal stayed the same.\\nA short time later, Ahearn called Anderson to order some fuel. Ahearn mentioned the proposed partnership between Anderson and Bishop to buy the Travel Stop. According to Ahearn, Anderson acknowledged the deal and then stated that they wanted the 1.048 acres next to the Travel Stop (also part of Tract G) for $10,000. When Ahearn told Anderson he did not want to sell the additional acreage for that amount, Anderson responded that, in that case, they (he and Bishop) would not honor Bishop's commitment to buy the property. Ahearn states that although he believed the additional acreage had a fair market value higher than $10,000, he agreed to the terms proposed by Anderson because he was in a financial predicament and under pressure to sell the Wheatland Travel Stop to remove his wife's name from the debt.\\nAhearn relates that sometime in March 1992, Anderson showed up at the Travel Stop for a tour of the neighborhood. Ahearn had previously taken Bishop on a similar tour. During the tour, Anderson inquired about Tract F. Two days later, Ahearn called Anderson to order fuel. During the conversation, Anderson told Ahearn that he wanted Ahearn to throw in Tract F at no additional cost, and if he did not, then Anderson was not going to go through with the deal. When Ahearn said he did not want to sell Tract F, Anderson asked how Ahearn intended to pay his fuel bill, which at that time totaled over $40,000. Again, because of his impending divorce, heavy debt load and lack of cash or other liquid assets to satisfy his financial obligations, Ahearn felt he had no choice but to include the additional acreage so the deal would go through.\\nThe sale of the Wheatland Travel Stop closed on May 21, 1992. After all the documents had been signed, Ahearn states that Anderson commented: \\\"This is what happens to you when you have $35,000 worth of high interest credit card debt.\\\" That comment is the basis of this lawsuit. On January 16, 1992, Ahearn had given a copy of his personal financial statement to the Bank, among others. The financial statement revealed that Ahearn had substantial debt, including very high credit card debt, and also that he had very little cash on hand at the Bank. John Bishop's wife, Susan Bishop, worked at the bank at the time and had access to the financial statement. Ahearn contends that the Partnership wrongfully obtained information contained in his financial statement from the Bank and then used it against him to obtain the additional two parcels at a grossly deflated price.\\nAhearn filed suit in district court against the Bank and the Partnership. He claimed the Bank breached its duty of confidentiality and engaged in willful and wanton misconduct. Ahearn's claims against the Partnership included intentional interference with contract expectaney/proposed economic advantage, fraud and constructive fraud, improper inducement to breach contract, mistake of fact, mistake of law, and willful and wanton misconduct. On December 19, 1995, the district court filed its decision letter, granting the defendants' separate motions for summary judgment. Subsequently the court entered orders granting summary judgment to the Bank and to the Partnership, each order incorporating by reference the decision letter.\\nOn February 2, 1996, Ahearn, acting pro se at the time, filed a notice of appeal. The caption listed both the Partnership and the Bank, and both parties were served. The notice, however, referred only to the \\\"Order Granting Judgment in favor of Defendant, Anderson-Bishop Partnership entered on January 8,1996.\\\" Ahearn had not received a copy of the Order Granting Summary Judgment In Favor of First State Bank of Wheat-land, Wyoming, which was filed on January 22, 1996, and, according to his affidavit, he believed he had done everything necessary to perfect his appeal as to both defendants. On May 3, 1996, Ahearn secured counsel to represent him on appeal; counsel discovered the January 22 order when he reviewed the court file. Ahearn immediately filed an amended notice of appeal. The Bank responded with a resistance and motion to strike the amended notice. After fully considering the matter, this court entered an order on June 5, 1996, finding the notice of appeal untimely and dismissing the Bank as an appellee.\\nIn the meantime, Ahearn sought relief in the district court through a W.R.C.P. 60(b) motion. After a hearing, the district court found that neither Ahearn nor his attorney at the time was ever mailed a copy of the signed order dated January 22; that the clerk's office failed to comply with W.R.C.P. 77 which requires the clerk to mail a copy of any order or judgment to all parties immediately after entry; and that depriving Ahearn of his right to appeal under these circumstances would violate due process. Consequently, the court entered an order vacating the January 22 order and re-entering the order effective August 1, 1996, thereby extending Ahearn's time for appeal. Ahearn timely appealed the August 1 order and subsequently moved for consolidation of the two cases, Ahearn v. Anderson-Bishop Partnership and Ahearn v. First State Bank of Wheatland, Wyoming. Having granted the motion, we have before us now the consolidated appeal.\\nSTANDARD OF REVIEW\\nSummary judgment is proper only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rissler & McMurry Co. v. Sheridan Area Water Supply Joint Powers Bd., 929 P.2d 1228, 1232 (Wyo.1996); W.R.C.P. 56(c). A material fact is any fact which, if proven, would establish or refute an essential element of a claim or defense asserted. Rissler & McMurry, 929 P.2d at 1232. This court evaluates the propriety of a summary judgment using the same stan dards and materials used by the district court. Id. The record is reviewed from the vantage most favorable to the nonmoving party, awarding that party all favorable inferences which may be drawn from the facts. Id. The movant has the initial burden of proving the nonexistence of a genuine issue of material fact. Verschoor v. Mountain West Farm Bureau Mut. Ins. Co., 907 P.2d 1293, 1297 (Wyo.1995). Once a prima facie showing is made, the burden shifts to the party opposing the motion to present specific facts showing that a genuine issue of material fact does exist. Id. A grant of summary judgment may be affirmed on any proper legal grounds supported by the record. Ris-sler & McMurry, 929 P.2d at 1232.\\nDISCUSSION\\nFirst State Bank of Wheatland\\nInitially, the Bank challenges the timeliness of Ahearn's appeal and, thus, our jurisdiction to hear the case. The limitations on the time within which an appeal may be taken are jurisdictional and mandatory. W.R.A.P. 1.03, Martinez v. City of Cheyenne, 791 P.2d 949, 954 (Wyo.1990). A challenge to subject matter jurisdiction may be asserted at any time by any interested party or sua sponte by the court at the trial or appellate level. DB v. State, Dep't of Family Serv., 860 P.2d 1140, 1146 (Wyo.1993).\\nOur jurisdiction in this appeal is dependent on the interworking of the rules of civil and appellate procedure. Rule 77(d) of the Wyoming Rules of Civil Procedure states, in relevant part:\\nImmediately upon the entry of an order or judgment the clerk shall mail a copy thereof in the manner provided in Rule 5 to every party who is not in default for failure to appear, and who has not in person or by attorney acknowledged receipt of a copy thereof.... Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted by the Wyoming Rules of Appellate Procedure.\\n(Emphasis added.) Rule 2.01(a)(i) of the Wyoming Rules of Appellate Procedure authorizes the district court to extend the time for filing a notice of appeal, upon a showing of excusable neglect, for a period not to exceed 15 days past the original time prescribed for appeal. A motion seeking an extension must be filed and the order entered within 45 days of the entry of the appealable order. Ahearn could not seek relief under W.R.A.P. 2.01(a)(i) because he did not discover the judgment had been entered until the maximum time for an extension under the rule had expired. He therefore sought relief under W.R.C.P. 60(b), which authorizes the district court to provide relief from a final judgment in a number of circumstances.\\nThe issue here is whether Rule 60(b) can be used to avoid the mandate of Rule 77(d) that lack of notice of entry of judgment does not affect the time to appeal except as permitted in the appellate rules. Several federal circuit courts of appeal have considered the issue and held that in certain unique or extraordinary circumstances it would not be inconsistent with the rules or the intent of Congress for the district court to vacate and reenter the original order for the purpose of reviving a lost right to appeal. Because of the specific language of Rule 77(d), as well as the need for finality of judgments embodied by the time limits in the appellate rules, most circuits allow Rule 60(b) relief only where the appellant has exercised due diligence to ascertain whether the judgment has been entered or has given sufficient reason for the lack of such diligence. Spika v. Village of Lombard, Ill., 763 F.2d 282, 285 (7th Cir. 1985), cert. denied 474 U.S. 1056, 106 S.Ct. 793, 88 L.Ed.2d 771 (1986) (citing holdings and limitations of various circuits). We agree that, in order not to undermine the purpose of W.R.A.P. 2.01(a)(i), the relief available under Rule 60(b) must be narrowly delimited. Therefore, we hold that Rule 60(b) is available in situations where a party does not learn of a judgment until after the time provided in W.R.A.P. 2.01(a)(i), but relief is limited to only those instances where the party has shown due diligence, or sufficient reason for the lack thereof, or other special circumstances. See Kennedy v. Kennedy, 483 P.2d 516, 518 (Wyo.1971) (\\\"Rule 60(b) was not intended as a means of enlarging . the time for appeal except in compelling circumstances where justice requires that course.\\\").\\nAhearn asserts he is entitled to relief because the clerk did not mail notice of the entry of the final judgment. That factor, in and of itself, is not enough. Courts have uniformly held that Rule 77(d) bars relief when the sole reason asserted for relief is the failure of a litigant to receive notice of the entry. Spika, 763 F.2d at 286; Hensley v. Chesapeake & Ohio Ry. Co., 651 F.2d 226, 229 (4th Cir.1981). As additional considerations, Ahearn cites that he was acting pro se from January 23 through May 2, 1996, and he believed he was appealing the district court's ruling as to both parties. Though clearly Ahearn did not understand the requirements for perfecting an appeal, this court has consistently refused to give special consideration to litigants who choose to proceed without counsel. Annis v. Beebe & Runyan Furniture Co., 685 P.2d 678, 680 (Wyo.1984). Pro se litigants must comply with the same procedural standards as litigants represented by counsel. Stone v. Stone, 842 P.2d 545, 547 (Wyo.1992). We need not draw. a. bright line at this juncture, but suffice it to say that the circumstances here do not show sufficient diligence, or reason for the lack thereof, or other special circumstances sufficient to warrant Rule 60(b) relief. Because the district court's grant of Rule 60(b) relief was improper, Ah-eam's notice of appeal as to the Bank was untimely, and we dismiss matters pertaining to the Bank for lack of jurisdiction.\\nAnderson-Bishop Partnership\\nAheam's complaint set forth six causes of action against the Partnership which fall into three general categories: interference with contract or prospective contract, fraud and mistake. We consider the fraud and mistake claims together because they are similar in terms of pleading and proof requirements, and each rests on the same underlying assertion \\u2014 that the Bank improperly shared confidential financial information with the Partnership and the Partnership withheld that fact from Ahearn.\\n1. Interference\\nAhearn alleges that the Partnership contacted Bishop, entered into a partnership with him, and caused him to back out of the agreement to purchase the Wheatland Travel Stop. The alleged agreement between Ah-earn and Bishop consisted of 2.67 acres, at a price of $400,000 plus inventory, to close within 30 days. These allegations comprise his claims for intentional interference with contract expectancy/prospective economic advantage and improper inducement to breach contract.\\nWyoming has adopted the Restatement formulations of the tort of intentional interference with a contract, First Wyoming Bank, Casper v. Mudge, 748 P.2d 713, 715 (Wyo.1988) (quoting Restatement, Sec'ond, TORTS \\u00a7 766 (1979)), and the tort of intentional interference with a prospective contractual relation, Four Nines Gold, Inc. v. 71 Const., Inc., 809 P.2d 236, 238 (Wyo.1991) (quoting Restatement, Second, ToRts \\u00a7 766B (1979)). Each of these torts requires that the interference be both intentional and improper. Restatement, Second, Torts \\u00a7 767 emt. a (1979). A party to a contract cannot be hable for tortious interference with that contract. Kvenild v. Taylor, 594 P.2d 972, 977 (Wyo.1979). Both tortious interfer ence theories lie only against outsiders who interfere with the contractual expectancies of others. Id. These torts will not he against someone exercising an equal right to purchase property from a particular seller or competing in the marketplace to purchase the property. See Martin v. Wing, 667 P.2d 1159, 1162 (Wyo.1983).\\nThe undisputed facts that relate to this issue are as follow. Ahearn and Bishop began negotiating the purchase of the Wheat-land Travel Stop in late 1991. Ahearn presented Bishop with a written contract, but Bishop, concerned about the terms and financing, did not sign the document. In early 1992, Bishop informed Ahearn that he wanted to create a partnership with Anderson in order to buy the Travel Stop. Ahearn agreed as long as the terms remained the same. He then proceeded to deal with the Partnership, and the parties eventually reached an agreement that culminated in the sale of the Travel Stop to the Partnership.\\nEven though the parties dispute whether or not Bishop and Ahearn reached an oral agreement prior to the agreement with the Partnership, no triable issue as to this material fact has been raised because the summary judgment materials establish no improper interference. First, the Partnership was not an outside party that came along and induced Bishop to back out of the contract (or proposed contract). Bishop created the Partnership for the very purpose of purchasing the Travel Stop. Additionally, the Partnership had an equal right to purchase the property. Finally, Ahearn was fully aware of the formation and purpose of the Partnership. Regardless of whether Bishop and Ah-earn had reached an agreement, Ahearn voluntarily began negotiating with Anderson and Bishop as partners, eventually entering into a contract of sale and ultimately selling the Travel Stop to the Partnership. The Partnership is entitled to summary judgment on the interference claims.\\n2. Fraud and Mistake\\nAhearris complaint included claims for both actual and constructive fraud. He alleges that the Partnership, by its expressions and conduct, falsely represented to him that negotiations for the purchase of the property were being conducted fairly, openly and without benefit of his personal financial information, and that Ahearn relied on that representation when he agreed to sell the additional parcels at a grossly deflated price. Ahearn avers that the fraudulent representations, suppression of material facts and negligent misrepresentation of the true facts constituted a constructive fraud and, had he known the true facts, he would not have entered into the agreement to sell the Travel Stop. In addition to the fraud claims, Ahearn alleges that by virtue of the Partnership's acts and omissions, he entered into the contract for the sale of his real property under mistake of fact and mistake of law. The essence of Ahearn's fraud and mistake claims is his assertion that the Bank wrongfully provided the Partnership information from his financial statement and the Partnership did not reveal that fact to Ahearn.\\nThe Wyoming Rules of Civil Procedure mandate that \\\"[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity,\\\" W.R.C.P. 9(b), and we have applied that requirement literally. McKenney v. Pacific First Fed. Sav. Bank, 887 P.2d 927, 928-29 (Wyo.1994). A plaintiff who alleges fraud must do so clearly and distinctly, and fraud will not be imputed to any party when the facts and circumstances out of which it is alleged to arise are consistent with honesty and purity of intention. Duffy v. Brown, 708 P.2d 433, 437 (Wyo.1985). Fraud must be established by clear, unequivocal and convincing evidence, and will never be presumed. Id. The standard of proof for mistake is clear, convincing and well-founded evidence. Shrum v. Zeltwanger, 559 P.2d 1384, 1387 (Wyo.1977); Goodson v. Smith, 69 Wyo. 439, 458, 243 P.2d 163, 171 (Wyo.1952).\\nWe note at the outset that the fact the Partnership may have received information from Aheam's financial statement, by itself, will not support Ahearn's claims. It is not fraudulent to possess information about someone's financial or personal status, and the Partnership had no general obligation to inform Ahearn of all the information it possessed about Ahearn as it proceeded to negotiate the purchase of the Travel Stop. In fact, it is undisputed that the Partnership knew of Ahearn's pending divorce and need to sell the Travel Stop, as well as the fact that Ahearn owed Anderson $40,000 for fuel, and that Ahearn was aware the Partnership knew those facts. Businesses are presumed to act in their own self-interest. Lavoie v. Safecare Health Serv., Inc., 840 P.2d 239, 252 (Wyo.1992). We have said that it is not uncommon in business dealings for the parties to seek the best terms possible, and doing so is not inconsistent with honesty and purity of intention. Id. Thus, in order for Ahearn's claims to succeed, Ahearn must show by clear and convincing evidence that the Partnership improperly obtained information about Ah-earn's financial condition.\\nAhearn rests his assertion that the information came from the Bank in part on the fact that Susan Bishop, John Bishop's wife, worked at the Bank and had access to his financial statement. In addition, he relies on the fact that he gave his financial statement only to the Bank, his divorce attorney, his accountant, and the school district business manager. The affidavit from the school district business manager indicates that the school district did not reveal information from the financial statement to third parties other than the school district's insurance companies and/or bonding agencies. Ahearn did not produce affidavits from those third parties. The affidavit from Ahearn's attorney states he furnished the financial statement to the attorney representing Kathleen Ahearn in the divorce. Ahearn did not produce affidavits from Mrs. Ahearn or her attorney. Nor does the record include an affidavit from Ahearn's accountant. The record contains deposition testimony from Mike Daly (Bank president) and Susan Bishop, both denying that they disseminated information to the Partnership, as well as affidavits from Anderson and Bishop denying that they received information from the Bank in general and Susan Bishop specifically. Ah-earn states in his deposition that he does not know how the Partnership received the information: \\\"I don't know if they received it in the form of printed material, face-to-face verbal, phone conversation, or otherwise.\\\" Further, Ahearn testified that he had no other witnesses who could testify that the Bank released confidential information.\\nViewed against the record as described above, Ahearn's allegations and inferences are insufficient to create a genuine issue of material fact that must be resolved by a trial. Ahearn has no personal knowledge of any impropriety on the part of the Bank, nor any witness or other evidence to substantiate his belief that the Bank released information from his financial statement. He has not eliminated the possibility that the Partnership could have received information from the financial statement from another source. Evidence opposing a summary judgment that is conclusory or speculative is insufficient to demonstrate that a material fact exists, and the trial court has no duty to anticipate possible proof. First State Bank of Wheatland v. American Nat'l Bank, 808 P.2d 804, 806 (Wyo.1991). Likewise, an unsubstantiated belief does not create a material issue of fact precluding summary judgment. Cumana Investments S.A. v. Fluor Corp., 593 F.Supp. 310, 314 (D.Del.1984). The most Ahearn could hope for is that a fact finder would disbelieve the persons who have submitted affidavits. This hope alone cannot defeat a properly supported motion for summary judgment, see Vantage Point, Inc. v. Parker Bros., Inc., 529 F.Supp. 1204, 1213-14 (E.D.N.Y.1981), particularly in cases alleging fraud or mistake.\\nWe briefly address Aheam's contention that the district court improperly decided the summary judgment on issues not raised by the Partnership in its motion, thereby depriving Ahearn of an opportunity to be heard. W.R.C.P. 56(e) provides that \\\"[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\\\" In our opinion, the materials before the trial court did show that the Partnership was entitled to a summary judgment on its motion. We agree that the court normally should give the parties notice when it intends to rely on a legal doctrine or precedents other than those briefed and argued by the litigants. 10A Wright, Miller & Kane, FEDERAL PRACTICE AND PROCEDURE: ClVIL 2d \\u00a7 2725, at 112 (2d ed.1983). However, the fact that judgment was granted on reasons different than those assigned by the movant is immaterial where, as here, the motion was properly granted on the undisputed facts shown and on issues presented by Ahearn's complaint. Board of Nat'l Missions of Presbyterian Church in the U.S. v. Smith, 182 F.2d 362, 364-65 (7th Cir.1950); Broderick Wood Prods. Co. v. United States, 195 F.2d 433, 436 (10th Cir.1952). \\\"The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.\\\" Advisory Committee Note, 1963 Amendments of the Federal Rules of Civil Procedure, Rule 56(e); Kuehne v. Samedan Oil Corp., 626 P.2d 1035, 1039 (Wyo.1981). The summary judgment materials in this case simply do not present the clear and convincing evidence necessary to find fraud or mistake nor any genuine question of material fact that would preclude summary judgment, and we affirm the district court.\\nCONCLUSION\\nWith regard to the Bank, the district court's grant of Rule 60(b) relief was improper, thus making Aheam's notice of appeal untimely. We therefore dismiss the appeal of the Order Granting Summary Judgment In Favor of First State Bank of Wheatland, Wyoming. As to the Partnership, we find no genuine issues of material fact and that the Partnership is entitled to judgment as matter of law. Consequently, we affirm the district court's Order Granting Defendant Anderson-Bishop Partnership's Motion for Summary Judgment in all respects.\\n. See 9 Moore's Federal Practice \\u00b6204.13[5] (2d ed.1991). Wyoming's Rule 60(b) and Rule 77(d) are substantially the same as their federal counterparts, and we found a good deal of federal case law on the issue presented here. In 1991, however, the federal appellate rules were liberalized to authorize a district court to reopen the time for appeal if it finds that a party has not received notice of the judgment or order and no party would be prejudiced. F.R.A.P. 4(a)(6). A motion for an extension under the amended rule must be filed \\\"within 180 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier.\\\" Id. Since the amendment, the focus of the federal case law has shifted to whether the requirements of Rule 4(a)(6) have been satisfied.\\n. The record shows that Bishop contacted Anderson, and the two formed the Partnership in order to purchase the Travel Stop.\\n. According to Ahearn's deposition, he bases his belief that the Partnership received information from his financial statement on the following: 1) Anderson's alleged statement at closing: \\\"This is what happens to you when you have $35,000 worth of high interest credit card debt,\\\" 2) the fact that Anderson offered to pay $10,000 for the additional acre in Tract G, and 3) the fact that Anderson asked how Ahearn intended to pay his $40,000 fuel bill if the deal didn't go through with Tract F thrown in for nothing. From this, Ahearn asserts that a jury could infer that the Partnership had information from the financial statement because the statement showed: 1) credit card debt of $19,340 plus revolving lines of credit of $15,400, which when added together total $34,740; also a credit card limit of $35,900; 2) a cost and market value for Tract F of $10,-000; and 3) cash on hand and in banks of $600.\\n. The district court held a hearing on the motions for summary judgment, but that hearing was apparently not recorded nor otherwise preserved for the record as provided by W.R.A.P. 3.03. As such, we do not know what was argued at the hearing. Ahearn did not seek reconsideration by the trial court, nor does his brief on appeal explain how he may have been prejudiced by not having an opportunity to be heard on any particular issue.\"}"
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+"{\"id\": \"11895132\", \"name\": \"Carl Lee BORGWARDT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff)\", \"name_abbreviation\": \"Borgwardt v. State\", \"decision_date\": \"1997-10-21\", \"docket_number\": \"No. 96-249\", \"first_page\": \"805\", \"last_page\": \"807\", \"citations\": \"946 P.2d 805\", \"volume\": \"946\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T21:00:07.544947+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before TAYLOR, C. J., and THOMAS, MACY, GOLDEN and LEHMAN, JJ.\", \"parties\": \"Carl Lee BORGWARDT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"Carl Lee BORGWARDT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\\nNo. 96-249.\\nSupreme Court of Wyoming.\\nOct. 21, 1997.\\nSylvia L. Hackl, State Public Defender; Donna Domonkos, Appellate Counsel; and Diane M. Lozano, Assistant Appellate Counsel for appellant.\\nWilliam U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Kimberly A. Baker-Musick, Assistant Attorney General; Theodore E. Lauer, Director of the Prosecution Assistance Program; and Charmaine Reed, Student Intern for Prosecution Assistance Program for ap-pellee.\\nBefore TAYLOR, C. J., and THOMAS, MACY, GOLDEN and LEHMAN, JJ.\", \"word_count\": \"1452\", \"char_count\": \"9074\", \"text\": \"MACY, Justice.\\nAppellant Carl Borgwardt appeals from the judgment and sentence which the district court entered after he conditionally pleaded nolo contendere to a charge of possession with intent to deliver a controlled substance.\\nWe affirm.\\nISSUES\\nBorgwardt presents two related issues for our review:\\nISSUE I\\nThe evidence obtained during the war-rantless search of [Borgwardt]'s vehicle should have been suppressed as it was obtained without a warrant and does not fall within the \\\"plain view' exception to the warrant requirements of the United States and Wyoming constitutions.\\nISSUER\\nThe evidence obtained during the war-rantless search of [Borgwardt]'s vehicle should have been suppressed as the search was not supported by probable cause.\\nFACTS\\nOn February 29, 1996, Kevin Hughes and Chris Cook, agents with the Division of Criminal Investigation (DCI), and Sheridan police department officers were investigating a matter at a Sheridan saloon which was not related to this case. After Agent Hughes left the bar, Agent Cook called him on the radio, stating that a woman had reported that Borgwardt had a significant amount of marihuana in his ear which was parked in the bar's parking lot. Agent Hughes returned to the bar. The woman, who was drunk, stated that Borgwardt had a pistol and that, when he found out that the police officers were at the bar, he placed his jacket in the front seat of his car and left the area. She also volunteered that she did not like Borgwardt.\\nAt Agent Hughes's request, the dispatch cheeked the car's license plate number and determined that the car did, in fact, belong to Borgwardt. Agent Hughes recognized Borg-wardt's name and confirmed that DCI had previously investigated him. The agent also discovered that Borgwardt had been arrested on several felony charges and convicted of a number of misdemeanors. One of the convictions was for possession of a controlled substance.\\nAgent Cook observed two rifles in the back window of Borgwardt's car. The interior ear lights were on, and Agent Hughes shined his flashlight into the car through the windows. The car windows were covered with a slight dusting of snow, and, although he could see into the car without doing so, Agent Hughes proceeded to wipe the snow off of the windows so that he would have a better view. He observed two baggies which were lying partially under a denim shirt on the back seat floor and saw that one baggie contained marihuana. Agent Hughes also noticed a blanket in the back seat which looked like it was covering something.\\nConsistent with the woman's report, Agent Hughes observed a jacket in the front seat of the car. Agent Cook entered the car to determine whether a pistol was in the jacket, and he found one. He then went inside the bar to look for a man who matched Borg-wardt's description. When Agent Cook returned after being unable to locate Borg-wardt in the bar, Agent Hughes directed him to continue searching the car. During his search, Agent Cook found: (1) a small container which he suspected contained marihuana; (2) a marihuana pipe; and (3) the baggies, which Agent Hughes had seen earlier, containing marihuana. The car was impounded, and Borgwardt was arrested the next day.\\nBorgwardt pleaded not guilty to a charge of possession with intent to deliver a controlled substance. He moved to suppress the evidence which was seized during the search of his car, but the district court denied his motion. Borgwardt changed his plea to a conditional plea of nolo contendere, reserving the right to appeal from the district court's denial of his motion to suppress. After Borgwardt was sentenced, he appealed to this Court.\\nDISCUSSION\\nBorgwardt contends that the war-rantless search of his vehicle was unconstitutional. He argues that the evidence which was seized as a result of that search was inadmissible and that the district court erred by denying his motion to suppress. The State maintains that the evidence was admissible because the police had probable cause to search the vehicle and because the evidence was in plain view.\\nWhen a district court makes specific factual findings regarding a motion to suppress, those findings are binding upon this Court unless they are clearly erroneous. Gronski v. State, 910 P.2d 561, 563 (Wyo.1996); 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). When, as in this case, the district court does not make specific findings of fact, \\\"this court upholds the general ruling of the trial court if it is supportable by any reasonable view of the evidence.\\\" Neilson, 599 P.2d at 1330. \\\"The issue of law, whether an unreasonable search or seizure occurred in violation of constitutional rights, is reviewed de novo.\\\" Gronski 910 P.2d at 563.\\nThe Fourth Amendment to the United States Constitution and Article 1, Section 4 of the Wyoming Constitution generally prohibit warrantless searches. 910 P.2d at 564. The rule that warrantless searches are unreasonable per se is subject to only a few specific and well defined exceptions. Id.\\nThe search and/or seizure of an automobile upon probable cause is one of the recognized exceptions. 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 war-rantless 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. Reasonableness is determined by all the circumstances of each ease.\\nId. (some citations omitted). The police may, therefore, search an automobile without having a warrant when they have probable cause to believe that the ear contains evidence of a crime or contraband. See Gronski 910 P.2d at 564-65; Neilson, 599 P.2d at 1334.\\nBorgwardt maintains that, because the woman's report was inherently unreliable, the law enforcement personnel did not have probable cause to search his ear. He claims that, since the woman was drunk and admitted that she disliked him, the officers could not rely upon her report in determining whether they had probable cause to search the car.\\nIn deciding whether a report from an informant is sufficient to establish probable cause, courts have generally drawn a distinction between reports from common citizens and reports from informants who regularly supply information to the police. 2 Wayne R. LaFave, SEARCH AND SEIZURE \\u00a7 3.3 at 88-89 (3d ed.1996). Factors which courts consider in determining whether an informant's report established probable cause include the informant's veracity and reliability and the basis of his knowledge. State v. Purser, 828 P.2d 515, 517 (Utah.Ct.App.1992). Courts ordinarily deem citizen informants, in contrast to police informants, to be presumptively reliable sources of information. Id.; see also People v. Fortune, 930 P.2d 1341, 1345 (Colo.1997) (en banc).\\nIn this case, the woman was a citizen informant rather than a police informant and would generally be entitled to a presumption that she was rehable. Of course, the fact that the woman was intoxicated and openly expressed hostility toward Borgwardt could be construed as detracting from the inherent reliability of her report. Her report was, however, corroborated. The car was parked in the bar's parking lot, and the police observed the jacket, which the woman had described, in the front seat of the car. Furthermore, the officers and agent did not rely solely upon the woman's report in determining that they had, probable cause to conduct the search. Agent Hughes independently determined that Borgwardt was the subject of other DCI investigations and that he had a rather extensive criminal record which included one prior conviction for possession of illegal drugs. Considering these facts together, we conclude that probable cause supported the warrantless search of the car.\\nAppellant also claims that the search was improper because it did not fall within the plain view exception. Since we have concluded that probable cause supported the .war-rantless search of the car without taking into account Agent Hughes's observation of the marihuana, we do not need to determine whether the search was proper under the plain view exception.\\nAffirmed.\"}"
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diff --git a/wyo/12198738.json b/wyo/12198738.json
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+"{\"id\": \"12198738\", \"name\": \"Brandon Joe OVERSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff)\", \"name_abbreviation\": \"Overson v. State\", \"decision_date\": \"2017-01-19\", \"docket_number\": \"S-16-0140\", \"first_page\": \"1149\", \"last_page\": \"1158\", \"citations\": \"386 P.3d 1149\", \"volume\": \"386\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T02:14:15.931313+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.\", \"parties\": \"Brandon Joe OVERSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"2017 WY 4\\nBrandon Joe OVERSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\\nS-16-0140\\nSupreme Court of Wyoming.\\nJanuary 19, 2017\\nRepresenting Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel. Argument by Ms. Olson.\\nRepresenting Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Mike Kahler, Senior Assistant Attorney General; Samuel S. Voyles, Assistant Attorney General. Argument by Mr. Voyles.\\nBefore BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.\", \"word_count\": \"5534\", \"char_count\": \"33814\", \"text\": \"BURKE, Chief Justice.\\n[\\u00b61] Appellant, Brandon Overson, was convicted of two criminal charges, felony possession of methamphetamine and possession of methamphetamine with intent to deliver. He appeals his conviction on the charge of possession with intent to deliver, claiming the district court erred when it admitted evidence of a prior drug transaction. He does not challenge his conviction on the charge of possession of methamphetamine, but claims that, because felony possession is a lesser included offense of possession with intent to deliver, the district court erred in convicting and sentencing him on both counts. We con-was properly admitted and prejudicial. We will therefore reverse Mr. Overson's conviction for possession with intent to deliver, making it unnecessary to consider his second issue.\\nISSUES\\n[\\u00b62] M\\\\ Overson presents two issues:\\n1. Did the district court erroneously admit irrelevant and prejudicial evidence of a prior drug transaction?\\n2. Should Appellant's two convictions merge because the double jeopardy clauses of the Wyoming and' United States Constitutions prohibit multiple convictions and sentences for the same conduct?'\\nFACTS\\n[\\u00b63] Mr. Overson's challenge to the relevance of the evidence in question inquires us to examine in detail the evidence admitted at trial. To understand the course of his trial, however, it is useful to take a step back and review the evidence submitted in the earlier hearing on Mr. Overson's motion to suppress evidence. In his motion, Mr. Overson sought to suppress evidence resulting from a search of his person following a stop by police. He claimed that the police stopped his vehicle without reasonable suspicion and then detained him for an unlawfully extended period.\\n[\\u00b64] At the motion hearing, police officer Jacob Foutch provided the foundation for the stop. Officer Foutch testified that he, Officer Fitzner, and Sergeant Overton responded to a dispatch call advising of an anonymous report of a possible drug deal taking place behind a hotel. They encountered two men and a woman. The woman, later identified as Tandie Hooks, consented to a search of her vehicle. The officers found a bag of methamphetamine in the driver's seat. After placing Ms. Hooks under arrest, the officers found more methamphetamine inside her purse and hidden in her bra.\\n[\\u00b65] After Ms. Hooks was taken into custody, she asked to speak to Officer Foutch again. According to Officer Foutch, she told him that her dealer, named Brandon, was currently at her home. She said the dealer drove a gold-colored Tahoe, and if that vehicle was still parked in her driveway, the dealer would also be at her house. She claimed that the dealer had arranged the drug deal behind the hotel, and she was only facilitating the transaction.\\n[\\u00b66] At Ms. Hooks' residence, police officers confirmed that a gold Tahoe was parked in the driveway. Based on the license plate, the officers learned that the vehicle was registered to Brandon Overson. Other officers maintained surveillance while Officer Foutch went to his office to start the process of obtaining a search warrant. While still in that process, Officer Foutch was informed that the gold Tahoe was leaving the residence. He told the officers on the scene to stop the vehicle and detain the driver. Officers stopped the vehicle and identified the driver as Brandon Overson. Upon searching Mr. Overson, police discovered a large medication bottle hidden in his underwear. Inside the bottle were five separate packages of methamphetamine.\\n[\\u00b67] When Mr. Overson called Ms. Hooks to testify at the suppression hearing, she denied telling Officer Foutch that her drug dealer was at her residence. She claimed she never mentioned the drug dealer's name to the officer. She denied- giving Officer Foutch any information about the dealer's vehicle. She denied telling the officer that the dealer had set up the drug transaction behind the hotel. The district court denied the motion to suppress, explaining that it found Officer Foutch's version of events more credible than that presented by Ms. Hooks. The case proceeded to trial.\\n[\\u00b68] At trial, the prosecution called Officer Fitzner as its first witness. He testified that he responded to a dispatch informing him that there was a possible drug deal taking place behind a hotel. When the prosecutor asked him to tell the jury what he found at the scene, defense counsel objected, claiming the evidence was irrelevant because there was nothing to connect Mr. Overson with this drug deal. The prosecutor responded that she was asking about \\\"how they ended up getting to [Ms. Hooks' address]\\\" and asserted that \\\"[n]othing can be more relevant than how they ended up making contact with Mr. Overson.\\\" The objection was overruled. Officer Fitzner went on to testify .in-substantial detail about his investigation of the drug deal behind the hotel.\\n[\\u00b69] Officer Fitzner testified that dispatch advised that the people involved in the transaction were driving a white Jeep and a silver passenger Car. He found those two vehicles, and saw two men standing outside the vehicles and a woman sitting in the driver's seat of the silver car. One of the men ran away, and was chased by Sergeant Overton, who had just arrived at the scene. Officer Fitzner identified the woman as Tandie Hooks and the remaining man as Cody Johnson, and he began speaking to them. Noting that he was outnumbered. two to one at that point, he began explaining-the higher risk of getting hurt, particularly when money or narcotics are involved. Defense counsel objected that this explanation was not -relevant. The district court sustained the. objection and struck that portion of Officer Fitzner's testimony.\\n[\\u00b610] Asked what happened next, the officer said he noticed Mr. Johnson reaching into the pocket of his sweatshirt and fumbling with- something inside. He asked Mr. Johnson if he had a weapon. Defense counsel objected on the basis of relevancy, asserting that whether or not Mr. Johnson had a gun did not indicate how police contacted Mr. Overson. The prosecutor responded that this information was \\\"all part of the police investigation.\\\" The district court asked the prosecutor if there was going to be any evidence that Mr. Johnson was involved in dealing with Mr. Overson. The prosecutor admitted that there would be no evidence connecting Mr. Johnson with Mr. Overson, only evidence connecting Ms. Hooks with Mr. Overson. The objection was sustained, and the jury was instructed to disregard that information. Officer Fitzner continued, testifying that Ms. Hooks gave Sergeant Overton permission to look through her vehicle, and that the sergeant found a small baggie of what he suspected to be methamphetamine on the driver's seat. When Officer Foutch arrived on the scene, they separated Ms. Hooks from Mr. Johnson and spoke to them individually.\\n[\\u00b611] Sergeant Overton testified next. He testified in some detail about chasing the man who had run away from the scene. He did not catch the man, but returned to the scene to assist Officer Fitzner. He observed that Officer Fitzner had moved the two suspects under an awning to get them out of the rain. Sergeant Overton then related that he had searched Ms. Hooks' vehicle and found suspected controlled substances. He said that he had photographed the controlled substances, and identified eighteen photographs he had taken.\\n[\\u00b612] The prosecution moved to admit all eighteen photographs into evidence. Defense counsel objected, asserting that the photographs were not relevant. The prosecutor responded that - the photographs depicted packaging that was identical to the packages found on Mr. Overson. The district court asked if the prosecution's offer of proof included information that Mr. Overson was Ms. Hooks' dealer, and the prosecutor responded, \\\"That is the dot we'll be connecting.\\\" The district court went through the eighteen photographs individually, rejecting some it deemed irrelevant, and admitting twelve of the photographs. Sergeant Overton then described each of the admitted photographs in substantial detail.\\n[\\u00b613] The sergeant also testified that he field tested some of the substances, and described the steps in conducting a field test for controlled substances. Defense counsel interrupted the explanation to object on grounds of relevance. The district court overruled the objection. Sergeant Overton completed his explanation of field testing but was never asked about the results of testing of the substances found in Ms. Hooks' vehicle. He testified that he also found baggies of substances in Ms. Hooks' bra, and that the packages together weighed over twenty-five grams. He said that field tests run on these substances were positive for methamphetamine.\\n[\\u00b614] The prosecution next called Officer Weinhardt. He testified that he was a K-9 handler with the Gillette police department. After another officer stopped Mr. Overson, Officer Weinhardt arrived as back-up, and patted down Mr. Overson for safety reasons. He felt a round, hard object in the waistband of Mr. Overson's pants. That object fell down further in Mr. Overson's pants, and the officer could no longer feel it. He did not search further, and Mr. Overson was handcuffed for safety reasons. Officer Weinhardt then took his dog to \\\"conduct a free air sniff' around Mr. Overson's vehicle. The dog alerted at the door of Mr. Overson's vehicle. Inside the vehicle, the dog gave an indication at the cup holder between the two front seats. However, despite the dog's indications, no substances were found inside the vehicle.\\n[U15] Officer Foutch testified next. He told the jury that he was near the hotel when dispatch relayed the information about the possible drug deal talcing place, and he drove to the scene. He saw Officer Fitzner talking to two people under an awning. He approached and the officers separated the suspects, with Officer Fitzner initially talking to Ms. Hooks and Officer Foutch talking to Mr. Johnson, and later switching. He then went to drive by Ms. Hooks' residence, a trailer home, where he saw a gold Tahoe. The vehicle was registered to Mr. Overson. Finding no safe place to maintain surveillance on Ms. Hooks' residence, the officer called for two more officers to place themselves at the exits of the trailer park to watch for Mr. Overson's vehicle.\\n[\\u00b616] Officer Foutch then went to the police department to begin the process for obtaining \\u00e1 search warrant. Another officer advised him that the gold Tahoe was leaving the trailer park, and had been stopped. When Mr. Overson was brought to the police station, Officer Foutch searched him more thoroughly and found a prescription medication bottle containing five individual baggies of a crystal substance. The officer identified the five baggies and stated that they weighed, respectively, 10.477 grams, 3.48 grams, 3.423 grams, 2.575 grams, and 2.48 grams. He also identified the medication bottle, and testified that two cell phones and $435 in cash were also found during the search.\\n[\\u00b617] Detective Dowdy, the next witness for the prosecution, testified that in the controlled substance trade, cell phones are used to conduct business and maintain recoi'ds. He stated that a \\\"user amount\\\" of methamphetamine is typically three grams or less, or commonly as little as one gram, and while prices varied, an average price would be $150 to $200 per gram of methamphetamine. He explained that three and a half grams is the equivalent of eight ounces, and that three and a half grams of methamphetamine is referred to as an \\\"eight, ball.\\\" The average price for an \\\"eight ball\\\" was between $350 and $500. He related that, in controlled substance investigations, possessing , smaller quantities suggest that the individual is a user, while possessing larger amounts could indicate that a person is distributing or selling methamphetamine.\\n[\\u00b618] After Detective Dowdy began describing his involvement in the search of Ms. Hooks' home, defense counsel, objected. \\\"Maybe [this] can be linked up with Ms. Hooks later,\\\" he asserted, \\\"but at this point, I don't think the search of her house is relevant to this ease.\\\" This prompted a discussion about whether the prosecution intended to call Ms. Hooks as a witness. The district court indicated that if Ms. Hooks was not called to produce evidence of a link with Mr. Overson, it would entertain a motion to strike all of the evidence regarding Ms. Hooks. The district court sustained the objection to evidence about the house search.\\n[\\u00b619] Near the end of the first day of trial, the district court dismissed the jury, and summarized for counsel its evidentiary rulings so far. It noted that testimony about the transaction behind the hotel and photographs of the bagged substances found there had been conditionally admitted based on the State's theory of the case: \\\"That they were going to show that Mr. Overson somehow had been in contact with Ms. Hooks.\\\" Concerning the State's suggestion that it might not call Ms. Hooks as a witness, the district court warned that if the link between that transaction and Mr. Overson was not made, it would \\\"consider motions to strike at that point. I'm not sure that we can actually continue with the trial, and obviously, it would be up to defense counsel to make a motion for a mistrial.\\\"\\n[\\u00b620] Amanda Heeren, a senior forensic analyst with the Wyoming State Crime Laboratory, was the first witness on the second day of trial. She testified to the weight of the substances in the bags found on Mr. Over-son. She also confirmed that when she tested those substances she \\\"identified the presence of methamphetamine.\\\"\\n[\\u00b621] The prosecution called Ms. Hooks as its final witness. She confirmed that she was conducting a drug deal behind the hotel when the officers arrived. She denied that she was selling methamphetamine at Mr. Overson's request. She admitted telling the officers that \\\"Brandon\\\" was at her home. She testified that, when the officers asked her about Mr. Overson's vehicle, a gold Tahoe, she told them \\\"that might be his.\\\" She admitted stating that, if the Tahoe was at her residence, Mr. Overson .would be there, too. When asked if she told:Officer Foutch that \\\"Brandon\\\" was her \\\"dealer,\\\" she responded, \\\"Possibly.\\\"\\n[\\u00b622] Based on Ms. Hooks' testimony\\u2014 particularly her indications that she \\\"possibly\\\" told Officer Foutch that \\\"Brandon\\\" was her \\\"dealer,\\\" that he was at her residence, and that the gold Tahoe was his\\u2014the district court ruled that the prosecution had linked Mr. Overson sufficiently to the transaction behind the hptel \\\"and established he was the one that supplied her drugs.\\\" It noted that \\\"a reasonable jury at this point could infer that the drugs involved were from Mr. Overson.\\\"\\n[\\u00b623] After the. prosecution rested its case, Mr. Overson made.a motion for a judgment of acquittal arguing, in part, that while there may be evidence that Mr, Overson had delivered substances to Ms. Hooks, there was no evidence that they were methamphetamine. The prosecution responded that Sergeant Overton testified to field testing of the substances found on Ms. Hooks, and the presumptive result was that they were methamphetamine. The district court ruled that the prosecution had presented sufficient evidence that methamphetamine was found on Mr. Overson's person, and that the amounts and individual packaging was evidence of his intent to deliver. As to the substances involved in the transaction behind the hotel, the district court ruled that the presumptive field test was insufficient to prove that they were methamphetamine. For that reason, the district court ruled that \\\"the State cannot argue that the drags confiscated [behind the hotel] were delivered by Mr, Overson to, to estab lish . the charge of possession with intent to distribute. They can still argue that evidence for permissible purposes.\\\"\\n[\\u00b624] Based on this ruling, Mr. Overson proposed a jury instruction clarifying that the drugs for which he was being charged were those found on his person. The district court denied that request, but instead indicated that it would revise the verdict form so as to ask the jury to make a \\\"finding that the drugs that were possessed were the ones on his person because I don't think that it's permissible for them to make a finding that he possessed [with] intent to distribute the drugs that were found on Ms. Hooks. There's just not sufficient evidence in front of me, so let me rerun the verdict form.\\\"\\n[\\u00b625] The jury found Mr. Overson guilty of possession of methamphetamine with intent to deliver in violation of Wyo. Stat. Ann. \\u00a7 35-7-1031(a)(i) (LexisNexis 2016), and guilty of felony possession of methamphetamine in violation of Wyo. Stat. Ann. \\u00a7 35-7-1031(c)(ii). On the verdict form, the jury marked an \\\"X\\\" next to the 'Tes,\\\" indicating the unanimous finding that he possessed the metiiamphetamine on his person. The district court sentenced Mr. Overson to serve three to eight years on the possession with intent to deliver charge, and three to five years imprisonment on the possession charge, with the sentences to run concurrently. Mr. Over-son filed a timely appeal with this Court.\\nDISCUSSION\\n[\\u00b626] In his first issue, Mr. Overson claims that evidence about the drug transaction behind the hotel was irrelevant, and the district court's decision to admit it was error. We review a trial court's evidentiary decisions for abuse of discretion.\\nEvidentiary rulings are within the sound discretion of the trial court and include determinations of the adequacy of foundation and relevancy, competency; materiality, and remoteness of the evidence. This Court will generally accede to the tidal court's determination of the admissibility of evidence unless that court clearly abused its discretion.\\nBrock v. State, 2012 WY 13, \\u00b6 23, 272 P.3d 933, 939-40 (Wyo. 2012) (quoting Edwards v. State, 2007 WY 146, \\u00b6 7, 167 P.3d 636, 637 (Wyo. 2007)). \\\"The ultimate issue that we decide in determining whether there has been an abuse of discretion is whether or not the court could have reasonably concluded as it did.\\\" Edwards v. State, 973 P.2d 41, 45 (Wyo. 1999) (quoting State v. McDermott, 962 P.2d 136, 138 (Wyo. 1998)).\\nLawrence v. State, 2015 WY 97, \\u00b6 10, 354 P.3d 77, 80 (Wyo. 2015). If we determine that evidence was admitted in error, then we consider whether the error was prejudicial. Hill v. State, 2016 WY 27, \\u00b6 22, 371 P.3d 553, 560 (Wyo. 2016).\\n[\\u00b627] As discussed above, defense counsel first objected to evidence about the transaction behind the hotel when Officer Fitzner was asked what he saw when he arrived at the scene. His objection was that the evidence was irrelevant because it was not connected to Mr. Overson. The prosecutor asserted that the evidence was relevant because \\\"[n]othing can be more relevant than how they ended up making contact with Mr. Overson,\\\" The district court overruled the objection, explaining later that the evidence was admitted pursuant to W.R.E. 104(b) on the condition that the prosecution, must make the connection between Mr. Overson and the transaction behind the hotel.\\n[\\u00b628] During the course of the trial, however, it became clear that the prosecution also intended to use this evidence to show that Mr. Overson had supplied the drugs to Ms. Hooks for her to sell. When the district court later decided that the prosecution had satisfied the condition of connecting Mr. Overson to the transaction, it indicated its approval of this use of the evidence. It concluded that \\\"a reasonable jury at this point could infer that the drugs involved were from Mr. Overson,\\\" and that the prosecution had adequately \\\"established he was the one that supplied [Ms. Hooks'] drugs.\\\"\\n[\\u00b629] The district court subsequently withdrew its approval for that use of the evidence. At the close of the prosecution's case, Mr. Overson moved for a judgment of acquittal. Although the district court denied that motion, it agreed with Mr. Overson's assertion that the prosecution had failed to provide evidence that the substances found in Ms. Hooks' car and on her body were actually methamphetamine. Based on that failure of proof, the district court determined that the prosecution could not argue that Mr. Overson had supplied controlled substances to Ms. Hooks, and later revised the verdict form in an attempt t\\u00f3 clarify that the controlled substances at issue in Mr, Overson's ease were those found on his person. The district court ruled, however, that the' prosecution could still use evidence of the transaction behind the hotel for other \\\"permissible purposes.\\\"\\n[\\u00b630] The only other permissible purpose ever suggested by the prosecution was to indicate the reason for stopping and detaining Mr. Overson. Accordingly, the question raised in this appeal is a focused one: Was the evidence admitted concerning the transaction behind the hotel relevant to show why Mr. Overson was stopped and detained? We conclude that, while a small portion of that evidence was relevant, the great bulk of it was not.\\n[\\u00b681] Relevant evidence is \\\"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.\\\" W.R.E. 401. In applying this rule to the case before us, w\\u00e9 first note that the central question of consequence in determining Mr. Overson's guilt was whether he had intent to deliver. In his opening statement, counsel for Mr. Overson admitted that \\\"[t]he evidence will be clear that Mr. Overson did indeed possess methamphetamine on that day.\\\" However, he asserted the \\\"evidence will not be so clear that Mr. Overson intended to deliver methamphetamine. That's the issue in the case.\\\"\\n[\\u00b632] The question of why Mr. Overson was stopped and detained was of little consequence during his trial. We have recognized that \\\"testimony about the course of an investigation leading to a defendant's arrest is not irrelevant evidence.\\\" Hernandez v. State, 2010 WY 33, \\u00b6 17, 227 P.3d 315, 321 (Wyo. 2010) (citing Evenson v. State, 2008 WY 24, \\u00b6 10, 177 P.3d 819, 823 (Wyo. 2008)). However, we have also recognized that there are limits to the use of such evidence. Griggs v. State, 2016 WY 16, 367 P.3d 1108 (Wyo. 2016).\\n[\\u00b633] In Griggs, a foster mother testified about the foster children's reports of sexual abuse. Id., \\u00b6 82, 367 P.3d at 1133, Responding to the appellant's claim that such testimony was inadmissible hearsay,' the State asserted that the testimony was not hearsay because it was admitted not \\\"for the truth of the matter asserted (i.e., that the abuse had actually occurred) but rather to show what [she] did in response to the reports.\\\" Id., \\u00b6 83, 367 P.3d at 1133. We noted that a similar situation is- presented when a law enforcement officer is asked to repeat a report of the defendant's criminal behavior. We said that such reports\\nmay fall within the rule allowing out of court statements to show their effect on the hearer rather than for the truth of the matter asserted. The issue often arises during the testimony of an investigating law enforcement officer. For example,\\n[a]n out-of-court declaration by a third party to a police officer which is offei'ed at trial merely to explain the officer's conduct in the investigation of a crime is usually admissible because it is not offered for the truth of the matter stated. The conduct to be explained should be relevant, in need of explanation,.and contemporaneous with the statements.\\n29 Am. Jur. 2d Evidence \\u00a7 676 (2015). See also Schreibvogel v. State, 2010 WY 45, \\u00b6 28, 228 P.3d 874, 884 (Wyo. 2010); Kerns v. State, 920 P.2d 632, 640-41 (Wyo. 1996); Olson v. State, 698 P.2d 107, 113-14 (Wyo. 1985) (an officer's testimony reciting a victim's or witness's statement elicited to provide context for the investigation may be admissible if it is not offered to prove the truth of the matter asserted).\\nGriggs, \\u00b6 85, 367 P.3d at 1133. However, relying on the reasoning of a ease from the Tenth Circuit Court of Appeals and our own precedent, we warned that\\nthe use of out of court statements to show the effect on the hearer is limited. It may be necessary and appropriate to introduce some out of court statements or portions of statements to explain the course of events, but other portions of the same statements may go far beyond what is necessary for this limited purpose. The rationale may not be used to inform the jury of the details of a victim's allegation of the criminal conduct or a witness's statement when those details are not necessary to explain what happened next.\\nGriggs, \\u00b6 86, 367 P.3d at 1134 (citing United States v. Cass, 127 F.3d 1218, 1223 (10th Cir. 1997); Kerns v. State, 920 P.2d 632, 640-41 (Wyo. 1996); and Longstreth v. State, 832 P.2d 560, 563 (Wyo. 1992)).\\n[\\u00b634] Another statement of this principle is set forth in 2 McCormick on Evidence \\u00a7 249, at 193-95 (7th ed. 2013) (footnotes omitted):\\nThe officers should not be put in the misleading position of appearing to have happened upon the scene and therefore should be entitled to provide some explanation for their presence and conduct. They should not, however, be allowed to relate historical aspects of the case, such as complaints and reports of others-containing inadmissible hearsay. Such statements are sometimes erroneously admitted under the argument that the officers are entitled to give the information upon which they acted. The need for this, evidence is slight, and the likelihood of misuse great. Instead, a statement that an officer acted \\\"upon information received,\\\" or words to that effect, should be sufficient.\\nHearsay is not at issue in Mr. Overson's case. However, the same principle applies to any evidence offered to indicate why an officer acted as he did. The need for such evidence is slight, and its use should be limited to explaining what happened next.\\n[\\u00b635] The evidence presented in Mr. Over-son's case far surpassed that limit. Even though the district court sustained some of Mr. Overson's objections to the relevancy of evidence about the transaction behind the hotel, the evidence admitted was far more than what would have been necessary to explain what happened next. For example, Officer Fitzner's detailed description about what he saw when he arrived at the scene of the transaction behind the hotel had little relevance to the question of why Mr. Overson was stopped. The facts that one of the suspects ran away, that the officer felt at risk because he was outnumbered, and that the officers separated Ms. Hooks from Mr. Johnson and interviewed them individually, all lacked any connection to Mr. Overson, and did little to explain what happened next, Much of his testimony was wholly irrelevant to the question of why Mr. Overson was stopped.\\n[\\u00b636] Also irrelevant was Sergeant Over-ton's testimony about chasing the fleeing suspect. The potential relevance of the twelve photographs of packaged substances found in Ms. Hooks' car disappeared when the prosecution failed to prove that the substances were methamphetamine. Further, when arguing that photographs of the drugs found on Ms. Hooks and in her vehicle were relevant, the prosecutor pointed out that the photographs showed packaging \\\"identical to that found on Mr. Overson.\\\" That information became irrelevant when the district court ruled that the prosecution could not argue that Mr. Overson had supplied drugs to Ms. Hooks. The sergeant's lengthy explanation of field testing for controlled substances was rendered irrelevant when the district court ruled that the field testing was insufficient to prove that the substances found in Ms. Hooks' car were methamphetamine.\\n[\\u00b637] Officer Foutch's testimony about the investigation that resulted in Mr. Overson being stopped is a good illustration of the principle stated in McCormick on Evidence and quoted above. His testimony was admitted to show the information on which he acted. But because the basis for stopping Mr. Overson was not really in question, the need for such evidence was slight. When asked what he did after speaking with Ms. Hooks, Officer Foutch responded, \\\"I went and drove by her place that she told me she lived,\\\" and found Mr. Overson's vehicle there. That statement would have been sufficient to show how they made contact with Mr. Overson. The details of his investigation did not have \\\"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.\\\" W.R.E. 401. The evidence was not relevant.\\n[\\u00b638] We therefore conclude that much of the evidence admitted at Mr. Over-son's trial was irrelevant and admitted in error. The next step is to consider whether this error resulted in prejudice to Mr. Over-son.\\nW.R.A.P. 9.04 states that \\\"any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded by the reviewing court.\\\" W.R.Cr.P. 52(a) and W.R.E. 103(a) contain similar provisions. The test for harmless error stated in the reverse is as follows:\\n\\\" 'An error is harmful if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the error had never occurred. To demonstrate harmful error, the defendant must show prejudice under \\\"circumstances which manifest inherent unfairness and injustice or conduct which offends the public sense of fair play.\\\" ' Johnson v. State, 790 P.2d 231, 232 (Wyo. 1990).\\\"\\nLancaster v. State, 2002 WY 45, \\u00b6 28, 43 P.3d 80, 93 (Wyo. 2002) (quoting Skinner v. State, 2001 WY 102, \\u00b6 25, 33 P.3d 758, 767 (Wyo. 2001), cert. denied, 535 U.S. 994, 122 S.Ct. 1554, 152 L.Ed.2d 477 (2002)).\\nDysthe v. State, 2003 WY 20, \\u00b6 10, 63 P.3d 875, 881 (Wyo. 2003).\\n[\\u00b639] The State attempts to minimize the impact of the erroneously admitted evidence. It points out that Mr. Overson possessed a relatively large amount of methamphetamine in five separate packages, some containing the specific amount commonly referred to as an \\\"eight ball\\\" in the drug community. He' was also carrying two cell phones and $435 in cash. Based on this evidence, the State contends that any error in admitting the evidence was not prejudicial. We are not convinced.\\n[\\u00b640] The challenged evidence went directly to the heart of Mr. Overson's defense. He admitted to possession of the drugs. The only issue in play was whether he possessed the drugs with intent to distribute. The volume of the improperly admitted evidence is substantial. Much more of the trial transcript is devoted to testimony about the events behind the hotel than to testimony directly related to Mr. Overson. Further, it is clear that the prosecution intended to use evidence of the transaction behind the hotel to prove that Mr. Overson had provided drugs to Ms. Hooks. The district court initially deemed the evidence relevant for that purpose, noting that \\\"a reasonable jury at this point could infer that the drugs involved were from Mr. Overson.\\\" It is likely that the jury, having seen and heard the same evidence, made just that inference.\\n[\\u00b641] Later, the district court changed its ruling, and prohibited the prosecution from using the evidence for that purpose. Yet no instruction was given telling the jury that evidence about the transaction behind the hotel was admitted for the limited purpose of establishing why the police stopped and detained Mr. Overson. It is impossible to believe that the jury would, without being in structed, consider the evidence only for that limited purpose. Without that evidence, there is a reasonable possibility that the verdict might have been more favorable to Mr. Ov-erson. Admission of that evidence was prejudicial, and Mr. Overson's conviction for possession with intent to distribute should be reversed.\\n[\\u00b642] Because Mr. Overson's first issue is dispositive, we do not need to consider his second issue. The ease is reversed and remanded for further proceedings in accordance with this opinion.\\n. Mr. Overson chose not to testify or present other evidence.\\n. With respect to the first count charged against Mr. Overson, the verdict form read as follows:\\nWe, the jury, duly empanelled to try the above-entitled case, FIND AS FOLLOWS:\\n1. As to the crime of Possession of a Controlled Substance with Intent to Deliver, as charged in Count I, we find the Defendant, BRANDON OVERSON:\\n_Guilty\\n_Not Guilty\\nWe unanimously find that the Defendant, Brandon Overson, possessed a controlled substance, methamphetamine, on his person.\\n_Yes\\n_No\\n. Although defense counsel did not object every time a witness testified about the transaction behind the hotel, he did so frequently enough to place the issue of relevancy squarely before the district court. It is therefore appropriate for us to review the district court's decision for abuse of discretion. The State does not contend that we should review for plain error.\\n. W.R.E. 104(b) provides that, \\\"When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.\\\"\"}"
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+"{\"id\": \"12410494\", \"name\": \"Corey David GARRIOTT, Appellant (Defendant), v. The STATE of Wyoming Appellee (Plaintiff)\", \"name_abbreviation\": \"Garriott v. State\", \"decision_date\": \"2018-01-18\", \"docket_number\": \"S-17-0097\", \"first_page\": \"771\", \"last_page\": \"791\", \"citations\": \"408 P.3d 771\", \"volume\": \"408\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T01:42:24.876586+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.\", \"parties\": \"Corey David GARRIOTT, Appellant (Defendant), v. The STATE of Wyoming Appellee (Plaintiff).\", \"head_matter\": \"2018 WY 4\\nCorey David GARRIOTT, Appellant (Defendant), v. The STATE of Wyoming Appellee (Plaintiff).\\nS-17-0097\\nSupreme Court of Wyoming.\\nJanuary 18, 2018\\nRepresenting Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson , Chief Appellate Counsel; Kirk Morgan, Senior Assistant Appellate Counsel; Argument by Ms. Olson,\\nRepresenting Appellee: Peter K. Michael, Wyoming Attorney General; David L. Deli-cath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Jesse B, Naiman, Assistant Attorney General. Argument by Mr. Naiman.\\nBefore BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.\\nAn order granting Ms. Olson's Motion to Withdraw was entered on December 13, 2017. -\", \"word_count\": \"9877\", \"char_count\": \"59357\", \"text\": \"DAVIS, Justice.\\n[\\u00b61] Corey Garriott was convicted of one count of conspiracy to deliver methamphetamine. He appeals his conviction, claiming that the district court made numerous errors in the admission of testimony, and that it erred in denying his motion to dismiss on double jeopardy grounds. He further claims that plain error occurred when a law enforcement witness offered his opinion that Mr. Garriott committed the crime of conspiracy to deliver methamphetamine. We affirm.\\nISSUES\\n[\\u00b62] Mr. Garriott presents three issues on appeal, which we state as:\\nI. Did the trial court err in admitting improper \\\"overview\\\" testimony, testimony regarding portions of the conspiracy in which Mr. Garriott had no involvement, and testimony regarding the addiction, substance abuse, and pex^onal histories of Mr. Garriott's co-conspirators?\\nII. Did the trial court err in denying Mr. Garriott's motion to dismiss on double jeopardy grounds?\\nIII. Did plain error occur when a state witness offered his opinion that Mr. Gar-riott committed the crime of conspiracy to deliver methamphetamine?\\nFACTS\\n[\\u00b63] In the fall of 2015, Pauline Hemicker began selling methamphetamine in. Casper, Wyoming. Ms. Hemicker's original supplier was Joshua Coats, but around January 2016, Mr. Coats became unavailable because he was scheduled to begin serving a sentence at the Casper re-entry facility. Because Mr. Coats was going to be unavailable while serving his sentence, he made arrangements for Ms. Hemicker to obtain methamphetamine directly from his Colorado source, Chris Pino. As of January 2016, Ms. Hemicker therefore took over as Mr. Pino's distributor in Casper.\\n[\\u00b64] Ms. Hemicker used multiple distributors to sell methamphetamine, but her main distributor was Mikey Ross, whom she met .in November 2015. Around the end of January or the beginning of February 2016, Ms. Hemicker met Mr. Ross at home in his garage. Corey Garriott was also present, and Mr. Ross asked Ms. Hemicker if she had any work for Mr. Garriott, Ms. Hemicker took this to be a request for methamphetamine to distribute, because work was the slang term she, along with Mr. Ross and Mr. Garriott, used to refer to methamphetamine. Ms. Hemicker described that meeting:\\nQ. And who was present?\\nA. It was me, Mikey Ross, Gorey. I think that's it.\\nQ. Okay. And, again, this would have been sometime the end of January, first of February you think?\\nA. Right.\\nQ. And so what happened at that meeting when he asked if you had any work for Corey?\\nA.. I was iffy about it at first. I mean, I don't' know. And then I \\u2014 I don't know. Mikey said he trusted him. It was his boy. He said he would do the transactions, he would - collect the money, and that I wouldn't have to deal with him one-on-one.\\nQ. Okay. And so how did you feel-about that?\\nA. I was okay with it as long as it', went through Mikey Ross.\\n[\\u00b65] During that meeting in the garage, Ms; Hemicker supplied Mr. Ross with methamphetamine and instructed him that it was \\\"totally up to him to distribute to whoever he did.\\\" On February 2,2016, Mr. Ross sent Ms. Hemicker a text message, which stated, \\\"Heh I got corys money for u,\\\" followed immediately by a message that he also had money for her. Ms. Hemicker understood the messages to refer to money for the methamphetamine she had supplied because that was the only thing for which either Mr. Ross or Mr. Garriott would owe her money.\\n[\\u00b66] Ms. Hemicker described a number of occasions on which she supplied methamphetamine to Mr. Garriott or had discussions with him about supplying him with methamphetamine. Just a couple of days' after the first occasion in Mr. Ross' garage, Ms. Hem-icker again met Mr. Ross and Mr. Garriott at Mr. Ross' home. When Mr. Garriott-left .the home, Ms. Hemicker followed him to the driveway and handed him an 8-ball of methamphetamine. Thereafter, Ms. Hemicker started communicating directly with Mr. Gar-riott, and they exchanged several text messages relating'to Ms. Hemicker's. ability to supply Mr. Garriott with methamphetamine as well as money Mr. Garriott owed Ms. Hemicker.\\n[\\u00b67] After being supplied by Ms. Hemicker, Mr. Garriott sold three grams of \\\"methamphetamine to a friend of his; Angela Danielson. Ms. Danielson described that transaction:\\nQ. Now, during this time period, let's say beginning of February of 2016, did you ever get any methamphetamine from anyone besides Mikey Ross?\\nA. Yeah.\\nQ. And who was that?'\\nA. I got some from Corey once.\\nQ. And can you tell me what led, to that.\\nA. What \\u2014 what led to me getting it from him?\\nQ. Yeah.\\nA. We would text back and forth. I would \\u2014 I would text him and ask for work; and whenever I would say that, I would mean I was looking for dope. And he text me out of the blue and said he had some, and I got it from him. That was that. It was one time, though.\\n[\\u00b68] Mr, Garriott. fronted Ms. Danielson the methamphetamine he -supplied her, meaning that he in effect sold it to her on credit. Their understanding was Ms. Daniel-son would pay Mr. Garriott after she sold the methamphetamine. In the days following that transaction, Mr. Garriott and Ms. Danielson exchanged numerous text messages concerning Ms. Danielson's desire to be introduced to Ms, Hemicker, her requests for additional work from Mr. Garriott, and the' money she owed him, . .\\n[\\u00b69] During this same February 2016 time frame, Mr. Garriott was living with John Fry, a methamphetamine user, and he was also selling methamphetamine to Mr. Fry. On February 8, 2016, Mr. Garriott sent a text message to Ms. Hemicker asking that she meet with him and Mr. Fry. His message stated, \\\"Hey when you get some free time will you meet one of my homies and hear a business plan.\\\" Ms. Hemicker agreed to the meeting and described what occurred:\\nQ. And when they got there, did they have some kind of business plan to propose to you?\\nA. Yes.\\nQ. And do you recall what that was?\\nA. That was for me to tell them who I was distributing my methamphetamine to so that they can go and take it from them after I distributed to them.\\nQ. And when you say \\\"take it from them,\\\" what \\u2014 what do you mean?\\nA. Rob them.\\n\\nQ. So what was the plan? What were they going to do with the methamphetamine once they took it?\\nA. They were just going to distribute it, just make double money off of it.\\nQ. And so when they told you that plan, what was your reaction?\\nA. I didn't think it was a good idea.- I denied them when they came to me for that business proposition.\\n[\\u00b610] Some days after that meeting, Mr. Garriott, while at home with Mr. Fry, sent a text message to Ms. Hemicker \\\"trying to set up a meeting for her to come over and basically broker a deal for some meth.\\\" Mr. Fry explained:\\nQ. And when you say \\\"broker a deal for methamphetamine,\\\" what do you mean?\\nA. Well, Corey was basically meeting:\\u2014 having me meet Pauline so she could bring some meth.\\nQ. And what was going to happen with the meth that she brought?\\nA. It was going to be used and sold by myself and Corey.\\nQ. And up to this point, had you been selling methamphetamine?\\nA. No. I was just using.\\nQ. And so why at this point \\u2014 why were you going to get into selling?\\nA. I was having a real hard time financially. I was laid off from the oil field.\\n[\\u00b611] That same evening, Ms. Hemicker and her husband came to Mr. Fry's home. Mr. Fry again explained:\\nQ. And, again, do you know how the meeting was set up? So you didn't have Ms. Hemicker's contact information, so\\u2014\\nA. No, ma'am. Corey \\u2014 Corey contacted her. And \\u2014 and then they both ended up coming over. He came back over, and she showed up right after.\\nQ. And so who all was at this meeting?\\nA. Myself; Corey Garriott; Pauline; and Uwe, her husband.\\nQ. And what happened at that meeting?\\nA. She came over. We used some meth, and we talked about \\u2014 I talked about buying some meth from her. And I ended up buying some.\\nQ. And do you recall how much you purchased that night?\\nA. It would have been an ounce.\\nQ. And do you remember what you were being charged for that?\\nA. I believe it was \\u2014 I think it was about $900.\\nQ. And how \\u2014 did you pay for that that evening?\\nA. Yes; most of it.\\nQ. Okay. Do you recall how much exactly?\\nA. About $600.\\nQ. And so where \\u2014 how\\u2014what was the arrangement, then, for the rest of the money for that?\\nA. She was going to come back and get it.\\nQ. And where were you going to come up with that money?\\nA. Selling methamphetamines.\\nQ. And so did you end up selling that methamphetamine?\\nA. Yes.\\nQ. And did you return that money to Ms. Hemicker?\\nA. I did.\\nQ. And after this initial meeting that Mr. Garriott set up, how were you and Ms. Hemicker communicating?\\nA. By telephone, texting, also Corey.\\nQ. Okay. So there \\u2014 you were still doing some communicating through Mr. Gar-riott?\\nA. Yes, ma'am.\\n[\\u00b612] Ms. Hemicker also continued to supply Mr. Garriott with methamphetamine, including on February 12 and 17, and March 13, 2016. On March 19, 2016, Mr. Garriott sent Ms. Hemicker a text message telling her that Angela Danielson wanted to spend $1,200, and asking if she could work with that. Ms. Hemicker understood that to be a request for about two ounces of methamphetamine, but because she did not have that amount, nothing came of that request. On March 20, 2016, Mr. Garriott again contacted Ms. Hemicker and told her \\\"I really could use seeing you.\\\" Ms. Hemicker again understood this to mean Mr. Garriott needed methamphetamine.\\n[\\u00b613] Ms. Hemicker responded to Mr. Gar-riott's March 20 text message with a request that Mr. Garriott come to her home and change the tires on her vehicle, which he agreed to do. Ms. Hemicker informed Mr. Garriott that she needed new tires because she was traveling to Cheyenne to obtain methamphetamine.\\nQ. And what did you tell him?\\nA. I told him \\u2014 he knew that I had to go to Cheyenne to re-up. So that was the whole reason I needed my toes changed.\\nQ. Okay. Did you discuss with him the text. that he wanted some help and that you didn't have anything, but that's what you were going to do?\\nA. Right.\\nQ. And was there any discussion \\u2014 was he going to get anything in return for helping you change your tires?\\nA. He didn't ask for anything in return.\\nQ. Okay. Were you \\u2014 did you think you might give him something in return?\\nA. Of course I would have.\\nQ. And what were you planning\\u2014\\nA I would have just gave him some methamphetamine.\\nQ. And you knew that's what he was looking for?\\nA. Right.\\nQ. So what happened after your tires were changed?\\nA. Then I asked him if he wanted to go with me to Cheyenne. And he said, Well, follow me to my sister's. I have to drop the car off. So I followed him over there and. we dropped the car off and we left and got gas and went to Cheyenne.\\n[1114] Ms. Hemicker and Mr. Garriott drove to a Motel 6 in Cheyenne, where they were to meet -with Danny Thompson, who was sent by Chris Pino. Four persons met in the motel room: Ms. Hemicker, Mr. Garriott, Mr. Thompson, and a friend of Mr. Thompson's. Mr. Thompson gave Ms. Hemicker the methamphetamine, and she and Mr. Thompson smoked some of it. The four then left the motel, went to Mr. Thompson's friend's house, and talked for a little while. Ms. Hem-icker and Mr. Garriott thereafter headed back to Casper.\\n[\\u00b615] On their way back, Ms. Hemicker and Mr. Garriott stopped in Douglas to pick up some speakers for Mr. Garriott. After leaving Douglas, Ms. Hemicker was pulled over at some point between Douglas and Casper by the Wyoming Highway Patrol, accompanied by Division of Criminal Investigation (DCI) agents. They seized two packages of methamphetamine, one weighing 107.674 grams, and the other 67.121 grams.\\n[1116] On March 22, 2016, the State filed an information charging Mr. Garriott with one count of conspiracy to deliver methamphetamine. His first trial, which began on September 19, 2016, ended in a mistrial on September 20 on Mr. Garriott's motion. Mr. Garriott requested the mistrial after Mr. Fry testified in response to questions by the prosecutor that he met Mr. Garriott in prison. The district court agreed that the testimony was unfairly prejudicial to Mr. Garriott and granted the defense motion for a mistrial.\\n[\\u00b617] The district court thereafter set Mr. Garriott's second trial for October 31, 2016. On October 17, 2016, Mr. Garriott requested permission to represent himself in that second trial after firing his fourth public defender. On October 21, 2016, the district court held a hearing on Mr. Garriott's request and ruled that he would be permitted to represent himself.\\n[\\u00b618] Before withdrawing from representing Mr. Garriott, his fourth and final public defender filed a motion to dismiss based on Fifth Amendment double jeopardy protections. On October 27, 2016, the district court heard the motion, made a finding that the State did not intentionally goad Mr. Garriott into requesting a mistrial, and denied the motion to dismiss.\\n[\\u00b619] The second trial began on October 81, 2016 and concluded on November 2, 2016, with the jury returning a verdict finding Mr. Garriott guilty of conspiracy to deliver a controlled substance, methamphetamine. On January 81, 2017, the district court entered an order sentencing Mr. Garriott to a prison term of five to seven years. On February 2, 2017, Mr. Garriott filed a timely notice of appeal to this Court.\\nDISCUSSION\\nI. Alleged Errors in the Admission of Testimony\\n[\\u00b620] In his. first argument, Mr. Garriott contends that the district court erred in: A) allowing overview testimony by DCI Agent Brad Reinhart; B) allowing witness testimony concerning portions of the conspiracy in which Mr. Garriott had no involvement; and C) allowing co-conspirator testimony that included the co-conspirators' personal 'histories \\u00e1nd addiction issues. To the extent Mr. Garriott preserved his objection to these asserted errors in the admission of evidence, we will review the district court's decision for an abuse of discretion:\\n\\\"We review claimed error concerning the improper admission of evidence for abuse of discretion and will not reverse the trial court's decision absent a clear abuse.\\\" Szymanski v. State, 2007 WY 139, \\u00b6 15, 166 P.3d 879, 883 (Wyo. 2007) (citing Bromley v. State, 2007 WY 20, \\u00b6 8, 150 P.3d 1202, 1206 (Wyo. 2007)). \\\"A trial court abuses its discretion when it could not have reasonably concluded as it did. In this context, 'reasonably means sound judgment exercised with regard to what is right under the circumstances and without being arbitrary or capricious.\\\" Id. (internal citation omitted). Upon a finding of abuse of discretion, we must then determine whether the error was prejudicial. \\\" 'Error is prejudicial if there is a reasonable possibility that the \\\"verdict might have been more favorable to the defendant if the error had not been made.' \\\" Mersereau v. State, 2012 WY 125, \\u00b6 17, 286 P.3d 97, 106 (Wyo. 2012) (quoting Rolle v. State, 2010 WY 100, \\u00b6 9, 236 P.3d 259, 264 (Wyo. 2010)).\\nSchmidt v. State, 2017 WY 101, \\u00b622, 401 P.3d 868, 878 (Wyo. 2017) (quoting Toth v. State, 2015 WY 86A, \\u00b629, 353 P.3d 696, 705-06 (Wyo. 2015)).\\n[1121] For any alleged errors in the admission of testimony to which Mr. Garriott did not object, we limit our review tq a search for plain error. Hathaway v. State, 2017 WY 92, \\u00b6 29, 399 P.3d 625, 634 (Wyo. 2017). \\\"Under the plain error standard of review, we reverse a district court's decision only if it is so plainly erroneous that the judge should have noticed and corrected the mistake even though the parties failed to raise the issue.\\\" Town v. State, 2015 WY 78, \\u00b69, 351 P.3d 257, 260 (Wyo. 2015) (quoting Masias v. State, 2010 WY 81, \\u00b620, 233 P.3d 944, 950 (Wyo. 2010)). Plain error exists when:\\n(I) the record clearly reflects the alleged error; (2) the party claiming the error demonstrates a violation of a clear and unequivocal rule of law; and (3) the party proves that the violation adversely affected a substantial right resulting in material prejudice.\\nHathaway, \\u00b629, 399 P.3d at 634 (quoting Griggs v. State, 2016 WY 16, \\u00b6 81, 367 P.3d 1108, 1132-33 (Wyo. 2016)).\\n[\\u00b622] Against these standards of review, we will separately consider each of Mr. Gar-riott's asserted errors in the district court's admission of testimony.\\nA. Agent Reinhart's Testimony\\n[\\u00b623] Mr. Garriott contends Agent Rein-hart's testimony was improper overview testimony that should have been excluded because it impermissibly vouched for the credibility of the \\u2022 State's witnesses and placed the State's imprimatur on witness testimony. We disagree.\\n[\\u00b624] We begin with the, definition of overview testimony, which as the Tenth Circuit Court of Appeals has observed, is different from opinion testimony.\\nOpinion and overview testimony are related but slightly different types of evidence. Under Federal Rule of Evidence 701, lay opinion testimony must be \\\"rationally based on the witness's perception\\\" and \\\"helpful to clearly understanding the witness's testimony or to determining a fact in issue.\\\" Under Rule 702, expert opinion testimony is allowed if \\\"the expert's scientific, technical, or other specialized knowledge will help the trier- of fact to understand the evidence or to determine a fact in issue.\\\"\\nOverview testimony is a broader category of evidence, usually offered at the beginning of trial by a government agent as a way to preview the government's ease, and can include lay and expert opinion. It occurs when a \\\"witness is put on the stand to testify before there has been any evidence admitted for the witness to summarize.\\\" United States v. Griffin, 324 F.3d 330, 349 (5th Cir. 2003). The testimony provides \\\"an overview of the government's ease, setting forth for the jury the script of the testimony and evidence the jury could expect the government to present in its case-in-chief.\\\" United States v. Moore, 651 F.3d 30, 54-55 (D.C.Cir. 2011).\\nUnited States v. Brooks, 736 F.3d 921, 930 (10th Cir. 2013).\\n[\\u00b625] \\\"Courts generally allow overview testimony to the extent, it concerns how an investigation began, the law enforcement agencies involved, or the investigative techniques used.\\\" Id, It is also admissible as expert testimony to show the roles played by participants in a criminal enterprise. Id. at 931 (quoting United States v. McSwain, 197 F.3d 472, 482 (10th Cir. 1999)). While overview testimony may be admissible in certain circumstances, its parameters must be carefully drawn.\\n\\u2022But overview'testimony is susceptible to abuse. It can stray into matters that are reserved for the jury, such as opinions about a defendant's guilt or a witness's credibility. An overview witness, for example, might express opinions about the defendant's truthfulness at certain times or his likelihood of being involved in a scheme or crime, thus usurping the jury's role in making fact findings based on the credibility and demeanor of witnesses with personal knowledge. Other potential problems include the government's ability (1) to spin the evidence in its favor before it is admitted (assuming it is ever admitted), (2) to give its official imprimatur to certain evidence, and (3) to allow its witnesses (usually law enforcement) to testify on matters about which they have no personal knowledge or that are based on hearsay. See [United States v.] Moore, 651 F.3d [30,] at 56 [ (D.C. Cir. 2011) ]. As one court put it,\\n[S]uch testimony raises the very real specter that the jury verdict could be influenced by statements of fact or credibility assessments in the overview but not in evidence. There is also the possibility that later testimony might be different than what the overview witness assumed; objections could be sustained or the witness could, change his or her story. Overview testimony by government agents is especially problematic because juries may place greater weight \\u00f3n evidence perceived to have the imprimatur of the government.\\nUnited States v. Casas, 356 F.3d 104, 119-20 (1st Cir. 2004) (citations omitted).\\nBrooks, 736 F.3d at 930-31.\\n[\\u00b626] We now turn to Mr. Garriott's claim that Agent Reinhart's testimony was improper overview testimony. Before we consider the claim, however, we must determine the proper standard for our review. That question is complicated by the fact that on appeal Mr. Garriott claims error in essentially the entirety of Agent Reinhart's testimony, but at trial, he objected only twice during that testimony. This is important because we have held that until a trial court makes a definitive ruling on the admissibility of evidence, a party must continue to renew his objection to preserve that objection. Hicks v. Zondag, 2014 WY 16, \\u00b6 13, 317 P.3d 606, 609-10 (Wyo. 2014). In requiring that a party renew his objection to preserve it, we have explained:\\n[A] party seeking to exclude evidence c|oes not have to renew the objection at trial if the court entered a definitive ruling at an earlier time, but the objection does have to be renewed if the trial court refused to rule on the earlier occasion, or deferred ruling, or entered a nonfinal or provisional or conditional ruling indicating that the matter remains open. The amended language in [F.R.E.] 103(b) actually reaches beyond pretrial motions, and applies to definitive on-the-record nilings that are made at any time during the course of the proceedings.\\n* \\u215c #\\nThe requirement that the ruling be \\\"definitive\\\" is clearly satisfied if the trial judge rules in an unequivocal manner, -without reserving the matter for further consideration as the trial progresses and the evidence unfolds.\\nHicks, \\u00b6 13, 317 P.3d at 609-10 (quoting 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence \\u00a7 1:10 (4th ed. 2013) (footnotes omitted)); see also Garland v. State, 2017 WY 102, \\u00b6 17, 401 P.3d 480, 486 (Wyo. 2017).\\n[\\u00b627] It is apparent that the district court did not at any point make a definitive ruling on Agent Reinhart's testimony. Before Mr. Garriott made his request to appear pro se at his second trial, his attorney filed a pretrial motion in limine to exclude overview testimony, basing that motion on testimony that had been allowed in the first trial from a different DCI agent, Agent Cox. The' district court ruled:\\nMy recollection of Agent Cox's testimony is similar to what [the State] has stated. It was kind of an overview as an expert to assist the jury in understanding [the] kind of the logistics of how people who distribute controlled substances operate and to understand kind of the concepts of that as they could become relevant based on the specific testimony from other witnesses about this particular case. . I don't know that anything that Agent Cox testified to really implicated the focus of what [defense counsel] was arguing as far as the specifics of this particular case. At this time, there's not a basis in limine before the trial to rule and exclude something along those lines. If there's an objection to something that's actually presented in the retrial, the Court would consider that objection at the appropriate time.\\n[\\u00b628] The district court's ruling on the defense motion in limine was clearly not a final ruling, and it instead invited Mr. Garriott to object as evidence was presented during the trial. At trial, Mr. Garriott objected on only two occasions during Agent Rein-hart's direct examination, and on both occasions, the district court ruled, \\\"I'll overrule at this time.\\\" Neither of these rulings was an unequivocal ruling on the admissibility of Agent Reinhart's testimony in its entirety. This leaves us with preserved objections to only part of the testimony. Accordingly, we will review the testimony to which Mr. Gar-riott objected for an abuse of discretion, and the remaining testimony for plain error.\\n1. Review for Abuse of Discretion\\n[\\u00b629] Mr. Garriott objected to two questions that were asked of Agent Reinhart. His first objection occurred as follows:\\nQ. . [Y]ou talked a little bit about the different aspects of the drug organization or the different roles that people can play in that \\u2014 in that distribution. Can you explain a little bit more in detail about each individual roles of the organization?\\nA. Yes. Throughout the organization, you have different levels, as I've said. Some of the individual's sole purpose is transporting the drugs; while others, their job might just to be a stash house or a hide house to hold those drugs at until they can move on to the next stage of the operation. Each individual in these organizations has a\\u2014 they have a job. They have a purpose to this to further the overall conspiracy. And it \\u2014 it goes down to even individuals that their sole purpose is to drive or even act as a passenger in a vehicle, just helping them\\u2014\\nMR. GARRIOTT: Objection, Your Honor.\\nTHE COURT: What's the basis for your objection?\\nMR. GARRIOTT: That he's trying to give an overview on the whole drug conspiracy, that it does not pertain to me, where the drugs come from Mexico and the transporter of the drugs and this and that. It's the overview. He's trying to give a generalization that this individual case is more broad than it actually is.\\nTHE COURT: [Prosecutor]?\\n[PROSECUTOR]: Your Honor, Agent Reinhart is giving some basic background information of the different roles of an organization and how they rely on each other to further the conspiracy.\\nTHE COURT: I'll overrule at this time.\\n[\\u00b630] Mr. Garriott's second objection then occurred as follows:\\nQ. Throughout your training and experience, have you had an opportunity to review, like, text messages or phone calls that are made during a methamphetamine distribution?\\nA. Yes, ma'am. Throughout my six years of working narcotics, I've reviewed hundreds of phones and text message downloads, and \\u2014 in regards to these kinds of investigations.\\nQ. And in your experience, do you\\u2014\\nMR. GARRIOTT: Objection, Your Honor.\\nTHE COURT: Just a moment. Finish the question, then I'll come back to you, sir.\\nQ. In your experience, how often have you seen the words \\\"drugs\\\" or \\\"methamphetamine\\\" actually used?\\nTHE COURT: Just a second.\\nMR. GARRIOTT: I object to this because it's been 15 minutes and there is still no basis upon my position in this conspiracy.\\nTHE COURT: All right. I'll overrule at this time.\\n[\\u00b631] Mr. Gamott's objection to Agent Reinhart's above-quoted testimony as impermissible overview evidence is misplaced. The testimony was not a preview or script of the State's case, but was instead testimony concerning drug organizations generally, and the roles and communication within those organizations. This was not expert testimony aimed at previewing the State's case, but rather at assisting the jury in evaluating the evidence.\\n[\\u00b632] Such expert testimony is generally admissible if it will assist the trier of fact in resolving the factual issues before it. Cureton v. State, 2007 WY 168, \\u00b6 10,169 P.3d 649, 561 (Wyo. 2007);' see also United States v. Vann, 776 F.3d 746, 768 (10th Cir. 2016) (quoting United States v. Kamahele, 748 F.3d 984, 998 (10th Cir. 2014)) (police officers may testify as experts based on their experience including testimony on the \\\"means and methods of drug dealing\\\"); Barbara E. Bergman et al., 3 Wharton's Criminal Evidence \\u00a7 13:63 (16th ed. Nov. 2Q17 update) (footnote omitted) (\\\"Courts often permit'prosecutors to qualify police officers as experts to testify about a variety of issues in criminal cases, including drug related activities . \\\"); 31A Am. Jur. 2d Expert and Opinion Evidence \\u00a7 311 (Nov. 2017 update) (footnote omitted) (\\\"Expert testimony-as to modus operandi in cases involving drug-related offenses has been widely accepted.\\\"). For example, in Cureton, we.affirmed the trial court's decision to admit an investigating officer's expert testimony on the distinguishing factors between methamphetamine possessed for personal use and that possessed for resale,\\nAt trial, in addition to testifying about the events surrounding Cureton's arrest and the items seized, Officer Wenberg testified as an expert with over sixteen years of experience about the common characteristics of methamphetamine use and trafficking, including its different forms and methods of ingestion, the various quantities in which the drag is sold and its street value. Officer Wenberg testified that most people who sell methamphetamine often use it, and that a large quantity of the drug, as found in this ease, could be possessed for either personal use or for resale. Officer Wenberg stated that, in order to determine if a person intended to resell \\u2022methamphetamine, one had to consider other factors such as the presence of packaging materials, scales, large amounts of cash or other items of value, and pay/owe sheets upon which drug transactions are recorded. Officer Wenberg opined that the presence- of several factors suggested that methamphetamine was being sold.\\nCureton, \\u00b6 8, 169 P.3d at 651.\\n[\\u00b633] In finding this testimony relevant and admissible, we explained:\\nIn this case, Officer Wenberg never testified or offered a conclusion about whether Cureton was a drug dealer or that she was guilty of any particular offense. The officer's testimony merely informed the jury about the meaning and significance of certain items of physical evidence collected at the scene, and left the ultimate conclusion for the jury. We do not perceive Officer Weriberg's testimony as impermissible comments oh Cureton's guilt but, rather, as opinion evidence offered to aid the jury in understanding and resolving the factual issues of the case'.\\nId. \\u00b6 11, 169 P.3d at 551.\\n[\\u00b634] We view Agent Reinhart's testimony in much the same way. While not every role Agent Reinhart included in his general drug organization description was reflected in the organization within which Mr. Garriott operated, the information was generally helpful in understanding drug distribution operations and the interrelationships of the different roles. Similarly, Agent Reinhart's testimony describing drug dealing terminology used in text messages was helpful to the jury in understanding text messages between Mr. Garriott and his co-conspirators.\\n[\\u00b635] Rather than offering a pi-eview of the State's case, and what to expect from the State's evidence, Agent Reinhart provided generalized expert testimony on drug organizations, including individual roles in such organizations and communications between participants in those organizations. As we held in Cureton, this is within the bounds of permissible expert testimony, and we thus find no abuse of discretion in the district court's decision to allow the testimony.\\n[\\u00b636] We 'turn then to- our review of Agent Reinhart's remaining testimony for plain error.\\n2. Review for Plain Error\\n[\\u00b637] Mr. Garriott generally challenges all of Agent Reinhart's direct examination testimony as improper overview testimony. We reach the same conclusion for the testimony to which Mr. Garriott did not object on direct examination as we did for the two questions to which Mr. Garriott did object. Agent Reinhart's direct examination testimony simply was not overview testimony, and we can therefore find no plain error in the' district court's admission of the testimony on that ground.\\n[\\u00b688] Moreover, to the extent Mr. Garriott argues that the admission of Agent Reinhart's testimony violated W.R.E. 403 because its potential for unfair prejudice outweighed its relevance, we again find no plain error. As we discussed above, Agent Rein-hart's testimony concerning drug distribution rings, and the means and methods of such operations, was helpful to the jury in evaluating the evidence before it and was thus relevant. As to Agent Reinhart's testimony that methamphetamine sold in Wyoming originates in Mexico, testimony Mr. Garriott points to as irrelevant, we again find no plain error. In context, the testimony was offered to explain the importance of local drug distribution networks when the product originates outside Wyoming. The State did not dwell on the Mexico connection, and Mr. Garriott points to nothing in the record that would suggest that the State was using the testimony to play on juror passions. We thus find no plain error violation of W.R.E. 403 in Agent Reinhart's direct examination testimony.\\n[\\u00b639] Mr. Garriott next contends that Agent Reinhart responded in an improper fashion to several questions on cross-examination, and that those responses amounted to additional overview testimony which impermissibly vouched for the State's witnesses who would testify later in the trial. Specifically, Mr. Garriott points to the following testimony:\\nQ. . Specifically to me, did you ever do any surveillance on me?\\nA. At this point, on just you, no; but on other individuals in your organization, yes, sir.\\nQ.. So did you ever hear of any controlled purchases or hidden cameras or video surveillance or anything on my\\u2014on me as an individual?\\nA. Just for you, no; but Ms. Hemicker, yes.\\n\\nQ. . You do-wiretaps, video' surveillance, even hang cameras from trees and poles, and you never once had a picture of me or surveillance of me on any of this?\\nA. In this investigation, no; but I've done other\\u2014\\nQ. No, no; I'm talking about this investigation, this conspiracy specifically,\\nA. No, we had no photos of you, but we had multiple people talking about you.\\n[\\u00b640] We again do not see this as overview testimony, Agent Reinhart, did not preview the State's case and instead merely testified to his own personal knowledge of the investigation. Additionally, ev\\u00e9n if Agent Reinhart's testimony could be viewed as overview testimony, the testimony did not impermissibly vouch for the credibility of other prosecution witnesses.\\n[\\u00b641] Our law is clear that \\\"it is the jury's role to determine the credibility of witnesses.\\\" Fennell v. State, 2015 WY 67, \\u00b6 31, 350 P.3d 710, 722 (Wyo. 2015) (citing Ogden v. State, 2001 WY 109, \\u00b6 21, 34 P.3d 271, 276 (Wyo. 2001)). We have explained:\\nGenerally, one witness may not testify as to another witness' credibility. The purpose of this rule is to preserve the integrity of the jury process by protecting the jury's right to act 'as the final determiner of the credibility of the witnesses. We have stated, however, that a trial court does not necessarily commit plain error when it allows testimony which illuminates some aspect of the cas\\u00e9 even though the testimony incidentally bolsters the credibility of another witness.\\nBolin v. State, 2006 WY 77, \\u00b6 16, 137 P.3d 136, 143 (Wyo. 2006) (quoting Strickland v. State, 2004 WY 91, \\u00b6 22, 94 P.3d 1034, 1045-46 (Wyo. 2004)).\\n[\\u00b642] In Bolin, we found no plain error in a detective's testimony that his informant was forthcoming in disclosing his prior conviction and he felt he could trust the informant based on that disclosure. Bolin, \\u00b6 15, 137 P.3d at 142. We reasoned:\\nDetective Harper did not state he believed the informant was credible or encroach on the jury's right to determine his credibility. Any incidental effect the testimony may have had to bolster the informant's credibility was not plain error.\\nId. \\u00b6 18, 137 P.3d at 143.\\n[\\u00b643] We conclude the same with respect to Agent Reinhart's testimony. He did not testify that he found Ms. Hemicker or any other witness credible, or even trustworthy. Any effect his testimony may have had on witness credibility was purely incidental and is not plain error.\\nB. Pauline Hemicker Testimony\\n[\\u00b644] Mr. Garriott next contends, the district court erred in allowing Pauline Hem-icker to testify concerning her drug distribution activities that predated Mr. Garriott's involvement in the conspiracy. Mr. Garriott made general relevance objections twice during the cited portion of Ms. Hemicker's testimony, but most of the testimony he now challenges on appeal came in without objection. We will therefore review the testimony for plain error.\\n[\\u00b645] The first element of the plain error test is satisfied because the challenged testimony is reflected in the record. With respect to the second element, we find no violation of a clear and unequivocal rule.\\n[\\u00b646] \\\"When evidence forms part of the history of the event or serves to enhance the natural development of the facts, it is admissible as long as its probative value outweighs its prejudicial effect.\\\" Bolin, \\u00b6 14, 137 P.3d at 142 (citing Williams v. State, 2004 WY 117, \\u00b6 11, 99 P.3d 432, 439 (Wyo. 2004)). As to its probative value, the evidence relating to Ms. Hemicker's earlier trips to obtain methamphetamine was relevant to establish a course of conduct showing that the co-conspirators, eventually including Mr. Garriott, intended that large quantities of methamphetamine would be obtained for local distribution in smaller quantities. See Ekholm v. State, 2004 WY 159, \\u00b622, 102 P.3d 201, 208 (Wyo. 2004) (quoting Martinez v. State, 943 P.2d 1178, 1183 (Wyo. 1997)) (\\\"[I]t is thus well established that the prosecution may 'rely on inferences drawn from the course of conduct of the alleged conspirators.' \\\"). The fact that Ms. Hemicker's earliest trips to obtain methamphetamine occurred prior to Mr. Garriott's involvement in the scheme does not undermine them relevance.\\nGenerally speaking, a defendant who joins an ongoing conspiracy may be held accountable \\u2014 for purposes of determining the scope of liability for the conspiracy charge itself \\u2014 with the acts or statements of coconspirators that occurred prior to his entry into the conspiracy, if those acts or statements were in furtherance of the conspiracy. See United States v. Coleman, 7 F.3d 1500, 1503 (10th Cir. 1993) (\\\"It is fundamental that a party may join an ongoing conspiracy during its progress and become criminally liable for all acts done in furtherance of the scheme.\\\" (internal quotation marks omitted)); United States v. Blackthorne, 378 F.3d 449, 454 (5th Cir. 2004) (\\\"[0]ne who joins an ongoing conspiracy is deemed to have adopted the prior acts and declarations of conspirators, made after the formation and in furtherance of the conspiracy.\\\" (internal quotation marks omitted)); United States v. David, 940 F.2d 722, 735 (1st Cir. 1991) (\\\"When, as here, a miscreant opts to join an ongoing conspiracy, the law holds him accountable for the earlier acts of his coconspira-tors in furtherance of the conspiracy.\\\"). We discern no reason why this principle does not apply to the prior overt acts of coeonspirators that establish the basis for venue and so hold. See United States v. Davis, 666 F.2d 195, 200 (Former 5th Cir. 1982) (rejecting defendant's argument that \\\"she was improperly tried in Georgia because the government did not prove that she joined the conspiracy before [her co-conspirator and an undercover agent] arrived in Florida,\\\" stating that \\\"[s]ince the prior actions of coconspirators in furtherance of the conspiracy are attributable to one who later joins the conspiracy,\\\" that conduct of a coeonspirator involving the Georgia trial district, although predating her entry into the conspiracy, was \\\"attributable\\\" to her).\\nUnited States v. Hamilton, 587 F.3d 1199, 1207-08 (10th Cir. 2009) (footnote omitted).\\n[\\u00b647] Consistent with this approach we have held that \\\"it is not necessary to a charge of conspiracy that the defendant actively participate in the substantive crime which is the object of the conspiracy.\\\" Ekholm, \\u00b6 24, 102 P.3d at 209 (quoting McLaughlin v. State, 626 P.2d 63, 66 (Wyo. 1981)).\\nA conspiracy may exist even if a conspirator does not agree to commit or facilitate each and every part of the substantive offense. See United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 253-254, 60 S.Ct. 811, 858-859, 84 L.Ed. 1129 (1940). The partners in the criminal plan must agree to pursue the same criminal objective and may divide up the work, yet each is responsible for the acts of each other. See Pinkerton v. United States, 328 U.S. 640, 646, 66 S.Ct. 1180, 1183-1184, 90 L.Ed. 1489 (1946) (\\\"And so long as the partnership in crime continues, the partners act for each other in carrying it forward\\\"). If conspirators have a plan which calls for some conspirators to perpetrate the crime and others to provide support, the supporters are as guilty as the perpetrators. As Justice Holmes observed: \\\"[Plainly a person may conspire for the commission of a crime by a third person.\\\" United States v. Holte, 236 U.S. 140, 144, 35 S.Ct. 271, 272, 59 L.Ed. 504 (1915). A person, moreover, may be liable for conspiracy even though he was incapable of committing the substantive offense. United States v. Rabinowich, 238 U.S. 78, 86, 35 S.Ct. 682, 684, 59 L.Ed. 1211 (1915).\\nEkholm, \\u00b6 24, 102 P.3d at 209 (quoting Salinas v. United States, 522 U.S. 52, 63-65, 118 S.Ct. 469,139 L.Ed.2d 352 (1997)).\\n[\\u00b648] Plainly, the challenged testimony was relevant. We further conclude that the probative value of the testimony ^outweighed any unfair prejudice that might arise from it. None of Ms. Hemicker's activities that predated Mr. Garriott's involvement in the conspiracy were markedly worse than the activities that occurred after Mr. Garriott became involved. Ms. Hemicker continued to obtain large quantities of methamphetamine, use methamphetamine, and distribute the methamphetamine using lower level distributors such as Mr. Garriott. The challenged testimony was relevant and not unfairly prejudicial, and we therefore find no plain error in its admission. See also United States v. Ramsey, 510 Fed.Appx. 731, 734-35 (10th Cir. 2013) (rejecting argument by low-level member of conspiracy that his right to a fair trial was prejudiced by evidence that one co-conspirator attempted to murder an informant and other coeonspirators sold heroin that resulted in the death of two users).\\nC. Testimony of Co-Conspirators Regarding Personal Histories and Addictions\\n[\\u00b649] Mr. Garriott next contends the district court committed plain error in allowing his co-conspirators to testify concerning their histories of drug abuse, addictions, and criminal convictions. He argues the evidence was admitted in violation of W.R.E. 403 because the testimony was irrelevant and unfairly prejudiced him by playing on juror emotions concerning methamphetamine use in the community. We again disagree.\\n[\\u00b650] The first element of the plain error test is met because the record reflects the challenged testimony by Ms. Hemicker, Mr. Fry, and Ms. Danielson. With respect to the second element of our plain error test, however, we conclude the evidence is relevant and not unfairly prejudicial, and that it thus did not violate a clear and unequivocal rule of law.\\n[\\u00b651] First, as to the criminal histories of the co-conspirators, Mr. Garriott's motion in limine seeking to exclude overview testimony objected to. vouching that, he argued was intended \\\"to make up for the sketchy nature of the State's other alleged co-conspirator witnesses.\\\" It is not surprising, therefore, that the State might seek to soften the impact of its witnesses' criminal histories by confronting them on direct examination in the context of the witnesses' addiction issues. Additionally, as we noted above, evidence that forms part of the history of the event or serves to enhance the natural development of the facts is admissible as long as its probative value outweighs its prejudicial effect. Bolin, \\u00b6 14,137 P.3d at 142. The co-conspirator testimony regarding personal drug abuse and addictions provided an explanation of how each of these participants came to be involved in the alleged drug distribution ring. For these reasons, the testimony was relevant.\\n[\\u00b652] Turning to the testimony's potential for unfair prejudice, we do not find it in this case. It was a minor part of each witness' testimony, and the State did not cite to or argue the personal addiction histories of its witnesses to draw on juror passions or outrage at the community impact of methamphetamine. Instead, it is clear that any reference to those histories was for the legitimate reason of explaining how the co-conspirators came to be involved in the delivery conspiracy. Thus, while testimony of this nature may have potential for unfair prejudice, that potential was not realized in this case. We therefore find no plain error in the district court's admission of the testimony.\\nII. Double Jeopardy Claim\\n[\\u00b653] Mr. Garriott next contends that the district court erred in denying, his motion to dismiss based on his Fifth Amendment double jeopardy protections. We review this claim as follows:\\nThis Court reviews alleged violations of constitutional rights de n\\u00f3vo. Montoya v. State, 2016 WY 127, \\u00b6 6, 386 P.3d 344, 346 (Wyo. 2016). However, we defer to the district court's findings of fact underlying its determination unless they are clearly erroneous. Daniel v. State, 2008 WY 87, \\u00b6 14,189 P.3d 859, 864 (Wyo. 2008); United States v. Tafoya, 557 F.3d 1121, 1126 (10th Cir. 2009) (\\\"In a double jeopardy goading case, we review the factual findings underlying a trial court's determination for clear error.\\\"), \\\"A finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.\\\" Daniel, \\u00b6 14, 189 P.3d at 864.\\nKing v. State, 2017 WY 129, \\u00b69, 403 P.3d 1070, 1073 (Wyo. 2017).\\n[\\u00b654] The Fifth Amendment to the United States Constitution provides three double jeopardy protections: \\\"1) protection against a second prosecution for the same offense following an acquittal; 2) protection against a second prosecution for the same offense after a conviction; and 3) protection against multiple punishments for the same offense.\\\" King, \\u00b6 11, 403 P.3d at 1073-74 (quoting Montoya v. State, 2016 WY 127, \\u00b6 7, 386 P.3d 344, 347 (Wyo. 2016)). As a general rule, \\\"a prosecutor is entitled to only one opportunity to require a defendant to stand trial.\\\" King, \\u00b6 12, 403 P.3d at 1074 (citing Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978)). This is so because\\n-if the first trial is not completed, a second prosecution may be grossly unfair, it increases the financial and emotional burden on the defendant, extends the period in which the defendant is stigmatized by an unresolved criminal proceeding, and may increase the risk that an innocent defendant may be convicted.\\nKing, \\u00b6 12, 403 P.3d at 1074 (citing Washington, 434 U.S. at 503-04, 98 S.Ct. at 829-30).\\n[\\u00b655] A retrial is not, however, automatically barred when a trial terminates before resolution of the charges against the defendant. King, \\u00b6 13, 403 P.3d at 1074. When it is the defendant who has elected to terminate the proceedings, a retrial is barred only if \\\"the prosecutor provoked or goaded the defendant into moving for a mistrial.\\\" Id. \\u00b6 14, 403 P.3d at 1074 (citing Oregon v. Kennedy, 456 U.S. 667, 676, 679, 102 S.Ct. 2083, 2089, 2091, 72 L.Ed.2d 416 (1982)). \\\"Carelessness or mistake on the part of the prosecution .is not sufficient to bar retrial under the Double Jeopardy Clause.\\\" Montoya, \\u00b6 8, 386 P.3d at 347 (quoting United States v. Powell, 982 F.2d 1422, 1429 (10th Cir. 1992)) (ellipses in original).\\n[\\u00b656] Mr. Garriott's first trial resulted in a mistrial after the following testimony by John Fry during the prosecutor's direct examination of him: .\\nQ. So do you know the defendant, Corey Garriott?\\nA. I do.\\nQ. And how do you know him?\\nA. We met when we were in prison.\\n[Defense Counsel]: I'm going to object to that, Your Honor. And I would ask that it be stricken for obvious reasons.\\n[Prosecutor]: \\u00d1o objection, Your Honor.\\nHE COURT: Sustained. The jury will disregard the answer.\\n\\nQ. And so you stated you thought you met sometime around 2004?\\nA. 2005.\\nQ. 2005?\\nA. Yes, ma'am.\\nQ. And then have you been in contact -With him all these years?\\nA. I have not, We actually \\u2014 -when I met him in 2005, we actually got out of prison together.\\n[Defense Counsel]: Same objection, Your Honor. I'm going to have a motion about this.\\nTHE COURT: Sustained.\\n[\\u00b657] During the next recess following Mr. Fry's testimony, Mr. Garriott moved for a mistrial. In opposing that motion, the prosecutor reported that she had instructed Mr. Fry to not discuss knowing Mr. Garriott from prison, and she generally' argued against the motion. Defense counsel .responded with additional argument and then stated, \\\"I'll concede [the prosecutor] is an ethical prosecutor, did not seek to immediately go explojt and, move on into this matter further . \\\" The district court accepted the prosecutor's representation that she had instructed Mr, Fry as she reported but. concluded the unfair prejudice caused by Mr. Fry's testimony required granting Mr. Garriott's motion for a mistrial. .\\n[\\u00b658] Following the mistrial, Mr. Garriott filed a motion to dismiss the charges against him, arguing that retrial was barred by his Fifth Amendment double jeopardy protections. In that motion, Mr. Garriott asserted that \\\"Defendant is not \\u2014 and never has \\u2014 alleged intentional misconduct by counsel for the State.\\\" He further asserted that what must have happened was \\\"simple negligence or a mistake\\\" by counsel for the State. The district court denied the motion to dismiss, finding:\\n[O]nly where the governmental conduct in question is intended to goad the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to' a second trial after having succeeded in aborting the first on his own motion. The Court found at the time that the State did not intentionally cause the mistrial in the sense that the State did not intentionally elicit that testimony. In fact, [the prosecutor] represented on the record that she had instructed the witness not to testify about the things he testified to that led to the mistrial. There would have, based' on the record and the totality of the record that I have before me, been no benefit to the State to have a mistrial declared under those circumstances.\\n[\\u00b659] The record contains no evidence on which we can say that the district court's findings were clearly erroneous. The prosecutor's question to Mr. Fry, inquiring how he knew Mr. Garriott, was certainly asked without the care that was due, given, the history Mr. Garriott and' Mr. Fry shared. Still,' because Mr. Fry and Mr. Garriott lived together for a time, we assume that may have been the answer .the prosecutor w;as expecting. In any event, the record contains no evidence to support Mr. Garriott's assertion on appeal, which of course differs from his assertion below, that the prosecutor intentionally elicited the improper testimony by Mr, Fry.-We thus find no error in the district court's denial of Mr. Garriott's motion to dismiss.\\nIII. Improper Opinion of Guilt Testimony\\n[\\u00b660] In his final assertion of error, Mr. Garriott contends the district court committed plain error when it allowed the following testimony by DCI Task Force Officer Chase Nash during Mr. Garriott's cross-examination:\\nQ. . Did you ever have any factual evidence on me?\\nA. Yes.\\nQ. Where \\u2014 where is that factual evidence?\\nA. The factual evidence we heard from our witnesses earlier about the detailed you purchasing and acquiring methamphetamine from Pauline Hemicker in which you redistributed it to both John Fry and Angela Danielson. Not only that, when Pauling Hemicker was set to do a drug run to Cheyenne, Wyoming, she specifically asked you to change the tires. That in and of itself constitutes an agreement to cpm-mit a crime between two people, which is a conspiracy.\\nQ. So because I changed her tires, I'm being charged with conspiracy?\\nA. With the knowledge that she was going on a drug run.\\nQ. And did we ever prove that knowledge?\\nA. Ms. Hemicker testified to it under oath.\\n[V61] Mr. Garriott contends this testimony was plain error because it invaded the province of the jury by offering an unsolicited opinion that Mr. Garriott is guilty of the crime of conspiracy. We disagree.\\n[\\u00b662] \\\"The law is clear that it \\u215c the jury's role to determine the guilt of the accused and a witness may not express an opinion as to his guilt.\\\" Fennell, \\u00b624, 350 P.3d at 719 (citing multiple cases). We have also recognized, however, that a party \\\"may open the door to otherwise inadmissible testimony when he inquires about a particular subject.\\\" Singer v. Lajaunie, 2014 WY 159, \\u00b6 37, 339 P.3d 277, 287 (Wyo. 2014) (quoting Roden v. State, 2010 WY 11, \\u00b6 14, 225 P.3d 497, 501 (Wyo. 2010)). We have described the opening-the-door rule:\\nSuccinctly stated, the \\\"opening the door\\\" rule is that a party who in some way permits the trial judge to let down the gates to a field of inquiry that is not competent but relevant cannot complain if his adversary is also allowed to avail himself of the opening within its scope.\\nRoden, \\u00b6 14, 225 P.3d at 501 (quoting Sanville v. State, 593 P.2d 1340, 1344 (Wyo. 1979)).\\n[\\u00b663] Shortly before the above quoted testimony by Officer Nash, Mr. Garriott asked for and elicited the following opinion testimony:\\nQ. The question is, you \\u2014 you just stated you spent a lot of time and effort. So the question would be why would you \\u2014 why would you guesstimate and make assumptions of what the real cause is when the case \\u2014 why would you guess on \\u2014 on facts when you're preparing your reports?\\nA. Okay. So if I \\u2014 I just want to make sure I understand the question. You're \\u2014 you're asking me why I would prepare an affidavit and charge you with conspiracy to deliver methamphetamine?\\nQ. That's not the question.\\nA. Okay. Yeah. I don't understand the question then.\\nQ. The question is: Why would you make assumptions when you're doing your supplemental reports? Why would you \\u2014 why would you not tell the facts?\\nA Okay. I did state the facts in my report.\\nQ. So the facts are that I was part of this conspiracy?\\nA. Do you want my opinion?\\nQ. Absolutely.\\nA. Absolutely. I absolutely think you're a drug dealer. I absolutely think that. No doubt about it.\\nQ. You absolutely do?\\nA. Yes, I do.\\n[\\u00b664] By asking Officer Nash to provide an opinion as to whether he was guilty of the charged crime of conspiracy to deliver, Mr. Garriott opened the door to what would have otherwise been inadmissible opinion testimony. Officer Nash simply further availed himself of that opening when he further opined that changing the tires on Ms. Hemicker's vehicle, with knowledge the vehicle was to be used on a drug run, was evidence that Mr. committed the crime of conspiracy. Because Mr. Garriott opened the door to this type of opinion evidence, we find no error in Officer Nash's testimony.\\nCONCLUSION\\n[\\u00b665] The district court did not abuse its discretion or commit plain error in admitting the challenged testimony into evidence. We also find no error in the district court's denial of Mr. Ganiott's motion to dismiss on Fifth Amendment double jeopardy grounds. Affirmed.\\n. Mr. Ross had introduced Ms. Hemicker to Mr. Garriott in November 2015,, shortly, after Ms. Hemicker met Mr. Ross. Mr. Ross made that introduction because Mr. Garriott did tattoo work, and Ms. Hemicker was interested .in getting a tattoo. Ms. Hemicker discussed having Mr. Garriott draw up a tattoo pattern for her at that time, but nothing came of it, and Ms. Hemicker never got a tattoo from Mr. Garriott.\\n. An 8-ball is an eighth of an ounce of methamphetamine and is a common amount supplied for .redistribution.\\n. DCI was able to intercept Ms. Hemicker while transporting the methamphetamine because after Mr. Fry's second purchase of methamphetamine from Ms. Hemicker, which was about two ounces, he had a change of heart and turned himself and the methamphetamine in to law enforcement. At that point, Mr. Fry became a DCI confidential informant and kept DCI informed of Ms. Hemicker's plans, including the March 20 Cheyenne trip to purchase methamphetamine.\\n. As a pro se litigant, Mr. Garriott likely did not understand the need to renew his objection and no doubt intended a broader and continuing objection to Agent Reinhart's testimony. That does not, however, change our application of the law. While courts afford pro se litigants some leniency, we still require compliance with our rules. Williams v. Tharp, 2017 WY 8, \\u00b6 9, 388 P.3d 513, 516 (Wyo. 2017) (\\\"Courts make some allowances for pro se litigants, but neither this Court nor the district court is obligated to frame the issues for the parties .\\\"); RM v. State, 957 P.2d 296, 298 (Wyo. 1998) (\\\"We remain committed to the rule that this Court will not apply different procedural standards for pro se parties than we do for represented parties.\\\").\\n. Overview testimony is the type of evidence that highlights the need for a defendant to renew his objection. As we indicated above, overview testimony is not favored because of its potential for abuse, but we have announced no blanket prohibition on its admission. It may therefore be difficult for a trial court in many cases to make a definitive ruling on such testimony as a whole, and it is incumbent on the defendant to renew his objection when such testimony exceeds its permissible use and strays into an area of concern.\\n. The State's direct examination of Agent Rein-hart began with his background and then the following to which no objection was made:\\nQ. And through your training and experience, have you gained knowledge that the average American does not know?\\nA. Yes, ma'am, I have.\\nQ. And do you think that information would be helpful to the jury?\\nA. Very much so.\\n. It is not clear from the record whether the State formally designated Agent Reinhart as an expert witness, but Mr, Garriott made no objection to the testimony as expert testimony or'to Agent Reinhart's qualifications as an expert, so we need not address that question.\\n. We do not intend with our holding to suggest a defendant may be held liable for substantive crimes committed by co-conspirators prior to the defendant's entry in the conspiracy. The law is clear that \\\"an individual cannot be held criminally liable for substantive offenses committed by members of the conspiracy before that individual had joined or after he had withdrawn from the conspiracy.\\\" Hamilton, 587. F.3d at 1207 n.5 (quoting Glazerman v. United States, 421 F.2d 547, 551 (10th Cir. 1970)).,\\n. Even if we were to apply a plain error analysis, rather than the opening-the-door rule, our conclusion would be the same. While Officer Nash's testimony that Mr. Garriott was guilty of the crime of conspiracy may have crossed a line into impermissible opinion testimony, we would have to conclude the error was harmless. The co-conspirator testimony, which was confirmed by Mr. Garriott's own text messages, overwhelmingly established Mr. Garriott's participation in the conspiracy to deliver methamphetamine. Moreover, the record also contained Officer Nash's earlier opinion testimony that Mr. Garriott was guilty of the drug dealing and conspiracy \\u2014 testimony elicited by Mr. Garriott and not challenged on appeal.\"}"
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+"{\"id\": \"12565695\", \"name\": \"Anthony Lee HEINEMANN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\", \"name_abbreviation\": \"Heinemann v. State\", \"decision_date\": \"2018-03-20\", \"docket_number\": \"S-17-0161; S-17-0162\", \"first_page\": \"644\", \"last_page\": \"649\", \"citations\": \"413 P.3d 644\", \"volume\": \"413\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-27T21:03:46.891757+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"Before BURKE, C.J., and HILL , DAVIS, FOX, and KAUTZ, JJ.\", \"parties\": \"Anthony Lee HEINEMANN, Appellant (Defendant),\\nv.\\nThe STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"Anthony Lee HEINEMANN, Appellant (Defendant),\\nv.\\nThe STATE of Wyoming, Appellee (Plaintiff).\\nS-17-0161\\nS-17-0162\\nSupreme Court of Wyoming.\\nMarch 20, 2018\\nRepresenting Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson , Chief Appellate Counsel; Kirk Morgan, Senior Assistant Appellate Counsel.\\nRepresenting Appellee: Peter K. Michael, Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Benjamin E. Fischer, Assistant Attorney General.\\nBefore BURKE, C.J., and HILL , DAVIS, FOX, and KAUTZ, JJ.\\nAn order granting Ms. Olson's Motion to Withdraw was entered on December 13, 2017.\\nJustice Hill retired from judicial office effective February 17, 2018, and, pursuant to Article 5, \\u00a7 5 of the Wyoming Constitution and Wyo. Stat. Ann. \\u00a7 5-1-106(f) (LexisNexis 2017), he was reassigned to act on this matter on February 20, 2018.\", \"word_count\": \"2975\", \"char_count\": \"18046\", \"text\": \"BURKE, Chief Justice.\\n[\\u00b61] Appellant, Anthony Lee Heinemann, challenges the district court's entry of an order nunc pro tunc correcting two judgments entered against him in 1998. We affirm.\\nISSUES\\n[\\u00b62] Appellant presents five issues:\\n1. Did the Department of Corrections have standing to seek an order nunc pro tunc ?\\n2. Did the order nunc pro tunc violate Appellant's right to due process of law?\\n3. Is Wyo. Stat. Ann. \\u00a7 7-6-108 a statute of repose, and the only mechanism other than Wyo. Stat. Ann. \\u00a7 7-6-106 for reimbursement of public defender fees?\\n4. Did the State of Wyoming invite the error it now complains of?\\n5. Is the State barred by res judicata from pursuing this issue under the guise of an order nunc pro tunc ?\\nFACTS\\n[\\u00b63] In 1998, Appellant received convictions following jury trials in two related cases. In the first case, Appellant was convicted of taking indecent liberties with a child, in violation of Wyo. Stat. Ann. \\u00a7 14-3-105(a) (LexisNexis 1999), and furnishing alcohol to a minor, in violation of Wyo. Stat. Ann. \\u00a7 12-6-101(a). In the second case, Appellant was convicted of sexual assault in the third degree, in violation of Wyo. Stat. Ann. \\u00a7 6-2-304(a)(iii). Because Appellant had previously received a conviction in Colorado for attempted first-degree sexual assault, the district court imposed an enhanced sentence of life imprisonment without parole in the latter case pursuant to Wyo. Stat. Ann. \\u00a7 6-2-306(d).\\n[\\u00b64] At the joint sentencing hearing, counsel for Appellant asked the court to find that Appellant was unable to pay his attorney's fees. The district court declined to do so. Instead, it stated that it \\\"[would] include in the order a requirement that [attorney's fees] be paid, although whether there's any ability to pay at any [time] in the future will remain to be seen. There probably will not. Certainly there is no present ability to pay.\\\"\\n[\\u00b65] The court's written judgments reflected the court's oral pronouncement that Appellant would be required to reimburse the State for his attorney's fees. In Docket 24-474, the court ordered that Appellant \\\"shall repay the State of Wyoming, Public Defender's Office, for all expenses and services provided by his appointed attorney . in the amount of six thousand two hundred sixty dollars ($6,260.00).\\\" Similarly, in Docket 24-491, the court ordered that Appellant \\\"shall repay the State of Wyoming, Public Defender's Office, for all expenses and services provided by his appointed attorney . in the amount of two thousand six hundred thirty-five dollars ($2,635.00).\\\" The Judgment and Sentence in each case included identical language, which required the attorney's fees to \\\"be paid within said Defendant's probationary period, according to a plan to be prepared by the Department of Probation and Parole and submitted to the Court for approval[.]\\\" However, Appellant received a life sentence without the possibility of parole, and he was not ordered to serve any \\\"probationary period.\\\"\\n[\\u00b66] Appellant filed a direct appeal from his convictions challenging the use of the Colorado conviction to enhance his sentence. We affirmed in Heinemann v. State , 12 P.3d 692 (Wyo. 2000). The present matter began in March 2017, when Appellant wrote a letter to the warden of the Wyoming Medium Correctional Institution (\\\"WMCI\\\"). Appellant complained his pay from janitorial work at the facility had been \\\"docked for public defender fees since August of 2015.\\\" He asserted that the WMCI could not seize any money until he served a \\\"probationary period.\\\"\\n[\\u00b67] On April 17, 2017, the Wyoming Department of Corrections (\\\"Department\\\"), through the Attorney General, filed a motion for an order nunc pro tunc to correct Appellant's judgments by removing the references to a probationary period. The district court granted the motion. The court noted that, because Appellant is serving a sentence of life without the possibility of parole, the references to a probationary period were in error and also inconsistent with the court's oral pronouncement at the sentencing hearing. Accordingly, the court struck any reference to a \\\"probationary period\\\" from the judgments. The court determined that \\\"The Department may collect restitution from Heinemann in a manner consistent with its policies.\\\" These consolidated appeals followed.\\nSTANDARD OF REVIEW\\n[\\u00b68] Whether the district court properly entered the order nunc pro tunc is a question of law that we review de novo . Weidt v. State , 2013 WY 143, \\u00b6 21, 312 P.3d 1035, 1040 (Wyo. 2013).\\nDISCUSSION\\n[\\u00b69] In his first two issues, Appellant contends the Department did not have standing to seek correction of the judgment and sentencing orders, and that, because he did not receive notice of the Department's motion, the order was entered in violation of his right to due process of law. The viability of these claims, however, depends on Appellant's underlying assertion that the order nunc pro tunc effected a substantive change to the trial court's original judgment and sentencing orders. Indeed, Appellant contends the district court's order \\\"was not a proper order nunc pro tunc .\\\" He acknowledges that the district court may correct a judgment and sentence by an order nunc pro tunc to reflect the court's oral pronouncement at sentencing. According to Appellant, however, the order nunc pro tunc entered in this case was \\\"directly at odds with the trial court's specific findings and the requirements of W.S. \\u00a7 7-6-106(c).\\\" We do not agree.\\n[\\u00b610] A nunc pro tunc order is used to correct an inaccuracy in an earlier order. Johnson v. State , 914 P.2d 810, 812 (Wyo. 1996) ; Christensen v. State , 854 P.2d 675, 682 (Wyo. 1993). A district court may not, however, use a nunc pro tunc order to make a substantive change in a judgment or order. See Johnson , 914 P.2d at 812 ; Eddy v. First Wyoming Bank, N.A.-Lander , 713 P.2d 228, 234 (Wyo. 1986). As we have noted, a nunc pro tunc order \\\"serves to rectify omissions from the record so as to make it speak the truth.\\\" Martinez v. City of Cheyenne , 791 P.2d 949, 956 (Wyo. 1990), overruled on unrelated grounds by Beaulieu v. Florquist , 2004 WY 31, 86 P.3d 863 (Wyo. 2004).\\n[\\u00b611] At Appellant's sentencing hearing, the district court unambiguously stated that it would \\\"include in the [judgment and sentencing] order a requirement that [attorney's fees] be paid.\\\" The court proceeded to comment that \\\"whether there's any ability to pay at any [time] in the future will remain to be seen. There probably will not. Certainly there is no present ability to pay.\\\" Notwithstanding these comments, however, it is clear from the court's pronouncement that it intended to require Appellant to pay his attorney's fees based on the possibility that he would be able to do so in the future. And, consistent with the court's oral pronouncement, the court's written orders unambiguously required Appellant to reimburse the State for his attorney's fees.\\n[\\u00b612] In light of the foregoing, there is no question that the court intended for Appellant to reimburse the State for his attorney's fees. However, because Appellant received a life sentence without the possibility of parole, the references to payment of attorney's fees during a \\\"probationary period\\\" in the court's written orders were clearly in error. The district court's removal of those references constitutes a correction of an inaccuracy in the original order, and does not represent a substantive change of the judgment and sentence. The court properly corrected the error in the original judgments in the order nunc pro tunc . Accordingly, we find no merit in Appellant's claim that the nunc pro tunc order was \\\"directly at odds with the trial court's specific findings.\\\" Having determined that the nunc pro tunc order constituted a proper clarification of the original judgments, we now turn to Appellant's specific claims.\\nI. Did the Department of Corrections have standing to seek an order nunc pro tunc ?\\n[\\u00b613] In his first issue, Appellant contends the Department did not have standing to seek correction of the judgment and sentencing orders. Appellant notes that the Department was not a party in the criminal cases against him, and he asserts the Department is not affected in any way by whether he pays the public defender fees. Appellant claims that, as a result of these facts, the district court did not have jurisdiction to enter the nunc pro tunc order. We are not persuaded.\\n[\\u00b614] With respect to standing, we have noted that \\\"The doctrine of standing is a jurisprudential rule of jurisdictional magnitude. At its most elementary level, the standing doctrine holds that a decision-making body should refrain from considering issues in which the litigants have little or no interest in vigorously advocating.\\\" Williams v. City of Gillette , 2011 WY 6, \\u00b6 6, 245 P.3d 362, 364 (Wyo. 2011) (quoting Boykin v. Parkhurst (In re Parkhurst) , 2010 WY 155, \\u00b6 10, 243 P.3d 961, 965 (Wyo. 2010) ). The jurisdictional consequences of the standing requirement, however, have no effect on the present situation, where the inaccuracy in the judgment was subject to correction at any time, without involvement of the parties, under W.R.Cr.P. 36. That Rule provides: \\\"Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.\\\"\\n[\\u00b615] Additionally, we have held that judgments are subject to correction at any time under the inherent authority of the court. As we have previously noted:\\nA court also has inherent power to interpret its judgments and clarify ambiguous terms. 46 Am.Jur.2d Judgments \\u00a7 73 (2015) states:\\nTrial courts have the inherent authority to interpret and clarify their judgments. The mere interpretation of a judgment involves no challenge of its validity, or an attack on it, and a clarification of an ambiguous judgment is not a modification or amendment of the judgment. An order clarifying a judgment explains or refines rights already given, and it neither grants new rights nor extends old ones. Unlike a modification, amendment, or alteration to a judgment, which must be accomplished under the court rules or some other exception to preclusion, a clarification of a judgment can be accomplished at any time.\\nUltra Resources, Inc. v. Hartman , 2015 WY 40, \\u00b6 11, 346 P.3d 880, 887 (Wyo. 2015). Because the court could correct the inaccuracy in the original judgments at any time pursuant to both W.R.Cr.P. 36 and its inherent authority, the issue of whether the Department had standing to seek clarification has no bearing on the court's ability to enter an order nunc pro tunc . The district court had jurisdiction to enter the order nunc pro tunc irrespective of whether the Department had standing to challenge the erroneous judgments.\\nII. Did the order nunc pro tunc violate Appellant's right to due process of law?\\n[\\u00b616] In his second issue, Appellant contends his right to due process was violated because he did not receive notice of the Department's motion for entry of an order nunc pro tunc . Pursuant to W.R.Cr.P. 36, however, the district court may exercise its discretion in providing notice of correction of a clerical error. As noted above, that Rule provides that a clerical mistake in a judgment may be corrected at any time and \\\"after such notice, if any, as the court orders.\\\" As we have explained with respect to W.R.C.P. 60, which provides, in nearly identical terms, for correction of clerical mistakes in the civil context, the district court may correct such errors without providing an opportunity to be heard:\\nAs is clear from the plain language of the rule, if the district court was truly just correcting a clerical error, it could do so at any time and no notice or hearing was required. In other words, provided the district court's action involves only correction of a clerical mistake, no due process violation occurs when that correction is made without giving the parties the opportunity to be heard.\\nDunmire v. Powell Family of Yakima, LLC , 2008 WY 39, \\u00b6 16, 181 P.3d 920, 925 (Wyo. 2008). In light of the plain language of W.R.Cr.P. 36, we find no due process violation in the court's entry of the order nunc pro tunc .\\n[\\u00b617] Appellant also contends the district court failed to comply with Wyo. Stat. Ann. \\u00a7 7-6-106(c) when the original sentences were imposed. According to Appellant, the court violated the statute because it ordered reimbursement of attorney's fees after finding that Appellant had no present ability to pay the fees. Appellant, however, did not raise this issue in the district court at the time of his sentencing, or in the direct appeal of his convictions. As a result, we will not consider it. Collier v. State , 920 P.2d 265, 267 (Wyo. 1996).\\nIII. Is Wyo. Stat. Ann. \\u00a7 7-6-108 a statute of repose, and the only mechanism other than Wyo. Stat. Ann. \\u00a7 7-6-106 for reimbursement of public defender fees?\\n[\\u00b618] In his third issue, Appellant contends the Department was required to make a claim for reimbursement of attorney's fees pursuant to Wyo. Stat. Ann. \\u00a7 7-6-108. According to Appellant, \\\"Absent a valid order [ ] from the district court (which did not exist) the only other mechanism for payment was a suit under W.S. \\u00a7 7-6-108.\\\" Appellant's claim that the Department was required to seek reimbursement under Wyo. Stat. Ann. \\u00a7 7-6-108 depends on his assertion that there was no valid order upon which to collect payment from Appellant. However, he provides no support for the claim that the original judgment and sentencing orders were not valid orders. Further, as we have discussed, the district court properly corrected the clerical error in the original judgments in the order nunc pro tunc. Consequently, we find no merit in Appellant's claim that the Department was required to seek reimbursement pursuant to Wyo. Stat. Ann. \\u00a7 7-6-108.\\nIV. Remaining issues.\\n[\\u00b619] In Appellant's remaining issues, he contends (1) the Department could not seek correction of the original judgments because the judgments were drafted by the State, and (2) the Department could not seek correction of the original judgments under the doctrine of res judicata . However, he provides no cogent argument or pertinent authority supporting either of these claims. Consequently, we will not consider them.\\n[\\u00b620] Affirmed.\\nWe note that courts in other jurisdictions have reached similar conclusions. See, e.g., Pratt v. Pratt , 99 Wash.2d 905, 665 P.2d 400, 402-03 (1983) ; Van Pelt v. Van Pelt , 172 A.D.2d 659, 568 N.Y.S.2d 160, 161 (1991).\\nWyo. Stat. Ann. \\u00a7 7-6-106(c) provides, in pertinent part:\\nIn every case in which a person has received services under W.S. 7-6-104, the presiding judge shall determine whether the person or, in the case of an unemancipated minor, his custodial parent or any other person who has a legal obligation of support, is able to provide any funds towards payment of part or all of the cost associated with such services. If the person or, in the case of an unemancipated minor, his custodial parent or any other person who has a legal obligation of support, is not able to provide any funds towards payment of costs, the court shall enter a specific finding on the record. If the court determines the person or, in the case of an unemancipated minor, his custodial parent or any other person who has a legal obligation of support, is able to provide any amount as reimbursement, the court shall order the person or, in the case of an unemancipated minor, his custodial parent or any other person who has a legal obligation of support, to reimburse the state for all or part of the costs of the services provided or shall state on the record the reasons why an order for reimbursement was not entered. .\\nIn Nixon v. State , we noted that \\\"With respect to the required payment for court-appointed counsel, Wyo. Stat. Ann. \\u00a7 7-6-106(c) (Michie 1997) does not require a sentencing court to make a specific oral or written conclusion that the defendant has the ability to pay.\\\" Nixon v. State , 4 P.3d 864, 872 (Wyo. 2000) (citing Collier v. State , 920 P.2d 265, 267 (Wyo. 1996) ). We held that \\\"there is no requirement that there be a current ability to pay, a future ability will suffice to impose this obligation.\\\" Id. , 4 P.3d at 872. In the present case, the district court's oral pronouncement of Appellant's judgments indicates that it ordered Appellant to reimburse his attorney's fees based on his future ability to repay the fees, a potential that became manifest when he began working at the WMCI. A finding that Appellant had the present ability to pay was not required to impose an obligation of reimbursement.\\nThe statute provides, in pertinent part, as follows:\\n(a) Within six (6) years after the date the services were rendered, the attorney general may sue on behalf of the state to recover payment or reimbursement from each person who has received legal assistance or other benefits under this act or, in the case of an unemancipated minor, from his custodial parent or any other person who has a legal obligation of support.\"}"
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+"{\"id\": \"12571556\", \"name\": \"Michel SKAF, M.D., Appellant (Defendant), v. WYOMING CARDIOPULMONARY SERVICES, P.C., a Wyoming Corporation, Appellee (Plaintiff).\", \"name_abbreviation\": \"Skaf v. Wyo. Cardiopulmonary Servs., P.C.\", \"decision_date\": \"2018-11-21\", \"docket_number\": \"S-18-0242\", \"first_page\": \"294\", \"last_page\": \"295\", \"citations\": \"430 P.3d 294\", \"volume\": \"430\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-27T21:04:09.384135+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"Michel SKAF, M.D., Appellant (Defendant),\\nv.\\nWYOMING CARDIOPULMONARY SERVICES, P.C., a Wyoming Corporation, Appellee (Plaintiff).\", \"head_matter\": \"Michel SKAF, M.D., Appellant (Defendant),\\nv.\\nWYOMING CARDIOPULMONARY SERVICES, P.C., a Wyoming Corporation, Appellee (Plaintiff).\\nS-18-0242\\nSupreme Court of Wyoming.\\nNovember 21, 2018\\nORDER GRANTING MOTION TO DISMISS APPEAL\\nThis matter came before the Court upon \\\"Appellee's Motion to Dismiss,\\\" e-filed herein October 30, 2018. After a careful review of the motion to dismiss, \\\"Appellee's Brief in Support of its Motion to Dismiss,\\\" the materials attached thereto, \\\"Appellant's Response to Motion to Dismiss,\\\" the materials attached thereto, and the file, this Court finds the motion to dismiss should be granted. This Court concludes the district court's \\\"Order and Judgment\\\" is not a final appealable order, because Appellee's injunction claim has not been finally resolved.\\nAs noted in Appellant's Response, the district court consolidated two actions: (1) Appellee's \\\"Complaint for Declaratory Judgment and Injunctive Relief\\\"; and (2) the petition and cross-petition to confirm, vacate, and/or modify the arbitrators' decision. Upon motion, the district court consolidated the two actions, \\\"creating a single action.\\\"\", \"word_count\": \"519\", \"char_count\": \"3321\", \"text\": \"This Court has written the following about consolidation:\\nthe word 'consolidation' has different connotations. One of these, which actually is not a consolidation, but is described as such, occurs when all but one of several pending actions are stayed until the trial of the one not stayed, it being determinative as to the others; the second connotation describes the instance in which several actions are combined into one action, lose their separate identity as such, and become a single action in which a single judgment is rendered; and the third connotation describes an instance in which several actions are tried together, but retain their separate character and require the entry of separate judgment.\\n9 Wright and Miller, Federal Practice and Procedure, s 2382, p, 254 (1971). While both the second and third types of consolidation are contemplated by the language of Rule 42 of the Federal Rules of Civil Procedure and Rule 42 of the Wyoming Rules of Civil Procedure, it appears that historically the courts have recognized only the third style of consolidation. *\\nBard Ranch, Inc. v. Weber , 538 P.2d 24, 39-40 (Wyo. 1975).\\nThis Court concludes the district court's consolidation order effectuated a consolidation of the second type. The two actions were combined into one action, those actions lost their separate identity, and there will be one final judgment.\\nGiven the effect of the consolidation order (\\\"creating a single action\\\"), this Court concludes the \\\"Order and Judgment\\\" is not a final appealable order, because the order does not determine the action or \\\"resolve all outstanding issues.\\\" In re KRA , 2004 WY 18, \\u00b6 10, 85 P.3d 432, 436 (Wyo. 2004) ; W.R.A.P. 1.05(a). It is clear Appellee's injunction claim has not been resolved. It is, therefore,\\nORDERED that the Motion to Dismiss, e-filed herein October 30, 2018, be, and hereby is, granted. The captioned appeal is dismissed; and it is further\\nORDERED that \\\"Appellant's Motion for Correction or Modification of the Record Pursuant to W.R.A.P. 3.04, and for Extension of Time to Submit the Briefs,\\\" e-filed herein November 19, 2018, be, and hereby is, denied as moot.\\nBY THE COURT:\\n/s/ MICHAEL K. DAVIS\\nChief Justice\"}"
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+"{\"id\": \"12574098\", \"name\": \"Darrel David GOETZEL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\", \"name_abbreviation\": \"Goetzel v. State\", \"decision_date\": \"2019-03-06\", \"docket_number\": \"S-18-0197\", \"first_page\": \"865\", \"last_page\": \"871\", \"citations\": \"435 P.3d 865\", \"volume\": \"435\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-27T21:04:16.902165+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"Before DAVIS, C.J., and FOX, BOOMGAARDEN, and GRAY, JJ., and KRICKEN, D.J.\", \"parties\": \"Darrel David GOETZEL, Appellant (Defendant),\\nv.\\nThe STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"Darrel David GOETZEL, Appellant (Defendant),\\nv.\\nThe STATE of Wyoming, Appellee (Plaintiff).\\nS-18-0197\\nSupreme Court of Wyoming.\\nMarch 6, 2019\\nRepresenting Appellant: Pro se\\nRepresenting Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Katherine A. Adams, Senior Assistant Attorney General\\nBefore DAVIS, C.J., and FOX, BOOMGAARDEN, and GRAY, JJ., and KRICKEN, D.J.\", \"word_count\": \"3877\", \"char_count\": \"23768\", \"text\": \"KRICKEN, District Judge.\\n[\\u00b61] Appellant, Darrel Goetzel, challenges the district court's denial of his petition for post-conviction relief. This Court concludes that res judicata bars his claims and affirms on those grounds.\\nISSUE\\n[\\u00b62] In his appeal, Goetzel states the issue(s) as follows:\\nThe Defendant's motion was barred by res judicata by the District Court. Further the Wyoming Supreme Court barred the Defendant[']s claim in a prior case with similar issues [sic] this is due to ineffective assistance of appellate counsel. More specifically appellate counsel never submitted critical information provided by the defendant, one of the issues relating to the subject of res judicata, as well as ineffective assistance of appellate counsel. However the defendant believes res judicata should not apply in this case because the defendant is filing this appeal under the new Wyoming Statute \\u00a7 7-12-401 through 407, 7-6-107, 7-14-103, and 7-14-105\\\"factual innocence actual innocence.\\\" The actual issue the Defendant would like to bring to this court[']s attention is the defendant was convicted of a two count violation of Wyoming Criminal Statutes \\u00a7 6-5-204 Interference with a peace officer and \\u00a7 6-5-207 Escape by violence or assault. The issue before the Court is whether the charging, conviction, or consecutive sentencing of the defendant pursuant to two general statutes for the same conduct subjected him to Double Jeopardy in violation of the Constitutional guarantees of either the Wyoming or United States Constitutions?\\nThe State of Wyoming generally rephrases the issue as:\\nRes judicata bars the relitigation of claims raised and decided in previous criminal proceedings. It also bars litigation of issues that could have been determined in a prior proceeding. The district court determined that res judicata barred Goetzel's petition for post-conviction relief because he could have raised his underlying claims earlier. Did the district court err?\\nFACTS\\n[\\u00b63] This Court previously summarized the relevant background facts as follows:\\nWhile being booked on various charges at the Goshen County Detention Center, Appellant hit the officer in charge, who fell to the floor. Appellant then kicked him in the head, causing severe injuries to the officer. Appellant used the officer's radio to ask for the door to be unlocked. The door was opened, and he fled from the facility, taking the radio with him. He was apprehended six days later in Nebraska. Following his arrest, Appellant was charged with felony interference with a peace officer, felony escape, and felony larceny. About six weeks later, in a separate docket, Appellant was charged with the additional crimes for which he had originally been arrested. Those crimes included possession of a controlled substance, felony larceny, two counts of burglary, and four counts of forgery. Pursuant to a plea agreement, the State dismissed several of the charges and Appellant pled guilty to burglary, forgery, felony larceny, felony escape, and felony interference with a peace officer.\\nGoetzel v. State , 2017 WY 141, \\u00b6 3, 406 P.3d 310, 311 (Wyo. 2017) ( Goetzel I ). The district court sentenced Goetzel to concurrent sentences of four-to-seven years of incarceration for burglary and forgery. It also sentenced him to five-to-eight years of incarceration for larceny and nine-to-ten years for escape, to be served concurrently with each other but consecutively to the sentences for burglary and forgery. Finally, the court sentenced Goetzel to nine-to-ten years of incarceration for interference with a peace officer, to be served consecutively to his sentences for larceny and escape. Goetzel did not appeal his judgment and sentence. Id.\\n[\\u00b64] In July 2012, Goetzel filed a Motion For Sentence Reduction , which was denied on its merits. In August 2015, Goetzel filed a pro se Motion For Sentance [sic] Modification , in which he sought to serve his sentences for interference with a peace officer and escape concurrently. This motion also was denied on the grounds that it was not timely filed. Goetzel did not present a double jeopardy claim in any of these motions, nor did he appeal any of these district court orders denying the motions.\\n[\\u00b65] In May 2016, Goetzel filed his Motion To Correct An Illegal Sentence , challenging his sentences for interference with a peace officer and escape on double jeopardy grounds. He argued that his sentences constituted multiple punishments for the same offense, namely conduct that he characterizes as \\\"one violent escape from county jail.\\\" The district court denied Goetzel's 2016 motion to correct an illegal sentence on its merits, concluding that Wyo. Stat. Ann. \\u00a7 6-5-204(b) (interference with a peace officer) and Wyo. Stat. Ann. \\u00a7 6-5-207 (escape) each contain an element that the other does not. Thus, under the Blockburger (\\\"same elements\\\") test, Goetzel's convictions and sentences did not violate the protection against double jeopardy. See Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ; Sweets v. State , 2013 WY 98, 307 P.3d 860 (Wyo. 2013). Goetzel appealed.\\n[\\u00b66] In Goetzel I , this Court determined that the doctrine of res judicata barred Goetzel's double jeopardy claim, opining:\\nOur precedent is clear that the principle of res judicata may be applied to claims brought pursuant to W.R.Cr.P. 35(a). See, e.g., Hamill v. State , 948 P.2d 1356, 1358-59 (Wyo. 1997). In Hamill , we rejected the appellant's argument that, because Rule 35 states that a motion to correct an illegal sentence may be brought at any time, it is not subject to bar under the doctrine of res judicata. Id.\\nGould v. State , 2006 WY 157, \\u00b6 14, 151 P.3d 261, 266 (Wyo. 2006). Res judicata bars issues that were previously raised and considered, and also issues that \\\"could have been raised in an earlier proceeding\\\" but were not. Id. , \\u00b6 15, 151 P.3d at 266 (emphasis omitted).\\nAppellant raised his double jeopardy claim for the first time in his 2016 motion to correct an illegal sentence. He could have raised his double jeopardy claim in 2011 in a direct appeal from the district court's judgment and sentence. He could have raised the claim when he filed his motion for sentence reduction in 2012. However, he stated in this motion that he did \\\"not question any of the substantive or procedural underpinnings of his original sentence.\\\" Appellant could have raised his double jeopardy claim in 2015 when he filed his motion for sentence modification.\\nAppellant suggests two reasons we should not apply res judicata in his case. First, he points out that the State did not argue before the district court that res judicata barred his claim. He asserts that res judicata \\\"may be waived.\\\" He cites no legal authority to support this assertion. To the contrary, \\\"[w]e have routinely disposed of claims on res judicata grounds without regard to whether the issue was raised before the district court.\\\" Ferguson v. State , 2013 WY 117, \\u00b6 11, 309 P.3d 831, 834 (Wyo. 2013) (citing Kurtenbach v. State , 2013 WY 80, 304 P.3d 939 (Wyo. 2013) ); see also Lunden v. State , 2013 WY 35, 297 P.3d 121 (Wyo. 2013).\\nSecond, Appellant contends that trial courts have the \\\"power to hear post-conviction relief motions\\\" if a defendant makes \\\"a showing of cause . sufficient to avoid the waiver rule.\\\" We have previously recognized that res judicata may not bar a claim if there is a showing of good cause for failing to raise the claim in prior proceedings. See Bird [v. State , 2015 WY 108], \\u00b6 10, 356 P.3d [264] 267 [ (Wyo. 2015) ]. In this appeal, however, Appellant has failed to present any facts or circumstances demonstrating good cause for not raising his double jeopardy claim in earlier proceedings. We find both of Appellant's contentions unconvincing, and conclude that his claim is barred by res judicata.\\nGoetzel I , \\u00b6 7-10, 406 P.3d at 311-12 (emphasis added and footnote omitted).\\n[\\u00b67] Thereafter, in March 2018, Goetzel filed a Petition for Writ of Certiorari , effectively seeking to appeal, again, regarding the denial of his motion to correct an illegal sentence, this time on the grounds that his appellate counsel was ineffective. This Court denied Goetzel's request, explaining that, although the district court had appointed counsel for Goetzel in his appeal of the denial of his motion to correct an illegal sentence, he actually had no constitutional right to counsel in that appeal and, thus, could not be deprived of effective assistance of counsel. Goetzel v. State , S-18-0066, Order Denying Pet. for Writ of Cert. , at 1 (March 27, 2018) (citing Hawes v. State , 2016 WY 30, \\u00b6 21, 368 P.3d 879, 886 (Wyo. 2016) ).\\n[\\u00b68] Two months later, Goetzel filed his current Petition for Post-Conviction Relief Under the \\\"Post-Conviction Determination of Factual Innocence Act.\\\" Goetzel claimed to file his Petition under both the Post-Conviction Determination of Factual Innocence Act, Wyo. Stat. Ann. \\u00a7 7-12-401 through -407, and Wyoming's post-conviction relief statutes, \\u00a7 7-14-101 through -108, as amended in 2018. See 2018 Wyo. Sess. Laws Ch. 77, \\u00a7 2. Therein, Goetzel argued, again, that his sentences for interference with a peace officer and escape violated the double jeopardy provisions of the United States Constitution and the Wyoming Constitution. He also asserted that his trial counsel was ineffective for foregoing an appeal. The district court denied Goetzel's petition on three grounds: first, the Petition did not comply with the statutory requirements for a petition filed under the Factual Innocence Act, see Wyo. Stat. Ann. \\u00a7 7-12-403(b) ; second, Goetzel's claims were barred by res judicata ; and, third, his petition did not present a valid contention supported by cogent argument. This appeal followed.\\nSTANDARD OF REVIEW\\n[\\u00b69] Whether Goetzel's claims are barred by the doctrine of res judicata is a question of law that this Court reviews de novo. See Nicodemus v. State , 2017 WY 34, \\u00b6 9, 392 P.3d 408, 411 (Wyo. 2017) ; Poignee v. State , 2016 WY 42, \\u00b6 12, 369 P.3d 516, 518 (Wyo. 2016) ; Bird v. State , 2015 WY 108, \\u00b6 9, 356 P.3d 264, 267 (Wyo. 2015) (citing Ferguson v. State , 2013 WY 117, \\u00b6 8, 309 P.3d 831, 833 (Wyo. 2013) ).\\nDISCUSSION\\n[\\u00b610] Although Goetzel urges this Court to reach his underlying double jeopardy claims, as before, this Court declines to do so on the grounds that Goetzel's claims on appeal are barred by the doctrine of res judicata and Goetzel has presented no good cause to circumvent that conclusion.\\n[\\u00b611] Res judicata bars litigation of issues that were or could have been determined in a prior proceeding. See Nicodemus , \\u00b6 11, 392 P.3d at 411. The \\\"doctrine of res judicata is a rule of universal law pervading every well-regulated system of jurisprudence. The doctrine arises through public policy and necessity, it being in the interest of the state that there should be an end to litigation.\\\" Poignee , \\u00b6 12, 369 P.3d at 518 (quoting Rubeling v. Rubeling , 406 P.2d 283, 284 (Wyo. 1965) (citing 50 C.J.S. Judgments \\u00a7 592 (2015) ) ).\\n[\\u00b612] In his current petition for post-conviction relief, Goetzel challenges the same convictions and sentences he challenged in his 2016 motion to correct an illegal sentence, and on the same grounds - double jeopardy. In Goetzel's previous appeal from the denial of his motion to correct an illegal sentence, this Court previously concluded that, because Goetzel could have raised his double jeopardy claims in a direct appeal from the district court's judgment and sentence; could have raised the claim when he filed his motion for sentence reduction in 2012; and could have raised his double jeopardy claim in 2015, when he filed his motion for sentence modification, res judicata precluded him from raising those issues therein. See Goetzel I , \\u00b6 6-10, 406 P.3d at 311-12. The same rationale continues to apply to these proceedings.\\n[\\u00b613] However, an appellant may be able to overcome the application of the doctrine of res judicata where he can show \\\"good cause\\\" why the issue was not raised earlier. See DeMillard v. State , 2014 WY 105, \\u00b6 10, 332 P.3d 534, 537 (Wyo. 2014). Relying on that potential exception, Goetzel asserts, first, that res judicata should not apply because he has filed his new post-conviction petition, and this appeal, under new and/or newly amended Wyoming Statutes, most particularly the Post-Conviction Determination of Factual Innocence Act, Wyo. Stat. Ann. \\u00a7 7-12-401 et seq. and Wyo. Stat. Ann. \\u00a7 7-14-101 et seq. , as amended in 2018. Goetzel cites no authority for this assertion and, on those grounds alone, this Court rejects it. See Bruckner v. State , 2018 WY 51, \\u00b6 17, 417 P.3d 178, 182 (Wyo. 2018).\\n[\\u00b614] Further, it is well established that there are procedural limitations in post-conviction relief filings:\\n(a) A claim under this act is procedurally barred and no court has jurisdiction to decide the claim if the claim:\\n(i) Could have been raised but was not raised in a direct appeal from the proceeding which resulted in the petitioner's conviction;\\n(ii) Was not raised in the original or an amendment to the original petition under this act; or\\n(iii) Was decided on its merits or on procedural grounds in any previous proceeding which has become final.\\nWyo. Stat. Ann. \\u00a7 7-14-103. As such, issues that could have been presented on direct appeal are foreclosed from challenge by and through petitions for post-conviction relief due to the application of the doctrine of res judicata . See Cutbirth v. State , 751 P.2d 1257, 1261 (Wyo. 1988) ; see also Nixon v. State , 2002 WY 118, \\u00b6 16, 51 P.3d 851, 855 (Wyo. 2002).\\n[\\u00b615] Finally, nothing in any of the statutory provisions relied upon by Goetzel provides grounds to conclude that res judicata would not apply to substantive claims raised in the context of newly adopted/amended statutes where those same claims could have been raised under prior statutes and prior proceedings. Indeed, this Court has rejected an analogous claim before. See Deloge v. State , 2012 WY 128, \\u00b6 11-12, 289 P.3d 776, 778-80 (Wyo. 2012) (rejecting claim that res judicata should not apply due to statutory changes and stating, \\\"[t]he fact that Wyo. Stat. Ann. \\u00a7 6-2-306 was amended in 2007, and now provides that an enhanced sentence may only be imposed when the defendant has a previous conviction for a similar offense, does not change the nature of Appellant's claim\\\"). Thus, Goetzel's assertion that the doctrine of res judicata should not apply to this appeal in light of the \\\"new\\\" procedural vehicle that he now has chosen to present his issues to this Court is unpersuasive.\\n[\\u00b616] As his second contention, Goetzel asserts that res judicata should not apply because he received ineffective assistance of trial counsel and appellate counsel. With respect to his ineffective assistance of trial counsel claims, Goetzel could have raised those concerns on direct appeal. \\\"[G]enerally a petitioner cannot raise the issue of ineffective assistance of his trial counsel for the first time in a petition for post-conviction relief because that issue could have been raised in the direct appeal and is therefore foreclosed by the doctrine of res judicata.\\\" Keats v. State , 2005 WY 81, \\u00b6 12, 115 P.3d 1110, 1116 (Wyo. 2005) (internal citations omitted). With respect to his claims of ineffective assistance of appellate counsel, this Court already foreclosed that line of argument in its opinion rendered in its Order Denying Petition for Writ of Certiorari , wherein this Court explained:\\nPetitioner claims his appointed appellate attorney was ineffective in the appeal from that order. See Goetzel v. State , 2017 WY 141, 406 P.3d 310 (Wyo. 2017). Although the district court appointed counsel for Petitioner in that appeal, Petitioner had no constitutional right to counsel in that appeal. Hawes v. State , 2016 WY 30, \\u00b6 21, 368 P.3d 879, 886 (Wyo. 2016) (\\\"A motion to correct an illegal sentence is not a critical stage of a criminal case and, accordingly, there is no requirement that counsel be appointed to represent a defendant on such a motion.\\\"). Because Petitioner had no right to counsel regarding his motion to correct illegal sentence, he had no right to effective assistance of counsel. Wainwright v. Torna , 455 U.S. 586, 587-88, 102 S.Ct. 1300, 1301, 71 L.Ed.2d 475 (1982) (\\\"Since respondent had no constitutional right to counsel, he could not be deprived of the effective assistance of counsel by his retained counsel's failure to file the application timely.\\\").\\nGoetzel v. State , S-18-0066, Order Denying Pet. for Writ of Cert. , at 1 (Mar. 27, 2018). Accordingly, Goetzel's claims of ineffective assistance of (trial and appellate) counsel do not constitute good cause to overcome application of the doctrine of res judicata .\\n[\\u00b617] Third, and finally, Goetzel asserts that res judicata should be inapplicable because his earlier motions for a sentence reduction and a sentence modification were not recognized, at that time, as proper procedural vehicles for the assertion of double jeopardy claims. See Tucker v. State , 2015 WY 65, \\u00b6 7 n.1, 349 P.3d 987, 988 n.1 (Wyo. 2015) (referencing Mebane v. State, 2014 WY 72, 326 P.3d 928 (Wyo. 2014) ).\\n[\\u00b618] This Court since has clarified that double jeopardy issues can be addressed under Wyoming Rule of Criminal Procedure 35, including motions to correct an illegal sentence and motions for sentence reduction. See Mebane v. State, 2014 WY 72, 326 P.3d 928 (Wyo. 2014) ; Beck v. State , 2005 WY 56, \\u00b6 10, 110 P.3d 898, 901 (Wyo. 2005) (concluding that a defendant was precluded from raising double jeopardy claims because he did \\\"not challenge his sentence or the denial of his motion for sentence reduction, in which he asserted double jeopardy, and he cannot do so now\\\"). This rule, which was recognized in Goetzel I , has carried forward to other criminal cases, with similar results:\\nThis case is similar to Goetzel . In Goetzel , the defendant was sentenced to consecutive sentences for felony interference with a peace officer and felony escape, and he did not appeal his 2011 conviction and sentence. Goetzel , \\u00b6 3, 406 P.3d at 311. In 2012, Goetzel filed a motion for sentence reduction, which was denied, followed in 2015 by a motion for sentence modification, which was also denied. Id. \\u00b6 4, 406 P.3d at 311. In 2016, Goetzel filed a Rule 35(a) motion in which he, for the first time, raised a double jeopardy claim. Id. \\u00b6 5, 406 P.3d at 311. We held that Goetzel's double jeopardy claim was barred by res judicata because it was not raised in a direct appeal or in any of Goetzel's prior motions. Id. \\u00b6 10, 406 P.3d at 312. We observed:\\nAppellant raised his double jeopardy claim for the first time in his 2016 motion to correct an illegal sentence. He could have raised his double jeopardy claim in 2011 in a direct appeal from the district court's judgment and sentence. He could have raised the claim when he filed his motion for sentence reduction in 2012. However, he stated in this motion that he did \\\"not question any of the substantive or procedural underpinnings of his original sentence.\\\" Appellant could have raised his double jeopardy claim in 2015 when he filed his motion for sentence modification.\\nGoetzel , \\u00b6 8, 406 P.3d at 311.\\nThe same is true in this case. Mr. Hicks could have raised his double jeopardy claim in a direct appeal or in one of his four motions requesting a reduction in his sentence, but he did not. The first time Mr. Hicks asserted a double jeopardy claim was in his 2017 Rule 35(a) motion.\\nHicks v. State , 2018 WY 15, \\u00b6 13-14, 409 P.3d 1256, 1259 (Wyo. 2018).\\n[\\u00b619] Importantly, Goetzel never asserted, in his previous appeal from his motion to correct an illegal sentence or in any of his previous motions, that he somehow was precluded from raising double jeopardy issues. This doctrine has been established in Wyoming under these circumstances since 2005, if not before. The results are clear. Despite the legal and procedural ability to do so, Goetzel did not present any issue of double jeopardy in any direct appeal from his conviction; in his 2012 motion for sentence reduction; or in his 2015 motion or sentence modification. He has presented this Court with no argument that he was prevented from doing so. Where, as here, a defendant could have raised an issue, such as double jeopardy, but did not do so, the doctrine of res judicata soundly applies. Goetzel has not presented this Court with good cause to avoid an application of the doctrine of res judicata under the facts of this case. His claims are appropriately barred.\\nCONCLUSION\\n[\\u00b620] In this appeal, Goetzel has failed to present any facts or circumstances demonstrating good cause for not raising his double jeopardy claim in earlier proceedings. This Court concludes that his claims remain barred by the doctrine of res judicata. Affirmed.\\nThe district court actually cited to Wyo. Stat. Ann. \\u00a7 7-14-403(b) but, as there was no such statute in existence, likely intended to cite to Wyo. Stat. Ann. \\u00a7 7-12-403(b), which provides:\\n(b) The petition shall contain an assertion of factual innocence under oath by the petitioner and shall aver, with supporting affidavits or other credible documents, that:\\n(i) Newly discovered evidence exists that, if credible, establishes a bona fide issue of factual innocence;\\n(ii) The specific evidence identified by the petitioner establishes innocence and is material to the case and the determination of factual innocence;\\n(iii) The material evidence identified by the petitioner is not merely cumulative of evidence that was known, is not reliant solely upon recantation of testimony by a witness against the petitioner and is not merely impeachment evidence;\\n(iv) When viewed with all other evidence in the case, whether admitted during trial or not, the newly discovered evidence demonstrates that the petitioner is factually innocent; and\\n(v) Newly discovered evidence claimed in the petition is distinguishable from any claims made in prior petitions.\\nWyo. Stat. Ann. \\u00a7 7-12-403(b) (Supp. 2018).\\nNotably, in this appeal, Goetzel challenges only the district court's application of the doctrine of res judicata . He does not challenge on appeal the district court's other two independent grounds for denying his Petition for Post-Conviction Relief under the \\\"Post-Conviction Determination of Factual Innocence Act .\\\"\\nNeither Goetzel's motion for sentence reduction, nor his motion for sentence modification, raised double jeopardy issues. He did, however, raise double jeopardy as grounds for his motion to correct an illegal sentence, which was the subject of his previous appeal to this Court.\\nInstead, Goetzel expressly stated that he did not question \\\"any of the substantive or procedural underpinnings of his original sentence.\\\"\\nThis Court recognizes that there may be occasions where a criminal defendant fails to raise double jeopardy issues in a motion for sentence reduction, brought under W.R.Cr.P. 35(b), within the one-year time limit, which may be brought in a later motion to correct an illegal sentence under W.R.Cr.P. 35(a), with its indefinite time limit. This Court is not called upon at this time to address whether the \\\"good cause\\\" exception to the doctrine of res judicata may apply under those circumstances.\"}"
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+"{\"id\": \"6912787\", \"name\": \"Antoine Devonne BUTLER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff)\", \"name_abbreviation\": \"Butler v. State\", \"decision_date\": \"2014-09-16\", \"docket_number\": \"No. S-13-0217\", \"first_page\": \"147\", \"last_page\": \"152\", \"citations\": \"334 P.3d 147\", \"volume\": \"334\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T23:02:26.429743+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BURKE, C.J., and HILL, KITE , and FOX, JJ., and CRANFILL, D.J.\", \"parties\": \"Antoine Devonne BUTLER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"2014 WY 115\\nAntoine Devonne BUTLER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\\nNo. S-13-0217.\\nSupreme Court of Wyoming.\\nSept. 16, 2014.\\nRepresenting Appellant: Office of the Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Erie M. Alden, Senior Assistant Appellate Counsel.\\nRepresenting Appellee: Peter K. Michael, Wyoming Attorney General; David L. Deli-cath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Darrell D. Jackson, Faculty Director, Prosecution Assistance Program; David E. Singleton, Student Director; Samantha Daniels, Student Intern.\\nBefore BURKE, C.J., and HILL, KITE , and FOX, JJ., and CRANFILL, D.J.\\nChief Justice at time of expedited conference.\", \"word_count\": \"2296\", \"char_count\": \"14212\", \"text\": \"CRANFILL, District Judge.\\n[\\u00b6 1] Appellant Antoine Devonne Butler challenges the revocation of his probation. He argues his probation was revoked based on violations for which he had previously been punished with administrative sanctions, which is in violation of Wyo. Stat. Ann. \\u00a7 7-13-1107 (LexisNexis 2013). We agree the plain language of Wyo. Stat. Ann. \\u00a7 7-13-1107 requires the State to choose between administrative sanctions or revoking the probation of an Intensive Supervision Program participant who violates the rules. The State cannot subject a person to both punishments based on the same violations. In this case, the violations the State relied upon in their petition to revoke probation were the same violations which had previously been subject to administrative sanctions. We therefore reverse the order revoking probation and remand to the district court for an order granting Butler's motion to dismiss the State's Petition for Probation Revocation.\\nISSUE\\n[\\u00b6 2] The parties generally agree the sole issue for our review is:\\nWhether Mr. Butler's probation was properly revoked based on Intensive Supervision Program violations which had previously been subject to administrative sanctions.\\nFACTS\\n[\\u00b6 3] On July 6, 2010, Mr. Butler was arrested for conspiracy to commit burglary and accessory, aiding and abetting that same burglary. He pled guilty pursuant to a plea agreement to the charge of conspiracy to commit burglary. He received a deferral under Wyo. Stat. Ann. \\u00a7 7-13-801 (Lexis-Nexis 2013), and in March of 2011, the district court placed him on supervised probation for five years. The State filed a petition to revoke that probation on July 25, 2011. The petition alleged the Defendant had violated his probation in that he 1) did not report for a scheduled appointment with his supervising agent; 2) moved without his agent's knowledge or consent; 8) failed to perform community service as directed by his supervising agent; and 4) had not paid his Victim's Compensation Fund fee. Mr. Butler admitted the allegations in the petition, and the probation was revoked and reinstated.\\n[\\u00b6 4] The State filed a second petition to revoke probation on January 4, 2013. The petition alleged the Defendant had violated his probation in that he 1) left the state of Wyoming without a valid travel permit or approval from his supervising agent; 2) failed to report to the Probation/Parole office for scheduled appointments; 8) was convict, ed of False Reporting-False Identification, a misdemeanor in Colorado; 4) had not actively sought employment or participated in community service as directed by his supervising agent; and 5) failed to make consistent payments toward the court-ordered Victim's Compensation Fund surcharge, Public Defender fees, ASL/ASAM assessment fee and Court automation fee. Mr. Butler admitted the allegations of the petition. The district court revoked Mr. Butler's deferral and imposed a four to seven year sentence, which was suspended in favor of five years of supervised probation. The district court also placed Mr. Butler in an intensive supervision program (ISP) pursuant to Wyo. Stat. Ann. \\u00a7 7-18-1101, et seq. (LexisNexis 2018).\\n[\\u00b6 5] Mr. Butler committed eleven violations of the rules while in the ISP. The ISP program gave him an administrative sanction for those violations by placing Mr. Butler in a residential community corrections program, Cheyenne Transitional Center (CTC) for sizty days. He was expelled from the CTC after only two days. The expulsion resulted from Mr. Butler being allowed to go to a library, but an ISP employee was unable to locate him there despite looking through the entire library twice.\\n[\\u00b6 6] On June 17, 2013, the State filed another petition to revoke probation relying on the eleven violations of the ISP rules that had led to placement at CTC. The petition alleged the Defendant had violated his probation in that 1) his whereabouts were unknown; 2) he violated condition #5 of the ISP Agreement by being off schedule on April 17, 2018; 3) he failed to maintain employment; 4) he violated condition # 5 of the ISP Agreement by being off schedule on April 22, 2013; 5) he violated condition # 12 of the ISP Agreement by being at an unapproved location on April 22, 2018; 6) he violated condition # 15 of the ISP Agreement by having contact with an unapproved person on April 22, 2018; 7) he violated condition #5 of the ISP Agreement by being off schedule on April 30, 2018; 8) he violated condition # 5 of the ISP Agreement by being off schedule on May 27, 2013; 9) he violated condition #18 of the ISP Agreement by removing his Electronic Monitor on May 27, 2013; 10) he violated condition #18 of the ISP Agreement by being at an unapproved location on May 17, 2018; and 11) he violated condition #15 of the ISP Agreement by having contact with an unapproved person on May 27, 2018.\\n[\\u00b6 7] Mr. Butler admitted and explained the allegations contained in the petition at the probation revocation hearing. However, he argued the alleged violations could not form the basis for a probation revocation because they had previously been subject to administrative sanctions (placement at CTC). He also argued at the hearing that he should not have been expelled from CTC because he was unaware he was required to \\\"check-in\\\" with ISP when he arrived at the library. The district court revoked Mr. Butler's probation and imposed the underlying sentence of four to seven years with a referral to the youth offender (Boot Camp) program. This appeal followed.\\nSTANDARD OF REVIEW\\n[\\u00b6 8] Statutory interpretation is a question of law that this Court reviews de movo. MF v. State, 2013 WY 104, \\u00b6 6, 308 P.3d 854, 857 (Wyo.2013) (citing Rock v. Lankford, 2013 WY 61, \\u00b6 17, 301 P.3d 1075, 1080 (Wyo.2013); In re DCP, 2001 WY 77, \\u00b6 7, 30 P.3d 29, 30 (Wyo.2001)).\\n[\\u00b6 9] A district court's decision to revoke probation is reviewed for an abuse of discretion. DeMillard v. State, 2013 WY 99, \\u00b6 11, 308 P.3d 825, 829 (Wyo.2013).\\nA district court's decision to revoke probation and impose a sentence is discretionary and will not be disturbed unless the record demonstrates a clear abuse of discretion. Mapp v. State, 929 P.2d 1222, 1225 (Wyo.1996). We review the district court's decision to determine whether the court could reasonably conclude as it did. Id. \\\"Upon review, all that is necessary to uphold a district court's decision to revoke probation is evidence that it made a conscientious judgment, after hearing the facts, that a condition of probation had been violated.\\\" Sweets v. State, 2003 WY 64, \\u00b6 9, 69 P.3d 404, 406 (Wyo.2003).\\nId., \\u00b6 11, 308 P.3d at 829 (citing Forbes v. State, 2009 WY 146, \\u00b6 6, 220 P.3d 510, 512-13 (Wyo.2009)).\\nDISCUSSION\\n[T10] In interpreting statutes, we seek to determine the legislature's intent:\\nAll statutes must be construed in pari materia and, in ascertaining the meaning of a given law, all statutes relating to the same subject or having the same general purpose must be considered and construed in harmony. Statutory construction is a question of law, so our standard of review is de novo. We endeavor to interpret statutes in accordance with the legislature's intent. We begin by making an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe all parts of the statute in pari materia. When a statute is- sufficiently clear and unambiguous, we give effect to the plain and ordinary meaning of the words and do not resort to the rules of statutory construction. Moreover, we must not give a statute a meaning that will nullify its operation if it is susceptible of another interpretation.\\nMoreover, we will not enlarge, stretch, expand, or extend a statute to matters that do not fall within its express provisions. Only if we determine the language of a statute is ambiguous will we proceed to the next step, which involves applying general principles of statutory construction to the language of the statute in order to construe any ambiguous language to accurately reflect the intent of the legislature. If this Court determines that the language of the statute is not ambiguous, there is no room for further construction. We will apply the language of the statute using its ordinary and obvious meaning.\\nStowe v. State, 2014 WY 97, 331 P.3d 127 (Wyo.2014) (citing Redco Const. v. Profile Properties, LLC, 2012 WY 24, \\u00b6 26, 271 P.3d 408, 415-16 (Wyo.2012)) (quoting Cheyenne Newspapers, Inc. v. Building Code Bd. of Appeals of City of Cheyenne, 2010 WY 2, \\u00b6 9, 222 P.3d 158, 162 (Wyo.2010)) (which in turn cites BP Am. Prod. Co. v. Dep't of Revenue, 2005 WY 60, \\u00b6 15, 112 P.3d 596, 604 (Wyo.2005)).\\n[\\u00b6 11] The Legislature has given the Department of Corrections authorization to establish an intensive supervision program (ISP) for probationers and parolees and also granted the Department general supervisory authority over those who participate in the program. Wyo. Stat. Aun. \\u00a7 7-183-1101, - 1102(a), and -1102(d) (LexisNexis 2013). The ISP established under this article may require:\\n(i) Electronic monitoring, regimented daily schedules or itineraries, house arrest, telephone contact, drug testing, curfew checks or other supervision methods which facilitate contact with supervisory personnel;\\n(ii) Community service work, family, educational or vocational counseling, treatment for substance abuse, mental health treatment and monitoring of restitution orders and fines previously imposed on the participant; and\\n(iii) Imposition of supervision fees to be paid by participants.\\nWyo. Stat, Ann. \\u00a7 7-18-1102(b).\\n[\\u00b6 12] Participation in an ISP is a matter of grace and not of right. Wyo. Stat. Ann. \\u00a7 7-18-1108(a) (LexisNexis 2013). No person is allowed to participate in an ISP unless they agree in writing to follow and abide by all the rules and regulations established by the Department related to the operation of the program and agree to submit to the administrative sanctions which may be imposed under Wyo. Stat. Ann. \\u00a7 7-18-1107. Wyo. Stat. Ann. \\u00a7 7-13-1103(b). The Legislature has also given sentencing courts the authority to place a defendant in an ISP as a condition of their probation. Wyo. Stat. Aun. \\u00a7 7-13-1105 (LexisNexis 2018). 1107 provides: Section\\n718-1107. Administrative for program violations. sanctions\\n(a) The department is authorized to establish by rule and regulation a system of administrative sanctions as an alternative to probation or parole revocation for probationers and parolees who violate the rules and restrictions of an intensive supervision program established under this article.\\n(b) Authorized sanctions may include:\\n(1) Loss or restriction of privileges;\\n(i) Community service; and\\n(ii) Restriction on personal liberty including:\\n(A) Detention in county jail for a period not exceeding thirty (80) days;\\n(B) Placement in a residential community correctional program for a period not to exceed sixty (60) days.\\nWyo. Stat. Ann. \\u00a7 7-18-1107(a), (b) (Lexis-Nexis 2013) (emphasis added).\\n[\\u00b6 13] The emphasis that has been added to Wyo. Stat. Ann. \\u00a7 7-18-1107(a) reflects a legislative intent that when an ISP participant violates the program rules and regulations, the State is required to choose between subjecting that participant to administrative sanctions under the statute or revoking their probation. This Court came to the same conclusion in Umbach v. State where we said \\\"[ilf the State decides that a probationer who has violated a program rule should be subjected to administrative sanctions, then it shall not also seek probation revocation for that violation.\\\" Umbach v. State, 2002 WY 42, \\u00b6 12, 42 P.3d 1006, 1009 (Wyo.2002).\\n[\\u00b6 14] A plain language reading of Wyo. Stat. Ann. \\u00a7 7-18-1107 does not permit the State to both revoke Mr. Butler's probation and subject him to administrative sanctions. The imposition of both options violates the statute's express terms. In this case, the State chose to subject Mr. Butler to administrative sanctions for the eleven ISP violations by placing him at CTC.\\n[\\u00b6 15] The State argues that Mr. Butler was placed at CTC for violating the rules of the intensive supervision program. They further argue he was removed from CTC because he violated the ISP program rules, and it was at that time the district court revoked his probation. The State urges this Court to conclude Mr. Butler's probation was properly revoked because he failed to fully serve the administrative sanction.\\n[\\u00b6 16] A close examination of the Petition for Revocation of Probation and Affidavit for and Request for Revocation of Probation Bench Warrant reveals that nowhere in the petition does the State allege Mr. Butler's probation should be revoked for a failure to complete the administrative sanction. The State petitioned to have Mr. Butler's probation revoked based solely on his eleven ISP violations, which had already been subject to administrative sanctions.\\nCONCLUSION\\n[\\u00b6 17] The district court erred when it granted the State's Petition to Revoke Pro bation because the violations contained in the petition had already been subject to administrative sanctions. Using these same violations to revoke Mr. Butler's probation is contrary to Wyo. Stat. Ann. \\u00a7 7-18-1107 and our ruling in Umbach,.\\n[\\u00b6 18] Reversed and remanded for proceedings consistent with this opinion.\"}"
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+"{\"id\": \"6970713\", \"name\": \"In the Matter of the Attorney's Fees and Costs in the Termination of Parental Rights To: KMO, DMO, CMO, AKO, DKO, MTO, ABO, EEO, and JBO, Minor Children, Donald Lee Tolin, Attorney for HJO, Natural Mother, Appellant (Respondent), v. State of Wyoming, Department of Family Services, Appellee (Petitioner)\", \"name_abbreviation\": \"Tolin ex rel. HJO v. State\", \"decision_date\": \"2013-09-27\", \"docket_number\": \"No. S-13-0054\", \"first_page\": \"827\", \"last_page\": \"831\", \"citations\": \"309 P.3d 827\", \"volume\": \"309\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T01:36:34.070352+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.\", \"parties\": \"In the Matter of the Attorney's Fees and Costs in the Termination of Parental Rights To: KMO, DMO, CMO, AKO, DKO, MTO, ABO, EEO, and JBO, Minor Children, Donald Lee Tolin, Attorney for HJO, Natural Mother, Appellant (Respondent), v. State of Wyoming, Department of Family Services, Appellee (Petitioner).\", \"head_matter\": \"2013 WY 113\\nIn the Matter of the Attorney's Fees and Costs in the Termination of Parental Rights To: KMO, DMO, CMO, AKO, DKO, MTO, ABO, EEO, and JBO, Minor Children, Donald Lee Tolin, Attorney for HJO, Natural Mother, Appellant (Respondent), v. State of Wyoming, Department of Family Services, Appellee (Petitioner).\\nNo. S-13-0054.\\nSupreme Court of Wyoming.\\nSept. 27, 2013.\\nRepresenting Appellant: Donald Lee To-lin, Law Offices of Donald Tolin, Casper, WY.\\nRepresenting Appellee: Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; and Jill E. Kucera, Senior Assistant Attorney General.\\nBefore KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.\", \"word_count\": \"1874\", \"char_count\": \"11207\", \"text\": \"HILL, Justice.\\n[\\u00b61] Attorney Donald Tolin challenges an order awarding him a substantially reduced fee in a termination of parental rights case. Finding no abuse of discretion, we affirm the district court.\\nISSUE\\n[\\u00b62] Tolin states his single issue as follows:\\nWhether or not the district court's order cutting attorney's fees for indigent mother's attorney from $121,580.00 to $25,000.00 was an abuse of discretion, arbitrary, and capricious.\\nFACTS\\n[\\u00b63] The underlying facts of this case are presented in HJO v. State (In re KMO), 2012 WY 99, 280 P.3d 1203 (Wyo.2012) (KMO I) and need not be repeated here. However, parts of the procedural history leading up to this appeal are new and thus need mention.\\n[\\u00b64] In KMO I, this Court affirmed the district court's order terminating mother's parental rights. After KMO I was publish ed, Mr. Tolin filed a fee motion with this Court for his time spent as mother's appointed attorney on appeal. This Court reduced the request by one-third.\\n[\\u00b65] Meanwhile, father's attorney filed a motion for attorney's fees in May of 2012, almost one year after the underlying trial. The court eventually requested a fee motion from Mr. Tolin as well and on December 21, 2012, he filed his fee motion and requested $121,530.00 in fees and $8,468.84 in costs. Mr. Tolin billed at the rate of $100/hour but his motion stated that his hourly rate would increase to $200/hour if the Department of Family Services (DFS) objected to the payment of the fees.\\n[\\u00b66] On January 30, 2018, the district court entered an order awarding Mr. Tolin attorney's fees in the amount of $25,000.00, and $3,468.84 in costs. The court noted in its order that it could not \\\"in good conscience, approve the requests for fees.\\\" A section of the order entitled \\\"Examples of Problems with Fee Request\\\" details the court's concerns:\\n1. The claim for fees in the amount of $121,530.00 is about five times higher than previously observed requests.\\n2. The amount of hours claimed per day appear overstated, and, even if aceu-rate, an attorney cannot maintain an appropriate level of function with so few breaks.\\n8. The amount of pleadings generated by Mr. Tolin was mind boggling. Much of the \\\"paperwork\\\" was redundant. Suffice it to say, the amount of pleadings far exceeded what was necessary to adequately preserve a good record.\\n4. During trial Mr. Tolin was cautioned several times about redundant and/or irrelevant witness questions.\\n5. Mr. Tolin claims more than two times the amount of hours claimed by the Department's lead counsel (who had little participation in the juvenile court case).\\n6. On page 77 of his request for fees Tolin writes: \\\"... Rate will revert to $200.00/hour if bill is contested in Court .\\\" (Compare cases discussing ethical problems in sending a bill threatening interest on unpaid balance when there was no written fee agreement allowing same.)\\n7. There is little or no write off of items that proved to be unproductive and redundant.\\n8. Mr. Tolin's affidavit in support of fees filed December 28, 2012, states that \\\"... payment of fees has been delayed significantly .\\\". As noted above, he did not even file a request for fees until the Court imposed a deadline for same. Any \\\"delay\\\" is his own making.\\n9. Recently the Wyoming Attorney General announced a job opening for an attorney to work with the Department of Family Services. The qualifications adequate for the position are similar to the qualifications to serve as a parent attorney in this case. The A.G. salary range is $4,5838-$6,917 per month ($54,996.00-$83,004.00 per year). The taxpayers of Wyoming would not understand why the State should pay contract services in excess of a year's salary for one case that should have taken less than two months of work.\\nThis appeal followed.\\nSTANDARD OF REVIEW\\n[\\u00b67] We review a district court's decision regarding the award of attorney's fees and costs for abuse of discretion. A court abuses its discretion only when it acts in a manner which exceeds the bounds of reason under the cireumstances. The burden is placed upon the party who is attacking the trial court's ruling to establish an abuse of discretion. Grommet v. Newman, 2009 WY 150, \\u00b6 61, 220 P.3d 795, 817 (Wyo.2009).\\nDISCUSSION\\n[18] In his only issue Mr. Tolin argues that the district court abused its disceretion in eutting his requested fees from $121,530.00 to $25,000.00. He points this Court to Wyo. Stat. Ann. \\u00a7 14-2-818, which he contends provides a basis for the award and requires the State to pay. He also cites the federal lodestar test in support of his argument and submits that his motion, affidavit, and traverse establish the absolute reasonableness of his fee request. In response the DFS argues generally that the district court did not abuse its discretion when it reduced Mr. Tolin's requested fee to $25,000.00. DFS asserts that Mr. Tolin fails to carry his burden to prove that his fee request was reasonable.\\n[\\u00b69] In determining the reasonableness of the fees requested, we have stated that\\na trial court must follow the federal lodestar test, which requires a determination of \\\"(1) whether the fee charged represents the product of reasonable hours times a reasonable rate; and (2) whether other factors of discretionary application should be considered to adjust the fee either upward or downward.\\\" Weiss, \\u00b6 8, 217 P.3d at 410-411 (quoting Forshee, \\u00b6 7, 118 P.3d at 448). Additionally, even if fees are provided by a valid contractual provision, \\\"a trial court has the discretion to exercise its equitable control to allow only such sum as is reasonable or the court may properly disallow attorney's fees altogether on the basis that such recovery would be inequitable.\\\" Dewey v. Wentland, 2002 WY 2, \\u00b6 50, 38 P.3d 402, 420 (Wyo.2002).\\nThorkildsen v. Belden, 2012 WY 8, \\u00b6 10, 269 P.3d 421, 424 (Wyo.2012). The district court based its decision on Mr. Tolin's hourly rate of $100/hour and in their appellate briefs the parties do not assert that the hourly rate is an issue. In any case, Mr. Tolin does not meet his burden of providing proof of the reasonableness of his original fees under the federal lodestar test. First, there is little to no detail in his appellate argument as to the first factor regarding whether the fee charged represents the product of reasonable hours times a reasonable rate. Second, and more importantly, it is in looking to the test's second factor-allowing the district court discretion to determine whether other factors should be considered to adjust the fee either upward or downward-upon which we base our decision.\\n[\\u00b610] We remind Mr. Tolin that our standard on appeal is abuse of discretion which means that to overturn a district court's decision and actually find that it abused its discretion this Court must find that the decision was wholly unsupported by the evidence, illegal, or clearly incorrect. That is not the case in this instance. In addition to the factors previously noted that the district court listed as reasons for concern, the court also stated that the \\\"claim for fees in the amount of $121,530.00 is about five times higher than previously observed requests\\\" and that it \\\"cannot recall an individual request for fees exceeding the award in [Tolin v. State (In re NRF), 2013 WY 9, 294 P.3d 879 (Wyo.2013)].\\\" The court further indicated the termination case was not the first it had presided over and in its experience most requests for fees were substantially less than the $24,858.50 awarded on appeal in the In re NRF case.\\n[(\\u00a711] As in Tolin v. State (In re NRF), 2013 WY 9, 294 P.3d 879 (Wyo.2013) the gist of Mr. Tolin's argument in the present case seems to be that \\\"the district court should have accepted his evidentiary submissions (including his bill records) at face value and awarded his fee application in the full amount.\\\" Id., 19, 294 P.3d at 883. We further stated in In re NRF,\\nthe [district] court's discretion in fashioning a fee award \\\"is by no means shackled by\\\" the attorney's billing records; \\\"it is the court's prerogative (indeed, its duty) to winnow out excessive hours.\\\" Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 296 (1st Cit.2001). The district court has the obligation to peruse the fee application with an experienced eye. Foley v. City of Lowell, Mass., 948 F.2d 10, 19 (1st Cir.1991). We agree with the federal courts from which we adopted the lodestar test, UNC Teton Exploration Drilling Inc. v. Peyton, 774 P.2d 584, 594-95 (Wyo.1989), that \\\"[blilling for legal services . should not be a merely mechanical exercise.... [T)he Court must seruti-nize the claim with particular care.... A reasonable fee can only be fixed by the exercise of judgment.\\\" Copeland v. Marshall, 641 F.2d 880, 888 (D.C.Cir.1980). This is particularly true where the fee is sought from a public ageney like DFS that has the ability to pay with legislatively authorized funds. Id.\\nId. Here, we agree with the district court's assessment of the fee request. It was not a \\\"merely mechanical exercise\\\" by the district court when it reduced Mr. Tolin's fee. In addition to its other comments, the court noted its concern about the \\\"amount of pleadings generated by Mr. Tolin,\\\" calling them \\\"redundant\\\" and excessive over what was \\\"necessary to provide a good record.\\\" The court also found issue with the sheer number of hours billed on daily basis by Mr. Tolin. Id. We noted those same concerns in In re NRF, \\u00b6 18, 294 P.3d at 887.\\n[\\u00b6 12] Beyond Mr. Tolin's general assertions, he makes no cogent argument regarding exactly how the district court abused its discretion. Though he cites to the multitudinous pleadings he filed below, he fails to connect any of those pleadings to how the decision of the district court was an abuse of its discretion. He provides no evidence demonstrating that the fee reduction was unreasonable. Hinckley v. Hinckley, 812 P.2d 907, 915 (Wyo.1991).\\nCONCLUSION\\n[\\u00b6 13] We affirm the district court's fee reduction in this case.\\n. This Court is generally offended by the nature of Mr. Tolin's attempt to intimidate the DFS to pay \\\"or else\\\" suffer the consequences of a fee increase. We query whether this behavior calls into question the Wyoming Rules of Professional Conduct Rule 1.5 \\\"Fees.\\\"\\n. The district court order was entered five days after this Court published Tolin v. State (In re NRF], 2013 WY 9, 294 P.3d 879 (Wyo.2013). There, this Court affirmed an order reducing by half Mr. Tolin's fee ($48,717.00 to $24,358.50) in a separate termination of parental rights case.\"}"
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+"{\"id\": \"6976563\", \"name\": \"Jessy Michael DENNIS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff)\", \"name_abbreviation\": \"Dennis v. State\", \"decision_date\": \"2013-05-31\", \"docket_number\": \"No. S-12-0190\", \"first_page\": \"890\", \"last_page\": \"900\", \"citations\": \"302 P.3d 890\", \"volume\": \"302\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T01:36:35.115542+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before KITE, C.J., HILL, BURKE, J.J., GOLDEN, J., Retired, and WILKING, D.J.\", \"parties\": \"Jessy Michael DENNIS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"2013 WY 67\\nJessy Michael DENNIS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\\nNo. S-12-0190.\\nSupreme Court of Wyoming.\\nMay 31, 2013.\\nRepresenting Appellant: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.\\nRepresenting Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Christyne M. Martens, Assistant Attorney General Argument by Ms. Martens.\\nBefore KITE, C.J., HILL, BURKE, J.J., GOLDEN, J., Retired, and WILKING, D.J.\", \"word_count\": \"5421\", \"char_count\": \"32438\", \"text\": \"WILKING, District Court Judge.\\nA jury convicted Jessy Michael Dennis (Dennis), of aggravated burglary in violation of Wyo. Stat, Ann. \\u00a7 6-8-301(c)@) (LexisNexis 2011). Dennis now appeals his conviction. He contends there was insufficient evidence of a corpus delicti and no evidence was presented to contradict the innocent intent expressed in his extrajudicial statements. He also argues the district court erred by declining his proposed specific intent instruction and adopting instructions that did not adequately explain the elements of aggravated burglary. We affirm.\\nISSUES\\nThe State adequately describes the issues presented to the Court:\\nI. Wyoming law requires independent proof of corpus delicti before an admission can be considered as evidence supporting a conviction. Dennis admitted he entered the victims' unlocked home and took a pistol, which he later returned. The victims testified consistently with that admission-that someone entered their home without permission and removed a pistol. Did this testimony provide sufficient corroboration of Dennis' admissions so that the jury could consider those admissions and so that the jury's guilty verdict was supported by sufficient evidence?\\nII. The test for jury instructions is whether they \\\"leave no doubt as to the cireumstances under which the crime can be found to have been committed.\\\" The district court gave jury instructions about aggravated burglary that closely tracked the applicable statutory language, and Dennis agreed at trial that those instructions correctly stated the law. However, he proposed an additional instruction on the specific intent element of aggravated burglary which the court refused because it was repetitive and confusing. Did the court adequately instruct the jury on the elements of aggravated burglary?\\nFACTS\\nA. Evidence at Trial\\nOn June 28, 2011, the State charged Dennis with aggravated burglary in violation of Wyo. Stat. Ann. $ 6-8-301(c)(i). Dennis' trial began on February 6, 2012, and the jury returned a guilty verdict on February 7, 2012. The prosecution presented four witnesses-Janelle Johnson, Brady Johnson, Star Jones, and Deputy Brandi Wagner of the Laramie County Sheriff's Department. Dennis did not testify on his own behalf.\\nJanelle and Brady Johnson testified that they met Dennis at church and became friends in 2010. The Johnsons were aware of Dennis' troubled past when they befriended him. During the course of their friendship, the Johnsons invited Dennis to their home several times. Their home was located approximately ten miles outside of Cheyenne, Wyoming. Mr. Johnson also had a construction business with Dennis.\\nStar Jones was a mutual friend of Dennis and the Johnsons. Jones testified that on May 26, 2011, Dennis met with her after work at a local restaurant in Cheyenne. Dennis appeared happy at lunch and showed Jones pictures of his baby. He told Jones he knew the Johnsons usually kept their home unlocked, and that he went to their home when he knew Mr. Johnson was out of town and Mrs. Johnson was at work. Once there, he entered the home and removed an item from underneath the Johnsons' bed. After leaving the home, Dennis told Jones he drove his truck \\\"out to the middle of nowhere,\\\" because he was \\\"really distraught,\\\" and he \\\"was just going to take care of it, and that he wouldn't have to deal with it anymore.\\\" During this explanation, Dennis put his hand under his chin, and gestured, stating he \\\"was going to end it all.\\\"\\nDennis told Jones that he changed his mind about \\\"ending it all\\\" and tried to return the item he had taken from the John-sons' home, but found their house was locked. He asked Jones if she could return the item for him. Jones had never been in the Johnsons' home, so Dennis had to explain where the item should be returned, and he drew a layout of the home for her. Jones refused the request and offered instead to inform the Johnsons that Dennis needed to speak with them so he could settle the matter himself. During the May 26, 2011, conversation with Jones, Dennis never explicitly identified the item he had taken from the Johnsons' home. Jones testified she assumed it was a gun and that Dennis had waited a day or two after taking it before he attempted to return it.\\nOn the evening of May 27, 2011, Jones and the Johnsons attended a movie together. Afterwards, Jones told the John-sons that they should contact Dennis, as he needed to speak with them. After Jones and the Johnsons exchanged several text messages, it became clear that Dennis had taken something from under the bed in the John-sons' home. Jones indicated she did not know what the item was, but knew it belonged under their bed. From this, the Johnsons knew the missing item was likely a pistol, as it was the only item they kept beneath the bed.\\nWhen the Johnsons arrived home, they checked underneath their bed and discovered Mrs. Johnson's Ruger pistol was missing. The pistol was a gift from Mrs. Johnson's father, which she kept underneath her side of the bed for protection. The Johnsons kept the pistol in that location so it could not be seen when the bedroom was entered. The Johnsons had not given anyone, including Dennis, permission to enter their home or to move the pistol.\\n[\\u00b6 9] The Johnsons reported the matter to the Laramie County Sheriff's Department and continued to search for the pistol. Mr. Johnson eventually found the pistol in his truck. Mr. Johnson testified that he had been out of town and had arranged for Dennis to return a nail gun he had borrowed by leaving it in Mr. Johnson's unlocked truck. The pistol was loaded, in its holster, and under a duster when Mr. Johnson found it. The Johnsons did not place the pistol in Mr. Johnson's truck.\\n[\\u00ab 10] The sheriff's department investigation did not reveal any signs of forced entry and no items other than the pistol were taken.\\n[\\u00b6 11] On May 29, 2011, Mr. Johnson saw Dennis at church and confronted him about taking the pistol. Dennis replied that he was not supposed to find out and asked how the Johnsons knew the pistol had been taken. Dennis asserted that he did not actually break in since the home was unlocked. Mr. Johnson testified that the conversation clearly pertained to the pistol and not the nail gun. Later the same day, Dennis left a voicemail on Mr. Johnson's cellular phone asking to meet with him to talk about the incident. Dennis also asked Mr. Johnson to tell the police that the whole thing was about a nail gun and not a pistol because he could get into a lot of trouble.\\n[\\u00b6 12] Dennis also contacted Jones and insisted she recall the exact words she used to describe the situation to the sheriff's department. During that conversation, he tried to convince Jones that the incident was a misunderstanding and that he had eventually returned the gun. Jones testified she was sure Dennis used the word \\\"gun\\\" and not \\\"nail gun,\\\" and she did not know anything about Dennis borrowing a nail gun.\\n[\\u00b6 13] At trial, the State relied primarily on witness testimony and photographs of the Johnsons' gun, their house, bedroom, and truck. The State did not present any forensic or expert testimony. At the close of the State's case, Dennis moved the district court for a judgment of acquittal. Dennis argued the State had not presented sufficient evidence of corpus delicti independent from Dennis' extrajudicial statements. The district court denied the motion.\\n[\\u00b6 14] Dennis did not testify or offer any evidence. Defense counsel gave a brief closing argument. Dennis disagreed with his counsel's closing statement and immediately sought to fire his counsel and proceed pro se. The district court granted leave for Dennis to proceed without counsel, but did not allow Dennis to present new evidence or to address the jury as the evidence had been closed and his counsel had already made a closing argument. The jury convicted Dennis of aggravated burglary.\\n[\\u00b6 15] Dennis filed pro se motions for acquittal and for a mistrial. The district court held a hearing on both motions and denied them.\\n[T16] The district court sentenced Dennis to not less than five years, nor more than seven years, of imprisonment, which was suspended in favor of five years of probation. Dennis' term of probation was consecutive to the sentence he received for a federal charge of being a felon in possession of a firearm.\\nB. Jury Instructions\\n[\\u00b6 17] Prior to trial, the State and Dennis submitted proposed jury instructions. The instructions were substantially similar. However, they differed with regard to the elements of aggravated burglary. Dennis offered an instruction on specific intent, which the district court refused.\\n[T18] The refused instruction read:\\nAggravated Burglary is a specific intent crime.\\nSpecific Intent means more than general intent to commit the act. To prove a crime which involves specific intent, the prosecution must prove beyond a reasonable doubt:\\n(1) That the Defendant did the act charged; and\\n(2) That he did it with the specific intent described in the crime charged. The specific intent must be proved beyond a reasonable doubt.\\n[Y19] The district court held the instruetion merely repeated the content of other instructions and was confusing as worded. The district court instructed the jury as to the elements of aggravated burglary in Instruction Nos. 4, 5, 6, 7, 8, and 9.\\nInstruction No. 4\\nThe elements of the crime of Aggravated Burglary, as charged in this case, are as follow:\\n1. On or about the 26th day of May, 2011\\n2. In Laramie County, Wyoming\\n3. The Defendant, Jessy Michael Dennis,\\n4. While in the course of committing the erime of burglary\\n5. Became armed with a deadly weapon.\\nIf you find from your consideration of all the evidence that each of these elements has been proved beyond a reasonable doubt, then you should find the Defendant guilty.\\nIf, on the other hand, you find from your consideration of all the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the Defendant not guilty.\\nInstruction No. 5\\n\\\"Burglary\\\" means the act of entering or remaining without authority in a building, occupied structure or vehicle or separately secured or occupied portion thereof, with intent to commit larceny.\\nInstruction No. 6\\n\\\"Occupied structure\\\" means a structure where any person lives or carries on business or other calling, whether or not a person is actually present.\\nInstruction No. 7\\n\\\"Larceny\\\" means the act of stealing, taking and carrying, leading or driving away the property of another with intent to deprive the owner or lawful possessor.\\nInstruction No. 8\\n\\\"Deprive\\\" means:\\na. To withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value or with intent to restore only upon payment of reward or other compensation; or\\nb. To dispose of property so as to make it unlikely that the owner will recover it.\\nInstruction No. 9\\nThe term \\\"deadly weapon\\\" includes a firearm.\\n[\\u00b6 20] The State proposed instructions on the meaning of \\\"occupied structure\\\" and \\\"deadly weapon,\\\" but the district court refused those instructions and instructed the jury on those terms using different wording. Instruction Nos. 4, 5, 7, and 8 were given as proposed by Dennis.\\n[\\u00b6 21] Neither party objected to the instructions at the formal instruction conference held on February 7, 2012.\\nDISCUSSION\\nI. Sufficiency of the Evidence\\n[T22] Dennis argues there was insufficient evidence, in the absence of his extrajudicial statements, to convict him of aggravated burglary. He asserts his extrajudicial statements could not be used to convict him because the State did not present sufficient independent evidence of the crime as required by the corpus delicti doctrine. He also argues evidence was not presented to contradict the innocent intent he alleges was present in his extrajudicial statements. Dennis contends that he intended the gun be returned to the John-sons after he used it to commit suicide, therefore he lacked the requisite intent to deprive.\\n[T23] We recently reiterated our standard of review for claims of insufficient evidence:\\n[Wle examine and accept as true the State's evidence and all reasonable inferences which can be drawn from it. We do not consider conflicting evidence presented by the defendant We do not substitute our judgment for that of the jury; rather, we determine whether a jury could have reasonably concluded each of the elements of the crime was proven beyond a reasonable doubt. This standard applies whether the supporting evidence is direct or circumstantial.\\nCraft v. State, 2013 WY 41, \\u00b6 18, 298 P.3d 825, 831 (Wyo.2013) (quoting Dawes v. State, 2010 WY 113, \\u00b6 17, 236 P.3d 303, 307 (Wyo.2010)).\\n[124] \\\"In Wyoming, 'independent proof of the corpus delicti must exist apart from a defendant's extrajudicial confession or admission.'\\\" Mersereau v. State, 2012 WY 125, \\u00b6 65, 286 P.3d 97, 121 (Wyo.2012) (quoting Jones v. State, 2010 WY 44, \\u00b6 11, 228 P.3d 867, 870 (Wyo.2010)). However, that corroborating evidence need only consist of substantial evidence that the offense has been committed, so that the evidence as a whole proves beyond a reasonable doubt that the defendant is guilty of the crime charged. Simmers v. State, 943 P.2d 1189, 1199 (Wyo.1997) (citing Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 164-65, 99 L.Ed. 101 (1954)). \\\"It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth. Those facts plus the other evidence besides the admission must, of course, be sufficient to find guilt beyond a reasonable doubt.\\\" Opper, 348 U.S. at 93, 75 S.Ct. at 164-165. Each case is unique and therefore the quantity and type of independent corroborating evidence depends upon the facts of each case. Simmers, 943 P.2d at 1199 (citation omitted). Corroborating evidence may include cireumstantial evidence. Id.\\n[\\u00b6 25] In his initial conversation with Jones, Dennis admitted he entered the John-sons' home and removed an item from under their bed. In the same conversation, he asked Jones to return the item for him and he provided a detailed description of the Johnsons' home for Jones. When Dennis was confronted by Mr. Johnson at church, he disputed that his actions constituted a burglary because the home was unlocked. He asked Mr. Johnson to tell the police that the incident in question involved a nail gun and not a pistol. When he questioned Jones about what she told law enforcement, Dennis admitted to Jones that the item he removed from the home was a gun and that he returned it to Mr. Johnson's truck.\\n[\\u00b6 26] The record in this case contains independent evidence of the crime which corroborates Dennis extrajudicial statements. Mr. and Mrs. Johnson testified that the pistol was usually stored under Mrs. Johnson's side of the bed. They also testified no one had permission to enter their home or remove the pistol. The Johnsons did not place the pistol in the truck where it was eventually found. Mr. Johnson testified that Dennis knew he would be out of town when he made arrangements with him to return a borrowed nail gun by putting it in Mr. Johnson's unlocked truck. Deputy Wagner testified that there was no sign of forced entry into the home.\\n[\\u00b6 27] Jones' testimony also corroborated Dennis' extrajudicial statements. Jones testified she never went into the Johnsons home, but was able to tell the Johnsons they were missing an item from underneath their bed. The Johnsons in turn testified they knew the item was a pistol because that was the only item they kept under their bed. The evidence in the record, when viewed in total, provides sufficient corroborating evidence of an aggravated burglary.\\n[\\u00b6 28] Dennis argues there was insufficient evidence to contradict the innocent intent he expressed in his extrajudicial statements. He contends the inherent intent in his statements was that he only borrowed the pistol to commit suicide. As such, he disputes the evidence sufficiently demonstrated he had a lareenous intent when he took the Johnsons' pistol.\\n[\\u00b6 29] Wyo. Stat. Ann. \\u00a7 6-3-402(a) (Lexis Nexis 2011) defines larceny:\\n(a) A person who steals, takes and carries, leads or drives away property of another with intent to deprive the owner or lawful possessor is guilty of larceny.\\nDeprive is defined as:\\n(A) To withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value or with intent to restore only upon payment of reward or other compensation; or\\n(B) To dispose of the property so as to make it unlikely that the owner will recover it.\\nWyo. Stat. Ann. \\u00a7 6-3-401(a)(@ii) (LexisNexis 2011).\\n[\\u00a530] \\\"The intent to steal can be established by a wide variety of direct and circumstantial evidence.\\\" Bush v. State, 908 P.2d 963, 967 (Wyo.1995). The return of property does not defeat proof of an initial intent to steal. E.g., Wetherelt v. State, 864 P.2d 449, 452 (Wyo.1993) (holding there was sufficient evidence for a larceny conviction even when a defendant returned some of the victim's property). Nevertheless, \\\"[wle have consistently held that, even though it is possible to draw other inferences from the evidence which has been presented, the jury has the responsibility to resolve conflicts in the evidence.\\\" Swanson v. State, 981 P.2d 475, 479 (Wyo.1999) (citations omitted).\\n[\\u00b6 31] Dennis told Jones he had been inside the Johnsons' home before the pistol was discovered missing. He gave Jones a detailed explanation of the layout of the home, and he admitted he entered the home without permission when the Johnsons were not present. He also sought to conceal his crime. He asked Jones to return the stolen pistol. He told Mr. Johnson that he was never supposed to find out about the missing gun. He quizzed Jones about the exact language she used to describe the incident to law enforcement and asked Mr. Johnson to tell authorities the whole incident was about a nail gun instead of a pistol. Attempts at concealing a erime support an inference of an intent to deprive. E.g., Walston v. State, 954 P.2d 987, 989 (Wyo.1998) (\\\"[eJvidence to support the inference of appellant's intent to steal includes the fact that . he initially denied being in the home when questioned by an officer; he pawned the stolen items using an alias. .\\\"); Leppek v. State, 636 P.2d 1117, 1119 (Wyo.1981); Mirich v. State, 593 P.2d 590, 593 (Wyo.1979); see e.g. Dreimanm v. State, 825 P.2d 758, 761 (Wyo.1992) (holding that the return of keys and a calendar after copying them still qualified as an intent to deprive the victim of their property).\\n[\\u00b6 32] Dennis insists that his intent upon entering the Johnsons' home does not qualify as an intent to deprive because his statements make clear he borrowed the Johnsons' pistol to commit suicide. He relies on Eagan v. State, 58 Wyo. 167, 128 P.2d 215, 226 (1942), to argue his alleged innocent motive cannot be disregarded and that, accordingly, there was no proof of his intent to deprive the Johnsons' of their pistol. In Eagan we said:\\nWhere an accused is the sole witness of a transaction charged as a crime, as in the case at bar, his testimony cannot be arbitrarily rejected, and if his credibility has not been impeached, and his testimony is not improbable, and is not inconsistent with the facts and cireumstances shown, but is reasonably consistent therewith, then his testimony should be accepted.\\n128 P.2d at 226 (citations omitted). The State argues Eagan is inapplicable here because Dennis' credibility was impeached. After a review of the record, we agree with the State.\\n[\\u00b6 33] Dennis' admissions raised considerable doubt about his credibility. He asked Mr. Johnson to lie to law enforeement about the details of the incident and told him he was never supposed to know that Dennis had taken the gun. Dennis admitted entering the Johnsons' home without their permission and tried to have Jones re-enter the home, again without the Johnsons' permission, to return the pistol for him. When viewing these admissions in a light most favorable to the State, a jury could have reasonably doubted Dennis' credibility.\\n[\\u00b6 34] Alternatively, Dennis' alleged intent upon entering the home is not inconsistent with an intent to deprive. Dennis asserts his intent upon entering the home was to borrow the Johnsons' gun to commit suicide. A reasonable jury could find that, by entering the home with such an intent, he did not plan on returning the pistol-if he had accomplished his goal of committing suicide, then he would have lacked the capacity to return the gun. As a result, Dennis' own alleged intent for entering the home was consistent with an intent to permanently deprive the Johnsons of their pistol or to dispose of it so as to make it unlikely that the Johnsons would recover it. -\\nII. Jury Instructions\\n[T35] Dennis contends the district court abused its discretion by refusing to give his proposed instruction on specific intent. He argues that the jury instructions did not adequately explain that intent to commit a larceny must be proven beyond a reasonable doubt.\\n[\\u00b6 36] This Court grants trial courts \\\"wide latitude in instructing the jury and, as long as the instructions correctly state the law and the entire charge covers the relevant issue, reversible error will not be found.\\\" Mowery v. State, 2011 WY 38, \\u00b6 13, 247 P.3d 866, 870 (Wyo.2011) (quoting Iseli v. State, 2007 WY 102, \\u00b6 9, 160 P.3d 1133, 1135 (Wyo.2007)). The test for instrue-tions is \\\"whether the instructions leave no doubt as to the circumstances under which the crime can be found to have been committed.\\\" Burnett v. State, 2011 WY 169, \\u00b6 14, 267 P.3d 1083, 1087 (Wyo.2011) (quoting Bloomfield v. State, 2010 WY 97, \\u00b6 15, 234 P.3d 366, 373 (Wyo.2010)). \\\"The refusal to give a requested jury instruction is reviewed for an abuse of discretion.\\\" Mowery, 2011 WY 38, \\u00b6 18, 247 P.3d at 870 (citing Pina v. Christensen, 2009 WY 64, \\u00b6 8, 206 P.3d 1298, 1300 (Wyo.2009)).\\n[\\u00b6 37] Dennis proposed the following instruction on specific intent:\\nAggravated burglary is a specific intent crime.\\nSpecific Intent means more than the general intent to commit the act. To prove a crime which involves specific intent, the prosecution must prove beyond a reasonable doubt:\\n(1) That the Defendant did the act charged; and\\n(2) That he did it with the specific intent described in the crime charged. The specific intent must be proved beyond a reasonable doubt.\\n[\\u00a7\\u00a538] The district court found the instruction to be duplicative of other instructions and potentially confusing. Dennis claims that his defense was that he lacked the required intent for the crime charged and that this instruction was his \\\"theory of defense\\\" instruction. \\\"[A] defendant has the right to have instructions on his theory of the case or his theory of defense presented to the jury if the instructions sufficiently inform the jury of the theory or defense and if competent evidence exists which supports the law expressed in the instructions.\\\" Olsen v. State, 2003 WY 46, \\u00b6 134, 67 P.3d 536, 585 (Wyo.2003) (citation omitted). However, refusing to give an instruction because it is redundant is not an abuse of discretion. Iseti, 2007 WY 102, \\u00b6 15, 160 P.3d at 1138. \\\"A trial court may properly refuse to give a proposed instruction if it is erroneous, confusing, argumentative, or if the instruction unduly emphasizes one aspect of the case, the law, or the defendant's version of the events.\\\" Farmer v. State, 2005 WY 162, \\u00b6 23, 124 P.3d 699, 707 (Wyo.2005) (citations omitted). Furthermore, a \\\"trial court can properly refuse an instruction which merely rephrases the jury's obligation to find all elements beyond a reasonable doubt....\\\" Chavez-Becerra v. State, 924 P.2d 63, 67 (Wyo.1996) (citing Virgilio v. State, 834 P.2d 1125, 1128 (Wyo.1992)).\\n[\\u00b6 39] Dennis' proposed \\\"theory of defense\\\" was that the State simply had not met its burden of proving the specific intent element of aggravated burglary. Such a claim does not require a theory of defense instruction as it is more appropriately categorized as a claim of innocence. Dennis' proposed instruction duplicated the more specific instructions on the elements of aggravated burglary contained in Instruction Nos. 4, 5, 7 and 8. Instruction No. 4 made clear the State had to prove beyond a reasonable doubt that Dennis committed the crime of burglary. Instruction No. 5 outlined the required specific intent for burglary including an intent to commit a larceny. Instruction Nos. 7 and 8, by defining larceny and deprive, further detailed that the intent to commit a larceny requires an intent to deprive.\\n[\\u00b6 40] Accordingly, Instruction Nos. 4, 5, 7, and 8, when read together, provided a detailed and contextualized question, concerning intent, for the jury to consider. Indeed, we have noted that, \\\"juries should be instructed as to the appropriate intent that is an element of the particular crime; it is more important that the jury understand what exactly they [are required] to determine.\\\" Keats v. State, 2003 WY 19, \\u00b6 13, 64 P.3d 104, 108 (Wyo.2003) (internal citation and quotation marks omitted) (quoting Reilly v. State, 2002 WY 156, \\u00b6 9, 55 P.3d 1259, 1262-63 (Wyo.2002) abrogated by Granzer v. State, 2008 WY 118, 193 P.3d 266 (Wyo.2008)). The district court did not abuse its discretion by refusing Dennis' proposed specific intent instruction. The proposed instruction presented an ambiguous and duplicative question for the jury to answer. \\\"[A] defendant is not entitled to a particularly worded jury instruction where jury instructions given cover the substance of the requested jury instruction.\\\" Ortega v. State, 966 P.2d 961, 966 (Wyo.1998) (citation omitted). The district court properly refused a redundant instruction. Iseli, 2007 WY 102, \\u00b6 15, 160 P.3d at 1138.\\n[\\u00b6 41] Dennis also argues that the following instructions failed to adequately inform the jury of the level of specific intent required to conviet him:\\nInstruction No. 4[ ]\\nThe elements of the crime of Aggravated Burglary, as charged in this case, are as follows:\\n1. On or about the 26th day of May, 2011\\n2. In Laramie County, Wyoming\\n3. The Defendant, Jessy Michael Dennis\\n4. While in the course of committing the crime of burglary\\n5. Became armed with a deadly weapon.\\nIf you find from your consideration of all the evidence that each of these elements has been proved beyond a reasonable doubt, then you should find the Defendant guilty.\\nIf, on the other hand, you find from your consideration of all the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the Defendant not guilty.\\nInstruction No. 5\\n\\\"Burglary\\\" means the act of entering or remaining without authority in a building, occupied structure or vehicle or separately secured or occupied portion thereof, with intent to commit larceny.\\nInstruction No. 7\\n\\\"Larceny\\\" means the act of stealing, taking and carrying, leading or driving away the property of another with intent to deprive the owner or lawful possessor.\\nInstruction No. 8\\n\\\"Deprive\\\" means:\\na. To withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value or with intent to restore only upon payment of reward or other compensation; or\\nb. To dispose of the property so as to make it unlikely that the owner will recover it.\\n[\\u00b6 42] Dennis did not object to the instructions actually given to the jury; \\\"our review is therefore confined to a search for plain error.\\\" Magnus v. State, 2013 WY 13, \\u00b6 23, 293 P.3d 459, 467 (Wyo.2013) (citing Sandoval v. State, 2009 WY 121, \\u00b6 6, 217 P.3d 393, 395 (Wyo.2009)). \\\"Our plain error analysis requires that an appellant 'establish, by reference to the record, a violation of a clear and unequivocal rule of law in a clear and obvious, not merely arguable, way and that the violation adversely affected a substantial right resulting in material prejudice.!\\\" Magnus, 2013 WY 13, \\u00b6 23, 293 P.3d at 467 (quoting Joreski v. State, 2012 WY 143, \\u00b6 11, 288 P.3d 413, 416 (Wyo.2012)). Material prejudice is shown when a reasonable possibility exists that, but for the error, the jury would have returned a more favorable verdict. Craft v. State, 2012 WY 166, \\u00b6 21, 291 P.3d 306, 312 (Wyo.2012) (citation omitted).\\n[\\u00a5438] \\\"The purpose of jury instructions is to provide the jury with a foundational legal understanding to enable a reasoned application of the facts to the law. It is crucial that the trial court 'correctly state the law and adequately cover the relevant issues'\\\" Walker v. State, 2012 WY 1, \\u00b6 10, 267 P.3d 1107, 1111 (Wyo.2012) (internal and external citations omitted). \\\"We do not single out individual jury instructions or parts of them, but rather, we consider the jury instructions as a whole.\\\" Burnett, 2011 WY 169, \\u00b6 14, 267 P.3d at 1087 (citing Bloomfield, 2010 WY 97, \\u00b6 9, 234 P.3d at 369). \\\"A person is guilty of aggravated burglary in violation of Wyo. Stat. Ann. \\u00a7 6-3-801(c)@i) if he, 'in the course of committing the crime of burglary . [ils or becomes armed with or uses a deadly weapon.\\\"\\\" Counts v. State, 2012 WY 70, \\u00b6 50, 277 P.3d 94, 108 (Wyo.2012). Dennis had to enter the Johnsons' house without their permission and with the intent to commit a larceny in their home to be guilty of a burglary. Id. at \\u00b6 59, 277 P.3d at 110-11 (citing Wyo. Stat. Ann. \\u00a7 6-8-301(2)). Larceny occurs when \\\"a person . steals, takes and carries, leads or drives away property of another with intent to deprive the owner or lawful possessor....\\\" Powell v. State, 2012 WY 106, 17, 282 P.3d 163, 165 (Wyo.2012) (quoting Wyo. Stat. Ann. \\u00a7 6-3-402(a)). In reviewing Instruction Nos. 4, 5, 7 and 8, and in light of Wyo. Stat. Ann. \\u00a7 6-8-8301, we find the instructions adequately informed the jury of the element of \\\"burglary,\\\" including the specific intent to commit larceny and the required intent to deprive for larceny.\\n[\\u00b6 44] In Burnett, we held that a series of instructions adequately informed the jury of the elements of attempted second-degree murder. 2011 WY 169, \\u00b6 18, 267 P.3d at 1088. In that case, one instruction listed all the elements of attempted second-degree murder but omitted the necessary elements of \\\"maliciously\\\" and \\\"purposely.\\\" Id. Those elements were listed in separate instructions. Id. We held \\\"[these instructions, as a whole, adequately informed the jury that it must find Mr. Burnett had acted purposely and maliciously in order to convict him of attempted second degree murder.\\\" Id. at 118, 267 P.3d at 1089. Here, the instructions as a whole adequately informed the jury of the necessity of finding that Dennis entered the Johnsons' home with the intent to commit a larceny and that intent had to include an intent to deprive the Johnsons of their pistol.\\n[\\u00b6 45] Upon review of the instructions given to the jury, the district court did not abuse its discretion in refusing Dennis' specific intent instruction. It also did not commit plain error in instructing the jury-the jury was sufficiently informed of the grounds upon which they were to find Dennis guilty of aggravated burglary including the requisite intent to deprive.\\nCONCLUSION\\n[\\u00b6 46] We find that sufficient independent evidence was presented to corroborate Dennis' extrajudicial statements and to convict him of aggravated burglary. We further find that the jury was properly instructed. Affirmed.\\n. The record refers to \\\"Star Jones and Star Pol-ley.\\\" Star Polley married between the time of the incident and trial and changed her name as a result. The Court will refer to her as Star Jones or Jones.\\n. Instruction No. 4 mimics the instruction on the elements of aggravated burglary found in the Wyoming Criminal Pattern Instructions 33.01C (2009).\"}"
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+"{\"id\": \"6980861\", \"name\": \"BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner, v. Jody Montgomery VANNOY, WSB # 5-2345, Respondent\", \"name_abbreviation\": \"Board of Professional Responsibility v. Vannoy\", \"decision_date\": \"2012-09-12\", \"docket_number\": \"No. D-12-0007\", \"first_page\": \"247\", \"last_page\": \"248\", \"citations\": \"285 P.3d 247\", \"volume\": \"285\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T20:01:29.041195+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner, v. Jody Montgomery VANNOY, WSB # 5-2345, Respondent\", \"head_matter\": \"2012 WY 121\\nBOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner, v. Jody Montgomery VANNOY, WSB # 5-2345, Respondent\\nNo. D-12-0007.\\nSupreme Court of Wyoming.\\nSept. 12, 2012.\", \"word_count\": \"350\", \"char_count\": \"2133\", \"text\": \"OrpER OF INTERIM SUSPENSION\\n[\\u00b61] Pursuant to Section 17 of the Disciplinary Code for the Wyoming State Bar, Bar Counsel for the Wyoming State Bar filed, on August 20, 2012, a \\\"Petition for Interim Suspension of Attorney.\\\" The following day, Bar Counsel filed an \\\"Amended Petition for Interim Suspension of Attorney.\\\" The Court, after a careful review of the Petition for Interim Suspension, the amended petition, the \\\"Affidavit of Bar Counsel in Support of Petition for Interim Suspension of Attorney,\\\" and the file, concludes that the petition for interim suspension should be granted and that Respondent should be suspended from the practice of law pending resolution of the formal charge that has been, or will be, filed against her. See Section 17(c) (\\\"Within fifteen (15) days of the entry of an order of interim suspension, Bar Counsel shall file a formal charge.\\\") It is, therefore,\\n[\\u00b62] ADJUDGED AND ORDERED that, effective September 21, 2012, the Respondent, Jody Montgomery Vannoy, shall be, and hereby is, suspended from the prac tice of law, pending final resolution of the formal charge that has been, or will be, filed against her; and it is further\\n[\\u00b63] ORDERED that, during the period of interim suspension, Respondent shall comply with the requirements of the Disciplinary Code for the Wyoming State Bar, particularly the requirements found in Section 22 of that code; and it is further\\n[\\u00b64] ORDERED that, pursuant to Seetion 4(a)(iv) of the Disciplinary Code for the Wyoming State Bar, this Order of Interim Suspension shall be published in the Pacific Reporter; and it is further\\n[\\u00b65] ORDERED that the Clerk of this Court shall transmit a copy of this Order of Interim Suspension to the Respondent, Bar Counsel, members of the Board of Professional Responsibility, and the clerks of the appropriate courts of the State of Wyoming.\\n[\\u00b66] DATED this 12th day of September, 2012.\\nBY THE COURT:\\n/s/ MARILYN S. KITE Chief Justice\"}"
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+"{\"id\": \"6986407\", \"name\": \"Michael Scott CARROLL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff)\", \"name_abbreviation\": \"Carroll v. State\", \"decision_date\": \"2011-08-10\", \"docket_number\": \"No. S-11-0074\", \"first_page\": \"39\", \"last_page\": \"40\", \"citations\": \"257 P.3d 39\", \"volume\": \"257\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T22:32:41.507604+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Michael Scott CARROLL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"2011 WY 117\\nMichael Scott CARROLL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\\nNo. S-11-0074.\\nSupreme Court of Wyoming.\\nAug. 10, 2011.\", \"word_count\": \"336\", \"char_count\": \"2107\", \"text\": \"OrbpER Arpirmme tas District CouRT's \\\"OrpErR Revoking PROBATION AND JUDGMENT AND SENTENCE\\\"\\n[T1] This matter came before the Court upon its own motion following notification that appellant has not filed a pro se brief within the time allotted by this Court. In 2009, Appellant pled guilty to one count of sexual abuse of a minor in the third degree. Wyo. Stat. Aun. \\u00a7 6-2-816(a)@). The district court imposed a sentence of two to three years, which was suspended in favor of seven years of supervised probation. In 2010, the district court revoked Appellant's probation and imposed the underlying sentence. The \\\"Order Revoking Probation and Judgment and Sentence\\\" was entered on December 28, 2010. Appellant filed this appeal to challenge that order. On May 16, 2011, Appellant's court-appointed appellate counsel filed a \\\"Motion to Withdraw as Counsel,\\\" pursuant to Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). Following a careful review of the record and the \\\"Anders brief\\\" submitted by appellate counsel, this Court, on June 7, 2011, entered its \\\"Order Granting Permission for Court Appointed Counsel to Withdraw.\\\" That Order notified Appellant that the district court's December 28, 2010, \\\"Order Revoking Probation and Judgment and Sentence\\\" would be affirmed unless, on or before July 25, 2011, Appellant filed a brief that persuaded this Court that the eaptioned appeal is not wholly frivolous. Taking note that Appellant, Michael Seott Carroll, has not filed a brief or other pleading within the time allotted, the Court finds that the district court's \\\"Order Revoking Probation and Judgment and Sentence\\\" should be affirmed. It is, therefore,\\n[12] ORDERED that the district court's December 28, 2010, \\\"Order Revoking Probation and Judgment and Sentence\\\" be, and the same hereby is, affirmed.\\n[T3] DATED this 10th day of August, 2011.\\nBy the Court:\\n/s/ Marilyn S. Kite MARILYN S. KITE Chief Justice.\"}"
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diff --git a/wyo/6988351.json b/wyo/6988351.json
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+"{\"id\": \"6988351\", \"name\": \"Myra Jean FORD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff)\", \"name_abbreviation\": \"Ford v. State\", \"decision_date\": \"2011-08-25\", \"docket_number\": \"No. S-11-0021\", \"first_page\": \"1178\", \"last_page\": \"1185\", \"citations\": \"259 P.3d 1178\", \"volume\": \"259\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T00:31:01.544526+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.\", \"parties\": \"Myra Jean FORD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"2011 WY 122\\nMyra Jean FORD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\\nNo. S-11-0021.\\nSupreme Court of Wyoming.\\nAug. 25, 2011.\\nRepresenting Appellant Diane Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.\\nRepresenting Appellee: Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Meri V. Geringer, Senior Assistant Attorney General, Argument by Ms. Geringer.\\nBefore KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.\", \"word_count\": \"4641\", \"char_count\": \"27321\", \"text\": \"HILL, Justice.\\n[\\u00b61] Appellant, Myra Jean Ford (Ford), was convicted of seven counts of forgery. In this appeal Ford contends that the district court abused its discretion when it denied her motion for judgment of acquittal at the close of the State's presentation of evidence. Ford maintains that the evidence the State produced was not sufficient to prove any of the fundamental elements of the crime of forgery. We will reverse and remand with directions that the information be dismissed with prejudice.\\nISSUE\\n[\\u00b62] Ford raises this issue:\\nDid the trial court abuse its discretion by denying Myra Ford's motion for acquittal after the prosecution failed to produce evidence sufficient to prove the elements of forgery required by W.S. \\u00a7 6-8-602(a)(i), (b)?\\nThe State rephrases that issue somewhat, but in essence mirrors Ford's articulation of it.\\nFACTS AND PROCEEDINGS\\n[\\u00b68] Before the trial began, the parties agreed to these facts having been proved. The stipulation was read to the jury as an instruction at the end of the trial, but before closing arguments:\\nLadies and Gentlemen, the parties have stipulated that all of the people named in all of the charges actually received counseling services from [Ford].\\nFurther, the parties have stipulated that the Campbell County Memorial Hospital did not suffer monetary loss as a result of [Ford's] actions. As you were instructed in Jury Instruction No. 8, you must accept these stipulated facts as proved.\\n[T4] Ford worked as a substance abuse therapist at Campbell County Memorial Hospital (CCMH). Count 1 of the charges against Ford alleged that under the date of December 17, 2007, she sent a letter written on CCMH letterhead stationery to the Wyoming Department of Family Services advising that her patient, AB, did not require substance abuse treatment. Ford did not treat AB at CCMH, but rather did so on her own time and at her home, without charging AB a fee of any sort. This is true with respect to all of the counts which follow hereafter. Count 2 alleged that Ford corresponded to the Wyoming Department of Corrections on CCMH stationery on January 23, 2009, informing that agency that she had provided counseling services to RB. Count 8 alleged that Ford corresponded on CCMH stationery to the Campbell County Circuit Court on March 11, 2008, recommending that GB receive treatment for substance abuse. Count 4 alleged that on January 26, 2009, Ford corresponded to the Wyoming Department of Corrections, Division of Field Services, on CCMH stationery asserting that she had provided counseling services to BB. Count 5 alleged that on October 2, 2008, Ford corresponded on CCMH stationery with Crook County Cireuit Court asserting that she had provided treatment to MP. Count 6 alleged that on April 20, 2007, Ford corresponded on CCMH stationery with the Wyoming Department of Corrections, Division of Field Services, describing services she provided to LM. Finally, Count 7 alleged that on March 17, 2008, Ford corresponded on CCMH stationery with the Natrona County Cireuit Court reporting that she had provided counseling services to JP. Ford did not present any evidence in her defense.\\n[\\u00b65] Ford was interviewed by police officers, and she admitted to providing the counseling at issue to friends who could not afford CCMH's fees for that service, that she knew CCMH personnel policies did not permit her to do such a thing without the express permission of CCMH administrators, and that she knew it was unethical and wrong. Ford was discharged from her employment because of the conduct described above. At the time the presentence investigation report was prepared, Ford's license(s) to practice as a counselor were under review but no final action had been taken. That report also indicates that Ford was working as a receptionist at a salon, rather than as a counselor, at the time the report was prepared.\\nDISCUSSION\\nStandard of Review\\n[\\u00b66] In Taylor v. State, 2011 WY 18, \\u00b6 10, 246 P.3d 596, 598-99 (Wyo.2011) we held:\\nWe have described the standard applicable to a review of a denial of a motion for a judgment of acquittal as follows:\\nOur responsibility in considering the propriety of a ruling on a motion for judgment of acquittal is the same as that of the trial court. Cloman v. State, Wyo., 574 P.2d 410 (1978). The question raised is the sufficiency of the evidence to sustain the charge, which is a matter to be determined within the sound discretion of the trial court. Chavez v. State, Wyo., 601 P.2d 166 (1979); Montez v. State, Wyo., 527 P.2d 1330 (1974). In making that determination the district court must assume the truth of the evidence of the State and give to the State the benefit of all legitimate inferences to be drawn from that evidence. If a prima facie case is demonstrated when the evidence is so examined, the motion for judgment of acquittal properly is denied. Russell v. State, Wyo., 583 P.2d 690 (1978). It is proper to grant 2 motion. for judgment. of acquittal only if thfere is no substantlal e'v1dence t? sustain the material allegations relating to , , the offense that is charged. Heberling v. State, Wyo., 507 P.2d 1 (1973), cert. denied 414 U.S. 1022, 94 S.Ct. 444, 38 L.Ed.2d 313 (1973); Fresquez v. State, Wyo., 492 P.24 197 (1971). Such a result is indicated if the evidence requires the jury to speculate or conjecture as to the defendant's guilt or if a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime when the evidence is viewed in the light most favorable to the State. Chavez v. State, supra; Russell v. State, supra.\\nMartinez v. State, 2009 WY 6, \\u00b6 11, 199 P.3d 526, 530 (Wyo.2009) (quoting Aragon v. State, 627 P.2d 599, 602 (Wyo.1981)).\\nForgery\\n[\\u00b67] Wyo. Stat. Ann. \\u00a7 6-8-602 (Lexis Nexis 2011) provides: _\\n$ 6-3-602. Forgery; penalties\\n(a) A is of if with intent to defraud, he: '\\n(1) Alters any writing of another without authority;\\n(ii) Makes, completes, executes, au- > > thenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or\\n(i) Utters any writing which he knows to be forged in a manner specified in paragraphs (1) or (ii) of this subsection.\\n(b) Except as provided in subsection (c) of this section, forgery is a felony punishable by imprisonment for. not more than ten (10) years, a fine of not more than ten thousand dollars ($10,-000.00), or both.\\n(c) Forgery is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if the writing is a:\\nG) Permit required by W.S. 11-21-102 & . through 11-21-104; or\\n. . . on a car or pit car in or about a mine, [Emphasis added.] (ii) Number or check number placed\\n. aas. Ford was charged with violating \\u00a7 6-3-602(@)@i) and (b) in each of the seven counts. Each count was de\\u00a7criped in a separate instruction, and we will give one instruction as an example:\\nJury Instruction No. 10. The elements of the crime of forgery as charged in Count 3 of this case are:\\nOne, on or about March 11, 2008;\\nTwo, in Campbell County, Wyoming;\\nThree, the defendant, Myra Jean Ford;\\nFour, with the intent to defraud;\\nFive, made a writing so it purported to be the act of another, to wit, submitted a certification to the Campbell County Circuit Court confirming that [GB] had received counseling issued on letterhead and purporting to have been authorized by Campbell County Memorial Hospital;\\nAnfl' Si?\\\" Campbell. County Memorial Hospital did not authorize that act.\\nIf you find from your consideration of all F of the evidence that each of these elements has been proved beyond a reasonable doubt, then you should find the defendant guilty of Count 8.\\nIf, on the other hand, you find from your consideration of all of the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the defendant not guilty of Count 8.\\n[T8] Ford contends that a person cannot commit forgery by signing an instrument in his or her own name, citing 87 C.J.S. Forgery \\u00a7 8 (2008 and 2010 Cum. Supp.). The exact wording includes the following:\\nSubject to statutory variations, the false making or alteration of some instrument in writing is an essential element of the crime of forgery. The essence of forgery is that the writing must purport to be the writing of another than the person making it. In the paradigmatic case of \\\"forgery\\\" at common law, the instrument is not what it purports to be, because it purports to be written by someone who did not actually write it. Furthermore, assuming the requisite knowledge and intent, one commits forgery when he or she makes up the instrument, whether such person or someone else places the false signature on it.\\nForgery cannot be committed by the making of a genuine instrument, although the statements made therein are untrue. A false making must relate to the genuineness of the execution of a document, not to the genuineness of its contents. Thus, where the falsity lies in the representations of facts, not in the genuineness of execution, it is not \\\"forgery.\\\"\\nUnder some statutes, the completion of a genuine instrument in an unauthorized manner, or without the authority of anyone entitled to grant such authority, constitutes forgery. Under such statutes, it is not necessary for a written instrument to expressly purport to have been made by the authority of one who did not give authority, as it is only necessary that the instrument be made in such a manner.\\nUse of own name.\\nGenerally, a person cannot commit forgery by signing an instrument in his or her own name, and in forgery prosecutions the state must generally prove that defendant used the name of another. However, signing one's own name with the intent that the writing be received as written by another person, or impersonating another in the signature of an instrument, or signing in such a way as to make the writing purport to be that of another, are all acts of forgery.\\n[T9] The instructions informed the jury that Ford's crime required the jury to find beyond a reasonable doubt that CCMH had not authorized her to sign the letters. We are not convinced that that is a correct construction of the statute. The statute requires that the forged signature be that of \\\"another.\\\" However, we are persuaded that the jury could not have concluded from the evidence presented that Ford (a person) had signed the name of \\\"another\\\" (person). We are also persuaded that a jury could not have concluded that any person was defrauded by Ford's signing her name to such letters. The jury was instructed that all of the patients involved were counseled by Ford, and that fundamental representation was in all respects true. Moreover, CCMH as a theoretical \\\"person or entity\\\" could not have signed such letters because it could not qualify for the license to do so.\\n[\\u00b610] Ford also relies on the case State v. Jensen, 2004 UT App. 467, \\u00b6 11-15, 105 P.3d 951, 955 (Utah 2004), cert. denied, State v. Jensen, 123 P.3d 815 (Table 2005), as well as many of the cases cited therein, for the proposition that Ford could not be found guilty for signing her own name:\\nThis court has emphasized that in forgery prosecutions the State must prove that the defendant used the name of another. See State v. Gonzalez, 822 P.2d 1214, 1216 (Utah Ct.App.1991) (\\\"'[Tlhe state must show that the defendant not only used the name of another, but must also show that [she] did so without any authority to do so.'\\\" (second alteration in original) (quoting State v. Collins, 597 P.2d 1317, 1317 (Utah 1979))). Likewise, a federal court has held that \\\"(ilt is well established that forgery contemplates a writing which falsely purports to be the writing of another person than the actual maker.\\\" Greathouse v. United States, 170 F.2d 512, 514 (4th Cir.1948) (finding that it was not forgery for the defendant to issue a check in his own name on a bank in which he had no funds, despite the defendant's intent to defraud).\\nAdditionally, in addressing elements of forgery similar to those articulated in our forgery statute, other states have held that one who signs his own name, purporting to act with the authority of another, is not guilty of forgery. For example, the Texas Court of Appeals has held that \\\"one who signs his true name, and does not represent himself to be someone else of the same name, does not commit a forgery because his act does not purport to be that of another.\\\" - Nobles v. Marcus, 533 S.W.2d 923, 926 (Tex.1976). In Nobles, the court found that the defendant, in signing his own name to the corporation's deed under the false power of an officer of the corporation, did not commit forgery. See id. at 925-26. The court noted that while the defendant \\\"may [have been] guilty of falsely representing the power under which he executed the instrument . he did not represent his act to be that of another.\\\" Id. at 926.\\nSimilarly, the New York Court of Appeals has held that the element of purporting to be another, as required under New York's forgery statute, \\\"consistled] in falsely making an instrument purporting to be made by another.\\\" People v. Mann, 75 N.Y. 484, 486 (N.Y.1878) (finding a county officer who, without authority, executed a contract in his own name was not guilty of forgery). In Mann, the court distinguished purporting to be the act of another, a requisite element of forgery, from the false assumption of authority. See id.\\nOne who makes an instrument signed with his own name, but purporting to bind another, does not make an instrument purporting to be the act of another.... The instrument shows upon its face that it is made by himself and is in point of fact his own act. The wrong done . consists in the false assumption of authority to bind another....\\nId. at 486-87.\\nMore recently, the New York Court of Appeals has held that \\\" 'it is not forgery for a person to sign his own name to an instrument, and falsely and fraudulently represent that he has authority to bind another by doing so' and 'the signer is guilty of false pretenses only'\\\" People v. Cunningham, 2 N.Y.3d 593, 780 N.Y.S.2d 750, 813 N.E.2d 891, 894 (2004) (citation omitted). In Cunningham, the court concluded that a corporate consultant did not commit forgery by signing his own name to a corporate check, although his signature to the check was in excess of the authority delegated to him by the corporation. See id. 780 N.Y.S.2d 750, 813 N.E.2d at 892. In reaching this conclusion, the court noted that \\\"under our present Penal Law, as under prior statutes and the common law, a distinction must be drawn between an instrument which is falsely made, altered or completed, and an instrument which contains misrepresentations not relevant to the identity of the maker or drawer of the instrument.\\\" Id. 780 N.Y.S.2d 750, 813 N.E.2d at 893 (quotations and citations omitted). The court in Cunning ham also engages in a lengthy discussion of forgery at common law, its codification into state statutes, and the fact that most states' forgery statutes follow the common law requirement that the writing purport to be that of another. See id. 780 N.Y.S.2d 750, 813 N.E.2d at 894 (\\\"Although statutes vary, most jurisdictions in this country have tended to follow the [common law] approach to forgery.\\\").\\nIn the present case, Jensen similarly signed his own name to the Deed on the line reserved for BE and added the words \\\"see lease.\\\" Consequently, Jensen did not make an instrument purporting to be the act of another. Thus, while Jensen, like the defendants in Nobles and Mann, may have been guilty of fraudulent assumption of authority, see Christensen v. Nielson, 73 Utah 603, 276 P. 645, 647-48 (1929) (discussing liability for false assumption of authority), the State failed to present sufficient evidence to raise a question of material fact as to whether in signing his own name on the Deed on the line reserved for BE, Jensen was purporting his signature to be the act of another. Thus, we reverse his conviction of forgery.\\n[\\u00b611] The crux of the State's contention is that by signing her name on CCMH letterhead, she falsely represented that the material in the letter was that of CCMH or at least came with CCMH's \\\"guarantee of quality,\\\" something which Ford did not have authority to do. Ford aptly points out that CCMH is not licensed or capable of affixing a signature to letters such as those in issue because it is not eligible to hold a license such as that held by Ford. Moreover, CCMH cannot act except through its officers, directors, and other employees authorized to act on its behalf. Finally, the State's contention that a document written on CCMH letterhead comes with some sort of special stature is not supported by any evidence in the record, other than the prosecutor's having said it was so (argument is not evidence). From the materials that are in the record on appeal, such a document comes with no greater standing than that of a private agency or person eligible to conduct such counseling. Indeed, it is just as likely to be true that in many cases the assessments made by private practitioners are given more weight than those of a public hospital or other public agency.\\n[\\u00b612] We have not had very many opportunities to address the elements of the crime of forgery, and that statute has been amended from time to time over the years. We also note that the statute comes encrusted with centuries of precedents that date back to the common law. In Dixon v. Williams, 584 P.2d 1078, 1080-81 (Wyo.1978) this Court opined:\\nForgery requires that there be a false making or alteration of some instrument in writing, a fraudulent intent, and the instrument must be capable of effecting a fraud. State Board of Law Examiners v. Goppert, 1949, 66 Wyo. 117, 205 P.2d 124, 135. See as well, Santolini v. State, 1895, 6 Wyo. 110, 42 P. 746; State v. Thrunk, 1978, 157 N.J.Super. 265, 384 A.2d 906; Finney v. State, Ala.Crim.App.1977, 348 So.2d 876, cert. den. Ex parte State ex rel. Attorney General, Ala.1977, 348 So.2d 878; United States v. Dyer, 7th Cir.1976, 546 F.2d 1313 (forgery at common law required proof of fraudulent intent). In this appeal, not only does the record lack any evidence whatsoever of an intent on the part of defendant to defraud, it in fact indicates exactly the contrary; that the checks written by the defendant and signed with plaintiff's name were used to pay legitimate corporate debts arising from the daily operations of the corporation itself. Nowhere is it even hinted, much less alleged that defendant pursued his course of action with an intent or desire to defraud anyone. With such evidence, there is no way to infer an intent to defraud. State v. Grider, 1955, 74 Wyo. 88, 284 P.2d 400, reh. den. 74 Wyo. 111, 288 P.2d 766. Absent the required element of fraudulent intent, there is no crime or criminal activity established. Plaintiff's agreement thus could not be found to render the buy-sell agreement void on the ground that the crime of forgery had been committed. Under these cireumstances, in which innocence is so apparent and the offending consideration was included in the agreement only upon the demand of the clearly innocent party, public policy does not require that the entire agreement be stricken if, as here, other consideration is present to sustain the contract.\\nAlso see 37 C.J.S. Forgery, supra, \\u00a7 1, 3, 6, 7, and 8.\\n[\\u00b613] Although it is a civil case, we are nonetheless persuaded that the Dizon case applies to the cirenmstances here. There is no hint that Ford acted with \\\"intent to defraud\\\" anyone or that anyone was actually defrauded.\\n[T14] In the case Grable v. State, 649 P.2d 663, 676 (Wyo.1982) we held:\\nThe crime of forgery as defined in the Wyoming statute is one requiring specific intent. Prior eases have characterized the requisite intent as a \\\"fraudulent intent.\\\" Dixon v. Williams, Wyo., 584 P.2d 1078 (1978); State Board of Law Examiners v. Goppert, 66 Wyo. 117, 205 P.2d 124 (1949). The statutory language, however, defining this offense is not as limited as the appellant's argument would assume. Section 6-17, W.S.1957, provides in pertinent part that:\\n\\\"Every person who shall falsely make, alter, forge or counterfeit ; or shall utter, publish, pass, or attempt to pass as true and genuine, or cause to be uttered, published or passed, or attempted to be passed, as true and genuine, any of the above named false, altered, forged or counterfeited matters (knowing the same to be false, altered, forged or counterfeited) with intent to prejudice, damage or defraud any person or persons, body politic, corporate, shall be guilty of forgery (Emphasis added.) Puk\\nIt must be remembered that Oil Resources had in its possession a stolen oil well pumping unit. One of the possible results of the forged documents is that in an action by Oil Resources to recover the purchase price a finder of fact might have been persuaded that the oil well pumping unit in fact was not stolen. In this regard it is important to remember that the identification shown on the invoices for the oil well pumping unit was carefully made to match the spurious tag which had been placed on the oil well pumping unit. None of the principals had been accused of the theft of the oil pumping unit at the time these documents were forged, and the intent in issue was their intent at that time. Their conduct was as consistent with an effort to avoid civil liability as it was with an attempt to evade the authorities. This is only one obvious possibility of prejudice or damage to Oil Resources.\\nThere are no such cireumstances present in this case that could serve to sustain the \\\"intent to defraud\\\" requirement in the statute as it is now formulated.\\n[\\u00b615] In the treatise 38 Wayne R. La-Fave, Substantive Criminal Law \\u00a7 19.7(J)(5) (2nd ed. 2003 and 2010-11 Supp.), this definitional paragraph is included:\\n(5) Forgery. Forgery is a crime aimed primarily at safeguarding confidence in the genuineness of documents relied upon in commercial and business activity. Though a forgery, like false pretenses, requires a lie, it must be a lie about the document itself: the lie must relate to the genuineness of the document. A foreman who pads the time-roll by crediting himself with working more hours than he actually has worked does not commit forgery, since his lie relates to something other than the genuineness of the time-roll. If, because of his misrepresentation, he successfully obtains money which he has not earned, he has committed false pretenses; if his plan does not deceive, his crime is probably attempted false pretenses.\\nForgery, like false pretenses, requires an intent to defraud, but, unlike false pretenses, it does not require that anyone be actually defrauded of his money or property. One who has never had a chance to pass his forged document, or whose forgery is spotted when he tries to pass it, is nevertheless guilty of forgery. If he is successful in passing the forged document, receiving property or money for it, he is no doubt guilty of the crime of false pretenses in addition to that of forgery, much as one who breaks and enters a dwelling house with intent to steal, and then does steal, is guilty of both burglary and larceny.\\n[\\u00b6 16] 10A Uniform Laws Annotated (ULA), \\u00a7 224.1 (2001 and 2011 Cum. Supp.) contains the Model Penal Code. It provides this commentary on the model statute which is similar to Wyoming's forgery statute:\\nThe most important offense [in this Seetion] is forgery, defined in Section 224.1. A separate forgery offense is needed in order to recognize the special effectiveness of forgery as a means of undermining public confidence in important symbols of commerce and as a means of perpetrating widespread fraud. As drafted in the Model Code, the offense also extends to documents that do not have legal or commercial _ significance. Thus, for example, forgery of a college diploma or a medical license is covered, in addition to the usual range of items such as a deed, a check, or a will. The term \\\"writing\\\" is also defined to include money, stamps, and other documents traditionally treated under the separate offense of counterfeiting. The prohibited conduct is drafted so as to focus the offense upon falsity as to genuineness or authenticity, rather than upon the falsity of any statement contained in a legitimate document. The offense is graded as a felony of the second degree in the case of certain listed documents which require special expertise to execute, which can readily be the means of perpetrating widespread fraud, and the forgery of which can undermine confidence in widely circulating instruments representing wealth. Forgery of documents affecting legal relations is a felony of the third degree, while forgery of other documents is a misdemeanor. [Emphasis added.]\\nThe use of CCMH stationery was, at worst, some sort of \\\"falsity\\\" of a statement contained in a legitimate document.\\n[\\u00b617] We hold that the district court abused its discretion in denying Ford's motion for judgment of acquittal because the evidence was insufficient to prove beyond a reasonable doubt that Ford acted with the intent to defraud.\\nCONCLUSION\\n[T18] The district court abused its discretion in denying Ford's motion for judgment of acquittal We reverse the district court's judgment and sentence and remand this matter to the district court with directions that the information be dismissed with prejudice.\\nHILL, J., delivers the opinion of the Court; VOIGT, J., files a specially concurring opinion.\"}"
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+"{\"id\": \"6990795\", \"name\": \"Stanley BUDDER, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff)\", \"name_abbreviation\": \"Budder v. State\", \"decision_date\": \"2010-08-31\", \"docket_number\": \"No. S-09-0241\", \"first_page\": \"575\", \"last_page\": \"580\", \"citations\": \"238 P.3d 575\", \"volume\": \"238\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T23:00:51.063447+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.\", \"parties\": \"Stanley BUDDER, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"2010 WY 123\\nStanley BUDDER, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\\nNo. S-09-0241.\\nSupreme Court of Wyoming.\\nAug. 31, 2010.\\nRepresenting Appellant: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel, State Public Defender Program.\\nRepresenting Appellee: Bruce A. Salz-burg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Christyne M. Martens, Student Intern, Prosecution Assistance Clinical Program.\\nBefore KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.\\nChief Justice at time of expedited conference\", \"word_count\": \"2653\", \"char_count\": \"16020\", \"text\": \"GOLDEN, Justice.\\n[T1] Stanley Budder, Jr. (Budder) was convicted of burglary in violation of Wyo. Stat. Ann. \\u00a7 6-3-301 (LexisNexis 2009) and wrongful taking or disposing of property in violation of Wyo. Stat. Ann. \\u00a7 6-3-408 (LexisNexis 2009). On appeal, he challenges a jury instruction he argues relieved the State of proving all elements of the crimes charged beyond a reasonable doubt. We affirm.\\nISSUE\\n[\\u00b6 2] Budder presents one issue for our review:\\nDid the court improperly instruct the jury as to the burden shift required when excusing possession of recently stolen property when the defense theory was to deny possession rather than attempting to explain it?\\nFACTS\\n[\\u00b6 3] The Crazy Woman Saloon in Dayton, Wyoming, was burglarized on October 20, 2008. Over $3,000 in cash was taken in the burglary. The money, sorted by denomination and bundled in $100 increments, was contained in a gallon size zip-lock bag. About one week after the burglary, an indi vidual named Tony Fox returned approximately $1,600 cash to the Crazy Woman Saloon. The money was sorted, bundled and contained in a gallon size zip-lock bag.\\n[\\u00b6 4] Fox testified he had gotten the money from Budder. Fox explained Budder had come to his residence the night before he returned the money and the two of them drank and watched movies. During the course of the evening, Budder produced the money-filled zip-lock bag and placed it on a coffee table. When Fox questioned Budder about the money, Budder gave no answer. Budder then made a statement to the effect that he would have to hurt Fox because Fox now knew too much. Fox got nervous and waited for Budder to fall asleep. He then took the money from Budder and left his residence. Believing the money to be a portion of the money stolen from the Crazy Woman Saloon, Fox returned the money there.\\n[\\u00b6 5] Further investigation revealed Bud-der was at the Crazy Woman Saloon until closing time the night of the robbery; Bud-der knew where and how the money was kept at the Crazy Woman Saloon; Budder had no alibi for the time of the robbery; Budder was burdened with various debts at the time of the robbery; and Budder did not have steady employment at the time of the robbery.\\n[T6] Budder consistently denied ever possessing the money. Budder, in his appellate brief, summarizes the general flavor of the trial proceedings:\\nThe prosecution theory was that Mr. Bud-der had sole possession and that Mr. Fox was a fine, civie-minded hero who stole the money from Budder in order to eventually, after much soul-searching, return it to its rightful owner. The defense theory was that Mr. Fox always had exclusive possession of the money and only after being observed by Mr. Budder with the ill-gotten loot, did he attempt to throw off suspicion by returning the remaining money and blaming Mr. Budder.\\nAfter a three-day trial, a jury convicted Bud-der'of both burglary and wrongful taking or disposing of property.\\nDISCUSSION\\nStandard of Review\\n[17] We review alleged errors in formulating jury instructions for an abuse of discretion. Trial courts are afforded sub stantial latitude to tailor the instructions to the facts of the case. A trial court does not abuse its discretion by referring the jury to instructions that, when viewed as a whole and in the context of the entire trial, fairly and adequately cover the issues. Garza v. State, 2010 WY 64, \\u00b6 19, 231 P.3d 884, 890 (Wyo.2010); Luedtke v. State, 2005 WY 98, \\u00b6 28, 117 P.3d 1227, 1232 (Wyo.2005); Coburn v. State, 2001 WY 30, \\u00b6 9, 20 P.3d 518, 520 (Wyo.2001); Merchant v. State, 4 P.3d 184, 190 (Wyo.2000); Ellison v. State, 3 P.3d 845, 849 (Wyo.2000); Harris v. State, 933 P.2d 1114, 1126 (Wyo.1997).\\nJury Instruction\\n[\\u00b6 8] Budder challenges the following jury instruction:\\nPossession of recently stolen property is not of itself sufficient to permit a finding that the Defendant is guilty of the crimes here charged. However, possession of recently stolen property, if not satisfactorily explained is ordinarily a cireumstance from which the jury may reasonably draw the inference and find, in the light of surrounding cirenmstances shown by the evidence in the case, that the person in possession knew the property had been stolen, and is also a cireumstance from which the jury may reasonably draw the inference that the person in possession not only knew it was stolen property, but also participated in some way in the theft of the property.\\nHowever, you are never required to make this inference. It is the exclusive province of the jury to determine whether the facts and cireumstances shown by the evidence in this case warrant any inference which the law permits the jury to draw from the possession of stolen property.\\nAlthough possession is a strong cireum-stance tending to show guilt, there must be corroborative evidence tending to prove Defendant's guilt of each charge. However, this corroborative evidence need only be slight and may include: whether the Defendant had the opportunity to commit the crime charged, his conduct, his false or contradictory statements, if any, or other statements he may have made with respect to the property and any other evidence which tends to connect him with the crime.\\nIf you find beyond a reasonable doubt from the evidence that the property was stolen and that, while recently stolen, the property was in the possession of the Defendant, you may, from those facts, draw the inference that the property was possessed by the Defendant with knowledge that it was stolen, but also that the Defendant participated in some way in the theft, unless such possession by the Defendant is explained to the satisfaction of the jury by other facts and cireumstances in evidence of the case.\\nIn considering whether possession of recently stolen property has been satisfactorily explained, you are reminded that in the exercise of constitutional rights the accused need not take the witness stand and testify.\\nPossession may be satisfactorily explained through other cireumstances, other evidence, independent of any testimony of the accused.\\nPropriety of Instruction\\n[19] This instruction is virtually identical to an instruction approved by this Court in Vanvorst v. State 1 P.3d 1223, 1230-31 (Wyo.2000). Budder accepts that the instruction reflects a correct statement of law in cases, such as Vamvorst, where the defendant is caught in actual possession of recently stolen property. Budder argues, however, the instruction is nonsensical when applied to his case because of his denial of possession of the recently stolen cash. We do not agree that the distinction being pressed by Budder is critical to a determination of the applicability of this instruction.\\n[1T10] A trial court's instructions to a jury are to be written with the particular facts and legal theories of each case in mind. Montez v. State, 2009 WY 17, \\u00b6 21, 201 P.3d 434, 441 (Wyo.2009); Janpol v. State, 2008 WY 21, \\u00b6 7, 178 P.3d 396, 400 (Wyo.2008). Thus, the applicability of an instruction hinges, in part, on whether the instruction is supported by an appropriate evidentiary basis. The instruction at issue requires the jury to find \\\"beyond a reasonable doubt from the evidence that the property was stolen and that, while recently stolen, the property was in the possession of the Defendant.\\\" Budder's argument seemingly posits a jury cannot make this determination unless a defendant is caught by law enforcement in actual possession of recently stolen property. This is obviously false. In this case, the State's evidence against Budder included the testimony of Fox and other corroborating and cireumstantial evidence. The evidence presented sufficed to support the giving of this instruction to the jury.\\n[T11l]l In a corresponding argument, Budder claims it was improper for the trial court to give the instruction because there was no rational connection between the evidence and the inference. We agree there must be a rational connection between an inferred fact and proven facts. For it to be proper to give an instruction on an inference, it must be shown that it is more likely than not that the inferred fact flows from the proven fact on which it is made to depend. Barnes v. United States, 412 U.S. 837, 842, 93 S.Ct. 2357, 2361, 37 L.Ed.2d 380 (1973). The inquiry is case specific. The inference must be \\\"one common sense justifies in light of the established facts of the case.\\\" Harley v. State, 737 P.2d 750, 755 (Wyo.1987). Bud-der again, however, ignores the State's evidence. Instead, he argues there was no rational connection between his being accused of possession of the stolen cash and his being involved in the theft. The proper focus should be on the relationship between his actual possession of the stolen cash, should the jury find such possession was proven beyond a reasonable doubt, and the inference that Budder was involved in the theft of the cash. Given the totality of the evidence presented by the State, we find the jury could rationally determine that it was more likely than not that Budder was involved in the theft of the cash once it determined Budder possessed the cash. Again, the instruction was supported by the evidence.\\n[112] Budder next argues the inference referred to in the instruction mandated he present a satisfactory explanation for possession of the cash in order to prevent the jury from finding he was involved in its theft. Budder continues that, since he de nied possession, it is irreconcilable with his defense.\\n[T13] This argument is based on a misapprehension of the language of the instruetion. The instruction does not demand a defendant explain possession of recently stolen property. It does not demand a jury return a verdict of guilty if a defendant fails to do so. Indeed, the instruction expressly charges the jury that it cannot find a defendant guilty without other corroborating evidence beyond mere possession. Thus, rather than steering a jury towards a guilty verdict, the instruction is a permissive instruction offering guidance to the jury that it may consider unexplained possession of recently stolen property as an inference that Budder \\\"participated in some way in the theft\\\" of the property, if they feel such an inference is warranted by the evidence as a whole. See Vanvorst, 1 P.3d at 1230-32. See generally Huff v. State, 992 P.2d 1071, 1075 (Wyo.1999) (a permissive inference allows, but does not require, a jury to infer the elemental fact from proof by the State of the basic fact and places no burden of any kind on the defendant). As the instruction states:\\n[Y\\u00a5Jou are never required to make this inference. It is the exclusive province of the jury to determine whether the facts and cireumstances shown by the evidence in this case warrant any inference which the law permits the jury to draw from the possession of stolen property.\\nAccordingly, Budder was not required under the instruction to offer an explanation, and the jury was not directed by the instruction to read anything into such a lack of explanation. The instruction did not impair Bud-der's ability to defend on the theory of lack of possession.\\n[T14] Finally, Budder argues the instruction should have contained language instructing the jury that the burden of proof beyond a reasonable doubt applies to the inference. Budder cites Wyoming Rule of Evidence 303(c) in support of this argument:\\nRule 303. Presumptions in criminal cases.\\n(c) Instructing the Juwry.-Whenever the existence of a presumed fact against the accused is submitted to the jury, the court shall instruct the jury that it may regard the basic facts as sufficient evidence of the presumed fact but is not required to do so. In addition, if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the court shall instruct the jury that its existence, on all the evidence, must be proved beyond a reasonable doubt.\\n[\\u00b6 15] This argument is readily disposed of by existing Wyoming precedent. In Huff v. State, 992 P.2d 1071 (Wyo.1999), the Court determined that, when a permissive instruction such as the one at issue is given, the mandate of W.R.E. 808 is satisfied by the inclusion in the jury instructions of other instructions informing the jury of the State's burden of proving all elements of an offense beyond a reasonable doubt. Huff at 1076. See also Eckert v. State, 680 P.2d 478, 483-84 (Wyo.1984). No fewer than six such instrue-tions were included in the instant case.\\n[T 16] Budder argues we should take this opportunity to overrule Huff. He points out that other states have concluded that their respective versions of W.R.E. 308 require language regarding the State's burden of proof be contained within the same instruction containing a permissive inference. Bud-der's supporting appellate argument, however, presents nothing new that causes us to reconsider our analysis in Huff. We continue to hold that, in keeping with our traditional standard of review of reading jury instructions as a whole and not singling out any one instruction, W.R.E. 303 is satisfied by the inclusion of other instructions informing the jury of their burden to find all elements of an offense be proven beyond a reasonable doubt.\\nCONCLUSION\\n[T 17] The instruction at issue in this case was appropriate under the evidence introduced at trial by the State. The instruction permitted the jury to infer Budder was involved in the theft of the cash from the Crazy Woman Saloon if it first found, beyond a reasonable doubt, that Budder possessed the cash, and that other facts and cireumstances also supported the inference. This instruction did not deny Budder his defense. The instructions as a whole also conformed to the mandates of W.R.E. 308 by informing the jury that the State bore the burden of proving every element of an offense beyond a reasonable doubt. Affirmed.\\n. Wyo. Stat. Ann. \\u00a7 6-3-301 states, in relevant part:\\n(a) A person is guilty of burglary if, without authority, he enters or remains in a building, occupied structure or vehicle, or separately secured or occupied portion thereof, with intent to commit larceny or a felony therein.\\n. Wyo. Stat. Aun. \\u00a7 6-3-403 states, in relevant part:\\n(a) A person who buys, receives, conceals or disposes of property which he knows, believes or has reasonable cause to believe was obtained in violation of law is guilty of:\\n(i) A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ien thousand dollars ($10,000.00), or both, if the value of the property is one thousand dollars ($1,000.00) or more.]\\n. The State suggests Budder did not adequately object to the challenged jury instruction at trial and our review should be limited to a review for plain error. While the objection was dangerously casual, under the circumstances of this case we will accept the issue as preserved for our review.\\n. In Vanvorst, the defendant was arrested driving a stolen vehicle.\\n. Budder presents an argument that this inference should be applied to Fox, as the person known to possess the cash when he returned it to the Crazy Woman Saloon. Budder fails to recognize the sequential nature of the instruction. In order for the jury to reach the inference section of the instruction, it first must have found, beyond a reasonable doubt, that Budder was in possession of the cash.\"}"
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+"{\"id\": \"6992547\", \"name\": \"Gail L. HARPER, Appellant (Plaintiff), v. FIDELITY AND GUARANTY LIFE INSURANCE COMPANY, Appellee (Defendant)\", \"name_abbreviation\": \"Harper v. Fidelity & Guaranty Life Insurance Co.\", \"decision_date\": \"2010-06-29\", \"docket_number\": \"No. S-09-0119\", \"first_page\": \"1211\", \"last_page\": \"1222\", \"citations\": \"234 P.3d 1211\", \"volume\": \"234\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T00:55:40.829001+00:00\", \"provenance\": \"CAP\", \"judges\": \"- Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.\", \"parties\": \"Gail L. HARPER, Appellant (Plaintiff), v. FIDELITY AND GUARANTY LIFE INSURANCE COMPANY, Appellee (Defendant).\", \"head_matter\": \"2010 WY 89\\nGail L. HARPER, Appellant (Plaintiff), v. FIDELITY AND GUARANTY LIFE INSURANCE COMPANY, Appellee (Defendant).\\nNo. S-09-0119.\\nSupreme Court of Wyoming.\\nJune 29, 2010.\\nRepresenting Appellant: Stephen R. Win-ship of Winship & Winship, P.C., Casper, Wyoming.\\nRepresenting Appellee: Julie Nye Tiedeken of McKellar, Tiedeken & Scoggins, LLC, Cheyenne, Wyoming.\\n- Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.\", \"word_count\": \"5973\", \"char_count\": \"37543\", \"text\": \"HILL, Justice.\\n[\\u00b61] Joseph Harper, the husband of Appellant Gail Harper, bought a life insurance policy and died within two months of doing so. Fidelity and Guaranty Life Insurance Company refused to pay the claim because they insisted that Mr. Harper \\\"misrepresented/omitted\\\" the state of his health in the claim application. Mrs. Harper filed suit, the district court granted summary judgment in favor of Fidelity, and this appeal followed.\\nISSUES\\n[\\u00b62] Harper lists the issues as follows:\\n1. Is the determination of what is a \\\"material\\\" omission or misstatement in a life insurance application an issue of fact to be determined by the jury?\\n2. Were there genuine issues of material fact as to whether there were any material misrepresentations or omissions in [Mr. Harper's] life insurance application?\\n3. When [Mr. Harper's] insurance application disclosed the actual health conditions that were later determined to be the cause of his death, was it error to grant summary judgment based on allegations of his material omissions or misrepresentations as to other health conditions.\\n4. Whether in granting [Fidelity's] Motion for Summary Judgment, did the District Court accord to [Gail] the benefit of all reasonable inferences that could be fairly drawn from the record?\\n5. When [Fidelity] had notice of material medical information that differed from the information in [Joseph's] life insurance application, was it a genuine issue of material fact as to whether [Fidelity] could reasonably rely solely on the life insurance application information in issuing the life insurance policy to [Mr. Harper]?\\n6. Whether the application's reference to the records of [Mr. Harper's] treating physician and the authorization provided to [Fidelity] to gather [Mr. Harper's] medical records created a disputed factual issue as to whether [Fidelity] needed to review more than [Mr. Harper's] life insurance application as part of the underwriting decision?\\n7. Did [Fidelity] engage in \\\"post-claim\\\" underwriting?\\n8. Where the life insurance contract provisions at issue have been made ambiguous by the life insurance application's uncertainties, was summary judgment appropriate?\\nFidelity recites the issues this way:\\n1. Did the District Court properly conclude that there was no genuine issue of material fact on whether [Fidelity] properly rescinded [Mr. Harper's] policy of insurance pursuant to W.S. \\u00a7 26-15-1097\\n2. Did the trial court properly conclude that [Fidelity], under the facts of this case, did not have a duty to investigate [Mr. Harper's] medical condition?\\n3. Did the trial court properly grant Summary Judgment on [Mrs. Harper's] claim that [Fidelity] was es-topped to deny coverage under the policy?\\n4. Did the trial court properly grant Summary Judgment on [Mrs. Harper's] claim of the breach of good faith and fair dealing?\\n5. Did the trial court properly grant Summary Judgment on [Mrs. Harper's] claim that she should recover the benefits of the policy under the reasonable expectations doctrine?\\nFACTS\\n[\\u00b63] Joseph Harper (Mr. Harper) applied for a $63,000.00 life insurance policy with Fidelity & Guaranty Life Insurance Company (Fidelity) on February 10, 2006, and named his wife Gail (Mrs. Harper) as the beneficiary.\\n[\\u00b64] Fidelity's application for insurance required that Mr. Harper answer questions about his health and health history. He indicated that he was born on January 19, 1955, that he was 511\\\" tall, and that he weighed 275 pounds. He represented on his application that he had never sought or received treatment, advice, or counseling for the use of alcohol. He listed that he was diagnosed with both high blood pressure and high cholesterol in 1997, and the application noted that he was currently taking medication for both conditions. He responded \\\"no\\\" to whether he had been treated for or diagnosed with \\\"[alny circulatory disease, stroke, TIA, aneurysm, or any other disorder of the veins or arteries,\\\" \\\"[blepatitis, gastritis, colitis, or any disease or disorder of the liver, stomach, pancreas, or intestines.\\\" Mr. Harper reported that he had surgery on his knee in \\\"1995 or 1996,\\\" and that he had \\\"[bllood tests and an electrocardiogram for complaint of migraine & headaches-complete recovery from symptoms in 1996.\\\"\\n[\\u00b65] After Mr. Harper signed and submitted the application to Fidelity for approval or denial, Lisa Jones, a senior underwriter for Mid-America Agency Services (MAAS) , reviewed the application. The type of life insurance applied for by Mr. Harper was a \\\"simplified underwritten product,\\\" where the underwriter reviews and relies upon only the information and medical history provided by the application plus a single report from the Medical Information Bureau (MIB).\\n[\\u00b66] Overall, the information contained in the MIB was consistent with Mr. Harper's application information, but two pieces of information from the MIB were of note to Ms. Jones. First, based upon the MIB information existing for Mr. Harper, Fidelity knew that he had applied for another insurance product, the type and results of which were unknown. Second, Ms. Jones noted a weight discrepancy-the MIB recorded Mr. Harper's weight to be 805 pounds within sixty days prior to January 9, 2006; Mr. Harper's February application represented his weight to be 275 pounds. Under Fidelity's underwriting guidelines, an individual the height of Mr. Harper (5'11\\\") must be less than 8301 pounds for an application to be accepted. Ms. Jones concluded that given the time between the date of the application and the date of her review, she assumed Mr. Harper had lost enough weight (four pounds) to fit within the guidelines, so she gave him the benefit of the doubt and \\\"let it go.\\\"\\n[\\u00b67] Ms. Jones made several other observations about Mr. Harper's application that she ultimately let go as well. She noted that Mr. Harper had been treated for depression in 1996 but had a \\\"complete recovery;\\\" thus she was not concerned about his depression being severe, which would have resulted in denial of the application. Also, she observed his diagnosis for high blood pressure and high cholesterol, but considered both to be under control based on the fact that he was taking medication for both conditions. Based on all of Mr. Harper's answers, Ms. Jones recommended his application for life insurance be approved.\\n[\\u00b68] On March 1, 2006, Fidelity issued a life insurance policy to Mr. Harper. On April 20, 2006, Mr. Harper died from sudden cardiac arrest, hypertensive cardiovascular disease, and hypertriglyceridemia, just 50 days after the policy was issued.\\n[\\u00b69] In light of Mr. Harper's death, Fidelity conducted an investigation within the insurance company's \\\"two-year contestability period,\\\" during which Mr. Harper's medical records were reviewed. Fidelity identified various medical conditions of Mr. Harper's that had not been disclosed on his application for life insurance but that, in Fidelity's estimation, were material to the issuance of the policy. First, Mr. Harper had been treated for a \\\"probable transient ischemic attack (TIA)\\\" in May of 2000. On his application, however, he denied ever being treated for a TIA. Also, Mr. Harper's medical records reflected a history of alcohol abuse, including advice from his physician to quit drinking because his liver tests were abnormal-he denied any such condition on his insurance application. In March of 2000, Mr. Harper was also hospitalized for heart fluttering and chest pains, which he did not disclose. Mr. Harper's weight discrepancies also came up. Although he listed himself at 275 pounds on his application, and although his MIB report listed him to be 306 pounds, Mr. Harper's certificate of death recorded Mr. Harper as morbidly obese at 850 pounds.\\n[T10] Mrs. Harper submitted a claim for benefits, but her claim was denied by Fidelity based on Wyo. Stat. Ann. \\u00a7 26-15 124. Along with its denial, Fidelity refunded the premiums paid on the policy to Mrs. Harper, who nevertheless filed suit in district court, asserting four claims for relief: breach of contract, reasonable expectations, equitable and/or promissory estoppel, and breach of the implied covenant of good faith and fair dealing. She also sought an award of punitive damages, attorney's fees, and costs. The district court granted Fidelity's motion for summary judgment, and this appeal followed.\\nSTANDARD OF REVIEW\\n[T11] We recently reiterated our standard of review for summary judgment motions in Singer v. New Tech, 2010 WY 31, \\u00b6 8, 227 P.3d 305, 308-09 (Wyo.2010):\\nWe evaluate the propriety of a summary judgment by employing the same standards and using the same materials as the district court. Cook v. Shoshone First Bank, 2006 WY 18, \\u00b6 11, 126 P.3d 886, 889 (Wyo.2006). Thus, our review is plenary. Birt v. Wells Fargo Home Mortg., Inc., 2003 WY 102, \\u00b6 7, 75 P.3d 640, 647 (Wyo.2008).\\nWyo. R. Civ. P. 56 governs summary judgments. A summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. W.R.C.P. 56(c). When reviewing a summary judgment, we consider the record in the perspective most favorable to the party opposing the motion and give that party the benefit of all favorable inferences which may be fairly drawn from the record. We review questions of law de novo without giving any deference to the district court's determinations.\\nLoredo v. Solvay Am., Inc., 2009 WY 98, \\u00b6 10, 212 P.3d 614, 618 (Wyo.2009), quoting Cathcart v. State Farm Mut. Auto. Ins. Co., 2005 WY 154, \\u00b6 11, 123 P.3d 579, 586 (Wyo.2005), quoting Baker v. Ayres and Baker Pole and Post, Inc., 2005 WY 97, \\u00b6 14, 117 P.3d 1234, 1289 (Wyo.2005).\\nA genuine issue of material fact exists when a disputed fact, if it were proven, would establish or refute an essential element of a cause of action or a defense that the parties have asserted.\\\" Christensen v. Carbon County, 2004 WY 185, \\u00b6 8, 100 P.3d 411, 413 (Wyo.2004) (quoting Metz Beverage Co. v. Wyoming Beverages, Inc., 2002 WY 21, 19, 89 P.3d 1051, 1055 (Wyo.2002)). The party requesting a summary judgment bears the initial burden of establishing a prima facie case for summary judgment. If he carries his burden, 'the party who is opposing the motion for summary judgment must present specific facts to demonstrate that a genuine issue of material fact exists.' Id. We have explained the duties of the party opposing a motion for summary judgment as follows:\\nAfter a movant has adequately supported the motion for summary judgment, the opposing party must come forward with competent evidence admissible at trial showing there are genuine issues of material fact. The opposing party must affirmatively set forth material, specific facts in opposition to a motion for summary judgment, and cannot rely only upon allegations and pleadings ., and conclusory statements or mere opinions are insufficient to satisfy the opposing party's burden.\\nThe evidence opposing a prima facie case on a motion for summary judgment \\\"must be competent and admissible, lest the rule permitting summary judgments be entirely eviscerated by plaintiffs proceeding to trial on the basis of mere conjecture or wishful speculation.\\\" Speculation, conjecture, the suggestion of a possibility, guesses, or even probability, are insufficient to establish an issue of material fact. Cook, \\u00b6 12, 126 P.3d at 890, quoting Jones v. Schabron, 2005 WY 65, \\u00b6 9-11, 113 P.3d 34, 37 (Wyo.2005).\\nHatton v. Energy Elec. Co., 2006 WY 151, \\u00b6 8-9, 148 P.3d 8, 12-18 (Wyo.2006).\\nLoredo, \\u00b6 10, 212 P.8d at 618.\\nDISCUSSION\\nIssue I-Materiality\\n[112] Mrs. Harper contests the district court's finding that there was no issue of material fact as to whether Fidelity properly rescinded Mr. Harper's insurance policy pursuant to Wyo. Stat. Ann. \\u00a7 26-15-109. Mrs. Harper argues that a representation or omission in an insurance application is \\\" 'material' if knowledge or ignorance of it would naturally influence the judgment of the insurer in making the contract, or in estimating the character of the risk or setting the premium.\\\" Thus, argues Mrs. Harper, this is a question of fact for the jury to decide.\\n[\\u00b613] Wyo. Stat. Ann. \\u00a7 26-15-109 (Lex-isNexis 2009) sets forth when a \\\"misrepresentation, omission, concealment of facts or incorrect statement\\\" will prevent recovery under a life insurance policy and states in relevant part:\\n(a) Any statements and descriptions in any application for an insurance policy . by or in behalf of the insured . are representations _... Misrepresentations, omissions, concealment of facts and incorrect statements do not prevent a recovery under the policy or contract unless either:\\n(i) Fraudulent; or\\n(ii) Material either to the acceptance of the risk, or to the hazard the insurer assumes; or\\n(iii) The insurer in good faith, if it knew the true facts as required by the application for the policy . would not have:\\n(A) Issued the policy or contract;\\n(B) Issued it at the same premium ratel,]\\n[T14] One year before \\u00a7 26-15-1109 was adopted, this Court considered a case similar to the instant one. In All American Life & Casualty Co. v. Krenzelok, 409 P.2d 766 (Wyo.1966), Mary Krenzelok, a foreign woman who could neither read nor write, applied for life insurance. Her son actually completed the application and Krenzelok signed it. The policy was issued, and Krenzelok died from a cerebral brain hemorrhage approximately one year after its issuance. It was then discovered that Krenzelok had failed to disclose a hospitalization for arteriosclerotic heart disease and congestive heart failure. This Court stated on appeal:\\nThere are numerous cases which hold a concealment or failure to disclose periods of past hospitalization and medical treatment will invalidate a policy, regardless of whether applicant had a fraudulent intent to deceive. . A fraudulent intent on the part of the insured is not a requisite of concealment. Consequently, concealment of facts material to the risk will avoid the policy even though the concealment was the result of inadvertence or mistake and was entirely without fraudulent intent.\\nId., 409 P.2d at 768.\\n[\\u00b615] More recently, the Wyoming Federal District Court interpreted \\u00a7 26-15-109, and discussed Krengelok.\\nKrenzelok, a case decided one year before the Wyoming legislature adopted \\u00a7 26-15-109, and which influenced the drafting of that statute, therefore stands for the proposition that if the insurer can show that the concealment was \\\"material\\\" to the insurance risk at issue, then any concealment by the insured, even if made in good faith, will justify rescission of the coverage by the insurer. Other courts have reached the same conclusion in interpreting similar state statutes. Bageanis, 783 F.Supp. at 1145 (\\\"A good faith mistake does not excuse a material misrepresentation\\\"); Massachusetts Mut. Life Ins. Co. v. Nicholson, 775 F.Supp. 954, 959 (N.D.Miss.1991) (\\\"If the misstatement is material, it can make no difference as to whether or not it was made in good faith\\\") (citations omitted). Stated another way, proof of intent is not necessary to rescind under Krengelok as long as the insurer can prove that the concealment was \\\"material\\\" to the insurance risk involved. While the rule enunciated in Krengelok may be a considered a harsh one, it is nonetheless the prevailing law of Wyoming which this Court must follow and apply in this case.\\nWhite v. Continental Gen. Ins. Co., 881 F.Supp. 1545, 1558 (D.Wyo.1998).\\n[T16] \\\"Materiality\\\" is determined by asking whether reasonably careful and intelligent persons would have regarded the omitted facts as substantially increasing the chances of the events insured against so as to cause a rejection of the application or different conditions, such as higher premiums. White, 881 F.Supp. at 1554. The materiality of a misrepresentation may be established by the underwriter's testimony or testimony of the insurer's employees. Bageanis v. American Bankers Life Assurance Co., 788 F.Supp. 1141, 1145 (N.D.Ill.1992). Furthermore, a good faith mistake does not excuse a material misrepresentation Id. The fact that a potential insured does not die from the withheld ailment does not affect the materiality of the misrepresentation. Hatch v. Woodmen Accident & Life Co., 88 Ill.App.3d 36, 42 Ill.Dec. 925, 409 N.E.2d 540, 548 (1980). Finally, although materiality is usually a question of fact, summary judgment is appropriate where the misrepresentation \\\"is of such a nature that there can be no dispute as to its materiality.\\\" Commercial Life Ins. Co. v. Lone Star Life Ins. Co., 727 F.Supp. 467, 470 (N.D.Ill.1989).\\n[\\u00b617] Mr. Harper's application contained omissions and misrepresentations. He did not accurately respond to several of the questions, including the question about his weight; the question regarding whether he had treatment for/was diagnosed with \\\"hepatitis, gastritis, colitis, or any disease or disorder of the liver .\\\" (he underwent a biopsy and ultrasound of his liver and was treated for a liver disease/disorder); and the question regarding diagnosis or treatment of \\\"stroke, TIA, aneurysm...\\\" (he had been treated for a TIA and he had been diagnosed as suffering from a stroke). Under Fidelity's guidelines, and according to the underwriter, Mr. Harper's application would have been denied had this information been known. Dennis Gunderson, the chief underwriter in Mr. Harper's case, testified that the policy would not have been issued if the true facts had been presented. Mrs. Harper's own witness, John Terry, testified that Mr. Harper's failure to disclose his history was material.\\n[T18] The omissions/misrepresentations on Mr. Harper's application were material. Mr. Harper did not disclose several health conditions on his application. Whether or not he meant to omit them is not at issue. Had he included them, it is clear that Fidelity would not have issued the certificate of insurance. The underwriter testified that if Mr. Harper had correctly stated that he had a liver function test with an abnormal result, or that he had a liver biopsy, or had he disclosed his hospitalizations for heart problems in March 2000, and/or the May 2000 treatment for a probable TIA, his application would have been rejected. This is a case of even though there are material misrepresentations, which usually raises a question of fact, summary judgment was appropriate here because the misrepresentations are of such a nature that there is no dispute as to this materiality. Thus, there being no genuine issues of material fact, Fidelity was entitled to summary judgment, and the district court is affirmed.\\nIssue II-Duty to Investigate\\n[119] Mrs. Harper argues that Fidelity had a duty to further investigate Mr. Harper's answers on his insurance application, and that Fidelity should have obtained his medical records rather than rely on the application itself. Fidelity, however, disputes the assertion that it was under a duty to investigate the answers Mr. Harper gave in his application when the application was submitted, especially because Fidelity had no reason to assume that the answers were not truthful or accurate.\\n[120] An insurer is under no duty to investigate the truthfulness of an applicant's responses unless it has notice that those responses might not be truthful or accurate. White, 881 F.Supp. at 1545. A majority of cases interpreting statutes similar to Wyoming's statute have held that an insurer does not have a duty to investigate, and is entitled to rely on the representations made by the applicant on his application. See, for example, Twin City Bank v. Verex Assur. Inc., 788 F.Supp. 67, 71 (E.D.Ark.1990) (interpreting Ark.Code Ann. \\u00a7 23-79-107(a) (LexisNexis) which is verbatim to Wyoming's statute).\\n[\\u00b621] In White, 831 F.Supp. at 1553, the Tenth Circuit weighed in on this very issue:\\nAlthough the Tenth Cireuit has not spoken to this issue as of the date of this order, this Court is inclined to follow the rulings of the other appellate and trial courts that have considered this issue and have rejected this position, concluding that the insurer is entitled to rely on an insured's representations. . [Citations omitted.] As the court in Bageanis said, the insured was the one who had the burden \\\"to supply complete and accurate information to the insurer.\\\" . [Citations omitted.] Therefore, the Court concludes that the insurer did not have a duty to investigate and thus was entitled to rely on White's representations.\\n[\\u00b622] Also, in a case similar to the instant one (and mentioned in White), the insured omitted several hospitalizations for psychological problems and a history of suicide attempts from her insurance application (but did disclose three other hospitalizations for mental issues). Mutual Ben. Life Ins. Co. v. Morley, 422 F.Supp. 1048 (S.D.N.Y.1989). She argued that the insurance company engaged in \\\"lax and sloppy underwriting\\\" and had the underwriter been more thorough and ordered medical records, her prior hospitalizations and suicide attempts would have been discovered, precluding her from insurance coverage. The court granted summary judgment to the insurance company, noting that the company was entitled to rely on the representations made by the applicant.\\n[\\u00b623] Mrs. Harper insists that there were red flags that were ignored by Fidelity and, rather than investigate, the underwriter simply ignored the signs that warranted more study. Specifically, Mrs. Harper points to the conflicting MIB information versus the application regarding Mr. Harper's weight. The MIB listed his weight at 805 pounds, while his application stated his weight to be 275 pounds. Contrary to Mrs. Harper's assertions, however, the \\\"red flags\\\" in this case were adequately explained away by the underwriter: Indeed, Mr. Harper indicated his weight was 275 pounds, whereas the MIB reported his weight to have been 305. The underwriter testified that she looked at the different weight on the MIB report and assumed that Mr. Harper would have lost enough weight to fit into the guidelines which, for Mr. Harper, would have been 301 pounds. In the simplified underwriting process that was used in Mr. Harper's case, the underwriter is to rely on the health questionnaire and the MIB, which is what happened in this instance. Furthermore, Mr. Harper represented in his application that \\\"[the statements made in this application are complete, true, and correctly recorded.\\\" Mr. Harper's knowledge in this instance was not limited to his \\\"knowledge and belief,\\\" as in some cases. There, where the insurance application contains \\\"knowledge and belief\\\" language, the insurer must show that the insured intentionally made the misstatement or omission to rescind the contract. See Joseph v. Zurich Life Ins. Co. of America, 159 Fed.Appx. 114, 116, fa. 3 (11th Cir.2005).\\n[\\u00b624] Based upon the law, and Mr. Harper's own assertions, Fidelity was under no duty to investigate and was entitled to rely upon Mr. Harper's application.\\nIssue III-Promissory Estoppel\\n[\\u00a525]) Mrs. Harper next argues that because Fidelity issued Mr. Harper a life insurance policy, he did not seek coverage from another company-thus, the equities of the case require that the contract be enforced under the doctrines of promissory and equitable estoppel.\\n[126] The general theory of the doctrine of promissory estoppels is this: \\\"If an unambiguous promise is made in cireum-stances calculated to induce reliance, and it does so, the promisee if hurt as a result can recover damages.\\\" B & W Glass v. Weather Shield Mfg., 829 P.2d 809, 818 (Wyo.1992) (quoting Goldstick v. ICM Realty, 788 F.2d 456, 462 (7th Cir.1986)). Thus, the elements of a promissory estoppel claim are:\\n(1) [TJhe existence of a clear and definite promise which the promisor should reasonably expect to induce action by the promis-ee; (2) proof that the promisee acted to its detriment in reasonable reliance on the promise; and (3) a finding that injustice can be avoided only if the court enforces the promise.\\nCity of Powell v. Busboom, 2002 WY 58, \\u00b6 8, 44 P.8d 68, 66 (Wyo.2002) (quoting Roussalis v. Wyoming Med. Cir., Inc., 4 P.3d 209, 253 (Wyo.2000)). See also, Parkhurst v. Boykin, 2004 WY 90, \\u00b6 21, 94 P.3d 450, 460 (Wyo.2004). \\\"The party who is asserting promissory estoppel is assigned the burden of establishing all of the elements of the doctrine with a standard of strict proof.\\\" Roussalis, 4 P.3d at 258, quoting B & W Glass, 829 P.2d at 819.\\n[127] In addition to establishing the existence of a clear and definite promise, a plaintiff must also show \\\"action or forbearance of a definite and substantial character\\\" to satisfy the second element of the doctrine. Birt v. Wells Fargo Home Mortg., Inc., 2008 WY 102, 128, 75 P.3d 640, 653 (Wyo.2008). Furthermore, such action or forbearance must be the result of \\\"reasonable reliance.\\\" Id. We have described reasonable reliance as follows:\\nIn Provence [v. Hilltop Nat'l Bank, 780 P.2d 990 (Wyo.1989) ], we explained that detriment in reasonable reliance is closely tied to the existence of a clear and definite agreement. A reasonable person does not rely to his or her detriment on an oral agreement unless it is sufficiently clear and definite as to induce him or her to act. Provence. \\\"There can be no estoppel as a matter of law when the asserted reliance is not justifiable or reasonable under the circumstances of the case considered as a whole.\\\" Roth [v. First Security Bank of Rock Springs, Wyoming ] 684 P.2d [93,] 97 [ (Wyo.1984) ] (citing Matter of Simineo v. Kelling, 199 Colo. 225, 607 P.2d 1289 (1980). The representation that induces the reliance also must be the immediate or proximate cause of the act in reliance. Roth. The knowledge and sophistication of the relying party is to be considered in determining reasonableness (Roth) and consistent with the Restatement (Second) of Contracts \\u00a7 90, we also consider the reasonable foreseeability by the promisor that the promisee would rely on the statement or representation. [Inter-Mountain Threading, v.] Baker Hughes [Tubular Servs., 812 P.2d 555 (Wyo.1991) 1..\\nId., \\u00b6 28, 75 P.3d at 653.\\n[\\u00b628] In response to Mrs. Harper's es-toppel claims, Fidelity first points out that under Wyoming Legislative guidelines, Mr. Harper's death was well within the two-year contestable period under Wyo. Stat. Ann. \\u00a7 26-16-204 (LexisNexis 2009). Furthermore, Fidelity also argues that there is no evidence that Mr. Harper could have obtained other coverage. When viewing the facts in the light most favorable to Mrs. Harper, there exists a genuine issue of material fact as to whether Fidelity's issuing the policy constituted a promise that would have reasonably induced reliance.\\n[\\u00b629] In addition to establishing that the promissor reasonably should have known that the promise would have induced reliance, Mrs. Harper must also show that Fidelity's promise actually induced action or forbearance to her husband's detriment. Although Mrs. Harper asserts that Mr. Harper \\\"could have found another insurer\\\" had Fidelity declined to issue the policy, Mrs. Harper offers no evidence that her husband could have or would have obtained life insurance from another company. In fact, the record shows that Mr. Harper was actually denied coverage by other companies.\\n[\\u00a530] While the moving party bears the burden of showing that there are no material facts in dispute, the non-movant must offer more than \\\"a mere secintilla of evidence in its favor, and cannot simply reassert factually unsupported allegations contained in its pleadings.\\\" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) Williams v. West Chester, 891 F.2d 458, 460 (Bd Cir.1989). Here, Mr. Harper was clearly not the picture of health, and although he may have applied to another life insurance company, there is nothing in the record apart from his wife's assertions which suggests another life insurance company would have insured Mr. Har per. \\\"Summary judgment for a defendant is appropriate when the plaintiff 'fails to make a showing sufficient to establish the existence of an element essential to [her] case, and on which [she] will bear the burden of proof at trial.\\\" \\\" Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 805, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999) (quoting Celotex Corp. v. Catrett, 477 U.S. 817, 822, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). There is no basis to conclude that the equities in this instance require the insurance contract be enforced.\\nIssue IV-Good Faith and Fair Dealing\\n[131] Mrs. Harper asserts that Fidelity breached the covenant of good faith and fair dealing by denying the benefits due under the policy without any reasonable or fairly debatable basis and by failing to fully and properly investigate.\\n[132] In order to recover on a claim like the instant one, a plaintiff must show the absence of a reasonable basis for denying benefits of the policy, and the defendant's knowledge or reckless disregard of the lack of a reasonable basis for denying the claim. Darlow v. Farmers Ins. Exch., 822 P.2d 820, 824 (Wyo.1991). The test to be applied in determining whether bad faith has occurred is as follows:\\nAn objective standard is also used to determine whether an insurer has committed first-party bad faith. Kirkwood v. CUNA Mut. Ins. Soc., 987 P.2d 206, 211 (Wyo.1997). The question is whether the validity of the denied claim is fairly debatable. First Wyoming Bank, N.A., Jackson Hole v. Continental Ins. Co., 860 P.2d 1094, 1101 (Wyo.19983). The validity of a claim is fairly debatable if a reasonable insurer would have denied or delayed payment of benefits under the facts and circumstances. Ahrenholtz v. Time Ins, Co., 968 P.2d 946, 950 (Wyo.1998). To establish a claim for first-party bad faith, a plaintiff must establish (1) the absence of any reasonable basis for denying the claim, and (2) the insurer's knowledge or reckless disregard of the lack of a reasonable basis for denying the claim.\\nGainsco Ins. Co. v. Amoco Prod. Co., 2002 WY 122, \\u00b6 14, 58 P.3d 1051, 1058 (Wyo.2002).\\n[%33] Not only does Mrs. Harper iterate her argument that Fidelity had a duty to investigate, but she argues that Fidelity unreasonably denied her claim and suggests that post-claim underwriting took place in this case. When \\\"post-claim underwriting\\\" oceurs, an insurer simply fails to perform any actual underwriting until after a claim has been made. Lewis v. Equity Nat'l Life Ins. Co., 637 So.2d 188, 188-89 (Miss.1994). See also Thomas C. Cady & Georgia Lee Gates, Article: Post Claim Underwriting, 102 W. Va. L.Rev. 809, 810 (2000) (concluding that post-claim underwriting is per se evidence of bad faith). Indeed, Mrs. Harper only suggests that this may have occurred in this case and does not altogether argue its existence. Nevertheless, it is our opinion that there is no showing by Mrs. Harper on appeal of an absence of a reasonable basis to deny the claim.\\n[134] After Fidelity received Mrs. Harper's claim for benefits, Fidelity followed its routine practice and ordered the medical records of the deceased. When it appeared that things were amiss, the records were sent to the chief underwriter who then gave his opinion that the misrepresentations (whether intentional or not) were material. The procedure followed is one which Mrs. Harper's expert testified is routine within the insurance industry. Under Wyoming law, a claim for breach of the implied covenant of good faith and fair dealing cannot exist where a party is simply exercising those rights that they are contractually entitled to exercise. See Scherer Constr., LLC v. Hedquist Constr., Inc., 2001 WY 28, 19, 18 P.3d 645, 658-54 (Wyo.2001).\\n[T35]) Fidelity rescinded the policy of insurance because it determined, after obtaining an opinion from the chief underwriter, that there were material misrepresentations, omissions, and incorrect statements made on the insurance application which, if they had been known at the time, would have caused the application to have been rejected. There is no question of material fact that \\u00a7 26-15-109 allows rescission under those cireum-stances. Accordingly, Fidelity was entitled to summary judgment on whether it breached the duty of good faith and fair dealing.\\nIssue V-Reasonable Expectations Doctrine\\n[\\u00a536] Finally, Mrs. Harper argues that because the parties' contract was ambiguous, she should be allowed to recover under the \\\"reasonable expectations\\\" doctrine. In order to state a claim under the \\\"reasonable expectations\\\" doctrine, the plaintiff must show the subject contract is ambiguous as to the provision in dispute. Ahrenholtz v. Time Ins. Co., 968 P.2d 946, 950 (Wyo.1998). The doctrine will not be applied where the insurance contract is plain and unambiguous. W.N. McMurry Constr. Co. v. Community First Ins., Inc., 2007 WY 96, \\u00b6 21, 160 P.8d T1, 78 (Wyo.2007).\\n[\\u00b637] The doctrine of reasonable expectations is explained as follows in St Paul Fire and Marine Ins. Co. v. Albany County Sch. Dist. No. 1, 763 P.2d 1255, 1262 (Wyo.1988):\\nThe doctrine of reasonable expectations is essentially a rule of construction that acknowledges the usual disparity of bargaining power between an insurer and the fact that insurance contracts are generally contracts of adhesion. See Corgatelli v. Globe Life & Accident Insurance Company, 96 Idaho 616, 588 P.2d 737 (1975), wherein the Idaho Supreme Court de-seribed the doctrine and applied it in a split decision, and Casey v. Highlands Insurance Company, 100 Idaho 505, 600 P.2d 1387 (1979), in which that same court disavowed and refused to adopt the doctrine. Under the doctrine, \\\"the court will uphold the insured's reasonable expectations as to the scope of coverage, provided that the expectations are objectively reasonable.\\\" 2 G. Couch, Cyclopedia of Insurance Law 2d \\u00a7 15:16 at 172 (Rev. ed.1984). Professor Keeton describes the operation of the doctrine in this fashion:\\nThe objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations.\\n[\\u00b638] In regard to this issue, the district court was correct when it stated as follows:\\nMr. Harper was advised in the application that the information would be relied upon in issuing the insurance. The policy contained a contestability clause allowing challenge within the first two years of issuance. By his signature, Mr. Harper verified the answers contained in the application were true and correct. This [reasonable expectations] claim presumes that Mr. Harper can assume [Fidelity] will not rely upon his answers, which is contrary to the unambiguous language in the application.\\nAs did the district court, this Court fails to see how any claim would exist under the doctrine of reasonable expectations.\\nCONCLUSION\\n[\\u00b639] There is no issue of material fact as to whether Fidelity properly rescinded Mr. Harper's insurance policy pursuant to \\u00a7 26-15-109. Mr. Harper's application contained omissions and misrepresentations, and summary judgment is appropriate where the misrepresentation \\\"is of such a nature that there can be no dispute as to its materiality.\\\" Such was the case in this instance. Furthermore, an insurer is under no duty to investigate the truthfulness of an applicant's responses unless it has notice that those responses might not be truthful or accurate. There is no basis to conclude that the equities in this instance require the insurance contract be enforced under the doctrine of promissory estoppel. Finally, the covenant of good faith and fair dealing was not breached, and no claim exists under the doe-trine of reasonable expectations. Affirmed.\\n. Fidelity contracted with MAAS for its underwriting services.\\n. Mrs. Harper takes issue that her husband misrepresented his health on his application. Rather, Mrs. Harper blames her husband's erroneous answers on his \\\"lack of sufficient knowledge\\\" as to the health conditions being inquired about, and Mr. Harper himself being a \\\"poorly educat ed 51-year-old bricklayer being asked . medically technical questions at the end of his work day[.]\\\" Without question, Mr. Harper's application for life insurance contained a number of misrepresentations.\\nMrs. Harper urges this Court to find that her husband's insurance application form contained no misrepresentation because, she argues, Mr. Harper did not \\\"knowingly\\\" misrepresent his health status. Contrary to Mrs. Harper's argument, however, Wyoming law does not require a finding of a \\\"knowing\\\" misrepresentation. A material misrepresentation will avoid coverage, even if it is made through mistake or in good faith. All American Life & Casualty Co. v. Krenzelok, 409 P.2d 766 (Wyo.1966); Cohen v. Washington Nat'l Ins. Co., 175 Ill.App.3d 517, 124 Ill.Dec. 948, 529 N.E.2d 1065, 1067 (1988). A material misrepresentation-iLe., one that affects either the acceptance of the risk or the hazard assumed by the insurer-will void an insurance contract regardless of whether the misrepresentation was made innocently or with intent to deceive.\"}"
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+"{\"id\": \"6996315\", \"name\": \"Jason Eugene MILLER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff)\", \"name_abbreviation\": \"Miller v. State\", \"decision_date\": \"2009-10-13\", \"docket_number\": \"Nos. S-08-0190, S-08-0191\", \"first_page\": \"793\", \"last_page\": \"806\", \"citations\": \"217 P.3d 793\", \"volume\": \"217\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T01:36:01.467004+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.\", \"parties\": \"Jason Eugene MILLER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"2009 WY 125\\nJason Eugene MILLER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\\nNos. S-08-0190, S-08-0191.\\nSupreme Court of Wyoming.\\nOct. 13, 2009.\\nRepresenting Appellant: Michael H. Reese, Michael H. Reese, PC, Cheyenne, Wyoming.\\nRepresenting Appellee: Bruce A. Salz burg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric Alan Johnson, Director, Prosecution Assistance Program; Eric K. Thompson, Student Director; Cortney Kitchen, Student Intern.\\nBefore VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.\", \"word_count\": \"6854\", \"char_count\": \"41171\", \"text\": \"BURKE, Justice.\\n[11] In this consolidated appeal, Jason Miller challenges his convictions on several counts of illegal possession of controlled substances. He contends the district court erred in its denial of his motion to suppress evidence in each case. He also claims a violation of his right to a speedy trial in both cases. We find no error and affirm.\\nISSUES\\n[12] Mr. Miller presents three issues:\\n1. Was the court's denial of Mr. Miller's motion to suppress in docket no. 6171 correct in light of the Fourth Amendment to the United States Constitution and Art. 1, \\u00a7 4 of the Wyoming Constitution?\\n2. Was the court's denial of Mr. Miller's motion to suppress in docket no. 6192 correct in light of the Fourth Amendment to the United States Constitution and Art. 1, \\u00a7 4 of the Wyoming Constitution?\\n3. Was there a violation of Mr. Miller's speedy trial rights pursuant to both the United States Constitution and the Wyoming Constitution and law?\\nFACTS\\n[13] On October 18, 2006, Fremont County Sheriff's deputies and Wyoming Division of Criminal Investigation (DCI) agents executed a search warrant at the home of Randy Lowrey. Officers discovered marijuana and methamphetamine during the search. Mr. Lowrey identified Mr. Miller as one of his sources for the drugs. He told officers that he had purchased methamphetamine from Mr. Miller the night before and that he had also purchased marijuana from him. He also informed officers that he recently observed a large amount of controlled substances at Mr. Miller's home and provided details regarding where, in the residence, the drugs could be found. During the interview, Mr. Lowrey received two telephone calls from Mr. Miller. Mr. Lowrey did not answer the calls, but he recognized the incoming phone number and advised officers that Mr. Miller was the caller. He told officers that Mr. Miller lived nearby.\\n[T4] Law enforcement officers immediately went to Mr. Miller's home. They found Mr. Miller in his vehicle in front of his residence. Officers asked him to exit the vehicle and he complied. The officers then handcuffed him and placed him in a patrol car. At that point, three officers performed a \\\"sweep\\\" of Mr. Miller's home to determine if anyone else was inside the residence. After discovering no one in the home, officers exited the residence and waited outside while one of the DCI agents left to obtain a search warrant. According to the officers, the \\\"sweep\\\" was completed in approximately two minutes. Following the sweep, Mr. Miller's handcuffs were removed and he was released from the patrol car. Law enforcement officers questioned Mr. Miller further before allowing him to leave. In total, Mr. Miller was detained for approximately forty-five minutes.\\n[T5] In the meantime, officers maintained a perimeter around the home and waited for a search warrant. The DCI agent was able to obtain a search warrant for Mr. Miller's home and vehicle. Upon execution, officers discovered 7 ounces of marijuana, 3.4 grams of methamphetamine, and assorted drug paraphernalia in Mr. Miller's vehicle. In the home, officers found 34 ounces of packaged - marijuana, an - undetermined amount of loose marijuana, psilocybin mushrooms, and additional drug paraphernalia. Mr. Miller was charged with three criminal counts: felony possession of marijuana with intent to deliver in violation of Wyo. Stat. Ann. \\u00a7 35-7-1081(a)(i), misdemeanor possession of psilocybin in violation of Wyo. Stat. Ann. \\u00a7 85-7-1081(c)(i)(A), and misdemeanor possession of methamphetamine in violation of Wyo. Stat. Ann. \\u00a7 35-7-1081(00)(C) This case was docketed in the district court as criminal case no. 6171. Mr. Miller was released on bond.\\n[16] After his release, a Fremont County Sheriff's Deputy received an anonymous tip that Mr. Miller and his fianc\\u00e9e had driven to Phoenix, Arizona and purchased controlled substances. A few days later, the deputy saw Mr. Miller and stopped to talk with him. Relying upon one of the conditions of Mr. Miller's bond, the deputy requested that Mr. Miller submit to a urinalysis test. Mr. Miller consented to the test. He tested positive for marijuana and cocaine. During this encounter, Mr. Miller admitted he had traveled to Arizona to visit his father but denied purchasing drugs.\\nThe deputy then sought out Mr. Miller's fianc\\u00e9e. After receiving information that she was seen going to her mother's house, he attempted to contact her there. When he arrived at the residence, the deputy observed a vehicle in the driveway matching the informant's description of the car driven to Arizona. The deputy spoke with the fian-c\\u00e9e's mother who told him her daughter had left the car and its keys at the house while she and her father traveled to Cheyenne for a medical appointment. In response to an inquiry from the deputy, mother advised that the vehicle was registered in her name and consented to a search of the vehicle. Before searching the vehicle, the deputy asked that a \\\"drug detection canine\\\" be dispatched. Upon arrival, the dog alerted to the vehicle. The deputy then searched the vehicle and found drug paraphernalia and more than 20 ounces of marijuana. Mr. Miller was not present during the search. He was subsequently arrested and charged with conspiracy to distribute marijuana in violation of Wyo. Stat. Ann. \\u00a7 35-7-1081(a)(ii) and 85-77-1042, and possession of marijuana with intent to deliver in violation of Wyo. Stat. Ann. \\u00a7 85-7-103l1(a)(@i) } This case was docketed in the district court as criminal case no. 6192.\\n[18] During the course of the legal proceedings, Mr. Miller had six attorneys. Some of these attorneys withdrew at Mr. Miller's request. As a result of the numerous changes in Mr. Miller's representation, as well as other factors, including a court-ordered psychiatric evaluation, both proceedings were delayed considerably. Mr. Miller filed a written waiver of his right to speedy trial on two occasions.\\n[19] Mr. Miller moved to suppress evidence derived from the searches in both cases. In each case, the court denied the motion. A jury found Mr. Miller guilty of all three counts charged in docket no. 6171. He appealed that conviction. In docket no. 6192, Mr. Miller entered a conditional plea of nolo contenders, reserving the right to appeal the denial of his motion to suppress. He subsequently filed an appeal in that case. We consolidated the appeals.\\nDISCUSSION\\nA. Motions to Suppress\\nStandard of Review\\n[T10] This Court reviews a district court's ruling on a motion to suppress evidence de novo, giving deference to the trial court's findings of fact, unless they are clearly erroneous. Gompf v. State, 2005 WY 112, \\u00b6 14, 120 P.3d 980, 984-85 (Wyo.2005). When a claim is raised for the first time on appeal, the appellant has the burden of establishing plain error. Strange v. State, 2008 WY 132, 14, 195 P.3d 1041, 1043 (Wyo.2008). To establish plain error, Mr. Miller must show: (1) the record is clear about the incident alleged as error; (2) there was a transgression of a clear and unequivocal rule of law; and (38) he was denied a substantial right which materially prejudiced him. Duke v. State, 2009 WY 74, \\u00b6 22, 209 P.3d 563, 571 (Wyo.2009).\\nDocket No. 6171\\n[\\u00a511] Mr. Miller contends the sweep of his home violated his Fourth Amendment right to be free from unreasonable searches because officers entered his home without a search warrant. There are \\\"well-delineated exceptions to the warrant requirement.\\\" Vassar v. State 2004 WY 125, \\u00b6 19, 99 P.3d 987, 995 (Wyo.2004). Among them is the exception for exigent cireumstances. Pena v. State, 2004 WY 115, 1129, 98 P.3d 857, 870 (Wyo.2004). In order for the exception to apply, the government must establish that the officers had probable cause supporting the search and that exigent cireumstances made it impracticable to obtain a warrant before conducting the search. Id. Among the exigent cireumstances justifying a warrantless search is a need \\\"to prevent the imminent destruction of evidence.\\\" Id.; Jones v. State, 902 P.2d 686, 691 (Wyo.1995).\\n[T12] We applied the exigent cireum-stances exception to a warrantless entry in Rideout v. State, 2005 WY 141, 122 P.3d 201 (Wyo.2005). In Rideout, officers went to the defendants' residence to investigate drug-related activities. As they exited their vehicles, they smelled burning marijuana coming from the residence, and the officers realized \\\"their presence was known to the occupants.\\\" Id., \\u00b6 5, 24, 122 P.3d at 203, 208. At that point, officers decided to enter the house and secure it to prevent the destruction of evidence before seeking a search warrant. Id., 7, 122 P.3d at 208. We affirmed the denial of the motion to suppress and found no Fourth Amendment violation because: (1) officers possessed probable cause that a crime was being committed within the residence; (2) exigent cireumstances justified the warrantless entry to secure the residence and prevent destruction of any evidence; and (8) the officers refrained from searching the home until they had authorization-either in the form of consent or a search warrant. Id., 125, 122 P.3d at 208. The district court found similar justification in this case.\\n[1183] The district court determined that Mr. Lowrey was a reliable and credible witness and that the information he provided was sufficient to establish probable cause. When an officer receives information from an informant, it must be evaluated under the totality of the cireumstances. Holzheuser v. State, 2007 WY 160, \\u00b6 8, 10, 169 P.3d 68, 74-76 (Wyo.2007). This Court has held that certain factors are relevant in determining whether an informant's statements contain the requisite indicia of veracity and basis of knowledge, including:\\nwhether the informant has previously given reliable information to law enforcement; whether the statements of the informant are against the informant's penal interests; whether the informant acquired knowledge of the events through firsthand observation; whether the amount of detail provided is sufficient to make the statement self-verifying; the interval between the date of the events and the law enforcement officer's application for a warrant; and the extent to which law enforcement officers have corroborated the informant's statements.\\nSchirber v. State, 2006 WY 121, \\u00b6 8, 142 P.3d 1169, 1173 (Wyo.2006) (citing Illinois v. Gates, 462 U.S. 213, 233-34, 103 S.Ct. 2317, 2329-30, 76 LEd.2d 527 (1983), United States v. Harris, 403 U.S. 573, 583-35, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723, 734 (1971); United States v. Mykytiuk, 402 F.3d 773, 776-77 (7th Cir.2005); United States v. Zayas-Diaz, 95 F.3d 105, 111 (1st Cir.1996)).\\n[114] Many of these indicia of reliability are present in this case. Mr. Lowrey told law enforcement officers that he had purchased methamphetamine from Mr. Mil ler the night before and that he had recently been in Mr. Miller's residence. His admission that he had purchased drugs was a statement against his penal interests. Bonsness v. State, 672 P.2d 1291, 1293 (Wyo.1983). \\\"Such admissions of crime 'carry their own indicia of credibility-sufficient at least to support a finding of probable cause to search'\\\" Id. (quoting Harris 403 U.S. at 583, 91 S.Ct. at 2082). He described Mr. Miller's home in some detail. He mentioned that Mr. Miller stored the drugs in a gray duffle bag and a safe located in the residence. He provided the officers with the location of the safe. Additionally, Mr. Low-rey's statements were made in close temporal proximity to the events and observations he described. In short, Mr. Lowrey's statements to the officers were based upon firsthand knowledge, were against his penal interests, and were close in time to the events he described. We find no error in the district court's determination that Mr. Lowrey's statements were sufficiently reliable to provide officers with probable cause.\\n[\\u00a515) We must next determine if there was sufficient evidence to support the district court's conclusion that exigent circumstances justified the decision to secure the residence before obtaining a warrant. Uniformed police officers in marked vehicles conducted the search at Mr. Lowrey's home. Officers were aware that Mr. Lowrey's home and Mr. Miller's residence were located only a block and a half away from each other. Officers testified that Mr. Miller called Mr. Lowrey twice, in rapid succession, while he was being questioned. Based on evidence provided by Mr. Lowrey, officers suspected Mr. Miller was in possession of controlled substances. The officers testified that they were concerned that, without detaining Mr. Miller and conducting a sweep of the home, the evidence in the home might be destroyed before they could obtain and execute a search warrant. The phone calls, the close proximity of the homes, and the obvious police presence, officers said, all added to their concern that Mr. Miller, or others inside his home, might try to destroy evidence.\\n[T16] The nature of the evidence that officers sought to preserve also plays a significant role in determining whether exigent cireumstances existed. \\\"Reported cases are legion where criminals have been caught attempting to flush narcotics away.\\\" State v. Galvin, 161 N.J.Super. 524, 391 A2d 1275, 1284 (Ct. Law Div.1978). See also Rideout, \\u00b6 24, 122 P.3d at 208; Hughes v. State, 2003 WY 35, \\u00b6 13, 65 P.3d 378, 382 (Wyo.2003); Patterson v. State, 691 P.2d 253, 258 (Wyo.1984). The officers testified that they were concerned that the controlled substances would be destroyed if the vehicle and residence were not secured. The district court found this concern was reasonable:\\nHere, the evidence is, we were talking about marijuana and perhaps methamphetamine. And both types-those drugs are easily destroyed. They can be flushed. They can be worked through the garbage disposal. All of those things can happen, and so I don't have any trouble with-or I am not troubled by that fact. Given what the officers believe they were dealing with, the evidence was of a type that certainly was susceptible to being destroyed. I don't have any issue with that.\\n[117] The district court also found that the officers restricted their sweep of the residence to actions which would eliminate those exigent cireumstances. As in Rideout, the officers did what was necessary to secure Mr. Miller's residence, but otherwise did not conduct a search until they had obtained a warrant. They walked through the residence to ensure that there was no one inside who might destroy evidence or threaten officer safety. The sweep took a total of two minutes. Officers then left the residence and waited outside for the search warrant.\\n[118] The district court properly recognized that the presence of evidence that is easily destroyed does not, by itself, create an exigency justifying a warrantless search. It did, however, conclude that the presence of drugs, along with all of the other cireum-stances known to the officers at the time, created exigent cireumstances justifying the sweep of Mr. Miller's residence. We find no error in this conclusion.\\n[119] Next, we turn to Mr. Miller's assertion that his detention was imper missible under the Fourth Amendment. Because Mr. Miller did not raise this issue with the district court, we review for plain error. \\\"To suppress evidence as the fruit of his unlawful detention or unlawful search, [a defendant] 'must make two showings: (1) that the detention [or search] did violate his Fourth Amendment rights; and (2) that there is a factual nexus between the illegality and the challenged evidence'\\\" United States v. Jarvi, 537 F.3d 1256, 1260 (10th Cir.2008) (quoting United States v. DeLuca, 269 F.3d 1128, 1132 (10th Cir.2001)). We need not address the first element because Mr. Miller has not satisfied his burden of proving that the challenged evidence bears the requisite causal connection to the detention.\\n[4120] In the district court, Mr. Miller asserted that information obtained during the sweep \\\"provided . a basis for the search warrant that . taints the search warrant and . all information seized from the search.\\\" The district court rejected this argument, noting from the bench, \\\"I didn't hear any testimony, not one bit of anything that the officers saw or seized . when they did go through the residence.\\\"\\n[T21] From our review, it appears that the search warrant affidavit was based solely on the information provided by Mr. Lowrey. Only one paragraph in the affidavit referenced the encounter with Mr. Miller. It states: \\\"Based on the above information, Officers went to the Miller residence, made contact with Jason Miller, who appeared to be just getting into his vehicle to leave, and secured the residence and the vehicle, while Agents sought to obtain a Search Warrant.\\\" In his motion to suppress, Mr. Miller never alleged that law enforcement officers obtained any evidence as a result of his detention.\\n[122] It is undisputed that the challenged evidence was obtained during execution of the search warrant. On appeal, Mr. Miller does not identify any evidence or information that was found during the sweep or his detention that was used to obtain the warrant. He has failed to establish the required nexus between the alleged misconduct and the evidence that he seeks to suppress. We find no error in the district court's denial of his motion to suppress in docket no. 6171.\\nDocket no. 6192\\n[T28] In docket no. 6192, Mr. Miller sought to suppress evidence found as a result of the search of his fianc\\u00e9e's vehicle. The district court denied the motion on the basis that Mr. Miller lacked standing to challenge the search. The district court also found that a warrant was not necessary to search the vehicle because the owner of the vehicle had consented to the search On appeal, Mr. Miller claims that the district court erred in denying his motion to suppress. We conclude that Mr. Miller lacked standing to challenge the search and find no error in the district court's denial of the motion.\\n[T24] In order to challenge a search as unconstitutional, a defendant must first establish that \\\"he had a reasonable expectation of privacy in the property searched.\\\" Andrews v. State, 2002 WY 28, \\u00b6 20, 40 P.3d 708, 712 (Wyo.2002). To meet this initial prerequisite, Mr. Miller must demonstrate that he had a subjective expectation of privacy and also a \\\" 'reasonable expectation of privacy that society is prepared to recognize.\\\" Id., \\u00b6 20, 40 P.3d at 712-13 (quoting Dean v. State, 865 P.2d 601, 613 (Wyo.1993)). To determine whether a reasonable expectation of privacy exists, this Court examines four factors: (1) the precautions taken to maintain privacy as to the item; (2) the framers' intent when drafting the United States Constitution; (8) the property rights the defendant had in the searched item; and (4) the legitimacy of the defendant's possession of the property searched. Andrews, \\u00b6 20, 40 P.3d at 713. The burden of proving a reasonable expectation of privacy falls on the proponent of the motion to suppress. (Grissom v. State, 2005 WY 132, \\u00b6 15, 121 P.3d 127, 133 (Wy.2005).\\n[T25] Generally, an individual will have a reasonable expectation of privacy in a vehicle if he has an ownership interest in the vehicle or is lawfully present in the car. 6 Wayne R. LaFave, Search and Seigure \\u00a7 11.3(e), at 192 (dth ed.2004). Our jurisprudence supports this proposition. For example, in Yoeuth, \\u00b6 39, 206 P.3d at 1288, and Parkhurst v. State, 628 P.2d 1369, 1374 (Wyo.1981), the passengers in vehicles had standing to challenge the searches because they were lawfully present in the vehicle at the time of the search. On the other hand, in Dettloff v. State, 2007 WY 29, \\u00b6 16, 152 P.3d 376, 382 (Wyo.2007) and Putnam v. State, 995 P.2d 632, 636 (Wyo.2000), the defendants lacked standing to challenge the searches because they presented no evidence that they were lawfully present in the vehicle at the time of the search.\\n[126] We note initially that there is some dispute in the record regarding ownership of the vehicle. At the time of the search, the vehicle was parked in the driveway of the fianc\\u00e9e's parents. The keys to the vehicle had been left with the fianc\\u00e9e's mother. When contacted by police, mother told the investigating officer that title to the vehicle was held in her name. At the suppression hearing, mother testified that she had given the vehicle to her daughter. The ownership status of mother was relevant in determining whether mother could consent to the search. It is not relevant in analyzing whether Mr. Miller had a reasonable expectation of privacy in the vehicle. We will assume for purposes of our analysis that the fianc\\u00e9e had an ownership interest in the vehicle.\\n[127] -It is undisputed that Mr. Miller did not own the vehicle and was not present in the vehicle either as the driver or as a passenger when the search was initiated. He was not present at any time during the search. Nevertheless, Mr. Miller contends that he had a \\\"possessory interest\\\" in the vehicle. He claims that this \\\"possessory interest\\\" arises because the vehicle was owned by his fianc\\u00e9e, he had used the vehicle in the past, and that his fianc\\u00e9e had given him permission to use the vehicle in the future. Mr. Miller asserts that by virtue of their relationship, he had a reasonable expectation of privacy in the vehicle at the time of the search.\\n[T28] Mr. Miller cites two cases to support his position: United States v. Soto, 988 F.2d 1548 (10th Cir.1993) and United States v. Rubio-Rivera, 917 F.2d 1271 (10th Cir.1990). Both cases are easily distinguishable. In both Soto and Rubio-Rivera, neither defendant owned the vehicle. Nevertheless, both had standing to challenge the searches because each was in possession of the vehicle at the time of the search and had permission from the owner to use the vehicle. Soto, 988 F.2d at 1550, Rubio-Rivera, 917 F.2d at 1275. Here, Mr. Miller was not present and was not in possession of the vehicle at the time of the search. If a non-owner is not using the vehicle at the time of the search, he does not have a reasonable expectation of privacy. See State v. Morrill, 197 Conn. 507, 498 A.2d 76, 96 (1985) (non-owner, who often used the searched car, lacked standing because he was not using the car at the time of search); see also Tompkins v. State, 705 P.2d 836, 843 (Wyo.1985) (finding no possessory interest when person was neither in possession of nor present in a home, which he did not own, at time of search). The mere fact that Mr. Miller's fianc\\u00e9e owned the vehicle is not by itself sufficient to provide Mr. Miller with the requisite expectation of privacy. See Neal v. Acevedo, 114 F.3d 803, 807 (8th Cir.1997) (\\\"Neal lacked standing to challenge the search of his fianc\\u00e9e's car.\\\"); Cooks v. State, 699 P.2d 653, 658 (Okla.Crim.App.1985) (Appellant lacked standing to object to a search of the car owned by his common-law wife, as he had neither a possessory nor a property interest in the vehicle.); Anderson v. State, 992 P.2d 409, 417 (Okla.Crim.App.1999) (\\\"We are not persuaded by Appellant's argument that he had [privacy] interests merely because his wife purportedly owned the car.\\\"). Additionally, permissive use of the vehicle on some prior occasion does not confer on the user either a property or possessory interest in the vehicle: \\\"A person does not have a reasonable expectation of privacy . with regard to a car he has permission to use but is not using at the time of the search.\\\" United States v. Smith, 340 F.Supp. 1023, 1030 (D.Conn.1972); see also Morrill, 498 A.2d at 96 (rejecting defendant's claim that his prior use of his mother's car, together with his continuing permission to use the car, gave him a protected expectation of privacy in the car).\\n[129] We affirm the district court's finding that Mr. Miller did not have a reasonable expectation of privacy in the vehicle Accordingly, he lacks standing to challenge the search. Because we find Mr. Miller does not have standing to challenge the search of the vehicle, we need not determine whether the officer had consent to search the vehicle or whether the alert of the drug dog provided the officers with probable cause to search the vehicle.\\nB. Speedy Trial\\nStandard of Review\\n[1830] Mr. Miller asserts a violation of his right to speedy trials in both cases.\\nWe review a speedy trial claim to ensure the mandates of W.R.Cr.P. 48(b) and constitutional guarantees have been met. Yung v. State, 906 P.2d 1028, 1032 (Wyo.1995). We examine de novo the constitutional question of whether a defendant has been denied a speedy trial in violation of the Sixth Amendment to the United States Constitution and Art. 1, \\u00a7 10 of the Wyoming Constitution. We review the district court's factual findings for clear error. Sisneros v. State, 2005 WY 139, \\u00b6 16, 121 P.3d 790, 796-97 (Wyo.2005); [State v.] Humphrey, [2005 WY 131,] \\u00b6 8, 120 P.3d [1027,] 1029 [ (Wy.2005) ].\\nHumphrey v. State, 2008 WY 67, \\u00b6 18, 185 P.3d 1236, 1243 (Wy.2008).\\nDocket No. 6192\\n[T31] Mr. Miller entered a plea of nolo contendere in docket no. 6192. A plea of nolo contendere has the same effect as a plea of guilty, including waiver of non-jurisdictional defenses. Meyers v. State, 2005 WY 163, \\u00b6 14, 124 P.3d 710, 715 (Wyo.2005); Ochoa v. State, 848 P.2d 1359, 1361-62 (Wyo.1993). A claim of violation of the right to a speedy trial is a non-jurisdictional defense. Cohee v. State, 2005 WY 50, \\u00b6 13, 110 P.3d 267, 272 (Wyo.2005), Davila v. State, 831 P.2d 204, 206 (Wyo.1992).\\n[132] This plea of nolo contendere was made pursuant to W.R.Cr.P. 11(a@)@Q) which allows a defendant to plead guilty while reserving the right to seek review on appeal of any specified pretrial motion. Morgan v. State, 2004 WY 95, \\u00b6 23, 95 P.3d 802, 808 (Wy.2004). We have said, however, that \\\"a conditional plea of guilty does not provide carte blanche permission for the appellant to present any and all arguments on appeal.\\\" Id., \\u00b6 24, 95 P.3d at 808; see also Bailey v. State, 12 P.3d 173, 177 (Wyo.2000). An appellant may only raise arguments clearly presented before the district court. Morgan, 124, 95 P.3d at 808-09. In this case, Mr. Miller entered a conditional plea in docket no. 6192 reserving only the right to appeal from the adverse resolution of the motion to suppress evidence found in his fianc\\u00e9e's vehicle. He did not assert a speedy trial defense in the district court and did not reserve his right to assert that issue on appeal. Mr. Miller has waived his right to appeal this issue in docket no. 6192.\\nDocket No. 6171\\n[133] Mr. Miller proceeded to trial and was convicted by a jury in docket no. 6171. The record reflects he signed two waivers of the right to a speedy trial in this case-the first in April 2007 and the second in October 2007. The April document, entitled \\\"Waiver of Speedy Trial,\\\" is signed by both Mr. Miller and his counsel. It stated, in full:\\nThe Defendant, having first been fully advised of his constitutional right to a speedy trial, hereby knowingly, intelligently and voluntarily waives his right to a speedy trial in the above-captioned matter.\\n[134] Mr. Miller, and his new counsel, signed a second \\\"Verified Waiver of Speedy Trial\\\" in October 2007. This document stated:\\nI, JASON MILLER, Defendant in the above entitled matter Waive my right to a Speedy Trial in this matter as follows:\\n1. I understand that I have been charged with the crime(s) of Possession of a Controlled Substance with Intent to Deliver-\\nMarijuana, W.S. 35-7-1081(a)(ii), Possession of a Controlled Substance-Methamphetamine, W.S. and Possession of a Controlled Substance-Psi-locybin, W.S. 85-7-1081(c)(i)(A).\\n2. I have been advised that I have a right to a jury trial within 180 days of the date of my arraignment, and that I can demand that my trial take place within that 180 day time limit.\\n3. After consultation with my attorney, I agree to waive my right to have a jury trial within 180 days of arraignment as provided by Rule 48(b), Wyoming Rules of Criminal Procedure.\\n[135] Mr. Miller does not challenge the validity of the waivers. Instead, he contends that, in general, the right to a speedy trial may not be waived prospectively. He supports this assertion with the decision of the Court of Appeals for the Tenth Circuit in United States v. Williams, 511 F.3d 1044 (10th Cir.2007). In Williams, the Tenth Circuit held that a defendant's prospective waiver of speedy trial was invalid. 511 F.3d at 1054-55. In doing so, it relied upon the United States Supreme Court's holding in Zedner v. United States, 547 U.S. 489, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006), that a defendant may not prospectively waive the application of the Speedy Trial Act of 1974, 18 U.S.C. \\u00a7 8161 et seq.\\n[136] Although Mr. Miller presents no Wyoming case law or statute indicating that a defendant may not execute a prospective waiver, his assertion that a speedy trial cannot be waived indefinitely does have some merit. See, e.g., State v. Rose, 348 Mont. 291, 202 P.3d 749 (2009). A signed waiver of a speedy trial does not give the State free reign to delay a defendant's trial unreasonably for all time. The cases Mr. Miller relies upon, however, are distinguishable. First, Williams and Zedner both interpret the Speedy Trial Act, a law of federal criminal procedure that does not apply to proceedings in Wyoming state courts. See-ond, the defendants in Williams and Zedner suffered delays after waiving their rights to a speedy trial that far exceeded the allowable delay under the applicable rule. Zedner went to trial more than six years after wailv-ing his right to a speedy trial and Williams waited 252 days. Mr. Miller did not suffer comparable delays under W.R.Cr.P. 48(b).\\n[137] Other than quoting the language of the rule and claiming that the right to a speedy trial cannot be waived prospectively, Mr. Miller does not claim a violation of W.R.Cr.P. 48(b). Significantly, he does not contend that his trial was delayed more than 180 days after each waiver or that the delay violated W.R.Cr.P. 48(b) in some other manner. Accordingly, we will not consider the matter further. We do note that when all properly excluded time is accounted for, including defense counsel's request for a mental examination and motions for continuances to allow new defense counsel adequate preparation time, Mr. Miller's trial was held well within the 180-day mandate of W.R.Cr.P. 48(b).\\n[188] We move next to Mr. Miller's contention that his constitutional right to a speedy trial was violated. In determining whether a constitutional violation of the right to a speedy trial has occurred, we are guided by the four-factor test set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). That test requires us to evaluate the following factors: (1) the length of the delay; (2) the reason for the delay; (8) defendant's assertion of the right; and (4) prejudice to the defendant. Harvey v. State, 774 P.2d 87, 92 (Wyo.1989) (citing Barker, 407 U.S. at 530, 92 S.Ct. at 2192). These factors are considered together and balanced in relation to all relevant cireum-stances. Berry v. State, 2004 WY 81, \\u00b6 31, 93 P.3d 222, 231 (Wyo.2004). The burden of proving prejudicial delay from a speedy trial violation lies with the defendant. Rodiack v. State, 2002 WY 137, \\u00b6 11, 55 P.3d 1, 3 8 (Wyo.2002).\\nLength of Delay\\n[139] The first factor, length of delay, is a threshold requirement. Barker, 407 U.S. at 530, 92 S.Ct. at 2192. Only if the length of delay is \\\"presumptively prejudicial\\\" will an examination of the remaining three factors be necessary. Id. The constitutional right to a speedy trial attaches at the filing of a criminal complaint or the arrest of the defendant, whichever occurs first. Humphrey, \\u00b6 21, 185 P.3d at 1244; Strandlien v. State, 2007 WY 66, \\u00b6 8, 156 P.3d 986, 990 (Wyo.2007); Jennings v. State, 4 P.3d 915, 921 (Wyo.2000). Mr. Miller was arrested on charges in docket no. 6171, on October 24, 2006, and was brought to trial on March 11, 2008, a delay of 504 days. We have previously found that a 500-day delay is presumptively prejudicial. Campbell v. State, 999 P.2d 649, 655-56 (Wyo.2000). We therefore move forward and examine the remaining factors of the Barker test.\\nReason for Delay\\n[T40] In reviewing the reason for delay, we examine which party was responsible for the delay. We have previously noted:\\nA deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such cireumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.\\nWehr v. State, 841 P.2d 104, 112-13 (Wyo.1992) (quoting Barker, 407 U.S. at 531, 92 S.Ct. at 2192). We have also stated \\\"[ujin-questionably, delays attributable to the defendant may disentitle him to speedy trial safeguards.\\\" Berry, 185, 98 P.3d at 282. Delays attributable to changes in defense counsel, to the defendant's requests for continuances, and to the defendant's pretrial motions are all considered delays attributable to the defense. Strandlien, 112, 156 P.38d at 991.\\n[T41] A review of the record shows most of the delay was attributable to Mr. Miller's six changes in defense counsel and the requests by the defense to allow adequate time for new counsel to prepare for trial. Delays due to changes in defense counsel weigh against the defendant in a speedy trial analysis. Berry, 135, 93 P.3d at 232. Adding to the delay, the district court, at the request of defense counsel, ordered Mr. Miller to undergo a competency examination. The examination caused an additional delay of 50 days. Delays attributable to competency evaluations fall into the \\\"neutral\\\" category in the Barker balancing test. Potter v. State, 2007 WY 83, \\u00b6 30, 37, 158 P.3d 656, 664-65 (Wyo.2007). Mr. Miller identifies no delays attributable to the State or the district court. This factor weighs substantially in the State's favor.\\nDefendant's Assertion of the Right\\n[142] Mr. Miller signed two waivers of his right to a speedy trial. He did not otherwise bring any speedy trial claims to the attention of the district court. This factor weighs substantially in favor of the State.\\nPrejudice to the Defendant\\n[148] The last Barker factor, prejudice to the defendant, is evaluated in light of the interests the speedy trial right was designed to protect: \\\"(M) to prevent oppressive pretrial incarceration; (\\u00ae) to minimize anxiety and concern of the accused; and (M) to limit the possibility that the defense will be impaired.\\\" Barker, 407 U.S. at 532, 92 S.Ct. at 2193.\\n[T 44] Mr. Miller makes no argument that his pretrial incarceration was oppressive and we will not consider it further. When examining the anxiety and concern of the accused, this Court has said \\\"because a certain amount of pretrial anxiety naturally exists, a defendant must demonstrate he 'suffered prejudice in an extraordinary or unusual manner.'\\\" - Strandlien, I 16, 156 P.3d at 992. A \\\"bare assertion\\\" of anxiety will not suffice. Id. Mr. Miller makes no assertion of anxiety at all.\\n[1 45] The last factor, the possibility that the defense was impaired by the delay, is the most serious factor in determining prejudice because \\\"the inability of a defendant adequately to prepare his case skews the fairness of the entire system.\\\" Barker, 407 U.S. at 582, 92 S.Ct. at 2198. Mr. Miller asserts his defense was impaired because the delay allowed the State to locate Mr. Miller's former roommate who then testified against him at trial. This argument mischaracterizes the purpose of this factor. This inquiry is designed to prevent a defense from becoming impaired by death, disappearance, or memory loss of witnesses for the defense, not to prevent the prosecution from developing its case. 5 Wayne R. LaFave, Criminal Procedure \\u00a7 18.2(e), at 181 n. 81 (8d ed.2007). Mr. Miller has failed to demonstrate that he was prejudiced by the delay. This last factor also weighs in favor of the State.\\n[146] In balancing the four factors, we must conclude that Mr. Miller's constitutional right to a speedy trial in docket no. 6171 was not violated. The delay in trial was primarily attributable to Mr. Miller's numerous changes of counsel. Mr. Miller waived his right to a speedy trial on two occasions, and he has shown no prejudice to his defense as a result of the delay.\\nCONCLUSION\\n[147] The district court did not err in denying the motions to suppress in docket no. 6171 and docket no. 6192, and Mr. Miller was not denied his statutory or constitutional right to a speedy trial in either case.\\n[T48] Affirmed.\\n. Wyo. Stat. Ann. \\u00a7 35-7-1031(a)(ii) (LexisNexis 2005) reads as follows:\\n(a) Except as authorized by this act, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. Any person who violates this subsection with respect to:\\n(ii) Any other controlled substance classified in Schedule I, II or III, is guilty of a crime and upon conviction may be imprisoned for not more than ten (10) years, fined not more than ten thousand dollars ($10,000.00), or both.]\\nWyo. Stat, Ann. \\u00a7 35-7-1031(c)i)(A) and (c)(1)(C) read, in pertinent part, as follows:\\n(c) It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this act. Any person who violates this subsection:\\n(i) And has in his possession a controlled substance in the amount set forth in this paragraph is guilty of a misdemeanor punishable by imprisonment for not more than twelve (12) months, a fine of not more than one thousand dollars ($1,000.00), or both. . . . For purposes of this paragraph, the amounts of a controlled substance are as follows:\\n(A) For a controlled substance in plant form, no more than three\\n(3) ounces;\\n(C) For a controlled substance in powder or crystalline form, no more than three (3) grams[.]\\n. - It is not necessary to identify this individual by name. The anonymous tip to the deputy identified her as Mr. Miller's girlfriend. However, in the motion to suppress, she was identified as his fianc\\u00e9e. Mr. Miller contends that the nature of this relationship supports his assertion that he had a reasonable expectation of privacy in her vehicle. We will refer to her as his fianc\\u00e9e.\\n. Wyo. Stat. Ann. \\u00a7 35-7-1042 reads as follows:\\nAny person who attempts or conspires to commit any offense under this article within the state of Wyoming or who conspires to commit an act beyond the state of Wyoming which if done in this state would be an offense punishable under this article, shall be punished by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense the commission of which was the object of the attempt or conspiracy.\\n. Although Mr. Miller formulates his statement of the issues in terms of the Wyoming and Federal Constitutions, when advancing an independent argument under the state constitution, an appellant must present a \\\"precise [and] analytically sound approach.\\\" Yoeuth v. State, 2009 WY 61, \\u00b6 34, 206 P.3d 1278, 1286 (Wyo.2009). Because Mr. Miller does not articulate any basis for interpreting the Wyoming Constitution more broadly than its federal counterpart, we will limit our review to a claimed violation of the United States Constitution. Flood v. State, 2007 WY 167, \\u00b6 13, 169 P.3d 538, 543 (Wyo.2007).\\n. The State also contended that a search warrant was not necessary because a drug dog had alerted to the vehicle providing probable cause for the search. The district court did not address that issue and, in light of the result we reach here, it is also unnecessary for us to address it.\\n. At the district court level, Mr. Miller asserted that he signed the first waiver because he was \\\"threatened\\\" by his then current counsel. The district court addressed this claim in open court and found Mr. Miller signed the waiver voluntarily. Mr. Miller does not challenge the district court's resolution of this issue.\\n. The Speedy Trial Act requires a defendant be brought to trial within 70 days of the filing of an indictment, or from the date of the defendant's initial appearance, whichever occurs later. 18 U.S.C. \\u00a7 3161(c)(1).\"}"
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+"{\"id\": \"6996649\", \"name\": \"Deborah McGARVEY, Appellant (Plaintiff), v. KEY PROPERTY MANAGEMENT LLC, and Bicentennial Village Associates LLC, Appellees (Defendants)\", \"name_abbreviation\": \"McGarvey v. Key Property Management LLC\", \"decision_date\": \"2009-07-01\", \"docket_number\": \"No. S-08-0194\", \"first_page\": \"503\", \"last_page\": \"509\", \"citations\": \"211 P.3d 503\", \"volume\": \"211\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T22:26:38.136027+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.\", \"parties\": \"Deborah McGARVEY, Appellant (Plaintiff), v. KEY PROPERTY MANAGEMENT LLC, and Bicentennial Village Associates LLC, Appellees (Defendants).\", \"head_matter\": \"2009 WY 84\\nDeborah McGARVEY, Appellant (Plaintiff), v. KEY PROPERTY MANAGEMENT LLC, and Bicentennial Village Associates LLC, Appellees (Defendants).\\nNo. S-08-0194.\\nSupreme Court of Wyoming.\\nJuly 1, 2009.\\nRepresenting Appellant Timothy Kingston, Graves, Miller & Kingston, PC, Chey enne, Wyoming.\\nRepresenting Appellees: Kathleen Dixon and Patrick Dixon, Chapin & Dixon, LLP, Casper, Wyoming. Argument by Mr. Dixon.\\nBefore VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.\", \"word_count\": \"2750\", \"char_count\": \"17584\", \"text\": \"BURKE, Justice.\\n[\\u00a51] Deborah McGarvey filed a wrongful termination suit against her employer, claiming that she was discharged from her job for reasons that violate public policy. The dis trict court granted summary judgment for the employers, ruling that Ms. McGarvey had not presented facts necessary to sustain her cause of action. Ms. McGarvey challenges that decision. We will affirm.\\nISSUES\\n[12] Ms. McGarvey states these issues:\\n1. Does or should Wyoming recognize a \\\"free speech\\\" exception to the at-will employment doctrine?\\n2. Was the Appellant fired in violation of her right to free speech?\\n8. Did the lower court commit reversible error when it held that the Appellant's free speech claim was barred because her speech had the potential to cause economic harm to her employer?\\nFACTS\\n[T3] Bicentennial Village Associates LLC is a non-profit affordable housing organization. It owned a housing complex in Rock Springs, Wyoming, that provided housing to low-income residents, particularly elderly and disabled persons. Key Property Management LLC acted as the management company for the property. Ms. McGarvey worked as a manager at the housing complex.\\n[T4] While planning renovations to the facility in 2004 and early 2005, company representatives met with residents and staff to discuss the renovations. The Mayor of Rock Springs also attended. Company representatives provided assurances that the renovation would cause minimal disruptions. In particular, Ms. McGarvey recalled company representatives stating that interference with the residents' daily lives would be avoided, that no one would be displaced overnight from any apartment, and that residents' personal property would be safeguarded during the renovations. In addition, company representatives reportedly stated that no one currently living in the housing complex would be foreed to move because of changes to the low-income qualifications for the facility.\\n[T5] The renovations began in the spring of 2005, and according to Ms. McGarvey, they did not proceed smoothly. Delays and other problems displaced some residents from their apartments overnight. Crews did not complete work on one apartment before beginning work on the next, making it difficult or impossible for residents to use their apartments. Some residents' personal possessions were left unguarded outside the building. Work crews left used appliances, construction debris, and trash at the site, raising Ms. McGarvey's concerns about the safety of the residents. In addition, Ms. McGarvey learned that some residents might not meet the low-income qualifications and requirements, and could be foreed to move from the facility.\\n[T6] Ms. McGarvey related that she brought these problems and concerns to the attention of company representatives several times over a period of several months, but that she was unsuccessful in effecting any improvements or changes. One day, \\\"on the spur of the moment,\\\" she decided to organize a meeting in which residents could bring their problems to the attention of the Mayor of Rock Springs. This meeting took place at the housing complex during regular business hours, and Ms. McGarvey and several residents explained their problems and concerns to the Mayor. According to both Ms. McGarvey and the Mayor, as a result of the meeting and follow-up actions, many of the concerns and problems were eliminated or alleviated.\\n[17] Ms. McGarvey maintains that her motive in organizing this meeting was to assist and protect the residents of the housing complex. Because we are reviewing a grant of summary judgment against Ms. McGarvey, we consider the facts in a light most favorable to her position. See infre T10. At the same time, we cannot ignore undisputed facts just because they are less favorable to her position. It is undisputed that Ms. McGarvey did not inform her employers of the meeting or invite them to attend. They were not afforded an opportu nity to respond to or defend themselves from the accusations the residents and Ms. McGarvey presented to the Mayor. Because the housing complex received tax credits and other government benefits for serving low-income residents, it was important for the employers to maintain good relations with local government officials Ms. McGarvey was aware of that fact. Yet during the meet- \\u00a9 ing with the Mayor, Ms. McGarvey either stated, or agreed with the statement, that her employers had lied to the Mayor. As Ms. McGarvey has admitted, she knew that the meeting she organized and the discussions that occurred were potentially harmful to her employers and their legitimate business interests.\\n[18] Shortly after the meeting, Ms. McGarvey received an \\\"Employee Warning Notice\\\" from her supervisor, stating that she had held an \\\"unauthorized tenant meeting\\\" that she knew \\\"would be harmful to the company.\\\" Several days later, Ms. McGar-vey was fired. She claimed that she was discharged because of her meeting with the residents and the Mayor, because of what she had said at that meeting, and because she had \\\"undermined\\\" the interests of her employers.\\n[19] Her employers maintained that there were other legitimate reasons for their decision to terminate Ms. McGarvey's employment. They contend that, despite their instructions, she failed or was unable to complete the forms needed to qualify residents to continue living in the low-income housing facility. In addition, Ms. McGarvey's son had been hired to perform maintenance work at the facility. Some people complained about the son's work habits, and during one visit to the apartment complex, a representative of the employers observed that the son was not working while he was on duty. The employers instructed Ms. McGarvey to discharge her son. She did not do so, but the next day, organized the meeting with residents and the Mayor. - Again, however, our standard of review requires us to view the evidence in Ms. McGarvey's favor, and at this point we accept her allegations that she was discharged solely based on the meeting with residents and the Mayor. Even based on these allegations, however, the district court ruled that she had not established facts suffi-client to sustain her cause of action, and granted summary judgment against her. She has appealed that decision.\\nSTANDARD OF REVIEW\\n[110] Our review of a district court's decision to grant summary judgment follows a familiar course:\\nWhen a motion for summary judgment is before the supreme court, we have exactly the same duty as the district judge; and, if there is a complete record before us, we have exactly the same material as did he. We must follow the same standards. The propriety of granting a motion for summary judgment depends upon the correctness of a court's dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts contained in affidavits, depositions and other proper material appearing in the record.\\nNowotny v. L & B Contract Indus., 933 P.2d 452, 455 (Wyo.1997).\\nDISCUSSION\\n[111] Ms. McGarvey and her employers agree that she was an at-will employee. Wyoming has long adhered to the employment-at-will doctrine, under which \\\"employment for an indefinite period may be terminated by either party at any time and for any reason without incurring liability.\\\" Rompf v. John Q. Hammons Hotels, 685 P.2d 25, 27 (Wyo.1984). There are, however, exceptions to the employment-at-will doctrine. In particular, we have recognized that an employer may incur tort liability if it discharges an employee for reasons that violate public policy. This exception has been recognized because \\\"allowing [such] a discharge to go un-redressed would leave a valuable social policy to go unvindicated.\\\" Allen v. Safeway Stores Inc., 699 P.2d 277, 284 (Wyo.1985).\\n[112] The district court accurately observed that this exception applies only in \\\"rare\\\" cases.\\nAs our previous jurisprudence has shown, this Court has steadfastly resisted judicially creating any exceptions to the doctrine of at-will employment in this state.... We have recognized a limited exception to the at-will employment doctrine to the extent that an employee may not be terminated for a reason that violates public policy. This public policy exception is narrow in seope to avoid unreasonably eliminating employer discretion in terminating at-will employees.\\nMcLean v. Hyland Enterprises, Inc., 2001 WY 111, \\u00b6 22-23, 34 P.3d 1262, 1268 (Wyo.2001). The narrow seope of the public policy: exception is illustrated by the fact that, to date, there has been only one case in which this Court concluded that an employee could maintain a claim of wrongful termination in violation of public policy. Griess v. Consolidated Freightways Corp., 776 P.2d 752, 754 (Wyo.1989) (discharge for exercising the right to seek workers' compensation benefits).\\n[(T13] Given our previous jurisprudence, it is apparent that Ms. McGarvey faced a daunting task when she urged the district court to recognize a public policy exception for an employee who is discharged for exercising rights of free speech. A person alleging that her employment was terminated in violation of public policy must satisfy two requirements in order to maintain a wrongful discharge claim. She must demonstrate that: \\\"(1) The discharge violated a well established public policy; and (2) there is no other remedy available to protect the interests of the discharged employee or society.\\\" Boone v. Frontier Refining, Inc., 987 P.2d 681, 688 (Wyo.1999).\\n[114] Ms. McGarvey argues that freedom of speech is an important and cherished policy both in Wyoming and throughout the United States. We do not dispute the importance of free speech. The precise question before us, however, is not whether the termination of Ms. McGarvey's employment violated an important public policy, but whether the facts of this case, viewed in a light favorable to Ms. McGarvey, demonstrate the violation of a well-established public policy. For several reasons, Ms. McGarvey has not met this requirement.\\n[T15] Freedom of speech is protected at the federal level under the First Amendment to the United States Constitution, which provides in pertinent part that \\\"Congress shall make no law . abridging the freedom of speech.\\\" Because this prohibition is leveled against Congress, it \\\"only protects against the abridgement of constitutional rights by a governmental entity and has no application when the defendant is a private party.\\\" An employer who is \\\"neither a federal nor a state actor . cannot be sued for violating the plaintiff{'s]) First Amendment rights of free expression.\\\" Drake v. Cheyenne Newspapers, Inc., 842 F.Supp. 1403, 1405-06 (D.Wyo.1994). It is undisputed that Ms. McGarvey's employers are not federal or state actors. As private entities, they cannot be held liable under the federal constitution for violating an employee's federal rights to free speech. Ms. McGarvey cannot demonstrate that her discharge violated any well-established public policy based on the federal constitution.\\n[116] Ms. McGarvey points out that the free speech provision of the Wyoming Constitution is worded differently. Article 1, Section 20 of the Wyoming Constitution provides, in part, that \\\"Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.\\\" Unlike the First Amendment to the federal constitution, the Wyoming free speech provision is not explicitly limited in application to governmental entities. . Based on this ambiguity, Ms. McGarvey asserts that the Wyoming Constitution should be interpreted differently from the federal constitution, and should be recognized as protecting rights of free speech against abridgement by both private and public entities.\\n[T17] Ms. McGarvey emphasizes that there are no Wyoming cases rejecting the proposition that the Wyoming Constitution's free speech protections apply to private entities. However, there are also no Wyoming cases explicitly endorsing the proposition. Ms. McGarvey interprets two Wyoming cases, Allen, 699 P.2d 277, and Drake v. Cheyenne Newspapers, Inc., 891 P.2d 80 (Wyo.1995), as impliedly recognizing the possibility that a private employer may be held lable for violating an employee's free speech rights.\\n[118] We interpret those two cases differently. In Allen, the issue of whether the Wyoming Constitution's free speech provision applies to private parties was never mentioned. In Drake, the issue was mentioned, but never resolved. In both cases, we found it unnecessary to determine the precise scope of the Wyoming Constitution because, regardless of whether its free speech provision applied to private parties, there were other reasons that the Allens and Mx. Drake could not maintain their wrongful termination claims. These same reasons apply in Ms. McGarvey's case.\\n[119] In Allen, we ruled that the Allens could not maintain wrongful termination claims against. their employer based on alleged violations of rights to free speech. 699 P.2d at 284. We stated that free speech rights are not without limit, and concluded that the Allens had exceeded the limits of their free speech rights:\\nTo contend that an employee can talk in a derogatory fashion to customers or business contacts of his employer and be protected from disciplinary action by . virtue of the right to speak freely is so obviously in error as to need little consideration. The constitutional right to speak freely is not an absolute right.\\nId. at 283. The Allens had spoken in a derogatory fashion to their employer's business contacts. In discharging the Allens, the employer was \\\"protecting a legitimate business interest in eliminating a cause or potential cause for loss of sales.\\\" Id. In these cireumstances, the Allens' speech was not protected speech under either the federal constitution or the Wyoming Constitution. Their discharge, even if premised on that speech, did not infringe upon their legitimate free speech rights. Their discharge did not violate any well-established public policy, and did not give rise to claims of wrongful termination based on public policy.\\n{120] The cireumstances in the present case match closely with those in Allen. Ms. McGarvey contends, with some passion, that she was speaking out in a selfless effort to protect elderly, disabled, and low-income individuals. On the other hand, it is undisputed that it was important to her employers to maintain good working relationships with local government officials, and that Ms. McGarvey was well aware of that. fact. Nevertheless, when Ms. McGar-vey organized a meeting of disgruntled residents with the Mayor, she did not inform her employers of the meeting or invite their representatives to attend and respond to the residents' concerns and problems. She \\\"expressed her negative opinion of her employer[s] to government officials, knowing that her employer{s'] relationships with the officials would potentially be harmed.\\\" Ms. McGarvey admits, as the district court noted, that her actions were not \\\"fair\\\" and were potentially \\\"harmful or hurtful\\\" to her employers. As in Allen, Ms. McGarvey's speech under these circumstances exceeded the limits of protected speech. Her discharge because of that speech did not, therefore, violate any well-established public policy.\\n[121] In Drake, we similarly ruled that Mr. Drake could not maintain a wrongful discharge claim based on the violation of his rights to free speech. We again observed that \\\"the right to free speech is not absolute,\\\" and noted that \\\"[olne of the restrictions on the right to free speech is that the right does not, generally, extend to private property.\\\" 891 P.2d at 82. Mr. Drake's employment was terminated because of communications he made while at work on the employer's private property. Because this was not protected speech, Mr. Drake's discharge did not violate public policy, and he could not maintain a wrongful termination claim against his employer.\\n[122] The speech that Ms. McGarvey claims was the reason for her discharge took place in a meeting held during working hours in the offices of her employers' apartment complex. As in Mr. Drake's case, the speech Ms. McGarvey made while at work on her employers' private property was not constitu tionally protected. Her discharge, even if based on that speech, did not violate any well-established public policy. Consistent with our precedent, we conclude that the facts presented in Ms. McGarvey's case do not support a claim for wrongful termination in violation of public policy.\\n[123] The district court properly granted summary judgment against Ms. McGarvey, and we affirm the district court's decision.\\n. The record is confusing about whether Key or Bicentennial Village was Ms. McGarvey's employer. Because it is not material to this decision, we will refer generally to Ms. McGarvey's \\\"employers\\\" without distinguishing between the two companies. '\"}"
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+"{\"id\": \"8355998\", \"name\": \"George Sanchez HERNANDEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff)\", \"name_abbreviation\": \"Hernandez v. State\", \"decision_date\": \"2007-07-11\", \"docket_number\": \"No. 05-297\", \"first_page\": \"472\", \"last_page\": \"483\", \"citations\": \"162 P.3d 472\", \"volume\": \"162\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T18:00:20.314445+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.\", \"parties\": \"George Sanchez HERNANDEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"2007 WY 105\\nGeorge Sanchez HERNANDEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\\nNo. 05-297.\\nSupreme Court of Wyoming.\\nJuly 11, 2007.\\nRepresenting Appellant: Kenneth M. Ko-ski, State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel. Argument by Ms. Domonkos.\\nRepresenting Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Assistant Attorney General. Argument by Ms. Pojman.\\nBefore VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.\", \"word_count\": \"5981\", \"char_count\": \"36316\", \"text\": \"KITE, Justice.\\n[T1] A jury convicted George Sanchez Hernandez of attempted second degree murder for cutting William George Johnson's throat with a knife. On appeal, Mr. Hernandez claims the district court erred when it instructed the jury that use of a deadly weapon raised mandatory presumptions of an intent to kill and malice. He further claims prosecutorial misconduct occurred when the prosecutor told the jury during closing argument that the presumptions were authorized by Wyoming law. Finally, he claims other errors that occurred during the trial gave rise to cumulative error requiring reversal.\\nWe hold the mandatory presumption instructions were improper and were not harmless beyond a reasonable doubt. In the language of the plain error analysis, the instructions deprived Mr. Hernandez of a substantial right resulting in material prejudice. Therefore, we reverse Mr. Hernandez's conviction.\\nISSUES\\nMr. Hernandez states the issues as follows:\\nISSUE I:\\nWhether the district court committed reversible error when it instructed the [jury] with two mandatory presumptions.\\nISSUE II:\\nWhether prosecutorial misconduct occurred when the prosecutor misstated and misled the jury on the law.\\nISSUE III:\\nWhether cumulative error occurred in appellant's trial.\\nThe State phrases the issues as follows:\\nI. Was appellant prejudiced by Instructions 13 and 17 or the prosecutor's reference to them?\\nII Does cumulative error exist in this case?\\nFACTS\\n[T4] On November 3, 2004, Mr. Johnson and Mr. Hernandez were at the home of Wayne and Diana Scheuerman in Worland, Wyoming. Lenna Chapa was also present. Testimony was presented at trial indicating all of those present were drinking alcohol throughout the day and were intoxicated.\\nFriction arose between Mr. Johnson and Mr. Hernandez because of comments Mr. Hernandez was making about Mr. Johnson's girlfriend, Patty Nelson, who was not present. Two or three times, Mr. Johnson rose from his chair, went over to Mr. Hernandez and \\\"head-butted\\\" him. During one of the altercations, Mr. Johnson fell over and smashed a coffee table. Ms. Scheuerman called the police and requested they come and remove Mr. Johnson from her home. Mr. Scheuerman arrived home at the same time and took Mr. Johnson outside to calm him down. When a police officer arrived, Mr. Scheuerman told him that Mr. Johnson could stay and he would address the issue with his wife.\\n[T6] After the police officer left, Mr. Scheuerman and Mr. Johnson went back into the house and joined the others in the living room. The testimony presented at trial varied as to what happened next. Ms. Scheuer-man testified Mr. Hernandez rose from the couch and approached Mr. Johnson, saying \\\"I'm probably going to the pen, or I probably got a free ticket to the pen.\\\" She testified she did not see a knife but the next thing she knew there was blood coming from Mr. Johnson's neck. Mr. Johnson testified Mr. Hernandez approached him, he felt like he had been punched, and then he noticed blood on his hand. He touched his neck and there was more blood. Mr. Scheuerman testified that when he and Mr. Johnson came back into the house Mr. Johnson slapped Mr. Hernandez in the head or kicked him. Then Mr. Johnson sat down and Mr. Hernandez rose, moved toward Mr. Johnson and \\\"tried to hit him with a knife.\\\" Mr. Scheuerman testified he did not actually see Mr. Hernandez cut Mr. Johnson's throat, but Mr. Johnson was not bleeding before and blood was dripping from his neck after Mr. Hernandez approached him.\\n[T7] Ms. Chapa testified she had gone into the kitchen and did not see what happened but saw blood on Mr. Johnson's neck as she and Mr. Hernandez left the residence together. Mr. Scheuerman told Mr. Johnson he needed to get him to the hospital and they left. At the hospital, a doctor performed surgery on Mr. Johnson's neck and carotid artery.\\n[T8] Emergency room personnel called the police and reported that Mr. Johnson had been stabbed. Police went to the hospital and spoke with Mr. Johnson who indicated he had been stabbed by a Hispanic man named George at the Scheuerman residence. Police went to the home and spoke with Ms. Scheuerman. They found Mr. Hernandez across the street and arrested him. Later, they found a knife sheath on the floor in the living room next to where witnesses said Mr. Hernandez was sitting and a knife under magazines on a table nearby. Mr. Hernandez was arrested and charged with attempted second degree murder in violation of Wyo. Stat. Ann. \\u00a7 6-1-8301 and 6-2-104 (Lexis-Nexis 2005).\\nA jury trial was convened in district court in Washakie County on July 12, 2005. Mr. Hernandez's defense was that he was too intoxicated to form the specific intent necessary to support a conviction of attempted second degree murder. Prior to submitting the case to the jury for deliberations, the district court instructed the jury on the applicable law. Among the instructions given were an instruction on Mr. Hernandez's intoxication defense and instructions telling the jury that use of a deadly weapon gave rise to presumptions of intent to kill and malice. In its closing argument, the State told the jury the presumptions were authorized by Wyoming law. After deliberating for less than one hour, the jury returned a verdict of guilty against Mr. Hernandez on the charge of attempted second degree murder. The district court sentenced Mr. Hernandez to twenty to twenty-two years in the Wyoming State Penitentiary with credit for 324 days served.\\nDISCUSSION\\n1. Jury Instructions\\n[110] Mr. Hernandez claims plain error occurred when the district court gave the jury the following instructions proposed by the State:\\nINSTRUCTION NO. 13\\nUse of [aldeadly weapon gives rise to [a] presumption of intent to kill.\\nINSTRUCTION NO. 17\\nUse of [aldeadly weapon in a deadly and dangerous manner raises [a] presumption of malice.\\nMr. Hernandez asserts these instructions violated his due process rights because they contained mandatory presumptions telling the jury that if it found he used a deadly weapon it must find malice and intent, improperly relieving the State of its burden of proving every element of the crime charged. Defense counsel did not object to the proposed jury instructions about which Mr. Hernandez complains. Therefore, the plain error standard applies and Mr. Hernandez must show: 1) the claimed error clearly appears in the record; 2) the error violated a clear and unequivocal rule of law in an obvious way; and 8) he was deprived of a substantial right resulting in material prejudice.\\n[T11] It is established law in this Court and the United States Supreme Court that the State is required to prove every element of a criminal offense beyond a reasonable doubt, and jury instructions containing any presumption that a reasonable juror may read as mandatory are prohibited. Krucheck v. State, 671 P.2d 1222, 1224 (Wyo.1983); Sandstrom v. Montana, 442 U.S. 510, 512, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). In Sandstrom, the defendant was charged with deliberate homicide and the jury was instructed that \\\"the law presumes that a person intends the ordinary consequences of his voluntary acts.\\\" The Court held the instruction violated the Fourteenth Amendment because the jurors may have interpreted it either as shifting the burden to the defendant to prove he did not intend to kill, or requiring them to find intent upon proof by the State that the defendant caused the victim's death. Because either interpretation would have deprived the defendant of his right to due process, the Court held the instruction was unconstitutional and reversed the conviction.\\n[\\u00b612] In Krucheck, this Court was asked to decide whether an instruction nearly identical to Instruction No. 17, the presumption of malice instruction given in Mr. Hernandez's case, was improper. We reversed the defendant's conviction, holding the trial court erred in giving the instruction without contemporaneously instructing the jury that the State must prove the existence of malice beyond a reasonable doubt. We held the failure to give the contemporaneous instruction violated W.R.E. 303(c) and the Fourteenth Amendment to the United States Constitution. - Krucheck, 671 P.2d at 1223-24.\\n[\\u00b613] Rule 303(c) provides:\\nWhenever the existence of a presumed fact against the accused is submitted to the jury, the court shall instruct the jury that it may regard the basic facts as sufficient evidence of the presumed fact but is not required to do so. In addition, if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the court shall instruct the jury that its existence, on all the evidence, must be proved beyond a reasonable doubt.\\n(emphasis added). We said in EKrucheck, 671 P.2d at 1223-24, that the rule required the trial court to explicitly tell the jury that the presumption was permissive, not mandatory, and that the existence of malice had to be proven beyond a reasonable doubt. \\\"The intent of the rule is to tell the jury that they are not bound by the presumption and that it is therefore rebuttable.\\\" Brooks v. State, 706 P.2d 664, 667-68 (Wyo.1985).\\n[\\u00b614] Citing Sandstrom, we also said in Erucheck, 671 P.2d at 1224:\\n[The Fourteenth Amendment requires states to \\\"prove every element of a erimi-nal offense beyond a reasonable doubt.\\\" This principle . prohibitls] not only a mandatory presumption, but any presumption which a reasonable juror may read as mandatory.\\nBecause the instruction given in Krucheck did not tell the jury the presumption was permissive, we held it violated the Fourteenth Amendment. We said, \\\"When a jury is authorized to make use of presumptions, it must be informed that it may refuse to use them.\\\" Id. at 1225.\\n[\\u00b615] As in Krucheck, neither the malice instruction nor any other instruction told the jury in Mr. Hernander's case that the presumption was not mandatory and it could refuse to apply it. The malice instruction clearly violated W.R.E. 803(b) and the Fourteenth Amendment. The intent instruetion likewise authorized the jury to make use of the presumption but failed to inform the jury it was not required to do so. Therefore, the intent instruction violated W.R.E. 303(b) and the Fourteenth Amendment.\\n[\\u00b616] Given the clearly established law, the State concedes Mr. Hernandez has satisfied the first two elements of the plain error standard because the claimed error appears clearly in the record and the district court violated a clear rule of law in giving the instructions. The State contends, however, that Mr. Hernandez cannot show the instructions deprived him of a substantial right resulting in material prejudice.\\n[\\u00b617] This Court has not previously addressed the material prejudice part of the plain error test in a case involving a jury instruction containing an unconstitutional mandatory presumption. In Krucheck, the defendant objected to the instruction and so we did not apply the plain error test. In Brooks, there was no objection because the jury instruction containing the alleged presumption was offered by the defense. Additionally in Brooks, upon considering the instruction in its entirety we concluded there was no error because there was no possibility the jury could have believed it was required to make the presumption. Brooks, 706 P.2d at 668. In Merchant v. State, 4 P.3d 184, 190 (Wyo.2000) and Ellison v. State, 3 P.3d 845, 849 (Wyo.2000), we likewise concluded the instructions were not erroneous because they did not create mandatory presumptions.\\n[\\u00b618] Looking to federal cases, the Tenth Cireuit Court of Appeals has said the analysis is the same under either plain or harmless error-the court must evaluate the effect of the error on the reliability of the jury verdict. United States v. Wiles, 102 F.3d 1043, 1055 (10th Cir.1996). That is, the error must be quantitatively assessed in the context of the evidence presented to determine whether it was harmless beyond a reasonable doubt. This is essentially the same test we applied in Krucheck, 671 P.2d at 1225, where we held the error was not harmless beyond a reasonable doubt because it was reasonable to conclude the jury may not have convicted the defendant of second degree murder if it had known the presumption was not mandatory.\\n[\\u00b619] After this Court's decision in Kry-check, the United States Supreme Court decided Yates v. Evatt, 500 U.S. 391, 403-04, 111 S.Ct. 1884, 114 LEd.2d 482 (1991), in which it elaborated on the test for determining error in the context of jury instructions containing mandatory presumptions. The Court said:\\nTo say that an error did not contribute to the verdict is . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. Thus, to say that an instruction to apply an unconstitutional presumption did not contribute to the verdict is to make a judgment about the significance of the presumption to reasonable jurors, when measured against the other evidence considered by those jurors independently of the presumption.\\n[T20] The process under Yates for arriving at a judgment about the presumption's significance to the jurors involves two steps. First, the court asks what evidence the jury actually considered in reaching its verdict. Id. at 404, 111 S.Ct. 1884. Second, the court weighs the probative force of that evidence against the probative force of the presumption standing alone. Id.\\nIt will not be enough that the jury considered evidence from which it could have come to the verdict without reliance on the presumption. - Rather, the issue . is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption. Since that inquiry cannot be a subjective one into the jurors' minds, a court must approach it by asking whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption. It is only when the effect of the presumption is comparatively minimal to this degree that it can be said . that the presumption did not contribute to the verdict.\\nId. at 405-06, 111 S.Ct. 1884. As part of this analysis, it is crucial to ascertain from the trial court's instructions that the jurors, as reasonable persons, would have considered the entire trial record. Id. at 406, 111 S.Ct. 1884.\\n[\\u00b621] Applying this test in Yates, the United State Supreme Court held that it could not conclude beyond a reasonable doubt that the presumption instructions had not contributed to the jury's finding of intent to kill. In Yates, two men, Yates and Davis, were involved in the armed robbery of a store during which Davis killed the store proprietor's mother and then Davis was killed. Yates was charged as an accomplice to murder as a result of the woman's death. In order to find Yates guilty as an accomplice to murder, the State had to prove Davis intended to kill the woman. The Court reviewed the record and determined:\\nThe most that can be said with certainty was that [the woman] joined the struggle between Davis and [the proprietor] and was stabbed during the course of it. She could have been killed inadvertently by Davis, and we cannot rule out that possibility beyond a reasonable doubt.\\nIn sum, the evidentiary record simply is not clear on Davis' intent to kill the victim. Without more, we could not infer beyond a reasonable doubt that the presumptions did not contribute to the jury's finding of Davis' intent to kill [the woman] and to the ensuing verdict of petitioner's guilt as Davis' accomplice.\\nYates, 500 U.S. at 411, 111 S.Ct. 1884.\\n[\\u00b622] Applying the Yates test to the error in Mr. Hernandez's case, we begin by asking what evidence the jury considered in reaching its verdict. We presume the jury considered the following testimony: there had been friction between Mr. Hernandez and Mr. Johnson throughout the day and Mr. Johnson had physically assaulted Mr. Hernandez two or three times.\\\" When Mr. Johnson came back into the room after the coffee table altercation, Mr. Hernandez rose from his chair and crossed the room toward him. As Mr. Hernandez approached Mr. Johnson, Mr. Hernandez had a knife and said something to the effect that he would be going to the penitentiary. Immediately after Mr. Hernandez approached him, Mr. Johnson began bleeding from his throat and Mr. Scheuerman quickly determined he needed to take Mr. Johnson to the emergency room. The emergency room doctor testified that Mr. Johnson had a laceration from his ear down through his neck to the bottom of his throat that almost completely severed the carotid artery, one of the main arteries to the brain-an injury which would have left Mr. Johnson dead in less than an hour without medical attention. Mr. Hernandez had been drinking throughout the day, and when police arrested him an hour or so after the incident, he was intoxicated to the point that his speech was slurred and he staggered as he was placed in handcuffs.\\n[\\u00b623] Turning to the second part of the Yates test, we weigh the probative force of the evidence against the probative force of the presumption standing alone. The question we ask is: was the force of the evidence presumably considered by the jury in accordance with the instructions so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption? Yates, 500 U.S. at 405, 111 S.Ct. 1884. In answering this question we must ascertain whether the trial court instructed the jurors to consider the entire trial record in reaching a verdict. Id. at 406, 111 S.Ct. 1884. 'We consider the jury instructions as a whole without singling out individual instructions or parts of instructions. Ellison, 3 P.3d at 849.\\n[\\u00b624] Prior to submitting the case to the jury for deliberations, the trial court instructed the jury that it was tasked with weighing and considering all of the evidence presented. The court also instructed the jury that at all times in the proceedings the State had the burden of proving the defendant's guilt beyond a reasonable doubt as to each element of the offense. The court instructed the jury that if it found a reasonable doubt upon any single element of the charged crime, it had to find the defendant not guilty.\\n[\\u00b625] Concerning the charged offense of attempted second degree murder, the court instructed the jury that it should find Mr. Hernandez guilty if it found that, with the intent to commit second degree murder, he did any act which was a substantial step toward committing the crime of second degree murder. The jury also was instructed that a person who purposely and maliciously, but without premeditation, kills a human being is guilty of second degree murder. With these instructions, the jury was again admonished that if it found from the evidence that any of the elements were not proved beyond a reasonable doubt, it should find the defendant not guilty.\\n[T26] The jury was also instructed that an attempt is an effort or endeavor to accomplish a crime, involving more than preparation or planning, which if not prevented would have resulted in consummation of the act attempted. The jury was instructed on the meaning of deadly weapon and that use of one gives rise to a presumption of intent to kill and malice. Finally, the court instructed the jury that it was not to single out any individual instruction but to consider all of the instructions together, regarding each in light of the others.\\n[\\u00b627] We conclude that the force of the evidence presumably considered by the jury in accordance with the court's instructions was not so overwhelming to leave it beyond a reasonable doubt that the verdict would have been the same without the presumptions. Given the evidence, the most that can be said with certainty is that Mr. Hernandez assaulted Mr. Johnson with a deadly weapon and caused serious injury. The evidence does not show beyond a reasonable doubt that Mr. Hernandez had the specific intent to kill Mr. Johnson. We cannot conclude beyond a reasonable doubt that the jury would have convicted Mr. Hernandez of attempted second degree murder in the absence of instructions that the jurors could have understood required them to find malice and intent from the fact that Mr. Hernandez used a deadly weapon. Stated in terms of the plain error analysis, Mr. Hernandez has shown the error in giving the instructions deprived him of his right to due process resulting in material prejudice.\\n[T28] Our conclusion is strongly influenced by another factor requiring discussion. As mentioned above, Mr. Hernandez's defense focused on proving that he was too intoxicated to form the intent to commit attempted second degree murder or attempted voluntary manslaughter. The jury was instructed on this defense as follows:\\nEvidence has been introduced tending to show that at the time the crime . was allegedly committed, the defendant was suffering from self-induced intoxication.\\nSelf-induced intoxication is a defense to the crime of attempted second degree murder and attempted voluntary manslaughter if the defendant was intoxicated to such a degree that he was unable to formulate the intention to commit the felony of attempted second degree murder or attempted voluntary manslaughter. \\\"ood ook\\nAccordingly, if you find that the defendant . was suffering from self-induced intoxication to such a degree that there is a reasonable doubt in your minds whether the defendant possessed the mental ability to form the intention to commit the felony of attempted second degree murder, or attempted voluntary manslaughter, then you should find the defendant not guilty....\\nThe difficulty with the mandatory presumption instructions is that they told the jury it must find intent and malice if it found Mr. Hernandez used a deadly weapon. If the Jurors followed those instructions, they may have concluded they had to disregard the theory of defense instruction.\\n[T29] Due process requires the trial court to give a correct instruction to the Jury that details the defendant's theory of the case when the theory is supported by competent evidence and is recognized by statute or case law. Holloman v. State, 2002 WY 117, 15, 51 P.3d 214, 219 (2002). This Court has recognized that intoxication is a defense to a specific intent crime. Wilks v. State, 2002 WY 100, 21, 49 P.3d 975, 984-85 (2002). An \\\"attempt\\\" is a \\\"specific intent\\\" crime. Reilly v. State, 2002 WY 156, 8, 55 P.3d 1259, 1262 (2002). Thus, Mr. Hernandez was entitled to have the jury instructed on this theory that he was too intoxicated to form the intent to commit the offense of attempted second degree murder if there was competent evidence to support the theory.\\n[T 30] The testimony was that all of those present at the Scheuerman home were drinking throughout the day. Ms. Chapa testified that she and Mr. Hernandez arrived at the Scheuerman house mid-morning. She testified Mr. Hernandez had been drinking before they got there and continued to drink throughout the day. She testified that she saw Mr. Hernandez drink somewhere between six and twelve beers and that he was \\\"pretty buzzed\\\" by the time they left. Ms. Scheuerman testified that Mr. Hernandez was drunk. Sergeant Tom Brase of the Worland Police Department testified that when he arrested Mr. Hernandez, he was \\\"inebriated to the point it was causing him to stagger, slur his speech. He was drunk.\\\" Sergeant Brase testified that he had to hold the handcuffs he had placed on Mr. Hernandez to steady him in order to get him into the patrol car.\\n[\\u00b631] Despite competent evidence of his intoxication, we do not know whether the Jurors considered Mr. Hernander's theory of defense in light of the instructions telling them they were required to find malice and intent if they found Mr. Hernandez used a deadly weapon. Thus, the instructions potentially deprived Mr. Hernandez of his defense. Under the cireumstances, we cannot conclude that the error in giving the mandatory presumption instructions, without also instructing the jury that it was not required to find the presumptions, was harmless beyond a reasonable doubt.\\n2. Prosecutorial Misconduct\\n[T82] Mr. Hernandes also claims the prosecutor committed misconduct when he incorrectly told the jury during his closing argument that this Court has held that use of a deadly weapon raises the presumption of intent and malice. No objection was made to the prosecutor's remarks; therefore, we review them for plain error. The State responds by asserting that the prosecutor's remarks did not constitute misconduct because they were phrased in permissive, rather than mandatory, language.\\n[\\u00b633] In his closing argument, the prosecutor made the following statements:\\n[The Wyoming Supreme Court has stated that you can make certain presumptions based on the actions of someone. They stated that use of a deadly weapon, clearly a knife is a deadly weapon, it can-you all know that a knife can kill someone, and it's reasonable to assume that Mr. Hernandez knew that if he cut somebody's throat that he could very well kill them. And in this case he came very, very, very close, within a half hour of actually killing Mr. Johnson.\\nBut the use of a deadly weapon gives rise to the presumption of the intent to kill. So I think you can presume that Mr. Hernandez, by using a knife on Mr. Johnson's throat, intended to kill him.\\nAnd also in determining malice, the Supreme Court in the State of Wyoming has also said that you can use another presumption to determine if malice was present, and that is the use of a deadly weapon, which we have in this case, the use of a knife, in a deadly and dangerous manner raises a presumption of malice.: So if someone uses a deadly weapon in a deadly and dangerous manner you can find malice....\\nWhether or not the prosecutor's remarks were stated in permissive language, the instructions themselves told the jurors that they were required to find the presumptions upon finding Mr. Hernandez used a deadly weapon. Plain error occurred in giving the instructions and it was plain error for the prosecutor to argue them.\\n3. Cumulative Error\\n[\\u00b635] Mr. Hernandez asserts other errors occurred at trial that, when combined with the error in the jury instructions and the prosecutor's closing remarks, constituted cumulative error depriving him of a fair trial. Our holding that it was plain error to give the mandatory presumption instructions is determinative of the appeal. However, we address Mr. Hernandez's cumulative error claim because retrial is a possibility and these same questions may arise again.\\n[\\u00b636] Mr. Hernandez's cumulative error argument is based on three additional alleged errors: first, a police officer called by the State commented during his testimony on Mr. Hernanderz's right to remain silent; see-ond, the trial court admitted into evidence a knife that was not connected by forensic testing to the stabbing; and, third, the trial court failed to instruct the jury on the elements of the lesser included offense of attempted voluntary manslaughter. We address each of these alleged errors separately.\\n[\\u00b637] The State called Sergeant Brase to testify about his involvement in the investigation after receiving the report from the hospital that Mr. Johnson had been stabbed. On redirect, the following exchange occurred:\\nQ. Sergeant, when you dealt with Mr. Hernandez was he rational?\\nA. He knew that he was being placed under arrest, yes.\\nHe knew what was going on? \\u00a9\\nYes, he invoked his Miranda rights when I advised him of his Miranda, and he said he didn't want to talk to me, wanted to remain silent. p\\nQ. Nothing further.\\nDefense counsel did not object to the testimony. This exchange followed defense counsel's cross-examination of Sergeant Brase during which counsel attempted to show that Mr. Hernandez was intoxicated to a degree that he was staggering and slurring his speech when Sergeant Brase arrested him an hour after the stabbing.\\n[T38] In addressing claims of improper comment on the right to silence, we evaluate the entire context in which the statements were made and consider whether the prosecutor asked improper questions, emphasized or followed up on the silence issue, or attempted to exploit the issue in any way. Abeyta v. State, 2008 WY 186, 112, 78 P.3d 664, 667-68 (2003).\\nA prosecutor does not \\\"comment\\\" on a defendant's exercise of his right to silence where he does not attempt to use the silence to the state's advantage, where he does not argue to the jury that the silence was evidence of guilt or an admission of guilt, and where the defendant does not show any prejudice. Material prejudice is shown only where there is a reasonable possibility that the verdict would have been more favorable to the defendant if the evidence or prosecutorial comment had not been allowed.\\nId., \\u00a714, 78 P.3d at 668 (citations omitted).\\n[T39] From the entire context in which Sergeant Brase's testimony was given, it is clear the prosecutor's question was not improper. He was attempting to establish only that Mr. Hernandez appeared to be sufficiently sober to understand what was happening at the time of his arrest to refute the intoxication defense. When Sergeant Brase responded with the comment that Mr. Hernandez invoked his Miranda rights and wanted to remain silent, the prosecutor ceased his questioning. He did not mention Sergeant Brase's comment in closing argument. Mr. Hernandez bas failed to show material prejudice resulted from the comment.\\n[T40] After Mr. Hernanderg's arrest, police offers obtained a search warrant and searched the Schenerman residence. They found a knife under some magazines on an end table next to the couch in the living room. During the trial, the trial court admitted the knife into evidence over defense counsel's objection that there had been no showing that it was connected to the alleged stabbing other than the fact that it was found in the home where the stabbing occurred. Mr. Hernandez claims the trial court erred in admitting the knife.\\n[T4l] Rulings on the admission of evidence are within the sound discretion of the trial court. Sanches v. State, 2006 WY 116, 120, 142 P.3d 1134, 1140 (2006). In order to successfully challenge such a ruling on appeal, an appellant must show that the trial court abused its discretion. Id. We give a trial court's rulings on the admissibility of evidence considerable deference and will not disturb such a ruling as long as a legitimate basis exists for the ruling. Id.\\n[T 42] The knife which is the basis of Mr. Hernander's claim of error was found by police during their search of the Scheuerman home. Officer Brad Horath testified it was found on an end table in the vicinity of where Mr. Hernandez was sitting in the living room where the stabbing occurred. Defense counsel objected to its admission on relevance grounds.\\n[\\u00b648] Relevant evidence is evidence haying any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less than it would be without the evidence. W.R.E. Rule 401. All relevant evidence is admissible. W.R.E. Rule 402. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. W.R.E. Rule 408.\\n[T44] The only basis for defense counsel's objection was that there was nothing connecting the knife to the stabbing other than the location where it was found. Presumably, the trial court found the location of the knife in the living room of the home where the stabbing occurred sufficient to make it relevant. We defer to the trial court and will not disturb its ruling because we conclude a legitimate basis existed for the ruling. Officer Horath's testimony that there was no blood on the knife, no testing for fingerprints was performed and there was nothing connecting the knife to the injuries suffered by Mr. Johnson was fertile ground for cross-examination; his testimony was not, however, grounds for excluding the knife on the basis of relevancy.\\n[\\u00b645] Mr. Hernandeg's final claim of error is that the jury was not instructed on the elements of the lesser included offense of attempted voluntary manslaughter. Although defense counsel offered an elements instruction, he did not object when the trial court failed to give the proposed instruction. Therefore, we review his claim for plain error.\\n[\\u00b646] In Cutbirth v. State, 663 P.2d 888 (Wyo.1983), the defendant was charged with and convicted of second degree murder. He claimed plain error occurred because the trial court incorrectly instructed the jury on the elements of the lesser included offense of involuntary manslaughter. Specifically, the court's instruction incorrectly suggested that intent was an element of the lesser included offense. We stated: \\\"It is difficult to see how a deficient instruction on a lesser offense upon which there was no conviction could be plain error.\\\" Id. at 892. We also said:\\nThe court instructed the jury on the statute and elements of second degree murder, and defined purposely, maliciously and premeditation, words which appear in the second degree murder statute. The court also instructed the jury that if it did not find appellant guilty of second degree murder, it must proceed to determine guilt or innocence of any lesser included offense, one of which is involuntary manslaughter. In this case, then, the jury did not consider involuntary manslaughter, nor did it need to read the instructions pertaining to that lesser included offense....\\nAppellant has alleged instructional error on something that the jury did not consider or need to consider. There is no merit in this assignment of error.\\nId.\\n[T47]l As in Cutbirth, the jury in Mr. Hernandez's case was instructed on the statute and elements of second degree murder. The trial court also instructed the jury that if it did not find Mr. Hernandez guilty of second degree murder, it could find him guilty of the lesser offense of attempted voluntary manslaughter. Because the jury determined that Mr. Hernandez was guilty of attempted second degree murder, it did not consider the lesser offense. Mr. Hernandez has not shown he was materially prejudiced by the instruction. In the event of a re-trial, however, the lesser included offense instruction should include the elements the jury must find in order to conviet on the attempted voluntary manslaughter charge.\\nCONCLUSION\\n[\\u00b648] The trial court erred when it instructed the jury that use of a deadly weapon raises a presumption of malice and intent to kill without also instructing the jury it was not required to find the presumptions and the State still had to prove intent and malice beyond a reasonable doubt. We are unable to conclude beyond a reasonable doubt that the jury would have convicted Mr. Hernandez of attempted second degree murder in the absence of the erroneous instructions. The error affected Mr. Hernandez's substantial right and resulted in material prejudice. Therefore, we reverse his conviction and remand for further proceedings consistent with this opinion.\\n. This is not to suggest there is no difference between plain and harmless error. As the Court stated in United States v. Wiles, 102 F.3d 1043, 1055 (10th Cir.1996), one important difference is that the State has the burden of proving harmless error, while the defendant has the burden of proving plain error.\"}"
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+"{\"id\": \"8356030\", \"name\": \"Marco Pedro LEMUS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff)\", \"name_abbreviation\": \"Lemus v. State of Wyoming\", \"decision_date\": \"2007-07-17\", \"docket_number\": \"No. 06-68\", \"first_page\": \"497\", \"last_page\": \"512\", \"citations\": \"162 P.3d 497\", \"volume\": \"162\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T18:00:20.314445+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.\", \"parties\": \"Marco Pedro LEMUS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"2007 WY 111\\nMarco Pedro LEMUS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\\nNo. 06-68.\\nSupreme Court of Wyoming.\\nJuly 17, 2007.\\nRepresenting - Appellant: - Daniel G. Blythe and Karen Ashcraft Byrne, Cheyenne, Wyoming. Argument by Ms. Byrne.\\nRepresenting Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehu-rek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and James Michael Causey, Assistant Attorney General. Argument by Mr. Causey.\\nBefore VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.\\nOrder allowing Daniel G. Blythe to withdraw entered on Nov. 15, 2006.\", \"word_count\": \"9380\", \"char_count\": \"55903\", \"text\": \"HILL, Justice.\\nAppellant, Marco Pedro Lemus (Le-mus), challenges his convictions for first degree felony murder (murder committed during the course of a robbery ) and conspiracy to commit aggravated robbery. We will affirm.\\nISSUES\\nLemus raises these issues:\\n1. Uncharged evidence was improperly presented to the jury when the State showed the jury a video without redacting evidence of other crimes.\\n2. The pathologist's testimony was improperly admitted without adequate foundation when he was not the pathologist who performed the autopsy.\\n3. The prosecutor's remarks in closing argument constituted impermissible prose-cutorial misconduct when he professed a belief that he had put on enough evidence to indicate guilt.\\n4. It was improper not to allow and pay for [Lemus] to have his own expert witnesses.\\n5. If the prosecutor used fake pictures and allowed perjured testimony to be presented, then a new trial should be granted.\\n6. It was error for the trial court not to allow [Lemus] to talk with the alleged co-conspirators.\\n7. If the trial court were not allowing [Lemus] to issue his own trial subpoenas, error was created.\\n8. It was error for the trial court to deny [Lemus's] motion for a change of venue.\\n9. [Lemus] maintains that jury selection was improperly conducted.\\n10. [Lemus] maintains the prosecutor improperly threatened and intimidated witnesses.\\n11. The prosecutor's opening statement was improper when he announced he would call several witnesses and then did not call them.\\n12. Insufficient evidence was produced to sustain a conviction of conspiracy.\\nThe State has reorganized the issues into five categories:\\nI. The prosecutor did not commit misconduct, sufficient to warrant reversal of [Le-mus's] convictions, in his opening and closing arguments, in his alleged threatening and intimidation of witnesses, or in his alleged use of \\\"fake pictures\\\" and perjured testimony.\\nII. The district court did not hinder (Le-mus's] right to present his defense when it allegedly did not offer him experts to assist with his defense, allegedly refused to allow him to speak with his coconspirators, and allegedly refused to allow him to issue his own subpoenas.\\nIII. The district court did not commit error in allowing [Lemus's] videotaped confession-which [Lemus] insists contained W.R.E. 404(b) evidence-to be played in its entirety, or in allowing the admission of testimony from Dr. Robert Deters concerning the nature of the vie-tim's wounds. -\\nIV. The district court did not interfere with [Lemus's] right to a trial by an impartial jury when it denied his motion for change of venue, or in its method of jury selection.\\nV. Sufficient evidence supported [Le-mus's] conviction for conspiracy to commit aggravated robbery.\\nFACTS AND PROCEEDINGS\\nGeneral Matters\\n[T3] When the proceedings in this case were initiated, Lemus was represented by a public defender. Later in the proceedings, he undertook to represent himself at the pretrial proceedings and during his jury trial. He was assisted by standby counsel. As is so often the result in cases where a defendant chooses to represent himself, this case became somewhat muddled because of Le-mus's performance as his own attorney, as well as because of other cireumstances related to Lemus's family and codefendants. No claim is made in this appeal that the district court erred in its rather thorough effort to warn Lemus of the dangers and disadvantages of representing himself.\\n[T4] This is the third in a series of cases that arose out of the robbery and murder of Manuel Leon-Leyva, in Lincoln County, in February of 2004. See Rawle v. State, 2007 WY 59, 155 P.3d 1024 (Wyo.2007); and Talley v. State, 2007 WY 37, 153 P.3d 256 (Wyo. 2007). Although we will, of course, rely only upon the evidence presented at Lemus's trial in resolving whether or not the evidence was sufficient in his case, we provide this summary of the evidence taken from the Rawle case for purposes of background, clarity, and structure in addressing the issues raised by Lemus.\\nIn early February of 2004, Mr. Rawle departed from South Dakota with his girlfriend, Eyvette Talley, and her three children, along with Ms. Talley's brother, Mar-eco Lemus, his wife, Tiffany Lemus, and their three children. The group traveled in a 1989 Cadillac and headed to Arizona. They passed through Wyoming and planned a stop in Kemmerer, Wyoming, where Mr. Rawle had a connection with a drug dealer that he had established when he was previously employed in the area. At some point during their trip, Mr. Le-mus, Ms. Talley, and Mr. Rawle devised a plan to rob the drug dealer, Manuel Leon-Leyva.\\nWhen they arrived in Kemmerer, Mr. Rawle contacted Mr. Leon-Leyva and requested that they meet for a drug transaction at a local grocery store. Mr. Lemus, Ms. Talley, and Mr. Rawle armed themselves with steak knives. They left Mrs. Lemus and the children in the Cadillac to meet Mr. Leon-Leyva, who arrived at the meeting location driving his vehicle. Mr. Leon-Leyva was then robbed and stabbed to death in his vehicle.\\nMr. Rawle drove Mr. Leon-Leyva's vehicle, followed by the Cadillac driven by Ms. Talley, to a remote location. The three perpetrators burned the victim's vehicle and body in an attempt to destroy the evidence of their crimes. The charred vehicle and remains were later discovered and an investigation ensued.\\nRawle, \\\\ 3-6, 155 P.3d at 1026.\\nOn June 14, 2004, a felony information was filed against Lemus, charging him with second-degree homicide. The State amended the information to include the charges for which he was convicted, as set out above. Lemus was living in Florida at the time of his arrest, and he waived extradition back to Wyoming on June 22, 2004. The Wyoming Public Defender was appointed to represent Lemus on August 20, 2004.\\nLemus appeared before the district court for arraignment on September 30, 2004, at which time his appointed public defender requested a mental health examination for his client (over Lemus's objections). On September 30, 2004, the district court suspended the proceedings and sent Lemus to the Wyoming State Hospital for an evaluation for the following purposes:\\n(ii) An opinion as to whether the accused has a mental illness or deficiency, and its probable duration;\\n(iii) An opinion as to whether the accused, as a result of mental illness or deficiency, lacks capacity to comprehend his position, to understand the nature and object of the proceedings against him, to conduct his defense in a rational manner and to cooperate with his counsel to the end that any available defense may be interposed;\\n(iv) An opinion as to whether at the time of the alleged criminal conduct the accused, as a result of mental illness or deficiency, lacked substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law;\\n(v) A recommendation as to whether the accused should be held in a designated facility for treatment pending determination by the court of the issue of mental fitness to proceed; and\\n(vi) A recommendation as to whether the accused, if found by the court to be mentally fit to proceed, should be detained in a designated facility pending further proceedings.\\nThe evaluation was received by the district court on November 24, 2004, and all questions were essentially answered in the negative.\\nIt is apparent from the record that there was conflict between Lemus and the attorney who was initially appointed to represent him. In part, this conflict arose because Lemus did not want a mental health evaluation. That attorney was permitted to withdraw, and a new public defender entered an appearance on Lemus's behalf on January 5, 2005. At first, Lemus very reluctantly agreed to allow that attorney to represent him.\\n[\\u00b68] On January 19, 2005, the State filed its notice of intent to use W.R.E. 404(b) evidence. The State was thorough in its advocacy for use of this sort of evidence:\\n1. Evidence that [Lemus] and the other co-defendants and alleged co-conspirators used controlled substances on their trip from Sioux Falls, South Dakota, to Kem-merer, Wyoming. This evidence will not be introduced to prove the character of a person in order to show that he acted in conformity therewith, but to prove motive, intent, preparation, and a common plan. Further, the State plans to use said evidence because it is part of a continuing course of conduct that includes the crimes charged in the information. Events do not oceur in a vacuum and jurors need to know about this uncharged conduct to realistically evaluate the evidence in this case. The jury has a right to hear what occurred immediately before and after the crime.\\n2. Evidence of various shopliftings that [Lemus] and co-defendants are alleged to have participated in between the time they left Sioux Falls, South Dakota, and arrived in Kemmerer, Wyoming, on the 6th day of February, 2004. Specifically the State intends to show that [Lemus] and co-defendants participated in shoplifting whereby the knives that were allegedly used to kill the victim were obtained. This evidence will not be introduced to prove the character of a person in order to show that he acted in conformity therewith, but to prove motive, intent, preparation, and a common plan. Further, the State plans to use said evidence because it is part of a continuing course of conduct that includes the crimes charged in the information. Events do not oceur in a vacuum and jurors need to know about this uncharged conduct to realistically evaluate the evidence in this case. The jury has a right to hear what occurred immediately before and after the charged crime.\\n3. The burning of the vehicle belonging to Manuel Leon-Leyva and also the burned body contained in that vehicle.\\nThis evidence will not be introduced to prove the character of a person in order to show that he acted in conformity therewith, but to prove motive, intent, preparation, and a common plan. Further, the State plans to use said evidence because it is part of a continuing course of conduct that includes the crimes charged in the information. Events do not occur in a vacuum and jurors need to know about this uncharged conduct to realistically evaluate the evidence in this case. The jury has a right to hear what occurred immediately before and after the crime.\\nThe State knew about this evidence from Lemus's confession. The State also gave notice of its intent to use hearsay evidence as provided for in W.R.E. 804(b)(6), specifically testimony from the victim's widow that her deceased husband told her that a person who turned out to be Rawle was in town the day the victim was murdered.\\n[T9] Lemus filed a motion for change of venue and the State responded to it, contending that it should not be considered unless it was not possible to seat an impartial jury. Eventually, the district court denied that motion and proceeded to jury selection. A jury was selected with dispatch and that process gave no sign that a change of venue was necessary. Thereafter, Lemus did not further pursue his request for a change of venue.\\n[T10] On January 24, 2005, Lemus's appointed public defender filed a notice that Lemus intended to represent himself in all additional proceedings and made a request to act as standby counsel only. On January 28, 2005, the presiding judge recused himself from Lemus's case because the judge's son was an assistant county attorney in Lincoln County. The case was then assigned to the Honorable Wade E. Waldrip, from the Second Judicial District (Carbon County). On February 22, 2005, Lemus waived his right to a speedy trial. An initial pretrial order setting a trial date in Carbon County was inadvertently sent out. At the first hearing on motions in the case, Judge Waldrip made clear that there had been no change of venue, that the indication that the trial was to be in Carbon County was an inadvertent error, and that the trial would be in Lincoln County, where the crime occurred.\\n[T11]l On May 3, 2005, Lemus filed approximately 62 motions asking that subpoenas be issued for witnesses for the defense. On that same date, he also filed approximately 20 substantive motions, including motions to suppress various statements he made to authorities, to suppress the mental evaluation from the State Hospital, to suppress the statements of other witnesses, for a Spanish interpreter because he intended to have many Spanish speaking witnesses, a motion for a gag order on himself and his co-defendants, and a motion to preclude his wife from testifying against him. The State provided individualized responses to all of these motions, as required by the district court. With respect to the motions for subpoenas, the State made clear that it understood that Lemus could request such subpoenas; however, the State reserved the right to object to them on the grounds of relevancy, competency, cumulativeness, or other applicable reasons. The district court also forewarned Le-mus that subpoenas would issue only if he demonstrated the relevancy of the proposed witnesses' testimony.\\n[\\u00b612] On June 38, 2005, the district court issued a scheduling order setting the trial in Lincoln County and acknowledging that Le-mus would be permitted to represent himself, with the public defender acting as standby counsel.\\n[\\u00b618] On June 22, 2005, Lemus filed 27 substantive motions which were, for the most part, duplicative of those filed in May. However, this set of motions included one for a team of expert witnesses. On that same date, he filed approximately 56 motions to subpoena witnesses for his defense, and most of those were also duplicative of the subpoenas requested in May. An additional 20 motions and petitions were filed in the district court by Lemus on August 1, 2005, and August 8, 2005. The State submitted its request for jury instructions and its lists of witnesses and exhibits on August 12, 2005. On August 12, 2005, Lemus filed two motions and a list of witnesses. On August 16 and 17, 2005, Lemus filed several hundred pages of documents that appeared to be his way of complying with the district court's pretrial order. At a hearing on motions held on August 23, 2005, the district court went through all of Lemus's motions and requests for subpoenas and heard argument on them and ruled on them, one by one.\\n[T14] As the time of trial approached, Lemus shortened his witness list considerably. However, as was the circumstance throughout this case, Lemus did not have a physical address for many of his selected trial witnesses. Instead, he provided a sort of metes and bounds description of a location, or a name of an employer, or just a city. In some instances, he provided no address whatsoever. The record reflects that extraordinary efforts were made to locate witnesses and serve subpoenas, but not all such efforts were successful.\\n[\\u00b615] On October 8, 2005, the day before Lemus's trial began, the district court held a final motions hearing to take care of last minute details. - However, much of that hearing was devoted to a sort of dress rehearsal of the trial procedures for the benefit of Mr. Lemus.\\nThe Evidence Presented at Lemus's Trial\\n[\\u00b616] On February 7, 2004, a pumper for EOG Resources was checking on wells near Exxon's Shute Creek facility in Lincoln County when he found a burnt vehicle with a dead human body in it. The vehicle had not been there when he was at that same site the day before. He also found a road map atlas near the burnt vehicle. That atlas was eventually tied to Lemus and his coconspirators. Cross-examination by Lemus revealed that the passenger door of the vehicle was open. This took on some significance as the trial progressed because, in his confession, Lemus related how his group had to return to the vehicle because they could see from their vantage point that the first fire they started in the vehicle had gone out. They figured out that the fire went out because it had no oxygen source. Thus, they returned to the vehicle and lit the fire again leaving two windows and the passenger door open. An investigating officer found a gas cap near the crime scene. That was significant because Lemus related that it was removed from Leon-Leyva's car so that they could try to get gas to use as an accelerant to hasten the ignition of the fire.\\n[\\u00b617] The body found in the vehicle was first identified by associating it with the owner of the burned vehicle, Manuel Leon-Ley-va. From Leon-Leyva's wife, it was ascertained that he had left home the night before to meet a friend he knew as \\\"Cowboy.\\\" The nickname \\\"Cowboy\\\" was later tracked to Brian Rawle. DNA tests established that the body in the burnt vehicle was that of Leon-Leyva.\\n[T18] It was not until the police received a phone call from Tiffany Lemus on June 11, 2004, that they identified Lemus as a suspect. - Lemus was arrested in Orlando, Florida on June 16, 2004, on unrelated charges (apparently instigated by his wife). While he was in custody on that matter, he was questioned by Deputy Sheriff John Stetzenbach from Lincoln County and Agent James T. Whinnery of the Wyoming Division of Criminal Investigation. The interview with Lemus was preserved on video tape and was played for the jury in its entirety. Lemus made no objection to the tape being shown in an unedited format to the jury.\\n[\\u00b619] There was no audio at the beginning of the tape, just Lemus pacing around in an interview room. Lemus insisted that he was praying at that time and that there should have been audio. The trial court, with the jury present, accepted Lemus's contention that he was praying and the viewing of the tape continued. In the video taped interview, Lemus admits many times that he was an active participant in the plan to rob Leon-Leyva and the actual murder of him, as well as the burning of his body.\\n[\\u00b620] Although there are a few points in the tape where the transcription is noted to be inaudible, our review of it established that nothing of apparent substance was inaudible. In addition, we note that Lemus talked at length about many things, some pertinent to the questions asked of him and some just volunteered information. Although what he had to say did not always make \\\"sense,\\\" we are satisfied that the vast majority of the tape was audible, and that the transcript in the record is an accurate repetition of the taped interviews.\\n[\\u00b621] We also note that Lemus believed, or feigned a belief, that the police officers were there to talk to him about his wife's claim that he was stalking her. After several minutes of bantering back and forth, the police officers redirected Lemus's attention to why they were there. Lemus seemed to know why they were there and initially he wanted to know where his wife was and indicated that he would talk with them, but first he wanted to know where his wife was, and later wanted to know exactly who told them about what had happened in Wyoming. Eventually, Lemus agreed that he would \\\"give it to you guys on a silver platter as long as we are all charged the same.\\\" Once the police officers told Lemus that it was his wife Tiffany that they had talked to, Lemus related that there were four of them involved: He was involved, his wife Tiffany was involved, his sister Eyvette Talley was involved, and Eyvette's boyfriend Brian Rawle was involved. They made a plan to contact Leon-Leyva and to rob him for the drugs and money he might have. That plan included that if anything \\\"goes bad,\\\" they were all going to cover it up together. They were all armed with steak knives, and it was also understood that if things \\\"went bad,\\\" they would kill Leon-Leyva. After stabbing him to death, they then drove Leon-Leyva's car into the countryside near Kemmerer and lit it afire.\\nDISCUSSION\\nChange of Venue\\n[T22] Lemus filed a motion for change of venue. That motion was never supported by either cogent argument or pertinent authority. As noted above in the facts section, Lemus thought he had been granted a change of venue because of an error in the district court's trial setting order. The ree-ord makes clear that it was an error, and that the district court did not intend to consider the motion for change of venue until after jury selection was completed.\\n[T23] We review the denial of a motion to change venue under the abuse of discretion standard. Urbigkit v. State, 2003 WY 57, 126, 67 P.3d 1207, 1220 (Wyo.2008). We employ this analytical process to that review:\\nCriminal defendants in Wyoming have a constitutional right to a trial by an impartial jury. Wyoming's constitutional provision grants the right to trial \\\"by an impartial jury of the county or district in which the offense is alleged to have been committed.\\\" Wyo. Const. art. 1, \\u00a7 10. The legislative provision mirroring the constitution requires \\\"[elvery criminal case shall be tried in the county in which the indictment or offense charged is found, except as otherwise provided by law.\\\" Wyo. Stat. Ann. \\u00a7 1-7-102(a) (LEXIS 1999). Trial proceedings are transferred to another county \\\"only if the court is satisfied that there exists within the county where the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial in that county.\\\" W.R.Cr.P. 21(a).\\nThis Court has adopted a two-part test for determining whether a change of venue should be granted after voir dire because of pre-trial publicity: \\\"'First, the nature and extent of the publicity must be considered; second, the difficulty or ease in selecting a jury must be considered along with the amount of prejudice which actually appears during voir dire examination. \\\" Sides [v. State], 968 P.2d [2274,] 2831 [ (Wyo. 1998) ] (quoting Murry [v. State ], 718 P.2d [202,] 208 [ (Wyo.1986) ]).\\nId., 127 (quoting Nizon v. State, 994 P.2d 324, 326-27 (Wyo.1999)); and see Schwenke v. State, 768 P.2d 1031, 1033 (Wyo.1989).\\n[T24]) Lemus made no attempt to demonstrate the level of pretrial publicity, although we will take note that this was a high profile crime in Lincoln County and that his code-fendants were also tried there before Lemus was. In neither of those cases was venue an issue on appeal. Rawle, 155 P.3d 1024; Talley, 153 P.3d 256. Sixty-five jurors were summoned for Lemus's trial. Of those, 12 had heard about the case in the media or from other sources, such as friends, co-workers, etc. Each of those jurors was closely examined. One juror expressed a view that he could not put aside the opinion that he had adopted (he was not asked what that opinion was). He was excused for cause. At the close of voir dire, Lemus passed the jury for cause and had no objections to the jury selection process.\\n[\\u00b625] We have applied the standard of review outlined above, and we conclude that the district court did not abuse its discretion in denying the motion for a change of venue.\\nChallenge to Jury Selection Process\\n[\\u00b626] 'We need not spend much additional time on this issue. At trial, Lemus had no objections to the jury selection process, and he passed the jury that was selected for cause. He exercised all of his peremptory challenges. We have carefully examined the voir dire and we find no irregularities of any sort. Lemus's brief fails to present cogent argument or pertinent authority that persuades us to examine this issue further. Seq, e.g., Statezny v. State, 2001 WY 22, 11, 18 P.3d 641, 644-45 (Wyo.2001). For these reasons, we conclude that the jury selection process was not erroneous in any way.\\nDefendant's Subpoenas\\n[\\u00b627] As a part of the lengthy and very complete warnings the district court gave Lemus with respect to disadvantages of representing himself at trial (with standby counsel), the district court specifically called Le-mus's attention to the cireumstance that the district court could not aid Lemus in subpoenaing witnesses, and that he would be required to demonstrate the relevance of the testimony of all proposed witnesses. Moreover, the trial court emphasized that it could not aid Lemus in arranging interviews with witnesses from his jail cell, or with witnesses who were incarcerated elsewhere.\\n[\\u00b628] We need not get too far beyond generalities in this regard, because the record supports only a conclusion that all the witnesses Lemus wanted to call either appeared voluntarily (with or without subpoena) or were summoned by means of subpoena. It is unquestioned that a defendant in a criminal case has a constitutional right to a fair trial, and that includes the right to summon witnesses in his defense. U.S. Const Amend. VI (\\\"... to have compulsory process for obtaining witnesses in his favor. .\\\"); Wyo. Const. art. 1, \\u00a7 10 (In all criminal prosecutions the accused shall have the right . to be confronted with the witnesses against him, to have compulsory process served for obtaining witnesses....\\\"). Wyo. Stat. Ann. \\u00a7 7-11-402 and 7-11-405 (LexisNexis 2007). It is, however, the defendant's burden to ensure that the witnesses he wants are summoned. 81 Am.Jur.2d Wi messes \\u00a7 4 (2004 and Supp.2006).\\n[\\u00b629] It is transparent in the record that Lemus's concept of a \\\"material witness\\\" was very broad. For instance, for reasons that Lemus did not articulate, he wanted to subpoena all the members of the Commission on Judicial Conduct and Ethics. The district court would not approve that. However, the district court did allow Lemus to subpoena an employee of the State Crime Lab whose testimony appeared to be relevant. In addition, the clerk of the district court in Lincoln County met with Lemus in his cell in an effort to further identify, locate, and serve Lemus's witnesses. See Jay M. Zitter, Annotation, Sufficiency of Evidence to Support or Require Finding that Out-of-State Witness in Criminal Case is \\\"Material Witness\\\" Justifying Certificate to Secure Attendance Under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, 12 ALR Ath 742 (1982 and Supp.2006); Jay M. Zitter, Annotation, Sufficiency of Evidence to Support or Require Finding that In-State Witness in Criminal Case is \\\"Material and Necessary\\\" Justifying Issuance of Summons Directing Attendance of Witness Under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, 12 A.L.R.4th 771 (1982 and Supp.2006); Romualdo P. Eelavea, Annotation, Right of Indigent Defendant Under Rule 17(b) of the Federal Rules of Criminal Procedure to Appearance of Witnesses Necessary to Adequate Defense, 42 A.L.R.Fed 283 (1979 and Supp.2006).\\n[\\u00b630] So far as the record shows, all witnesses who Lemus wanted to call were summoned. Even the many witnesses for whom Lemus could not provide a street/delivery address were sought and served, if possible. However, at no point in the record does Lemus complain that there was a witness, whose testimony was material to his trial, who he was unable to call to the witness stand. We have examined the record with care and find that the district court did not abuse its discretion in any way with respect to requiring the issuance of subpoenas on Lemus's behalf.\\nLemus's Contact with Coconspirators/Co-defendants\\n[\\u00b6381] It is evident from Lemus's brief that this particular issue, as well as many other issues, were raised in this appeal because he wanted them to be raised and not necessarily because they had any merit. In addition, contrary to an allegation stated in his brief, Lemus received copies of the tran-seripts of his codefendants' trials.\\n[\\u00b632] We conclude that, with respect to this issue, it suffices to note that neither in the trial court below, nor in this appeal, has Lemus articulated a desire to have his code-fendants called as witnesses, nor has he provided any cogent argument to suggest that the district court abused its discretion with respect to a request made by Lemus to communicate with his codefendants or to call them as witnesses on his behalf. See, e.g., Doles v. State, 2002 WY 146, 15, 55 P.3d 29, 31 (Wyo.2002).\\nLack of Expert Witnesses for Defense\\n[T33] As a general statement of the applicable rule, a defendant in a criminal case may be entitled to access to expert witnesses if there is a reasonable probability that an expert would aid in his defense and that the denial of an expert would result in an unfair trial. Such decisions rest in the sound discretion of the trial court. Wiliams v. Martin, 618 F.2d 1021 (4th Cir.1980); and see generally Ruby B. Weeks, Annotation, Right of Indigent Defendant in Criminal Case to Aid of State by Appointment of Investigator or Expert, 34 AL.R.S3d 1256, \\u00a7 2-4 (1970 and Supp 2007).\\n[\\u00b634] At trial, Lemus asked for expert witnesses. He had a theory of the case that he attempted to present to the jury, even though it was not supported by any testimony or other evidence. That theory was that he acted in self-defense when he killed Leon-Leyva. To a large extent, this theory was supported only by his \\\"assertion\\\" that Leon-Leyva attacked first, and not by testimony or other evidence to that effect. Lemus did not testify on his own. behalf. However, in many of his cross-examinations, Lemus suggested that what the witness had to say was not quite the truth, or at least not the whole truth, and Lemus knew that because he was there. As we will discuss in more detail in the final issue (sufficiency of the evidence), Lemus's confession, conjoined with other circumstantial evidence, sufficed to provide evidence of all the elements of the crimes for which he was convicted. The confession did not intimate in any way that he acted in self-defense, but only that when the Le-mus/Rawle/Talley threesome tried to effectuate the robbery plan, Leon-Leyva ferociously fought back. Another prong of Lemus's defense was that he lied in his confession about many things. His ostensible motive for lying was to implicate his wife as a principal in the commission of the crimes, and he agreed to confess only if the State would promise that his wife would face the same charges as the other three. Indeed, Lemus suggested that he, Rawle, and Talley agreed to adjust their \\\"stories\\\" to achieve that result, i.e., to get his wife (or ex-wife) convicted of murder.\\n[\\u00b635] Lemus wanted experts to testify on his behalf in order to bolster his contentions that he lied in making his confession and to bolster his self-defense claims. In his confession, Lemus said that although he had drawn the first blood, Leon-Leyva overpowered him and managed to cut him on the face quite severely. A codefendant then proceeded to stab Leon-Leyva in the throat and did so with such violence that Leon-Leyva's head was nearly severed. Lemus attempted to show this was a lie on his part during his cross-examination of Robert Deters, M.D., a pathologist with a specialty in forensic pathology. However, Dr. Deters did not share Lemus's view of the evidence largely because Leon-Leyva's body was so consumed by fire that no such evidence existed.\\n[\\u00b636] Another of Lemus's theories was that he was lying because Leon-Leyva's body could not have been found in the position in which it was found, based upon his confession. Lemus believed that an expert could help him establish that theory, and that establishing his theory would support his self-defense theory, thus mandating reversal of his conviction.\\n[T37] We conclude that the district court did not err in not ordering Lemus to have access to expert witnesses because of Le-mus's failure to establish ary foundational facts that would have justified expert testimony.\\nErrors in State's Opening and Closing\\n[T88] Lemus contends that a combination of errors/misconduct by the prosecutor in opening argument and closing argument combined to deprive him of a fair trial and necessitates the reversal of his convie-tions. We note here that Lemus did not object to the arguments in either opening or closing. However, Lemus would have had no cause to object to the opening statement because it was merely the prosecutor summarizing the evidence that he intended to present. The \\\"error\\\" asserted here did not take on substance until the prosecutor then \\\"explained\\\" in closing argument his reasons for not calling certain witnesses. The jury was instructed that the arguments of counsel were not evidence (this included Lemus's argument, as well as that of the prosecutor).\\n[\\u00b639] Our standard of review is well known. Before we will hold that an error in the nature of prosecutorial misconduct has affected an accused's substantial right, thus requiring reversal of a conviction, we must conclude that based upon the entire record, a reasonable possibility exists that in the absence of the error, the verdict might have been more favorable to the accused. E.g., Williams v. State, 2006 WY 181, 137, 143 P.3d 924, 984 (Wyo.2006); Jensen v. State, 2005 WY 85, 123, 116 P.3d 1088, 1098 (Wyo.2005) (and cases cited therein); Butcher v. State, 2005 WY 146, 138, 123 P.3d 543, 554 (Wyo.2005). In reviewing a claim of prosecutorial misconduct in closing argument, the court looks at the entire record to determine whether or not the defendant's case was so prejudiced by the improper comments as to result in the denial of a fair trial. We judge the challenged comments in the context of the prosecutor's entire argument, considering the context of the statements and comparing them with the evidence produced at the trial. The burden of establishing prosecutorial misconduct rests upon the appellant who raises the issue.\\n[\\u00b640] The prosecutor told the jury that he intended to call Tiffany Lemus, wife of the defendant, as a witness in his case. He also said that he would call FT (a juvenile), niece to Lemus, as & witness. Both had testified in the trials of coconspirators Talley and Rawle. The prosecutor suggested that their testimony would corroborate much of Lemus's confession. The record reflects that these witnesses created a dilemma for the prosecutor. Of course, Lemus had objected to the testimony of his wife. Lemus proposed to have them testify that the prosecutor threatened and intimidated them in order to get them to testify, and it appeared that they could well have been \\\"hostile\\\" to the prosecution's case. The record reflects that both witnesses were present at the trial and Lemus could have called them to the stand if he wanted to do so. He opted not to call them himself. In his closing argument, the prosecutor chose to make a pre-emptive strike on this point, before Lemus could broach the subject, telling the jury:\\nNow, if you remember back last Tuesday in my opening statement, I told [youl what I thought the evidence would show and the evidence that would come on. I told you you'd hear from some witnesses that you didn't hear from. Any of you familiar with sports, baseball? It's October [the trial is underway in October of 2005]. A lot of people who don't watch baseball throughout the rest of the year start watching baseball in October. There are strategies involved in a game of baseball and there are strategies involved when a lawyer presents his case. And sometimes the lawyer's strategy changes midway between the case, just like a bail game will change within even an inning of baseball. The State did not put on [FT] like I told you I would. We did not put on Tiffany Lemus like I told you I would. I changed my strategy. The reason I did that is because I believed that I had sufficient evidence to show to you at that point to convict the Defendant with proof beyond a reasonable doubt without their testimony. So I made that decision.\\nThe prosecutor then went on to catalogue the evidence that he did present which proved Lemus's guilt. Lemus did not object to these comments, and so we review this assertion of error under the plain error standard. First, the record must clearly present the incident alleged to be error. Second, Lemus must demonstrate that a clear and unequivocal rule of law was violated in a clear and obvious, not merely arguable, way. - Last, Lemus must prove that he was denied a substantial right resulting in material prejudice to him. Lopez v. State, 2006 WY 97, 18, 189 P.3d 445, 453 (Wyo.2006)\\n[\\u00b641] The record clearly reflects the argument made by the prosecutor, but the error of it, if any, is not so patent. We have repeatedly held that a prosecutor may not vouch for the credibility of the State's witnesses, even in responding to defense arguments. Dysthe v. State, 2003 WY 20, 29, 63 P.3d 875, 886 (Wyo.2003). That is a clear and unequivocal rule However, that the rule was violated in a clear and obvious, not merely arguable, way is not so clear. The prosecutor did not directly vouch for the credibility of his witnesses, only that the evidence he did present sufficed to meet the burden that the State carries to prove its case beyond a reasonable doubt. Of course, the State's principal witness was Lemus himself. All the other witnesses merely tied up loose ends. Misconduct by a prosecutor invokes a criminal defendant's right to a fair trial and can be an error of constitutional magnitude. However, under the somewhat unique cireumstances of this case we conclude that the argument challenged did not violate the relevant rule in a clear and obvious way. Moreover, to the extent the argument could be said to have been ill advised, it did not serve to prejudice Lemus.\\nProsecutor's Threatening/Intimidating Witnesses\\n[T42] Lemus contends that the prosecutor threatened/intimidated witnesses. This is an issue that appears in the record only as a contention made by Lemus, but was never supported by any evidence admitted during the trial or in any pretrial proceeding. Because there is no material in the record to support it, we will not consider it.\\nState's Use of Fake Pictures and Perjured Testimony\\n[\\u00a548] Much like the contention discussed immediately above, this one also has no support in the record. Lemus looked at the pictures offered by the State and contended that they had to be fakes because he was there and they did not correspond with his memory of the events he related in his confession. Because there is nothing in the record to support his contention that the pictures were \\\"fakes,\\\" we will not consider it further. Likewise, Lemus says that witnesses perjured themselves because they said things that he did not agree with. This contention is unsupported by anything in the record, and we will not consider it further. In fairness, we take note that Lemus's brief suggests that some matters raised in the brief (perhaps many of them) are broached so as not to waive them in future post-conviction proceedings, should there be any.\\nState's Use of Substitute Pathologist\\n[\\u00b644] J. Wallace Graham, M.D., performed the autopsy on Leon-Leyva's body. Dr. Graham was not available at the time of Lemus's trial because he was out of the country. In his place, Robert Deters, M.D., testified concerning the autopsy and the cause of the victim's death, using the materials developed by Dr. Graham during the autopsy. It is unclear exactly what Lemus's objections are in this appeal, but he voiced no objections below. Indeed, Lemus sought to use Dr. Deter's testimony to his advantage. Lemus's contentions with respect to Dr. Deter's testimony are not supported by cogent argument or pertinent authority, and we will not consider them further.\\nIntroduction of W.R.E. 404(b) Evidence in Video Taped Confession\\nLemus contends that the video tape of his confession should have been edited because it contained so much W.R.E. 404(b) evidence. The State contends that it is relevant because it tells the whole story that unfolded over the few days which bracket the crime. In his confession, Lemus talks quite a bit about his drug use. It appears he wanted much of that to be included because he intimated that it mitigated his conduct (he had been up for days on methamphetamines). Lemus also related that his group shoplifted in order to live as they traveled nomadically through Nebraska, South Dakota, Wyoming, Utah, and Arizona. Although Lemus attempted to suppress his confession, once the district court determined it was admissible, he wanted the entirety of it to be presented to the jury. The district court allowed the entire tape to be played for the jury (and a transcript of the tape appears in the record).\\n[\\u00b646] The district court fully considered all of Lemus's objections to the confession and its content and determined that it was admissible even in light of Rule 404(b). There was no error in that ruling. However, we also agree with the State that, under the cirenmstances presented here, the disputed evidence was not Rule 404(b) evidence.\\nSufficiency of the Evidence\\n[T47] Lemus contends that the evidence was not sufficient to sustain the jury's verdict finding him guilty of conspira-ey. It is his assertion that the only evidence of the conspiracy came through his video taped confession, and that evidence does not suffice to sustain the conspiracy verdict. In addressing a claim of insufficiency of the evidence, we must determine whether or not any rational trier of fact could have found the essential elements of the erime beyond a reasonable doubt. When considering a claim of the sufficiency of the evidence, we review that evidence with the assumption that the evidence of the prevailing party is true, disregard the evidence favoring the unsuccessful party, and give the prevailing party the benefit of every favorable inference that we may reasonably draw from the evidence. We will not reweigh the evidence nor will we reexamine the credibility of the witnesses. Williams v. State, 2006 WY 181, 145, 143 P.3d 924, 935 (Wyo.2006).\\n[\\u00b648] In making this argument, Lemus relies solely upon our decision in Wehr v. State, 841 P.2d 104, 110-111 (Wyo.1992):\\nAn analysis of the evidence of the conspiracy in this case persuades us the State produced ample evidence at trial from which a jury rationally might conclude Wehr and Thompson were co-conspirators in a drug distribution chain. First, the State introduced evidence Thompson and Wehr were engaged in an ongoing source-to-middleman for resale relationship that was mutually beneficial. Thompson testified she was a drug addict and she supported her habit by selling drugs to others. She said she had known Wehr for a number of years and she had sold drugs to him repeatedly for his personal use and for resale. Her testimony was that Wehr would buy only a quarter gram or half gram for his personal use but, when resell ing drugs to others, he would buy substantially larger quantities Thompson told the jury Wehr bad admitted to her in the past that he resold drugs obtained from her to support his own habit.\\nThe State also established by Thompson's testimony that Wehr and Thompson knowingly engaged in the source-to-middleman resale transaction on the date at issue. Thompson testified she sold three grams of methamphetamine to Wehr on December 23, 1988 and she had \\\"no doubt\\\" Wehr then would deliver the drugs to someone else. Furthermore, one of the DCI agents testified Wehr admitted, in the course of the March 2, 1989 interview, he had purchased methamphetamine from Thompson on December 23, 1988 which he later sold to Greenhalgh.\\nFinally, the State presented evidence that Thompson's interest in drug transactions extended well beyond simply satisfying the immediate customer. Thompson testified at trial that, after she had made the sale to Wehr, she was advised her name and that of Greenhalgh were being discussed over the police radio. Thompson immediately telephoned Wehr and told him someone was \\\"wired\\\" and he should not sell the methamphetamine to Greenhalgh. Thompson earlier had testified she would not sell controlled substances to Green-halgh because he resold the drugs to \\\"youngsters.\\\" When she was asked at trial why she phoned Wehr, Thompson responded, \\\"[slo he would not sell to Perry [Greenhalgh] because Perry's name had come over the seanner too, and Paul knows if he was going to sell to Perry I would never sell to him again.\\\"\\nWe hold, given the admissibility of Thompson's testimony relative to the prior transactions with Wehr, the jury rationally could infer from all of this evidence, along with all of the other evidence introduced at the trial, that Wehr and Thompson had an ongoing conspiratorial relationship to distribute drugs in violation of Wyoming's Controlled Substances Act. The jury further could infer the transaction on December 28, 1988 was a product of the ongoing conspiracy and simply an example of the method Wehr and Thompson used to distribute controlled substances in violation of the Wyoming Controlled Substances Act.\\n[\\u00b649] From the above-cited discussion, Lemus concludes that he could not be convicted of conspiracy without one of his cocon-spirators testifying against him, which neither did. This question is answered by our discussion of the evidence needed to sustain a conspiracy conviction found in Miller v. State, 955 P.2d 892, 896-98 (Wyo.1998):\\nWhile Miller primary relies upon his claim of entitlement to relief under the law of the case doctrine, the instruction on the unilateral theory of conspiracy poses a novel question for Wyoming. For that reason we consider whether that instruction was a correct instruction on the law. The Supreme Court of North Dakota has distinguished the bilateral theory of conspiracy from the unilateral theory in this way:\\n\\\"Under a unilateral formulation, the crime is committed when a person agrees to proceed in a prohibited manner; under a bilateral formulation, the crime of conspiracy is committed when two or more persons agree to proceed in such manner. See Note [Conspiracy; Statutory Reform Since the Model Penal Code, 75 Colum.L.Rev. 1122, 1136 (1975) ]. Under either approach, the agreement is all-important to conspiracy. Under the unilateral approach, as distinguished from the bilateral approach, the trier-of-fact assesses the subjective individual behavior of a defendant . Under the traditional bilateral approach, there must be at least two 'guilty' persons, two persons who have agreed\\\"\\nState v. Rambousek, 479 N.W.2d 882, 883-34 (N.D.1992), citing State v. Kikhnel, 488 So.2d 1283, 1240 (La.App.1986).\\nPrior to its revision in 1982, as amended in 1983, the statute making conspiracy a crime in Wyoming read:\\nIf two (2) or more persons conspire to (a) commit a felony in the state of Wyoming or to commit an act beyond the state of Wyoming which if done in this state would be a felony, and (b) one (1) or more of such persons do any act, within or without the state of Wyoming, to effect the object of the conspiracy, each, upon conviction, shall be fined not more than one thousand - dollars ($1,000.00) or imprisoned in the penitentiary not more than ten (10) years or both. A conspiracy may be prosecuted in the county where the conspiratorial agreement or combination was entered into, or in any county where any act or acts evidencing the conspiracy or in any county wherein the furtherance of its purpose took place.\\nWyo. Stat. \\u00a7 6-1-117 (1977). As revised in 1982, and then amended in 1983, this statute now reads:\\n(a) A person is guilty of conspiracy to commit a crime if he agrees with one (1) or more persons that they or one (1) or more of them will commit a erime and one (1) or more of them does an overt act to effect the objective of the agreement.\\n(b) A person is not liable under this section if after conspiring he withdraws from the conspiracy and thwarts its sue-cess under cireumstances manifesting voluntary and complete renunciation of his criminal intention.\\n(c) A conspiracy may be prosecuted in the county where the agreement was entered into, or in any county where any act evidencing the conspiracy or furthering the purpose took place.\\nWyo. Stat. \\u00a7 6-1-3038 (1988).\\nThe new version was adopted from both the Model Penal Code and the laws of neighboring states. See THEODORE E. LAauER, Goodbye 3-Card Monte: The Wyoming Criminal Act of 1982, 19 Land & Water L.Rev. 107, 119 (1984). The Model Penal Code, like the new version of the Wyoming statute, defines conspiracy in the context of a single actor agreeing with another, and this language is said to adopt the unilateral approach. MonsL PENAL CopE\\u00ae & CommmntaritEs \\u00a7 5.08(b) at 382-398 (Official Draft & Revised Comments 1985). While federal courts have continued to follow the bilateral theory of conspiracy, the modern trend in state courts is to rule that a conspiracy count is viable even when one of the participants is a government agent or is feigning agreement. See generally, MopEtL Cope & COMMENTARIES \\u00a7 5.03(b) at 382-398 (Official Draft & Revised Comments 1985); 2 Wayne R. La-Fave & Austin W. Seott, Jr., Substantive Criminal Law \\u00a7 6A(d). Compare U.S. v. Barboa, 777 F.2d 1420, 1422 (10th Cir.(N.M.) 1985) with State v. Null, 247 Neb. 192, 526 N.W.2d 220, 229 (1995); Com. v. Sego, 872 S.W.2d 441, 448 (Ky.1994); State v. Conway, 198 N.J.Super. 133, 472 A.2d 588 (1984); State v. Hohensee, 650 S.W.2d 268, 275 (Mo.App.1982) (rev'd in part on other grounds). The focus under the unilateral theory is on the culpability of the defendant, without any necessity to establish the guilty mind of one or more co-conspirators.\\nWhen we compare the first sentences of the earlier and current statutes in Wyoming, we find that the old statute began \\\"filf two (2) or more persons conspire to (a) commit a felony in the state of Wyoming ,\\\" while the new statute reads, \\\"[q] person is guilty of conspiracy to commit a crime if he agrees with one (1) or more persons that they or one (1) or more of them will commit a crime .\\\" (Emphasis added.) Our research discloses that most states that have adopted this second definition of the crime of conspiracy have embraced a unilateral approach to conspiracy, and we hold that is appropriate in Wyoming.\\nOther states have justified the unilateral theory of conspiracy as sound public policy. A person who believes he is conspiring with another to commit a crime is a danger to the public regardless of whether the other person in fact has agreed to commit the crime. As one text writer has expressed the proposition, \\\"such an approach is justified in that a man who believes that he is conspiring to commit a crime and wishes to conspire to commit a crime has a guilty mind and has done all in his power to plot the commission of an unlawful purpose.\\\" FrimpmaXN, Mens Rea in Conspiracy, 19 Modern L.Rev. 276, 288 (1956), adopted in, 2 Wayn\\u00ae R. LaFave & AustINn W. Scort, Jr., Substantive Criminal Low \\u00a7 6.4(d) n. 109 at 73. Miller's case furnish, es a textbook example of the justification for a unilateral approach. Miller's guilty mind was not diminished by the fact that Powell had made an agreement to serve as a law enforcement informant. It is true that Miller's chance of succeeding in kidnapping his family under the cireum-stances was minimal, but Miller has \\\"nonetheless engaged in conduct which provides unequivocal evidence of his firm purpose to commit a crime.\\\" 2 R. LaFAvE & Austm: W. Scorer, Jr, Substantive Crimi-mal Law \\u00a7 6.4(d) at 73 (footnote omitted). It is our conclusion that we should follow - the majority rule of our sister states, and we hold that valid public policy as well as the language and the legislative history of our conspiracy statute make the unilateral approach to conspiracy the law of Wyoming.\\nIn his second issue, Miller argues that there is insufficient evidence to establish a conspiracy to commit the crime of kidnapping between Miller and Ingersoll. This argument is premised upon the assumption that the bilateral theory of conspiracy is the law of the case, and the concession on the part of the State that Powell could not be a member of the conspiracy. In light of our conclusion that the instruction on the unilateral theory of conspiracy is correct, we have examined the record and are satisfied that there is more than sufficient evidence to sustain Miller's conviction for the crime of conspiracy since under a unilateral theory of conspiracy, the capacity of Powell to engage in the crime of conspiracy is not an issue.\\n[T50] With respect to the conspiracy, the district court gave this instruction (to which there was no objection):\\nINSTRUCTION NO. 17\\nThe elements of the crime of Conspiracy to Commit Aggravated Robbery as charged in this case are:\\n1. On or about the 6th or Tth day of February 2004\\n2. The Defendant, Marco Pedro Lemus\\n3. Agreed with one or more persons\\n4. That they or one of them would commit the crime of aggravated robbery; and\\n5. One or more of them did an overt act in Lincoln County, Wyoming, to effect the objective of the agreement.\\n[T51] Lemus contends that the evidence is insufficient to sustain the conviction. However, when the evidence adduced at his trial is considered in light of the above instruction, it is clear that the evidence does suffice. Lemus confessed that he and the others agreed to contact Leon-Leyva, using Lemus's cell phone at least once for that purpose, so as to arrange a meeting with Leon-Leyva to rob him of the drugs and/or valuables that he might possess. The group obtained steak knives to use as leverage in the proposed robbery. Each of the three conspirators was armed with at least one knife (Lemus had two, and he brandished both as the first to act in the effectuation of the robbery). A member of the conspiracy called Leon-Leyva from a grocery store in Kemmerer to ascertain an exact meeting place in Lincoln County. 'They did meet up with Leon-Leyva, and he drove into an alley for the purpose of doing a drug transaction. At that time, the robbery plan was executed. The conspiracy included a contingency plan that if Leon-Leyva resisted, they would kill him. That cireumstance came to pass and Lemus was the first to set it in motion. The other conspirators joined in that effort, and Lemus contends that it was the others that dealt the death blows. Although there is no testimony to this effect, only argument, Le-mus contended that this whole seenario was a lie he concocted to get his wife in trouble. Lemus asserted that the truth was that they did intend to purchase drugs, but Leon-Leyva had none, and that he attacked Lemus first, intending to rob him. In addition to the fact that there is no testimony to that effect in the record, the jury could, of course, believe Lemus's first story and disbelieve his proposed defense. However, the district court, in an abundance of caution, gave the jury self-defense instructions, and the jury was permitted to consider Lemus's theory of the case.\\n[T52] We conclude that the evidence was sufficient to sustain the conspiracy conviction, as well as the conviction for felony murder.\\nCONCLUSION\\n[\\u00b653] Having found no error in these proceedings, the judgment and sentence of the district court are affirmed in all respects.\\n. Lemus was also convicted of attempted aggravated robbery, but that merged into the felony murder conviction for purposes of sentencing. Lemus was sentenced to 8 to 10 years for the conspiracy and to a consecutive life sentence for the felony murder.\\n. Under the Sixth Amendment of the United States Constitution and art. 1, \\u00a7 10 of the Wyoming Constitution, a defendant has a right to represent himself. See Hauck v. State, 2001 WY 119, 116, 36 P.3d 597, 601-2 (Wyo.2001) (and cases cited therein).\"}"
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+"{\"id\": \"8425274\", \"name\": \"Lynda E. PAYNE, Appellant (Defendant), v. Randy L. PAYNE, Appellee (Plaintiff)\", \"name_abbreviation\": \"Payne v. Payne\", \"decision_date\": \"2006-04-20\", \"docket_number\": \"No. 05-181\", \"first_page\": \"195\", \"last_page\": \"196\", \"citations\": \"132 P.3d 195\", \"volume\": \"132\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T01:17:55.896246+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before HILL, C.J., and GOLDEN, KITE, VOIGT, BURKE, JJ.\", \"parties\": \"Lynda E. PAYNE, Appellant (Defendant), v. Randy L. PAYNE, Appellee (Plaintiff).\", \"head_matter\": \"2006 WY 50\\nLynda E. PAYNE, Appellant (Defendant), v. Randy L. PAYNE, Appellee (Plaintiff).\\nNo. 05-181.\\nSupreme Court of Wyoming.\\nApril 20, 2006.\\nRepresenting Appellant: Carol Serelson, Cheyenne, Wyoming.\\nRepresenting Appellee: Bert T. Ahlstrom, Jr., Cheyenne, Wyoming.\\nBefore HILL, C.J., and GOLDEN, KITE, VOIGT, BURKE, JJ.\", \"word_count\": \"377\", \"char_count\": \"2365\", \"text\": \"GOLDEN, Justice.\\n[\\u00b6 1] Lynda Payne (Mother) and Randy Payne (Father) were married in 1981. The marital union produced two children, both of whom were minors when the parties divorced in March of 1998. The divorce decree awarded Mother primary custody of the minor children. Father was ordered to pay, among other things, one-half of any uninsured medical, dental and eye care expenses incurred by the children. Mother, claiming that Father had fallen in arrears in medical reimbursement, petitioned the court to order Father to pay.\\n[\\u00b62] After a full hearing, the district court denied Mother's petition. The district court found that Mother had waived her claim to reimbursement by not submitting the medical bills to Father in a timely manner. The district court also found that Mother failed to present sufficient evidence during the hearing to support the amount she claimed was due from Father. On appeal, Mother does not challenge the district court's finding that she did not meet her burden of proof. Rather, she takes issue only with the district court's determination that she waived her claim for reimbursement. The district court's unchallenged finding that Mother failed in her burden of proof, constituting an independent basis for denial of Mother's claim, renders Mother's appellate issue moot. In other words, because the denial of Mother's claim is supported on other grounds, reversal of the district court's waiver ruling would have no effect on the outcome of this appeal. The order of the district court is summarily affirmed.\\n. Even had Mother appealed the district court's sufficiency of the evidence ruling, she failed to provide this Court with an adequate record to permit rational review. Erhart v. Evans, 2001 WY 79, \\u00b6 18, 30 P.3d 542, 547 (Wyo.2001) (it is the appellant's burden to provide this Court with an adequate record). Without an adequate record, this Court presumes that the trial court's findings are supported by sufficient evidence. Smith v. Smith, 2003 WY 87, \\u00b6 11, 72 P.3d 1158, 1161 (Wyo.2003).\"}"
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+"{\"id\": \"8512835\", \"name\": \"MARY C. MERRILL, MARGARET M. BROWN, GEORGIA K. MERRILL, ALBERTA A. WEBBER, FLORENCE M. BANNON, JOHN A. GRABOSKI, ARTHUR L. MILLER, H. O. DAVIS, IRA B. CULLERS, as Administrator of the Estate of A. C. CULLERS, Deceased, and BERTHA JONES, Plaintiffs and Appellants, vs. L. C. BISHOP, as State Engineer of the State of Wyoming; GUY W. HIGBY, as Water Superintendent for Division Number 3, of the State of Wyoming; P. T. STRAIN, as Water Commissioner at Large for the State of Wyoming, and as Assistant State Engineer of the State of Wyoming; JACK HAYNES, as Water Commissioner of District Number 5, of Division Number 3, of the State of Wyoming, Defendants and Respondents\", \"name_abbreviation\": \"Merrill v. Bishop\", \"decision_date\": \"1951-11-06\", \"docket_number\": \"No. 2480\", \"first_page\": \"45\", \"last_page\": \"66\", \"citations\": \"69 Wyo. 45\", \"volume\": \"69\", \"reporter\": \"Wyoming Reports\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T00:55:29.522836+00:00\", \"provenance\": \"CAP\", \"judges\": \"Kimball, C. J. and Riner, J. concur.\", \"parties\": \"MARY C. MERRILL, MARGARET M. BROWN, GEORGIA K. MERRILL, ALBERTA A. WEBBER, FLORENCE M. BANNON, JOHN A. GRABOSKI, ARTHUR L. MILLER, H. O. DAVIS, IRA B. CULLERS, as Administrator of the Estate of A. C. CULLERS, Deceased, and BERTHA JONES, Plaintiffs and Appellants, vs. L. C. BISHOP, as State Engineer of the State of Wyoming; GUY W. HIGBY, as Water Superintendent for Division Number 3, of the State of Wyoming; P. T. STRAIN, as Water Commissioner at Large for the State of Wyoming, and as Assistant State Engineer of the State of Wyoming; JACK HAYNES, as Water Commissioner of District Number 5, of Division Number 3, of the State of Wyoming, Defendants and Respondents.\", \"head_matter\": \"MARY C. MERRILL, MARGARET M. BROWN, GEORGIA K. MERRILL, ALBERTA A. WEBBER, FLORENCE M. BANNON, JOHN A. GRABOSKI, ARTHUR L. MILLER, H. O. DAVIS, IRA B. CULLERS, as Administrator of the Estate of A. C. CULLERS, Deceased, and BERTHA JONES, Plaintiffs and Appellants, vs. L. C. BISHOP, as State Engineer of the State of Wyoming; GUY W. HIGBY, as Water Superintendent for Division Number 3, of the State of Wyoming; P. T. STRAIN, as Water Commissioner at Large for the State of Wyoming, and as Assistant State Engineer of the State of Wyoming; JACK HAYNES, as Water Commissioner of District Number 5, of Division Number 3, of the State of Wyoming, Defendants and Respondents.\\n(No. 2480;\\nNovember 6, 1951;\\n237 Pac. (2d) 186)\\nFor the plaintiffs and appellants the cause was submitted upon the brief of Noble and Cavalli of Ther-mopolis, Wyoming, and Kenneth R. L. Simmons of Billings, Montana, and oral argument by Mr. Simmons.\\nFor the defendants and respondents the cause was submitted upon the brief of Norman B. Gray, former Attorney General; Marion R. Smyser, former Deputy Attorney General; and Harry A. Thompson, former Assistant Attorney General, all of Cheyenne, Wyoming, and oral argument by H. S. Harnsberger now Attorney General of Cheyenne, Wyoming.\", \"word_count\": \"5276\", \"char_count\": \"30411\", \"text\": \"OPINION\\nBlume, Justice.\\nThe petition in this case filed on October 18, 1949 alleges and discloses the following facts: The defendant L. C. Bishop is the State Engineer for the State of Wyoming; the defendant Guy W. Higby is the Water Superintendent in Division No. 3 of the state; the defendant P. T. Strain acts as Water Commissioner of the state at Large; the defendant Jack Haynes is the acting Water Commissioner for District No. 5 of Division No. 3. By virtue of a Treaty of July 3, 1868 (15 Stat. 673) a tract of land in the then territory, but now State of Wyoming, was set aside and reserved for the use of the Shoshone Indians as a home and abiding place. This reservation, called the Shoshone or Wind River Indian reservation, commenced at the mouth of Owl Creek, thence running southerly, thence running westerly, thence northerly, to the headwaters of Owl Creek, thence along the middle of the channel of Owl Creek to the point of beginning. (It was west of the town of Thermopolis in this state.) The waters of all streams arising, flowing through, or bordering upon the reservation, as established by the treaty, were as of the date of the treaty reserved and set aside for beneficial use upon all lands of the foregoing reservation susceptible of irrigation. Each acre of land in the reservation acquired a vested right, and has as an appurtenance thereto, the right to a pro rata share of the waters above mentioned. Plaintiffs are the owners of certain lands in Section 5, Township 8 North, Range 2 East, W.R.M. and Sections 26, 34 and 35 in Township 9 North, Range 2 East, W.R.M. These lands appear to be in close proximity to Owl Creek, a stream constituting the northern and northeastern boundary of the original reservation above mentioned, and are located within the reservation as established in 1868. These lands were formerly Indian allotments in this reservation for which patents had theretofore been issued to various Indians, and which, together with all appurtenances, had been conveyed by the Indian allottees to the predecessors of plaintiffs and had subsequently been conveyed to the plaintiffs herein, who are now the owners thereof. The lands of plaintiffs were and are now susceptible of irrigation by the waters from Owl Creek. Subsequently, by an Act of Congress of March 3, 1905 a treaty between the Indians upon the foregoing reservation and the United States was ratified by the Congress of the United States. By this treaty the lands between Owl Creek and Wind River to the south were ceded and relinquished to the United States, and became a part of the public domain of the United States until granted out and conveyed by the United States to the settlers thereon, and were open to settlement under the Homestead Laws. But excepted therefrom were lands allotted to the Indians in severalty residing upon said reservation, among which lands so allotted to Indians in severalty are the lands of plaintiffs here-inabove mentioned. Article X of the Treaty of 1905 also provided: \\\" Tt is further understood that nothing in this agreement shall be construed to deprive the said Indians of the Shoshone or Wind River Reservation, Wyoming, of any benefits to which they are entitled under existing treaties or agreements not inconsistent with the provisions of this agreement.' \\\" By the establishment of the Wind River Indian Reservation on July 3, 1868 the United States at that time became the trustee of the Shoshone Tribe of Indians holding legal title to all of the lands and waters of the Wind River Reservation and there was as above mentioned then reserved to said Indians and their successors in interest for irrigation and other beneficial uses upon the lands of said reservation, and exempted from appropriation under territorial or state laws or otherwise all of the waters of reservation streams necessary for the successful irrigation of irrigable lands, including all of the waters of Owl Creek in such amounts as are necessary for the successful irrigation of plaintiffs' lands. -\\nParagraph X of the petition alleges: \\\"That the predecessors in interest and title to plaintiffs, with reasonable diligence, constructed irrigation systems for the diversions of the waters of Owl Creek and its tributaries to be applied to beneficial use upon their lands susceptible of irrigation. That the plaintiffs have under their irrigation systems 809.08 acres of land susceptible of irrigation and now being irrigated which require for the successful irrigation thereof one cubic foot of water per second of time for each seventy acres of irrigable land.\\\"\\nParagraph XI alleges: \\\"That the rights of the plaintiffs as herein set forth to the use of the waters of Owl Creek and its tributaries are prior and superior to any and all other rights to the use of the waters of Owl Creek and its tributaries.\\\"\\nParagraph XII alleges: \\\"That during the irrigation season of 1949, defendant, Jack Haynes, Water Commissioner of District No. 5 of Division No. 3, State of Wyoming, acting with defendant P. T. Strain, who claims to be Water Commissioner at Large for the State of Wyoming, and Assistant State Engineer, both claiming to be acting as officers of the State of Wyoming and under the direction of the defendants L. C. Bishop and Guy W. Higby, did wilfully and without warrant of law, and without prior notice to the plaintiffs herein, close all of the headgates of the irrigation ditches maintained by the plaintiffs on Owl Creek and its tributaries, thus causing the complete natural flow of the said streams to flow down the channel thereof, which said wrongful closing and shutting down of the headgates aforesaid by the above named defendants caused plaintiffs to be deprived of the use of the waters of said stream and caused them great loss and damage.\\\" It is further alleged that the defendants have threatened to again shut down the headgates above mentioned unless enjoined, and that plaintiffs have been damaged in the sum of $5000. Plaintiffs accordingly prayed that permanent injunction be issued by the court restraining the defendants from, in any manner, interfering with the headgates of plaintiffs located on the lands herein described and from, in any manner, interfering with or preventing the use by plaintiffs of an amount of water from Owl Creek necessary for the irrigation of their lands on the basis of one cubic foot of water per second of time for each seventy acres and that plaintiffs have such other and further and general relief as may be in accord with equity and good conscience.\\nCopies of the Treaty of 1868 and the Treaty of 1905 were attached to the petition of the plaintiffs.\\nNone of the defendants in this case answered. L. C. Bishop, the State Engineer of this state, filed a demurrer in this case on the ground that the petition discloses that there is a defect of parties. The court sustained the demurrer, and the plaintiffs not pleading further, judgment was entered dismissing the action without prejudice, and the plaintiffs have appealed to this court.\\nCounsel for plaintiffs and appellants contend that they are successors in interest of allottees and patentees on the original Indian reservation created in 1868, and that they have an unquestioned right of priority to the waters of Owl Creek as of that date; that this is not an action to adjudicate the priorities of the appropriators of waters from a stream, but an action in tort, of which none but the defendants are guilty, and no other parties need be brought in or are proper parties. Counsel for the respondents, on the other hand, contend that the appropriators of waters from Owl Creek under the laws of this state are interested in and affected by this action and should have been made parties herein. They call our attention to the fact that these waters were adjudicated under the laws of this state and that the fact of this adjudication appears in a document published by authority of the legislature. Hence, they argue that we must take judicial notice of that fact. We may admit that to be true, at least for the purposes of this case. That document shows the names of the appropriators, the date, source, and amount of the appropriation. Pages 84 to 90 of that document show that there are in the neighborhood of 250 parties who are shown to be the appropriators under the laws of this state from Owl Creek and its tributaries. This does not take into consideration the appropriators from Big Horn River, the main stream, who, too, may have some interest in the waters of Owl Creek. The earliest appropriation from Owl Creek and its tributaries is shown by that document as of 1880, so that if plaintiffs have a priority to the waters of Owl Creek and its tributaries as of 1868, the appropriators from the stream under the laws of this state have an inferior right. Notwithstanding that counsel for respondent contend that these parties, though junior in right, are necessary parties herein, and that accordingly the peti tion in the case discloses a defect of parties and that the demurrer herein was properly sustained.\\nThe case at bar is somewhat different from any of the decided cases as far as we have found. We have not heretofore been called on to consider the rights of Indians or those of their successors in interest. The issue herein, in view of the demurrer, is rather a limited one. We do not know what contentions will in the future be made by the defendants or the parties interested in the waters of Owl Creek, or what ultimate facts may appear. And we shall not anticipate them herein. So our decision herein is limited strictly to the narrow question before us in view of the demurrer and whatever we may say herein must be construed in that light. We do not accordingly decide herein whether or not plaintiffs actually have any rights in and to the waters of Owl Creek or the extent thereof under contentions and facts which may appear in the future proceedings in this case.\\nIt is agreed by counsel on both sides that in view of the demurrer herein the allegations of the petition must in the case before us be accepted as true. We have before us the Treaties of 1868 and 1905 between the United States and the Indians relating to the Shoshone Indian reservation. Under the Treaty of 1905 all the lands of the reservation from Owl Creek on the north and the Wind River on the south \\u2014 many miles distant from each other \\u2014 were ceded by the Indians as part of their reservation established in 1868. The lands of plaintiffs originally allotted to Indians, are located in the portion thus ceded. All rights then existing in individual Indian allottees in the land then ceded were reserved to them. No water rights are mentioned in these treaties. It has, however, been held that these water rights were impliedly reserved for domestic use and for the irrigation for all irrigable lands along the streams. Winters vs. United States, 207 U. S. 564, 52 L. Ed. 340, 28 S. Ct. 207. And upon conveyance of the lands by Indian allottees, the water rights passed to the grantees as an appurtenance unless the contrary appeared. United States vs. Powers, 9 Cir., 94 Fed. 2d 783, affirmed in 305 U. S. 527, 83 L. Ed. 330, 59 S. Ct. 344; United States vs. Hibner (D.C.) 27 Fed. 2d 909; Anderson vs. Spear-Morgan Livestock Co., 107 Mont. 18, 79 P. 2d 667; Lewis vs. Hanson (Mont.) 227 P. 2d 70. See 42 C.J.S. 732, Note 35.\\nWe shall not, at least in view of the narrow issues herein, question the correctness of these decisions or attempt to distinguish them, but shall accept them as the law applicable in the case now before us. We accept then as true that the right of priority to the waters of Owl Creek and its tributaries of plaintiffs dates from 1868 while the rights of the appropriators of waters from this stream under the laws of this state date at the earliest from 1880. In other words, we shall accept as true in the case before us, that the plaintiffs have a senior and prior right to the waters of this stream. Counsel for defendants argue that the seniority of these rights is of no importance or relevancy herein and that we need only to determine the question of defect of parties. We think, however, as will appear more clearly hereafter, that these two questions are inextricably interwoven and that the question of seniority determines, so far as the case before us is concerned, the question of defect of parties.\\nWe are cited by counsel for respondent to the case of Mitchell Irr. Dist. vs. Whiting, 59 Wyo. 52, 136 P. 2d 502. But that case is clearly distinguishable from the case at bar. It was not an action for a tort, but an action for a mandatory injunction to compel a water commissioner to act as against junior appropriators, when such act, among other reasons, would not benefit the plain tiff. We are also cited by counsel for respondents to the case of McLean vs. Farmers' H. L. C. & R. Co., 44 Colo. 184, 98 P. 16 in which it was held that when an injunction was sought against the official distributor of water certain appropriators from the stream should have been made parties to the action of plaintiffs. This case was followed in the case of Terrace Irr. Dist. vs. Neff, 92 Colo. 278, 19 P. 2d 754 also cited by counsel for respondents. In the McLean case the court reasoned as follows: \\\"The law presumes that public officials discharge their duties in conformity with the statutes, and the burden of showing to the contrary rests with him who relies thereon. It appearing, then, from the averments of the complaint that the acts of the defendants of which plaintiffs complain were committed by them for the purpose of supplying ditches with water in district No. 2, the presumption attaches that they ordered the headgates of plaintiffs' ditches to be closed so as to supply senior priorities further down the stream. It is doubtless true that water officials must distribute the waters of a district or division according to adjudicated priorities, but when they are avowedly attempting to do so, as is made to appear from the pleadings in this case, their action cannot be interfered with either by interlocutory order or final judgment unless the real parties in interest are parties to the action.\\\" (Italics supplied). We have no fault to find with these decisions. But in the case at bar, instead of the water commissioner attempting to close the head-gates of plaintiffs so as to supply senior priorities, he closed the headgates so as to supply, under the pleadings herein, junior priorities. And instead of avowedly attempting to distribute the waters according to adjudicated priorities (including the rights under the treaties with the Indians), he closed the headgates of plaintiffs contrary thereto. The presumption of acting legally is overcome by the admission herein that the plaintiffs have rights which are senior to that of others. So these cases cannot be considered as any authority for respondent in this case.\\nOur attention is also called by counsel for respondents to Squires vs. Livesey, 36 Col. 302, 85 P. 181. The syllabus in that case is as follows: \\\"In a suit to enjoin a water commissioner from diverting water in a stream from the use of prior appropriators to the use of subsequent appropriators, the subsequent appropriators, being the persons really interested, are necessary parties, and their absence is fatal to the validity of the decree.\\\" The case was apparently followed by Humboldt Land & Cattle Co. vs. Allen (D.C.) 14 Fed. 2d 650. See also the case of State ex rel. vs. District Court of Fifth Judicial District, 111 Mont. 520, 111 P. 2d 292. The rule as stated in Squires vs. Livesey supra is repeated in 3 Kinney on Irrigation and Water Rights (2d Ed.) page 2984; and in 2 Wiel on Water Rights (3d Ed.) Section 1196. We shall not attempt to say whether or not the holding in Squires vs. Livesey supra was justified under the facts of that case. In that case the water commissioner acted at the behest of two water appropriators and only four persons had any interest in the controversy aside from the water commissioner and the plaintiff, and it would not have been any particular burden to have made these four persons parties to the action. The ruling may perhaps be justified on the theory that to make these four persons defendants would have obviated the necessity of piecemeal determination of rights. But if the rule as stated in the syllabus of the foregoing case is taken as announcing a general principle or rule, then we think it went too far. Suppose that an appropriator from the waters of Laramie River has an unquestioned adjudicated senior right in the waters of that stream, and the water commissioner in violation thereof shuts down his headgates and prevents him from taking any of the needed water from that river. Why should such a senior appropriator be compelled in a suit against the water commissioner to make all junior appropriators parties to the action? Suppose that the adjudicated priorities along that stream number 305; suppose further that John Smith has adjudicated priority No. 5; suppose further still that a water commissioner for some unexplained reason shuts off his needed water. Should John Smith be compelled, in order to get any relief against the water commissioner, to make the 300 junior appropriators parties defendants in the case? We think not. That is substantially the situation in the case at bar. It is clear in such case the water commissioner would violate the provisions of Section 71-303, Wyo. Comp. St. 1945 which states: \\\"It shall be the duty of the said water commissioner to divide the water of the natural stream or streams of his district among the several ditches and reservoirs taking water therefrom, according to the prior right of each, respectively.\\\" To compel such senior appropriator to make all junior appropriators, of whom there may be hundreds, parties to the action, would be to impose an intolerable burden upon him which would not be justified under the facts so far as they now appear in the case before us. See Chavez vs. Gutierrez, 54 N. M. 76, 213 P. 2d 597, 601. The laws of this state aim at the orderly and peaceable regulation and distribution of the waters in this state. The treaties and laws of the United States are as much a part of the laws of this state as the statutes of this state. So it would seem that public policy demands, speaking generally, in order to carry such peaceful and orderly administration into effect, that when a party has a prima facie senior right to the waters of a stream, he should not, when that right is for any reason disputed, be burdened with a suit against parties who appear to be junior appropriators, of whom there may be a multitude. It is true that it has been said that \\\"a court of equity delights to do complete justice, and that it constantly aims to settle the rights of all persons interested in the subject-matter, not in piecemeal, but in a single suit.\\\" (Washington State Sugar Co. vs. Sheppard, 186 Fed. 233). At the same time, the policy against piecemeal determination of rights should not require an undue burden of him who has an admitted and prima facie senior right. As was properly said by the Supreme Court of Colorado in San Luis Valley Irr. Dist. vs. Carr, 79 Colo. 340, 245 P. 705: \\\"The water commissioner has not or should not have any personal interest. He cannot shift the burden on the other party by failing or refusing to distribute water according to the decrees, which the law requires him to do as a part of his official duty. If he willfully violates the decrees, he is then acting for a private and not the public interest; his acts are unlawful, and equity will not shelter him.\\\" See also Boulder & Left Hand Ditch Co. vs. Hoover, 48 Colo. 343, 110 P. 75. And it may not be amiss at this place to state the view of the late Justice Potter in the case of Hamp vs. State, 19 Wyo. 377, 405, 118 P. 653 where he said: \\\"As suggested above, if the defendant had any proper ground to complain of the manner in which or the purpose for which it (the water) was so regulated, he might have applied for relief in the courts through some appropriate proceeding.\\\" We think that in this case the water commissioner and the state engineer who directed his acts acted unlawfully, under the pleadings herein, in closing the headgates of plaintiffs and acted in violation of the express provisions of our statutes as above mentioned. It is true, of course, as respondent contends that the duty of water officials to regulate and distribute the waters of this state are mandatory. But that does not mean that it may be done in an illegal manner, and that the determination of water officials as to what is legal is final. They are not above the law. It is stated in 2 Wiel on Water Rights (3d Ed.) Section 1193: \\\"As is true of administrative officers generally, irrigation or water officials cannot authorize acts injuring existing owners; their action is invalid where it has that effect.\\\" In Section 1194 he states: \\\"Since the authority of the water officials is administrative and not judicial, and they have no power to impair vested rights, their decision as to what existing rights are is not conclusive. Their action based upon a mistaken interpretation of existing rights will be open to collateral attack in court, by injunction or other process, as will also the action of other parties whom they may have authorized or in whose favor they may have decided.\\\" And in Section 1196 the author says: \\\"A water commissioner is a public official, and may be enjoined like other officials if acting in excess of his authority, and adverse rulings of his may be questioned in court so far as they exceed his authority.\\\"\\nEven though junior appropriators might have a valid claim against a senior appropriator, they would not in an action such as in the case at bar lose anything substantial if they are not made parties thereto in view of the rule ordinarily applicable that parties are not bound by an adjudication in an action to which they are not parties. They would at most be deprived of the temporary enrichment \\u2014 and an unjust enrichment it might be \\u2014 which they would receive during the time that the headgates of the senior appropriator would be shut off, and if there are many junior appropriators the temporary benefit which they might receive would for many or most of them probably be infinitesimal. We think that what was said in Vineyard Land & Stock Co. vs. Twin Falls Oakley L. & W. Co., 9 Cir., 245 Fed. 30 is apropos here. There the court said: \\\"No complaint is made that parties other than the defendants are attempting to interfere with plaintiffs' acquired water rights in Idaho, and there can be no cause for in june tion against others than the defendants until attempted interference is shown. If there are any others who have rights superior to plaintiffs' not parties to the suit, of course their rights cannot be precluded by the decree herein. They may yet assert such rights, but they are not necessary parties to this suit, not having attempted to assert them to the impairment of plaintiffs' contention.\\\" To the same effect is Beck vs. Bono, 59 Wash. 479, 110 P. 13, and see Affolter et al. vs. Rough & Ready Irr. Co., 60 Colo. 519, 154 P. 738.\\nBefore closing we think that we should refer to some decisions on the Federal Courts which have more or less bearing in the case at bar. In United States vs. Powers, 9 Cir., 94 Fed. 2d 783, waters in an Indian reservation were in question. The United States had constructed some irrigation works in the reservation and claimed that no one had a right to take waters from streams appurtenant to the reservation except through the irrigation works and sought an injunction. The defendants were successors in interest to Indian allottees and pat-entees and took water directly from the stream. The court held that the government had no right to an injunction. It said in part: \\\"The Crow Indian Reservation was established by a treaty between appellant and the Crow Indians date May 7, 1868, 15 Stat. 649. There was in the treaty no express reservation of water for irrigation or other purposes. There was, however, an implied reservation. Winters vs. United States, 207 U. S. 564, 575, 28 S. Ct. 207, 52 L. Ed. 340. The implied reservation was to the Indians, not to appellant. Skeem v. United States, 9 Cir., 273 F. 93, 95; Conrad Investment Co. v. United States, 9 Cir., 161 F. 829, 831; Winters v. United States, 9 Cir., 143 F. 740, 745, affirmed in 207 U. S. 564, 28 S. Ct. 207, 52 L. Ed. 340. Section 7 of the act, 25 U.S.C.A. Section 381 provided : 'That in cases where the use of water for irriga tion is necessary to render the lands within any Indian reservation available for agricultural purposes, the Secretary of the Interior be, and he is hereby, authorized to prescribe such rules and regulations as he may deem necessary to secure a just and equal distribution thereof among the Indians residing upon any such reservations; and no other appropriation or grant of water by any riparian proprietor shall be authorized or permitted to the damage of any other riparian proprietor.' To render all or any of the lands within the Crow Reservation available for agricultural purposes, the use of water for irrigation was necessary. For such irrigation, the waters of Lodge Grass creek, Little Big Horn river, and their tributaries, were available. Therefore, by section 7, supra, the Secretary of the Interior was authorized to prescribe rules and regulations to secure the just and equal distribution of said water among the Crow Indians, but he was not authorized, by rule, regulation, or otherwise, to deprive any allottee or patentee of lands in the Crow Reservation, or the successor in title of any such allottee or patentee, of his just and equal right to the use of said waters.\\\" The case was appealed to the United States Supreme Court. 305 U. S. 527, 83 L. Ed. 330, 59 S. Ct. 344. The court in that case said in part: \\\"Respondents maintain that under the Treaty of 1868 waters within the Reservation were reserved for the equal benefit of tribal members (Winters vs. United States, 207 U. S. 564, 28 S. Ct. 207, 52 L. Ed. 340) and that when allotments of land were duly made for exclusive use and thereafter conveyed in fee, the right to use some portion of tribal waters essential for cultivation passed to the owners. The respondents' claim to the extent stated is well founded. The petitioners have shown no right to the injunction asked.\\\" A similar situation arose in the case of United States vs. Alexander et al. 131 Fed. 2d 359, and the holding in that case was that the United States was not entitled to an in june tion. The court stated in part: \\\"The government's claim cannot be sustained. Before it would be entitled to an injunction it must show that appellees have wrongfully diverted water. No violation of the Act of April 23, 1904, as amended by the Act of May 29, 1908 is shown, since there is no claim that appellees used an amount of water in excess of 'so much water as may be required to irrigate such lands.' That statute provides for promulgation of such rules and regulations as the Secretary of the Interior might deem necessary to secure the just and equal distribution of water. No such rules and regulations have been promulgated herein pursuant to that statute. There not being a rule or regulation, of course a violation thereof could not be shown.\\\" While it has been said that in order for a plaintiff to obtain an injunction, he must submit proof of the right to the use of a specified quantity of water (Lewis vs. Hanson, (Mont.) 227 P. 2d 70), yet, if the United States Government could not stop the successors in interest of Indian allottees and patentees by an injunction to take water from the streams appurtenant to the reservation, it is difficult to see that the officials of this state could stop them by their arbitrary act from doing likewise.\\nIn the foregoing cases the lands involved were in an Indian Reservation and it was held that in order to determine the extent of the right of the parties to take water from the streams, it was necessary to bring into the case parties equally interested with the defendants. In the case at bar, no Indian reservation any longer exists so far as the lands of the plaintiffs are concerned, but there may be other parties, allottees and patentees or their successors in interest who have an equal right to the waters of Owl Creek with the plaintiffs herein. If, therefore, it should appear hereafter that there are such other parties, they should be brought in and made parties to this action in order that their rights as well as those of the plaintiffs may be determined herein.\\nThe action herein is based on tort on the part of officials. It is not an action against the State. 59 C. J. 310.\\nThe order of the trial court in sustaining the demurrer herein and the judgment herein are reversed and the cause is remanded to the District Court for further proceedings not inconsistent with this opinion.\\nKimball, C. J. and Riner, J. concur.\"}"
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+"{\"id\": \"8512951\", \"name\": \"THE RIM GROUP, a mining joint venture, Plaintiff and Respondent, vs. MOUNTAIN MESA URANIUM CORPORATION, a Wyoming Corporation, SAN JUAN URANIUM EXPLORATION, INC., a Colorado Corporation, CHARLES M. COLEMAN, Defendants, and RIVERTON URANIUM CORPORATION, a Nevada Corporation, Defendant and Appellant\", \"name_abbreviation\": \"Rim Group v. Mountain Mesa Uranium Corp.\", \"decision_date\": \"1958-02-11\", \"docket_number\": \"No. 2797\", \"first_page\": \"204\", \"last_page\": \"215\", \"citations\": \"78 Wyo. 204\", \"volume\": \"78\", \"reporter\": \"Wyoming Reports\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T00:06:36.393352+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Blume, C.J., and Harnsberger and Parker, J.J.\", \"parties\": \"THE RIM GROUP, a mining joint venture, Plaintiff and Respondent, vs. MOUNTAIN MESA URANIUM CORPORATION, a Wyoming Corporation, SAN JUAN URANIUM EXPLORATION, INC., a Colorado Corporation, CHARLES M. COLEMAN, Defendants, and RIVERTON URANIUM CORPORATION, a Nevada Corporation, Defendant and Appellant.\", \"head_matter\": \"THE RIM GROUP, a mining joint venture, Plaintiff and Respondent, vs. MOUNTAIN MESA URANIUM CORPORATION, a Wyoming Corporation, SAN JUAN URANIUM EXPLORATION, INC., a Colorado Corporation, CHARLES M. COLEMAN, Defendants, and RIVERTON URANIUM CORPORATION, a Nevada Corporation, Defendant and Appellant.\\n(No. 2797;\\nFebruary 11th, 1958;\\n321 Pac. (2d) (229)\\nFor the defendant and appellant, the cause was submitted upon the brief of Spence and Hill of Riverton, Wyoming, and oral argument by Albert W. Dilling of Chicago, Illinois and G. L. Spence.\\nFor the plaintiff and respondent, the cause was submitted upon the brief of Smith and Nicholas of Lander, Wyoming, and oral argument by W. A. Smith.\\nHeard before Blume, C.J., and Harnsberger and Parker, J.J.\", \"word_count\": \"1562\", \"char_count\": \"8986\", \"text\": \"OPINION\\nMr. Justice Parker\\ndelivered the opinion of the court.\\nThis is an appeal from a denial of a motion to vacate a default judgment against appellant, Riverton Urani um Corporation, one of several defendants in a suit to quiet title to certain mining claims. It is urged that the motion should have been granted because appellant (a) had no notice of the time set for trial and (b) had a meritorious defense to the action.\\nAssuming, without deciding, that the setting of the case was required to be made by a formal order, we find that the record shows, and it is conceded, that the court on November 9, 1956, signed and entered an order setting the case for hearing on December 6, 1956; but appellant denies having received a copy of the order and further urges that the default was taken on December 7 and not on December 6, the day set for the hearing. Reliance is placed upon the provisions of \\u00a7 3-211, W.C.S.1945, which statute requires the clerk of a district court to send copies of all orders to parties in all contested cases. Appellant's attorney testified that he did not receive a copy of the order and assumes that the clerk failed to comply with this statute. At the hearing on the motion the trial court asked appellant's attorney, \\\"Will you put the Clerk on the stand and find out whether or not he sent you a copy of that [the November 9 order] ?\\\" Counsel responded, \\\"Yes, I will in due course of this proceeding.\\\" Unfortunately, he failed to do so.\\nThe law is well settled that in the absence of a showing to the contrary a public officer is presumed to have performed a duty imposed upon him by law. See 43 Am.Jur., Public Officers \\u00a7 511; 20 Am.Jur., Evidence \\u00a7 171; 31 C.J.S., Evidence \\u00a7 146; Laramie Irrigation & Power Co. v. Grant, 44 Wyo. 392, 13 P.2d 235; and Merryman v. School Dist. No. 16, 43 Wyo. 376, 5 P.2d 267, 86 A.L.R. 1181. Applying this rule to the officer here concerned, we find that \\\"It will be presumed, in the absence of any showing to the contrary, that a clerk [of court] has performed a duty imposed on him by law.\\\" 14 C.J.S., Clerks of Courts \\u00a7 46. Appellant must then be taken to have received the order setting the case for hearing on December 6, 1956. This is in accordance with the general rule of law on the subject, and in this instance we think no inequity results since appellant failed to comply with the court's request to clarify the matter.\\nWe turn then to the fact that the case having been set for December 6 was passed on that day and the default taken on December 7. Under our previous rulings, a litigant is required at his peril to be familiar with and adhere to the schedule of the court in the trial of cases. In Spriggs v. Goodrich, 74 Wyo. 185, 285 P.2d 1103, 1109, 289 P.2d 648, we quoted with approval the case of Boulter v. Cook, 32 Wyo. 461, 234 P. 1101, 236 P. 245, as follows:\\n\\\" 'It is the duty of a party, or his attorney, to take account of the time and place of holding court, the position of the case on the calendar, and the state of the calendar'\\nThis is in accord with the general rule. See 53 Am. Jur., Trial \\u00a7 10. Applying the principle to the present situation, we think the court was fully justified in continuing to give its attention to another matter before it and at the conclusion thereof disposing of the litigation in which appellant was interested. It would be impractical to require a trial court to give a separate notice of hearing to any litigant whose case was postponed for a short time because of a priority of other hearings. In fact, we think it would be an obstruction of justice and an unwarranted delay in procedures. A litigant whose case is set but not reached because of other pending matters is obligated to await and be prepared to proceed at such time as the court is free.\\nThe briefs and arguments have dealt with affidavits and testimony of counsel and the statement of the court regarding the claimed actual notice or lack thereof as to the setting of the case. It is always to be regretted that any important matter must depend upon the recollection of persons interested in the outcome rather than to be determined by routine procedures or formal instructions. Be that as it may, the recollections of either court or counsel on these points become immaterial in the light of the presumption above discussed.\\nAlthough a consideration of the merit of appellant's defense is unnecessary to a disposition of the case, this point may be of some interest. The Motion to Vacate Judgment in alleging the meritorious defense recited, inter alia, appellant's derivation of title, the assignment of rights of predecessors in interest to it, its present ownership of legal and equitable mining rights in the claims, a settlement between plaintiff and Mountain Mesa Uranium Corporation without appellant's knowledge, a denial by Mountain Mesa of appellant's rights, and a suit in the Federal district court to adjudicate such rights. Nothing in said motion alluded to any specific matters which bore upon the rights of appellant in the mining claims as opposed to the plaintiff's. A review of the exhibits which were rejected by the trial court indicates that they related primarily to the chain of title of appellant and constituted no claimed basis of right of either Riverton Uranium Corporation or its predecessors in interest against The Rim Group. The Motion to Vacate Judgment did not allege, and the appellant in the hearing thereon did not offer to prove, either the nature of the original instrument from which it claimed to derive title or its compliance with the terms of said instrument. Thus, there was no clear showing of a meritorious defense upon which the trial court could properly exercise its discretion to vacate the judgment. It is significant also to note counsel's repeated statements in both testimony and argument that his client had relied upon Mountain Mesa to \\\"carry the ball.\\\" On one occasion he said, \\\"we are following along on the coattails of Mountain Mesa.\\\" Appellant is therefore in no position to rely as it does upon the pronouncement of Eager v. Derowitsch, 68 Wyo. 251, 232 P.2d 713, which indicates the desirability of trying cases on the merits but also points out that the determination of the propriety of vacating a judgment and allowing a new trial is within the sound exercise of judicial discretion by the trial court. Appellant may have had a meritorious defense, but if so, the facts to substantiate it should have been presented to the trial court as a justification for the vacation of the default judgment.\\n(No. 2797;\\nApril 15th, 1958;\\n323 Pac. (2d) 939)\\nAffirmed\"}"
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+"{\"id\": \"8513187\", \"name\": \"RUTH S. LICHTY, on behalf of GLENN N. LICHTY, Deceased, Employee-Claimant and Appellant, vs. LICHTY CONSTRUCTION COMPANY, a CORPORATION, Employer-Defendant and Respondent\", \"name_abbreviation\": \"Lichty ex rel. Lichty v. Lichty Construction Co.\", \"decision_date\": \"1952-04-07\", \"docket_number\": \"No. 2546\", \"first_page\": \"411\", \"last_page\": \"438\", \"citations\": \"69 Wyo. 411\", \"volume\": \"69\", \"reporter\": \"Wyoming Reports\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T00:55:29.522836+00:00\", \"provenance\": \"CAP\", \"judges\": \"Blume, C. J. and Ilsley, J., concur.\", \"parties\": \"RUTH S. LICHTY, on behalf of GLENN N. LICHTY, Deceased, Employee-Claimant and Appellant, vs. LICHTY CONSTRUCTION COMPANY, a CORPORATION, Employer-Defendant and Respondent.\", \"head_matter\": \"RUTH S. LICHTY, on behalf of GLENN N. LICHTY, Deceased, Employee-Claimant and Appellant, vs. LICHTY CONSTRUCTION COMPANY, a CORPORATION, Employer-Defendant and Respondent.\\n(No. 2546;\\nApril 7th, 1952;\\n243 Pac. (2d) 151)\\nFor the appellant the cause was submitted upon the brief of Franklin B. Sheldon of Riverton, Wyoming.\\nFor the respondent the cause was submitted upon the brief of Harry S. Harnsberger, Attorney-General; Howard B. Black, Deputy Attorney-General and Paul T. Liamos, Jr., Assistant Attorney-General.\", \"word_count\": \"7702\", \"char_count\": \"45915\", \"text\": \"OPINION\\nRiner, Justice.\\nThe question to be determined in this case is what meaning the Legislature of this State intended should be given to certain words appearing in the Workmen's Compensation Law of Wyoming where the term \\\"workman\\\" is undertaken to be defined. It involves the proper application of those words in the Act aforesaid to the facts and circumstances of the case at bar as regards the disposition of the claim of Ruth S. Lichty for death benefits under said Law and also the claims of a physician and mortician for professional services rendered in connection with the matter.\\nThe facts and circumstances aforesaid appearing in the case are undisputed; the parties having signed an agreed statement of facts which is before us as it was before the district court of Fremont County and which, together with the uncontradicted testimony of the claimant, Ruth Lichty, supplied the basis for the rejection of those claims by the lower court. The Workmen's Compensation Department of the State of Wyoming had also previously ruled that these claims should be rejected.\\nThe accident occurred March 20, 1950, about five miles west of Riverton, Wyoming, on U.S. highway 287. On April 5th, 1950, the doctor who was summoned to the scene of the accident filed his official report relative to the matter with the Clerk of the District Court stating that Glenn N. Lichty died as a result of the truck which he was driving going out of control, throwing him from the cab and then rolling over him causing a broken neck and crushed chest.\\nApril 5th, 1950, the employer, the Lichty Construction Company, also filed with said Clerk its report of the accident; in describing how the injury occurred this was said: \\\"pickup hit slick spot in the road, overturned, pinning workman underneath.\\\" It was also therein stated that the accident grew out of the man's employment which was that of manager and foreman on the construction work in which the Lichty Construction Company was then engaged; that the injury was fatal; this report was signed \\\"Lichty Construction Company\\\" as \\\"employer by Ruth S. Lichty, Secretary-Treasurer;\\\" said report having been sworn to by her April 4th, 1950.\\nThe same day these filings were made Ruth Lichty, as the widow of Glenn N. Lichty, also filed with said Clerk her verified application and claim for an award of compensation under the Workmen's Compensation Law of the State of Wyoming, setting out substantially the information contained in the two reports mentioned above.\\nOn April 6th, 1950, filed April 7th, 1950, the Manager of the Workmen's Compensation Department of this State, wrote the physician who made the report aforesaid that:\\n\\\"It is our conclusion that Glen M. Lichty was not covered under provisions of the Workmen's Compensation Law, as his status was that of employer rather than employee by reason of his being a director and president of the corporation, the Lichty Construction Company, at the time of his death.\\\"\\nApril 12, 1950, the Clerk of the District Court wrote Mrs. Lichty that:\\n\\\"The State Compensation Department advises that this Claim should be rejected, because Mr. Glenn N. Lichty was not covered under provisions of the Workmen's Compensation Law, as his status was that of employer rather than employee by reason of his being a director and president of the corporation, the Lichty Construction Company, at the time of his death.\\\"\\nPursuant to section 72-112 W.C.S. 1945 Mrs. Lichty, as claimant made application on her claim for a hearing thereon by the District Court of Fremont County.\\nOn April 19, 1950, the Workmen's Compensation Department's Chief Clerk sent a letter to E. E. Davis, the mortician aforesaid, advising him that Glenn N. Lichty was not covered by the provisions of the Workmen's Compensation Law for the same reason as set forth in the letters of the Clerk of the District Court and the manager of the Workmen's Compensation Department of this State, as above recited.\\nThe district court aforesaid set the matter for hearing on May 9, 1950, and further ordered the employee claimant and employer defendant to be duly notified thereof. This order for a hearing was subsequently changed to fix the ultimate hearing date on October 8, 1951. On that date the claimant, Ruth Lichty and her counsel and the Workmen's Compensation Department represented by the Attorney-General of the State of Wyoming all appeared and trial of the matter was had before the court without a jury. As recited by the judgment thereafter entered October 24, 1951:\\n\\\"The Stipulation of Facts signed by the claimant, her attorney, and the Attorney General, and filed herein, was submitted to the Court as evidence and in addition thereto, the oral evidence of Ruth S. Lichty was submitted to the Court, and the claimant thereupon rested, and the Attorney General having rested, and the Court having heard the arguments of counsel and being fully advised in the premises . . .\\\"\\nThe court then found generally against the claimant and:\\n. . particularly that, although the deceased, Glenn N. Lichty was killed while engaged in extra-hazardous employment on behalf of the Lichty Construction Company, he was at the time holding an official position with said company as a director and president thereof, and was therefore not covered as a workman under the provisions of the Workmen's Compensation law.\\\"\\nThe judgment rendered was:\\n\\\"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED BY THE COURT that the claim of Ruth S. Lichty as the widow of Glenn N. Lichty, deceased, for death benefits, and the claim of E. E. Davis for funeral expenses, and the claim of Dale Ashbaugh for doctor's bill, filed in the above entitled cause, be and all of them are hereby denied.\\\"\\nFrom this judgment, upon due exception allowed, the instant appeal proceeding was prosecuted.\\nThe stipulation of the parties, omitting recitals of appearance by counsel for the claimant and the Attorney-General, acting for and on behalf of the Workmen's Compensation Department of the State of Wyoming is as follows:\\n\\\" that the application and claim for an award by the said Ruth S. Lichty in the above-entitled compensation case be submitted to the court for hearing and determination upon the following statement of facts, which both parties agree to be true and correct, together with any additional evidence produced under the provisions hereof, to wit:\\n\\\"(1) The employer company, the Lichty Construction Company, is a corporation organized and existing under and by virtue of the laws of the State of Wyoming. The corporation was formed on the 16th day of May 1946. On March 20, 1950, the date of the accident in question, the stockholders of the company and the number of shares of stock owned by each were as follows:\\nName of Stockholder Shares Owned\\nGlenn N. Lichty. 447\\nMichael H. Lichty. 41\\nJohn Lichty, Jr. 41\\nRuth S. Lichty. 57\\nTotal number of shares outstanding. 586\\n\\\"At that time Glenn N. Lichty, Ruth S. Lichty and Michael H. Lichty were the directors of the company and the officers were Glenn N. Lichty, president and superintendent of construction; Michael H. Lichty, vice-president; and Ruth S. Lichty, secretary-treasurer. Ruth S. Lichty was the wife of Glenn N. Lichty, and Michael H. Lichty and John Lichty, Jr., were brothers of Glenn N. Lichty. The two latter were at times employed by the Company and at such times were carried on the payroll and reported to the Compensation department as such.\\n\\\"(2) The company was and is engaged in heavy construction work such as highway construction work. It owned and used miscellaneous heavy dirt-moving equipment ordinarily used in this type of work, such as tractors, bull dozers, scrapers, rollers, draglines and trucks. In the year 1949 the book value of its equipment was approximately $118,000. It was a pre-qualified contractor with the Wyoming State Highway Department up to the sum of $205,000, which means that it could bid on and contract for construction jobs up to that amount.\\n\\\"Weather conditions to a large extent controll (control) the time that could be spent on jobs and the company maintained no labor force during the winter months in which it could not work. However, during the periods it could work it employed a rather large labor force, employing as many as twenty-five or more men for various purposes, including the operation of the machinery above described. All of such employment was and is an extra-hazardous occupation as defined and as covered by the Workmen's Compensation Law.\\n\\\"At the time of the injury here in question the company was lining the Pilot Canal on the Riverton Project in Fremont County with asphaltic membrane under the contract with the Bureau of Reclamation.\\n\\\" (3) From the time of formation of this corporation to and including March 20, 1950, Glenn N. Lichty, the deceased, was at all such times in full and complete charge of the corporation.\\n\\\"He performed all of the duties and functions ordinarily and usually performed by the president of a corporation such as the supervision and execution of various and sundry reports to governmental agencies; the negotiation and completion of contracts on behalf of the corporation; the signing of checks and other instruments necessary to the transaction of the corporate business. In addition to his duties as president he was also superintendent of construction. He had the right to hire and fire employees and to fix their pay; to examine, estimate and submit bids on proposed construction in which he was interested, and to bind and obligate the corporation to carry out contracts entered into for such construction; to purchase machinery, materials and supplies necessary to carry out contracts negotiated on behalf of the corporation; to supervise, control and direct all of the employees; the use of the construction equipment, and the methods and means of accomplishing completed jobs and related activities of the corporation.\\n\\\"At times the deceased did 'personally operate the heavy machinery and equipment and trucks of the company in order to keep the job moving. No other officer or officers exercised any control over him as to the time he did put in on the job and he was free to come and go according to his own desires.\\n\\\"He received no compensation from the company as an officer or director but was carried on the payroll the same as any other employee of the company and was paid for actual time he was on the job as an employee of the company.\\n\\\"During the following months the wage paid to the deceased was reported to the Workmen's Compensation Department upon the regular payroll report of the company and the proper fee paid thereon, to wit:\\n\\\"1946, August, September, October, November.\\n\\\"1947, February, March, May, June, July, September, October, and November.\\n\\\"1948, January through November.\\n\\\"1949, July, August, September and October.\\n\\\"1950, March.\\n\\\"During the months of December 1948; January, March, April and May of 1949; and January and February of 1950, the company made no payroll return showing employment of any employees.\\n\\\" (4) The accident occurred while Glenn N. Lichty was regularly employed by the company. He was driving a company pickup and had come to Riverton where he picked up a new fuel pump for another company truck and was returning with it to the job. About five miles west of Riverton on U.S. highway 287 he hit an icy spot on the highway; the pickup skidded and overturned, throwing Mr. Lichty out of the cab. The pickup rolled over him breaking his neck and crushing the left side of his chest. He died almost instantly as a result of the injuries which he received in this accident.\\n\\\" (5) Glenn N. Lichty left a widow, to wit, the said Ruth S. Lichty, to whom he had been regularly married by a marriage duly solemnized by legal ceremony, but no children. Said widow filed her claim for compensation herein on April 5, 1950. The company does not contest her claim.\\n\\\"(6) The Workmen's Compensation Department of the State of Wyoming has rejected said claim on the grounds that the deceased was not covered under the provisions of the Workmen's Compensation Law, since he was 'one holding an official position,' by reason of his being a director and president of the corporation, the Lichty Construction Company, at the time of his death. Notice of rejection was sent to Ruth S. Lichty by letter dated April 12, 1950, from the Clerk of the District Court of Fremont County, Wyoming.\\n\\\" (7) Under date of April 18, 1950, Ruth S. Lichty filed written application with said Clerk of Court for hearing on said claim on the grounds that the deceased was at the time of his death an employee or workman engaged in extra-hazardous occupation for and on behalf of the Lichty Construction Company at the time of his death, and his death resulted from injuries received while so employed.\\n\\\"(8) It is further admitted that as a matter of prece dent the Workmen's Compensation Department of the State of Wyoming has heretofore always rejected claims where the claimant was an officer of the corporation employer.\\n\\\" (9) In addition to the death claim of Mrs. Lichty, E. E. Davis of Riverton, Wyoming, mortician, has filed a claim herein for $290 funeral expenses; and Dale Ashbaugh, M.D., has filed a doctor's claim for $5.00, both of which have also been rejected by the Workmen's Compensation Department of the State of Wyoming.\\n\\\"(10) It is further stipulated and agreed that either party may produce such testimony and evidence before the court as may be desired to supplement the above stipulated facts.\\\"\\nThis stipulation was signed by counsel for claimant, Ruth Lichty, and also by her and by the Attorney-General of the State of Wyoming. We have italicized some of the especially significant portions of this stipulation and which are especially important in view of the authorities presently to be cited.\\nAfter the presentation of this stipulation to the court, Mrs. Ruth Lichty was called as a witness on her behalf and testified in part that she was employed by the Company as a book-keeper and that the company was engaged in excavating and lining the Pilot Canal for the U.S. Reclamation Service out of Riverton, Wyoming; that this work involved digging out a foot or more of dirt in the bottom, sides of said canal, rolling and trucking with heavy equipment trucks, draglines; that the work started March 13, 1950; that her husband:\\n\\\" had been operating a tractor for the rolling, dragging, also he had used patrol for the work that week, and one Sunday we worked all day, and after we closed that work we had to go after another piece of equipment that we had on a small job that had been going on for just a few days for some land leveling for Mr. Stewart, a farmer there. That was Sunday evening. I went out with my husband, I drove the International tractor down to the lowboy that was backed to a place to be loaded, and he loaded it and we started out to pull the truck out to the main highway.\\n\\\"The fuel pump wasn't working, we had to leave it set, anyway we couldn't move it on the place on Sunday, we were moving it back on the other job. He was also supervising the work that was going on. He had also to drive the gravel truck and he had also the pickup, or something.\\\"\\nThat the company had about ten employees on the payroll besides Mr. Lichty and the witness. There was no cross-examination, both parties to the hearing rested thereby concluding the matter before the district court. After argument had, the case was submitted for decision resulting in the judgment above described.\\nSection 72-104 W.C.S. 1945 which enumerates extra-hazardous occupations mentions among many others \\\"excavations\\\" and \\\"teaming and truck-driving.\\\" It will be observed that the district court in its judgment as above recited found that: \\\"the deceased Glenn N. Lichty was killed while engaged in extra-hazardous employment on behalf of the Lichty Construction Company\\\" basing its judgment solely on the additional finding that Lichty \\\"was at the time holding an official position with said company as a director and president thereof.\\\" This conclusion as a matter of law the court evidently drew from section 72-106 W.C.S. 1945 subdivision (\\\"i\\\") which read at the time of the accident:\\n\\\" 'Workman' means any person who has entered into the employment of or works under contract of service or apprenticeship with an employer, except a person whose employment is purely casual and not for the purpose of the employer's trade or business, or those engaged in a clerical work and not subject to the hazards of the business, or one holding an official position. The term 'workman' shall include 'employee' and the term 'employee' shall include 'workman' and each shall include the singular and plural of both sexes.'' (Italics supplied.)\\nIn this connection also we quote subdivision (\\\"h\\\") of the same section reading:\\n\\\" 'Employer' includes any municipality, county, person or body of persons, corporate or incorporate, and the legal representatives of a deceased employer or the receiver or a trustee of a person, corporation, association or partnership.\\\" (Italics supplied.)\\nWe have given this last subdivision verbatim also inasmuch as the Workmen's Compensation Department, by its correspondence above reviewed, seems to have taken the position that Lichty was an employer, though the stipulation filed in this case shows that he was employed by, and worked for, the Lichty Construction Company, a corporation, and was carried on the payroll of that corporation which was submitted to the Workmen's Compensation Department of the State of Wyoming the \\\"same as any other employee of the Company and was paid for actual time he was on the job as an employee of the Company\\\" (Italics supplied). The view of the Workmen's Compensation Department as expressed by the correspondence set out above seems to be contrary to the finding of the district court in connection with this matter. See also the authorities relative to this point cited infra.\\nNeither the district court nor the Workmen's Compensation Department of this State appear to have had in mind in the disposition of this cause the repeated utterances of this court directing that the language of the Workmen's Compensation Act should receive a liberal construction.\\nIt may not be amiss to call to mind that in Baldwin et al v. Scullion 50 Wyo. 508, 529, 530; 62 P. (2d) 531, it was said:\\n\\\" the provisions of the Workmen's Compensation Act in this state should receive a liberal construction to accomplish the benevolent purpose for which they were promulgated (Sakamoto v. Kemmerer Coal Co., 36 Wyo. 325, 255 Pac. 356; McConnell v. Murphy Bros., et al., 45 Wyo. 289, 18 Pac. (2d) 629; Koprowski v. Megeath Coal Co., 48 Wyo. 334, 46 Pac. (2d) 61).\\\"\\nIn Christensen, State Treasurer, vs. Sikora 57 Wyo. 57, 75, 112 P. (2d) 557, the opinion filed therein was concluded with this language:\\n\\\"We may not lay aside, however, the well-known principle which has heretofore been so frequently mentioned by this Court in disposing of Workmen's Compensation cases, viz.; that the Workmen's Compensation Law of Wyoming should be liberally construed so that where reasonably possible the industry and not the individual workman, should, to a large extent, bear the burdens of accidents suffered within it.\\\"\\nAn able author well versed in the law of compensation cases has announced in his text \\\"Injury and Death under Workmen's Compensation Laws,\\\" Horovitz, on page 209 that:\\n\\\"Compensation provisions must be construed liberally to protect the injured worker, and hence exclusions are properly narrowly construed, to bring close cases within the protection of the acts.\\\"\\nIt is declared in 71 C.J. 507 section 239 that:\\n\\\"The majority of cases adhere to what may be called the dual capacity doctrine; that is, that an officer, director, or stockholder of a corporation will not be denied compensation merely because he is such officer, director, or stockholder, if, as a matter of fact, at the time of the injury he is engaged in performing manual labor or the ordinary duties of a workman and receives pay therefor in the capacity of an employee, or if he is engaged in an employment palpably separate and distinct from the official duties falling upon him as an officer of the corporation.\\\"\\nThis view of the law is succinctly stated in the text above cited, Horovitz on Workmen's Compensation page 198 as follows:\\n\\\"Most states now hold that if he is a working official or stockholder, and the carrier collects premiums on his wages, as distinguished from his profits, he is an employee of the corporation and may recover.\\\"\\nIn Emery's case 271 Mass. 46, 48, 170 N.E. 839 the Supreme Judicial Court of Massachusetts has appropriately said:\\n\\\"According to the statutory definition, the word 'employee' includes 'every person in the service o\\u00ed another under any contract of hire, express or implied, oral or written,' with exceptions not material here G.L.c.152 \\u00a7 1 (4). Holding stock or office in a corporation is not necessarily inconsistent with being an 'employee' thereof. Dewey v. Dewey Fuel Co. 210 Mich; 370, Skouitchi v. Chic Cloak & Suit Co. 230 N. Y. 296. Hubbs v. Addison Electric Light & Power Co., 230 N. Y. 303. Compare Kolpien v. O'Donnell Lumber Co., 230 N. Y. 301. In the absence of special circumstances, a stockholder or officer of a corporation in its service is 'in the service of another' within the meaning of the statute, since the corporation is a legal entity distinct from any of its stockholders or officers. McAlevey v. Litch, 234 Mass. 440 441. Star Brewing Co. v. Flynn 237 Mass. 213, 217.\\\"\\nThe New York Court of Appeals in the Matter of Skouitchi vs. Chic Cloak & Suit Co., 230 N. Y. 296, 299, 130 N.E. 299 has also pointed out:\\n\\\"A corporation is a completely entity separate and distinguishable from its stockholders and officers and if it sees fit to have one of the latter serve it in the capacity of an ordinary employee we see nothing to prevent it from so doing. That seems to us to be the present case. The claimant was 'employed' as general manager. The term 'general manager' is somewhat ambiguous and of itself might indicate either an executive and important officer or a person performing ordinary duties of an employee. The evidence and findings in this case show that the position was of the latter class and that the claimant performed ordinary detail and manual work such as would be required of a typical employee. Under these circumstances we think that he was entitled'to secure compensation as such for injuries under the general provisions of the Compensation Law.\\\"\\nWhere it appeared in Hubbs vs. Addison Electric Light & Power Co., 230 N. Y. 303, 304, 305; 130 N.E. 302 that:\\n\\\"In this case it has been found that the claimant owned a large proportion of the capital stock of a comparatively small electric light and power company and was its secretary and treasurer; that he was employed as a general manager and as such 'performed manual labor at his employer's plant and away from the plant;' that his weekly wage as such general manager was the sum of $25,\\\"\\nthe Court remarked that:\\n\\\" the claimant was 'employed' as general manager; that in such capacity he performed various manual services such as an ordinary employee might perform and that for his services in this particular capacity he received a weekly wage. Under these circumstances we think that the award is sustained by the findings and that the order of the Appellate Division should be affirmed, with costs.\\\"\\nThe Supreme Court of Ohio in Kuehnl vs. Industrial Commission of Ohio, 136 Ohio St. 313, 316, 317, 321, 324; 25 N.E. (2d) 682 appears to have indicated its approval of the dual status doctrine set out in 71 C.J. supra in language which is particularly appropriate to be kept in mind in the case at bar:\\n\\\"Briefly stated, the commission claims that the claimant was an executive officer of the corporation and, therefore, not an employee entitled to participate in the State Insurance Fund. The commission denies that he may have both the status of an executive while engaged in executive duties, and the status of an employee while performing manual labor for the corporation during working hours devoted to its service. The claimant, on the other hand, claims that he is entitled to participate in the State Insurance Fund if injured while he is bona fide within the latter status, even though a major part of his time is devoted to executive duties for the corporation in whose success he is interested as a shareholder.\\n\\\"This important question has not been previously decided by this court, although it has received consideration by the courts of a number of sister states. The importance of the question is recognized when it is considered that the individual business of hundreds and perhaps thousands of small corporations organized in this state is not sufficiently large to warrant the employment of full time executives, and that while of necessity the heads of such corporations are nominal executives devoting a portion of their time to executive duties, they are also often engaged in performing manual labor necessary in the prosecution of the business.\\n\\\"The Workmen's Compensation Act does not discriminate against small corporations and their employees, the latter being entitled to full protection under this law. The law was enacted, pursuant to the Constitution as stated in Section 35, Article II, 'For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen's employment '. In fact the spirit of the Workmen's Compensation Act is to give encouragement to the employment of the corporate fiction as a nominal employer, so that all bona fide employees of such an entity, when they exceed two in number, are granted coverage. The social implications of the law are that the economic loss of the injured employee, or of his dependents in case of his death, must be borne by industry . \\\"\\nThe Lichty Construction Company, the employer of Glenn N. Lichty was obviously a small business corporation and Mr. Lichty, in order to make a success of the work it contracted to do, found it necessary to look after many phases of its executive work as well as to do the things that in a large corporation would undoubtedly be left to employees who would be quite unable to perform executive functions. No reason is perceived why Lichty should not do what he did under the circumstances in which he found himself. If he was injured while doing a mere workman's task should he have sacrificed his right to protection under the Act ? Especially when he was not paid for his work as an executive in the Lichty Construction Company, but relied simply on the protection afforded an employee carried on the corporation's payroll and upon which the State Workmen's Compensation Department collected fees. Closing this opinion in the Kuehnl case supra the Ohio Court further said:\\n\\\"This court has held on several occasions that the Workmen's Compensation Act of this state is for the benefit of the injured party and should be liberally interpreted in favor of the applicant. Industrial Commission v. Pora 100 Ohio St., 218, 125 N.E. 662; Industrial Commission v. Weigandt 102 Ohio St., 1, 7; 130 N.E. 38; Industrial Commission v. Lewis 125 Ohio St., 296, 181 N.E. 136. This is especially so in the case at bar since the claimant's wages were included in the payroll report and were taken into consideration in the premium paid by the corporation. If such course is consistently followed, the State Insurance Fund will not suffer by reason of the allowance of such a claim.\\\"\\nIt is quite unnecessary to cite decisions that in construing statutes the intention of the law making body which enacted them is to be ascertained as nearly as possible. With that principle as a guide, let us now turn to the legislative history of what has occurred, which may be of aid, in the interpretation of the statute in question (subdivision (\\\"i\\\") of 72-106 supra). In 50 Am. Jur. 328-9, section 337 it is said:\\n\\\"The interpretation of a statute by the legislative department may go far to remove doubt as to its meaning. This fact is recognized by the courts which regard it as proper, in determining the meaning of a statute, to take into consideration subsequent action of the legislature, or the interpretation which the legislature subsequently places upon the statute. There are no principles of construction which prevent the utilization by the courts of subsequent enactments or amendments as an aid in arriving at the correct meaning of a prior statute, and it is very common for a court, in construing a statute to refer to subsequent legislation as impliedly confirming the view which the court has decided to adopt.\\\"\\nAfter the ruling of the Workmen's Compensation Department of this State had been promulgated, at the very next session of our State Legislature the exception provision of subdivision (\\\"i\\\") \\u2014 \\\"or one holding official position\\\" was struck from the law by section 3 subdivision (\\\"b\\\") of Chapter 143 Laws of Wyoming 1951 page 277 and the section was phrased to read as follows:\\n\\\" 'Workman' means any person who has entered into the employment of or works under contract of service or apprenticeship with an employer, except a person whose employment is purely casual and not for the purpose of the employers' trade or business, or those engaged in clerical work and not subject to the hazards of the business. The term 'workman' shall further inelude the officers of a corporation, the business of which is classed as extra-hazardous in nature, provided such person or persons are actually subject to the hazards of such business in the regular performance of his or their duties and provided further that the coverage of such person or persons shall be contingent upon notice of such intent being filed with the Workmen's Compensation Department by registered mail at least thirty (30) days prior to the taking effect of such coverage and the payroll reporting of such person or persons' salary or wage shall be at least Twenty-four Hundred $2400.00) Dollars annually but need not exceed Forty-eight Hundred ($4800.00) Dollars of such person or persons' annual salary or wage, and after the filing of such notice such person or persons must be included on all payrolls filed thereafter until coverage is withdrawn by written notice delivered to the Workmen's Compensation Department. The term 'workman' shall include 'employee' and the term 'employee' shall include 'workman' and each shall include the singular and plural of both sexes. Any reference to a workman who has been injured shall, where the workman is dead, include a reference to his 'dependent family' as hereinafter defined, or to his legal representatives, or where the workman is a minor or incompetent to his guardian or next friend; and no minor workman shall be denied the benefits of this Act for the sole reason that his employment is in violation of the labor laws governing the employment of minors.\\\" (Italics supplied.)\\nIt would seem that the Legislature was endeavoring to carry out and approve the liberal construction theory which most Appellate Courts (including this court) adopt touching Workmen's Compensation Acts and considered the ruling of the Workmen's Compensation Department of the State now in question before us, altogether too severe and illiberal especially as regards small business concerns whose officers are perforce obliged to take a hand in the manual performance of the works they undertake and the later law was enacted with that intention in mind. At any rate the law in question was radically altered as very clearly appears from a comparison of the two subdivisions mentioned above.\\nWe now call attention to the case of Millers' Mutual Casualty Co., v. Hoover et al (Tex. Comm. of App.) 235 S.W. 863, 864, 865 and 866. In that case it appeared that the G. B. Smith Milling Company was a private corporation operating a flour mill. It had a board of directors of which Guy Frank Hoover was one. Its president and General Manager was one G. B. It. Smith. Hoover in addition to being a director was its superintendent and head miller. Briefly, his duties in that capacity were to direct the operation of the plant machinery, the manufacture of flour, overlook and direct repairs and at times do the actual work in connection with these matters. Ordinarily, he was without authority to employ and discharge servants though at times he did both to a limited extent. The president, G. B. R. Smith usually directed the mill and hired and fired its employees and exercised a general supervision over the operation of the mill. Hoover was given a fixed monthly salary. Whether that was due to him as a director of the corporation the evidence failed to disclose. Hoover was accidentally killed at the mill while engaged in the performance of his duties as superintendent and head miller. His widow, Mrs. Louise E. Hoover, presented a claim for compensation under the Workmen's Compensation Act of the State of Texas. This claim was opposed by the milling company, and the Millers' Mutual Casualty Co. insurer.\\nThe Industrial Accident Board of Texas allowed this claim when duly presented to it. On review the trial court and the Texas Court of Civil Appeals also upheld the claim, 216 S.W. 475. Their view thereafter was also sustained by the Texas Commission of Appeals in a very comprehensive examination of the law and the facts involved in the case. (235 S.W. 863) supra.\\nThe Texas Law of 1917 defined an employee thus:\\n\\\" 'Employ\\u00e9' shall mean every person in the service of another under any contract of hire, expressed or implied, oral or written, except masters of or seamen on vessels engaged in interstate or foreign commerce, and except one whose employment is not in the usual course of the trade, business, profession or occupation of his employer. Part 4, \\u00a7 1 (Vernon's Ann. Civ. St. Supp. 1918, art. 5246-82.)\\\"\\nSection la of Part 4 (Article 5246-83) the section which called for construction read:\\n\\\" 'The president, vice-president or vice-presidents, secretary or other officers thereof provided in its charter or by-laws and the directors of any corporation which is a subscriber to this act shall not be deemed or held to be an employ\\u00e9 within the meaning of that term as defined in the preceding section hereof.' \\\"\\nThe sole question presented to the several courts was whether an employee of a corporation was precluded from the benefits of the Workmen's Compensation Act by reason of the fact that he was also a director of the employing corporation. The appealing insurer and the milling company contended that the proper construction of section la supra should be:\\n\\\" .^at an officer or director of a corporation is precluded from the benefits of the act, regardless of whether, aside from his official duties, he be also a bona fide employ\\u00e9 of the corporation within the meaning of the act; \\\"\\nThe claimant, however, insisted that:\\n\\\" only the officers named as such are excluded from the benefits of the act; and, where they occupy the dual position of officers and employ\\u00e9s within the meaning of the act, they are entitled to its benefits if injured while engaged in the performance of their duties as em-ploy\\u00e9s.\\\"\\nIn the course of its opinion the Commission of Appeals used in part the following reasoning:\\n\\\"We are not prepared to say that the language of section la is so plain and free from doubt as not to call for construction and invite inquiry into the legislative intent. It has been held in a number of states that there is nothing in the relation of an executive officer or director of a corporation which is irreconcilably inconsistent with his being also an ordinary employ\\u00e9 of the corporation within the provisions of Workmen's Compensation Acts. The cases upon this subject are collated in 1 Honnold on Workmen's Compensation, 173, and 28 R.C.L. 764 and 765. Stockholders of a corporation are, in a sense, the owners of the corporation. Its directors have the sole management of its affairs, and their acts as such are its acts. The same may be said of its officers while acting within the powers delegated to them by the board of directors. But, as individuals, the stockholders, directors, and officers of a corporation are distinct legal entities, and are as entirely free to deal with the corporation by contract or otherwise, within certain well-defined limitations not essential to enumerate, as any other individual.\\n\\\"It is readily conceivable that one might occupy the dual relation of an ordinary employ\\u00e9 coming within the benefits of the act, and of an employ\\u00e9 coming within one of the excepted employments enumerated in the act. As, for example, a person operating a small manufacturing plant might have one in his employ in the plant who also performed services for him as a domestic servant. Under such circumstances, we think it would be held that the fact that he performed duties which were not within the protection of the act would not preclude him from receiving the benefits of the act if injured while performing the duties of an employ\\u00e9 within the protection of the act. Why should not the same course of reasoning apply to one who is both officer and employ\\u00e9 of a corporation ? The only necessary construction to be placed upon section la is that officers and directors as such are precluded from the benefits of the act. Beyond that the express language is silent. To give it either of the constructions contended for would require supplementing the language used, if all uncertainty is to be removed. Plaintiff in error would supply after 'directors of any corporation' the words 'whether acting in their official capacity, or otherwise'; while defendants in error would supply at the same place the words 'as such.' It seems quite plain to us that in order to arrive at the legislative intent we must look beyond the mere language of section la.\\\"\\nExplaining the idea underlying the exclusive terminology of section la supra the Commission said:\\n\\\"The underlying reason for excluding the officers and directors or a corporation as such from the provisions of the act is apparent. The officers and directors of a corporation do not come within the ordinarily accepted meaning of the terms 'workmen' and 'employ\\u00e9s', for whose benefit the legislation is primarily enacted. Their duties toward the corporation and its business are those of managing and directing heads, and they do not, as a rule, perform the ordinary tasks, nor are they subjected to the ordinary risks, of employ\\u00e9s or workmen engaged in the service of the corporation. Nor, as a general rule, is their compensation affected by their temporary disability caused by injury while engaged in their employment. On the other hand, where, although occupying an official position with the corporation, they are employed as workmen or employ\\u00e9s in the ordinary sense of those terms, and come clearly within the provisions of the act, there would appear to be no substantial reason for excluding them from those benefits merely because they also hold official positions with the corporation; and the Legislature should not be presumed to have intended so to exclude them unless the language employed be clearly not susceptible of any other construction.\\\"\\nConcluding this opinion the Commission further said:\\n\\\"It is clear, and in fact conceded, that Hoover was head miller of the corporation; that his employment was bona fide; that he lost his life in the discharge of his duties as head miller; that in such employment he was not acting as officer or director of the corporation; and that he clearly came within the provisions of the act, unless precluded by section la.\\n\\\"We conclude that the judgments of the district court and Court of Civil Appeals should be affirmed.\\\"\\nThe Chief Justice of the Supreme Court of Texas thereupon announced:\\n\\\"The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.\\\"\\nThe foregoing decision was followed in the case of Cook vs. Millers' Indemnity Underwriters, 240 S.W. 535 which was also decided by the Commission of Appeals. In that case Cook, the claimant, was a stockholder in the gin company, his employer; he was also director, secretary and treasurer of the corporation. The Industrial Accident Board of the State of Texas allowed his claims as did the district trial court. The Court of Civil Appeals reversed the trial court. The Commission of Appeals recommended to the Supreme Court that \\\"the judgment of the Court of Civil Appeals be reversed and that of the trial court affirmed.\\\" This recommendation the Supreme Court of Texas also adopted.\\nSubsequently, the Texas Legislature amended section la supra by adding the words \\\" and this notwithstanding they may hold other offices in the corporation and may perform other duties and render other services for which they receive a salary'.\\\" (Bell vs. Texas Employers' Ins. Ass'n. 43 S.W. 2nd 290.)\\nIt will be observed that the Texas Legislature did substantially the reverse of what was done by the Wyoming Legislature in Section 3 of Chapter 143 Laws of Wyoming 1951 quoted supra. After the change in the Texas Law the case of Bell vs. Texas Employers' Ins. Ass'n., 43 S.W. 2nd 290, 292 and 293, came before the Texas Court of Civil Appeals. Therein the earlier decisions cited above, to-wit: The Hoover and Cook cases, were reviewed and then the court remarked:\\n\\\"These decisions appear to be in harmony with the spirit of the Workmen's Compensation Law.\\\" (Italics supplied.)\\nRelative to the amended section la the Court reversing and remanding the judgment below allowing an award to the secretary and director of a corporation for a claim as an employee of that company said:\\n\\\"However, because of such construction of section la, as it then existed, the Legislature adopted the 1923 amendment of this section as expressive of its intent on this question. While section la, as it now exists, may be out of harmony with what generally has been considered the spirit of the Workmen's Compensation Law, yet its language is such that there can be no doubt as to its meaning, especially when the legislative history of this enactment is borne in mind, as well as the court's construction of the 1917 enactment. It was such construction that the Legislature undertook to prevent in the future.\\\" (Italics supplied.)\\nWe feel that it is our duty to decide the case at bar in accord with our previous decisions liberally construing the Workmen's Compensation Law of this State and in accord with its intent as indicated by the action of the 1951 Legislature described above. It may be in the instant action noted that the Workmen's Compensation Department of Wyoming accepted the pay rolls of the Lichty Construction Company and also the fees paid said department by that company on account thereof and acquiesced in the reception thereof without objecting that Lichty was an officer of the Company and \\\"held an official position\\\" therein but, nevertheless, he was carried on the company's payroll over a period of a number of years and his wages, of course, listed on the pay roll as an employee. He never received a cent as an executive of the company; whether the company paid any dividends does not appear in the case. It may well be that payroll wages was all that the operation of the company could produce.\\nIt is suggested that the Workmen's Compensation Department has heretofore always rejected claims \\\"where the claimant was an officer of the corporation employer.\\\" This without more we think, was an erroneous view of the language of the Act and not in accord with the spirit of its being liberally construed or in accord with the manifest policy of the Act as declared by this court to impose upon the industry the burden of claims on account of injuries suffered by workmen under it.\\nIn Christensen vs. Sikora, supra, this was said:\\n\\\"It is suggested that the State Treasurer, the executive officer charged with the duty of administering the Workmen's Compensation Law, has always regarded grocery stores as without the purview of that law and the principle is invoked that the contemporaneous construction placed thereon by an official or department whose duty it is to administer a law should prevail. But that rule is 'restricted to cases in which the meaning of the statute is really doubtful, and the courts are not bound to follow, or justified in following, an executive construction which is clearly erroneous.' (59 C.J. 1030-1031, and cases cited.) \\\"\\nMuch more could be said in support of the result in the case at bar which we feel constrained to announce. Sufficient, however, has been said to indicate our views anent the instant matter. As the law has been altered to comply with what we deem the true spirit of the Act relative to a case such as we now have before us it seems that a case of this character would hereafter be very unlikely to again arise.\\nThe judgment of the district court of Fremont County will therefore be reversed and the case remanded with instructions to make the proper award to Mrs. Ruth S. Lichty, the claimant, as is directed by the Workmen's Compensation Act.\\nReversed and Remanded.\\nBlume, C. J. and Ilsley, J., concur.\"}"
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+"{\"id\": \"8513490\", \"name\": \"QUACKENBUSH, ET AL v. CITY OF CHEYENNE, ET AL.\", \"name_abbreviation\": \"Quackenbush v. City of Cheyenne\", \"decision_date\": \"1937-07-27\", \"docket_number\": \"No. 2021\", \"first_page\": \"146\", \"last_page\": \"168\", \"citations\": \"52 Wyo. 146\", \"volume\": \"52\", \"reporter\": \"Wyoming Reports\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T23:57:37.991046+00:00\", \"provenance\": \"CAP\", \"judges\": \"Kimball, J., concurs.\", \"parties\": \"QUACKENBUSH, ET AL v. CITY OF CHEYENNE, ET AL.\", \"head_matter\": \"QUACKENBUSH, ET AL v. CITY OF CHEYENNE, ET AL.\\n(No. 2021;\\nJuly 27, 1937;\\n70 Pac. (2d) 577)\\nFor the plaintiffs and appellants, there was a brief and oral argument by Charles E. Lane of Cheyenne.\\nFor the defendants and respondents, there was a brief and oral argument by Harry B. Henderson, Jr.\\nFor defendants and appellees, there was also a brief and oral argument by William E. Mullen of Cheyenne.\", \"word_count\": \"5866\", \"char_count\": \"33296\", \"text\": \"Blume, Chief Justice.\\nThis is an action brought on April 11, 1936, by taxpayers against the City of Cheyenne, its mayor and commissioners, for a declaratory judgment as to the validity of transactions hereinafter mentioned. The trial court declared them valid, and an appeal has been taken by the plaintiffs, appellants herein, from the judgment entered herein.\\nThe petition discloses the following facts: The plaintiffs are citizens and taxpayers of the City of Cheyenne. The City is a municipal corporation, operating under a special charter, but also under the commission form of government, and the defendants are the Mayor and the Commissioners of the City. The Home Builders Company is a private corporation, organized for gain on August 23, 1935. Archie Allison, the Mayor, was a director and stockholder in the corporation. On August 26, 1935, the Mayor and Commissioners of the City sold sixteen lots in the Airport Addition to the City of Cheyenne to the Home Builders Company for the sum of $4150.00, or a little over $250 per lot, and made and executed a deed to the purchaser. Thereafter brick houses and frame garages were erected on the lots by the purchaser above named, of the value of approximately sixty-five thousand dollars, and Archie Allison, the Mayor, had the contracts for the erection of these buildings. Thereafter, and commencing on February 26, 1936, the City offered the above mentioned lots for sale at public auction. On March 19, 1936, bids for the lots were received, pursuant to advertisement, and the Home Builders Company, together with three others, purchasers from the Company, bid the sum of $65,886.16, in addition to the $4150.00 previously paid. On the following day, namely, on March 20, 1936, a check for the amount was received from the Home Builders Company, and was accepted, and a deed was ordered executed. A claim for $65,-886.16 was filed with the City for the value of the improvements placed upon the lots, and this amount was allowed and paid. In the meantime, and on March 18, 1936, objections were filed by counsel for the appellants herein with the City of Cheyenne to the sale of the premises. Plaintiffs accordingly prayed that the court declare the legal effect of the transactions above mentioned. The defendants in the case answered, ad mitted and denied some of the allegations; trial was had before the court without a jury. Among other things, it appeared that one Frank Yager bought from the Home Builders Company two of the lots for about $1240.00, and that the sum of $1640.00 was bid for these lots at the public auction hereinbefore mentioned, the difference in these amounts not being explained. Allison admitted that he was a director and stockholder in the Home Builders Company, and that subsequent to the sale in August, 1935, he became interested in the erection of the improvements on the lots sold. He also testified that the lots were sold for their fair value, and that he made no profit whatever out of the transactions herein mentioned, and that the city sold the lots in question at the request of the Home Builders Company. The appellants offered testimony that the lots were of greater value. This testimony was, over objection, rejected by the court. Mr. Klett testi-.^ fied that Mr. Patterson, of the United Air Lines Company, took up the matter of providing housing facilities and adequate homes for the employees at Cheyenne Airport with the President of the Chamber of Commerce, and that the transactions of the purchase of the lots here in question originated in that manner; that the Home Builders Company was formed \\\"as a matter of a civic organization\\\"; that the plan was to enlist the aid of public spirited citizens to put up the money to go ahead with the plan of providing adequate homes; that, not being able to obtain title to other lots, the parties turned their attention to the lots here in question ;that the officers of United Air Lines desired homes built as close to the Cheyenne Airport as possible; that it was imperative to act at once; that the corporation was not organized for profit or gain; that the lots were all figured at an equal price except two (apparently those subsequently acquired by Yager, which were valued at $1140) ; that the price paid for the lots was fair and reasonable; that the lots were immediately improved after the sale in August, 1935 (except, perhaps, two), and the buildings erected thereon were occupied; that the bids for the improvements received were higher than anticipated, on account of the fact that the employees of the Cheyenne Airport would not buy homes if the price were too high; that Mr. Allison offered to construct them at a price approximately $1500 lower than that offered by anyone else. It further appears that the actions taken by the city as hereinabove mentioned were by a unanimous vote of the Council. Thereafter, the title to the property was examined and found to be defective, and immediately thereafter steps were taken to correct the defects, and the public auction heretofore mentioned was held for that purpose. The property was thereafter resold by the Home Builders Company to various parties, including W. H. Andrew, Frank Yager and Alvin W. Harris, and the Company sustained a net loss of $1 for each of the lots which were bought. The offer which was made at the time of the auction represented the $4150 originally paid for the lots, plus the value of the improvements thereon. At that sale, that is to say, the auction sale, a separate bid was made by W. H. Andrew, for Lot 4, in Block 3, Airport Addition, and a separate sale of the property was made to him. A separate bid also was made by Frank R. Yager for Lots 3 and 4 in Block 4, Airport Addition. This was accepted and the property was sold to Frank R. Yager by the city, and a conveyance was executed to him. The remainder of the lots were sold to the Home Builders Company and a conveyance executed to it.\\nCertain statutory provisions have been referred to in the briefs of counsel, among them Section 95-101, R. S. 1931, which provides that it shall not be lawful for any official to become in any manner interested in any contract in connection with which such officer may be called upon to act or vote, and that all contracts made in violation shall be null and void. Section 22-148 R. S. 1931, provides as follows:\\n\\\"Before sale is made of any real and personal property of any municipal corporation in the state of Wyoming, of the value of one hundred dollars or more, an advertisement of said intended sale, describing said property offered to be sold, together with the terms of sale, shall be published in four issues of some newspaper having general circulation in said community, and calling for sealed bids for purchase of said property. Upon the opening of the bids provided for in the foregoing section, the property shall be sold to the highest responsible bidder for same. The responsibility of the bidders shall be determined by the judgmept of the governing body of the city or town affected by said sale.\\\"\\nCounsel for appellant is correct in contending that municipal contracts in which officers of the city have a personal pecuniary interest are, ordinarily at least, void or voidable. 44 C. J. 89. The rule has been applied to purchases and conveyances of real estate. 44 C. J. 92. We will not decide herein the disputed ques-' tions whether section 95-101, R. S. 1931 applies herein, or whether the above mentioned rule is applicable when a sale is made at public auction, as provided by Sec. 22-148, R.( S. 1931. In 44 C. J. 93, it is stated that, \\\"an interest to invalidate a contract must be of a personal or private nature, so that an interest incident to membership in an association organized for public welfare and not for profit will not have that effect (invalidating a contract with a municipality).\\\" The testimony in this case shows that the Home Builders Company was organized for the public benefit and not for profit, and that the venture resulted not in a profit, but in a loss. It is argued that the company made a profit out of the Yager lots, but that would be of minor importance if, in fact, the venture as a whole resulted in a loss, and it is somewhat difficult, from an equit able standpoint, to see why citizens should be penalized if in fact acting for the public benefit, and no case has been cited, and we have found none, where that has been done. Yet the company was organized as a private corporation \\u2014 as indeed it was required to do in order to get back the money put into the venture. So the case is perhaps one on the border line, and one sui generis, and we shall not, at this time, decide as to whether or not the rule last stated should be applied in this case. The foregoing questions, as we shall see, may ultimately become merely academic in this case. If we should admit the original invalidity of the sale of August 26, 1935, as well as of the auction sale, for the reasons claimed by counsel for appellants, we should not have progressed far in the solution of the problems before us, for the reason that the situation changed from the time of the sale in August, 1935, and parties are interested who are not before the court, but whose rights must be considered the same as the rights of the city. And though not necessary, it appears to be advisable to point out what we conceive to be at least some of the fundamental factors which must not be overlooked in the ultimate solution of the contentions herein.\\nThe mere fact, standing by itself, that the lots should have been sold for a somewhat higher price than?4150 \\u2014that is to say that the sale was improvident \\u2014 does not, in the absence of illegality, fraud or clear abuse of discretion, authorize a suit on behalf of the taxpayers, for the reason that the sale of the property is, by statute, left to the judgment of the council. City of Terre Haute v. Water Works Company, 94 Ind. 305, McQuillan, Munic. Corp., (2nd Ed.) Sec. 1254, 2578; Cox v. Jones, 73 N. H. 504, 63 Atl. 178; Walter v. McClellan, 48 Misc. 215, 96 N. Y. S. 479. That is in line with the well-settled rule that \\\"a court of equity will not interfere at the suit of a taxpayer to restrain the officers of a municipal corporation in the exercise of their discretionary power with regard to the control or disposition of the property of the municipality, in the absence of illegality, fraud, or clear abuse of their authority.\\\" Seafeldt v. Astoria, (Or.) 16 Pac. (2d) 943; Haesloop v. City Council, 123 S. C. 272; 115 S. E. 596; 44 C. J. 1411. If the lots were in fact sold for less than their face value, that fact could doubtless ordinarily be shown as bearing on the good faith of the parties to the transaction. But that good faith is not seriously questioned herein. We should, perhaps, point out that in this instance hardly anyone would have expected the city to exact the last penny which could have been exacted. The lots were vacant. It was expected and desired that they should be improved immediately. Other purchasers might not have been willing to do so \\u2014 a matter of no mean importance to the city. The improvements were made. About $65,000 was added to the taxable value of property in the city; and the income from it, accruing to the city through taxation, would thus in a few years equal the amount paid for the lots by the Home Builders Company, without mentioning the county, school district and state taxes, in all of which the taxpayers of the city are interested. The property appears to have been bought through a patriotic motive, not \\u2014 primarily at least\\u2014 for profit. There were not sufficient housing facilities for the employees of the Cheyenne Airport, or, at least, that seems to have been thought to be true. The Chamber of Commerce of the city interested itself in the subject, and urged a remedy, in fear, probably, of the danger of reduction of the industry in connection with the airport, or in fear that it would not be expanded as expected. The Home Builders Company was seemingly organized in response to the interest thus manifested by the Chamber of Commerce. Eleven citizens were found who put up a certain amount of money ($2500, it seems, at that time). Among them was the Mayor of the city. There was evidently no thought at that time of dealing with the city, for the company attempted to obtain other lots, in close vicinity of the airport \\u2014 where the officials of United Air Lines desired the new homes \\u2014 but was unable to do so, and only requested to purchase the lots in question here thereafter. It was seemingly not deemed advisable to construct homes which would be too expensive for the employees of the airport to buy. All of these factors naturally enter into the question of the good faith of the parties, as well as into the question of what was a reasonable price for the lots here involved. We should bear in mind in this connection that the lots in question were held by the city in a proprietary capacity. Section 22-1902, R. S. 1931, which is a part of the original charter of the City of Cheyenne, provides that the city shall have the power \\\"to purchase and hold real estate and personal property for the use of the city, to sell and convey any real or personal property, and to make such order respecting the same as may be conducive to the interests of the city.\\\" How far this provision is modified or controlled by Section 22-148, R. S. 1931, cited supra, need not be determined. But there can be no doubt that in any sale of property made by the city the council has the right to take into consideration its best economic, financial and industrial interests. In the case of Roberts v. Northern Pacific Railroad Co., 158 U. S. 1, 15 Sup. Ct. 761, 39 L. Ed. 879, a county had granted some of its property to the railroad company in aid of the construction of a railroad. No money had been paid. The county subsequently, evidently thinking that the grant to the railroad was a gift and therefore totally void, made a subsequent conveyance to another party, and the latter claimed to be the owner of the property. The court, in discussing the respective rights of the parties, stated among other things as follows:\\n\\\"It is, indeed, urged that the county authorities could only sell its lands for money. We do not accede to this proposition. If they possesesd the power to sell for money, we are pointed to no express provision of law that restricts them from selling for money's worth. Even upon such a narrow yiew it may well be contended that the consideration received by the county included a money payment. The deed recites the payment of money by the company to the county at the time of the conveyance, and it is a conceded fact that the lands, since they came into the possesion of the company, have yielded considerable sums as taxes to the county. It is straining no principle of law or of good sense to regard the payment of an annual tax an equivalent, for the purpose of our present inquiry, to the payment of a rent. The amount as well as the nature of the consideration received by the county in exchange for its lands, if it had the power to sell them, was a matter that concerned the county only.\\\"\\nIn the case of Haesloop v. Charleston, 123 S. C. 272, 113 S. E. 596, the city agreed to convey to a private corporation certain property owned by it in its proprietary capacity, if the private corporation would erect upon the property a hotel of a certain value. The city received no money. Certain citizens and taxpayers sought to prevent the conveyance to the hotel company, claiming that a conveyance to the company would. be a mere gift. The court, upholding the agreement, in its discussion states among other things the following:\\n\\\"The right of the city council, under the powers conferred to sell this land to a private person or corporation for a private use for its market value in money is unquestionable. If, therefore, the city council has the right to dispose of this property for money's worth \\u2014 that is, for a consideration of reasonably equivalent value in money \\u2014 the next step in the inquiry is to determine the elements of value, with particular reference to direct and indirect benefits, the council is entitled to consider in weighing and establishing the equivalent of a monetary consideration. In determining what constitutes a consideration adequately equivalent in value to sustain a disposition of this property, we think it is clear that the city council are not limited to those elements of value that accrue, or are presumed to accrue, to a municipality from the appropriation of funds or property to such a 'public use' or 'public purpose' as would justify the exercise of the governmental powers of taxation or of eminent domain. If in lieu of accepting in cash the market value of the property, to be turned into the public treasury and applied to current municipal expense or invested in other property or lent at interest, the city elects to receive the financial benefit of a permanent real estate improvement, which would reasonably tend to enhance the value of other municipal property, and from which it will derive by due operation of law an annual return in taxes upon an additional $1,000,000 of taxable property, can it be said that such consideration is of less value to the city even from a purely financial standpoint, than the consideration in cash suggested? To the element of value just considered are to be added the other advantages to 'the city and its inhabitants,' which the council were entitled to evaluate in this connection, such as the benefit of needed facilities for caring for tourist travel, the quickening of the commercial life of the community reasonably to be anticipated from such a hotel as a channel of trade and commerce, and the distinctly public character of the service rendered by such a utility. Since, therefore, the proposed grant of this real estate, held in a proprietary or quasi private capacity, under broad powers expressly conferring the right of discretionary disposal for the welfare and advantage of the city, is supported by a contractual consideration that reasonably secures to the city substantial returns in tax revenues and in other benefits having a clearly disclosed relation to the public good, we are of the opinion that it is not such a donation of public property to a private use in manifest abuse of the council's discretionary powers as will invalidate the conveyance authorized by the resolution of council.\\\"\\nAs already stated, parties are interested in this case who are not before the court. The proceedings in connection with the sale have proceeded beyond the stage of a mere executory contract. Conveyances have been made by the city, and the sum of $4150 has been paid to it which it still retains. It has been held that even though statutory provisions have not been complied with, a conveyance cannot be attacked collaterally. McQuillan, supra, Sec. 1254, and cases cited. In the case of Newbold v. Glenn, 67 Md. 489, 10 Atl. 242, a city sold and conveyed real property without advertising it as required by statute. It was held that notwithstanding the violation of the statute the sale was valid since it was sold for full value. In the case of Mayor, et al., v. Sonneborn, 113 N. Y. 423, 21 N. E. 121, a lessee from the city attempted to evade payment of the lease on the ground that the lease had not been made pursuant to public auction. The court said: \\\"He has had the full benefit of the contract and, therefore, cannot be permitted, in an action founded upon it, to question its validity. The principle of estoppel upon which this rule stands has been recognized and applied in a uniform course of recent decisions by this court.\\\" If the city were to bring an equitable action to set aside the conveyances herein, it is clear that even though the situation had not been changed since the date of the first conveyance, the court would, when asked, require the city to pay back the sum received before revesting the city with title. It would be unjust and unconscionable that the city should, in a case of the character before us, receive back the lots and retain the money. Frick v. Brinkley, 61 Ark. 397; Hurwitz v. Moore, 132 App. Div. 29, 116 N. Y. S. 248; Sparks v. Jasper Co., 213 Mo. 218, 112 S. W. 265; second part of Tobin v. City Council of Sundance, 45 Wyo. 219, 17 P. (2d) 666. See also City of Fort Wayne v. Lake Shore & M. S. Ry. Co., (Ind.) 32 N. E. 215; Tucker v. Howard, 122 Mass. 529; People v. Brennan, 39 Barb. 522, 540. Counsel for appellants thinks otherwise. He contends that the city would have the right to retain the money in any event; that it could not be recovered from the city. His argument that the auction sale was invalid appears to be based mainly, or at least partially, on this theory \\u2014 that, since the money could not be recovered, there was no consideration for the auction sale, and hence it must fall. Counsel's theory is faulty. He cites us to McQuillan, Munic. Corp. (2nd Ed.) p. 849, where the author states: \\\"The general rule is that if a contract is within the corporate power of a municipality, but the contract is entered into without observing certain mandatory legal requirements specifically regulating the mode in which it is to be exercised, there can be no recovery thereunder.\\\" Obviously the text has no application herein. The author had in mind the enforcement of a contract, such, for instance, as was involved in the first part of Tobin v. City Council, supra. That may be readily gathered from the cases cited by the author \\u2014 e.g., Twohy Bros. Co. v. Ochoco Irr. Dist., 108 Or. 1, 216 Pac. 189. There was no question of enforcing a contract involved at the time of the auction, nor is there at this time. The question now is whether a completed contract can be dissolved, and completed conveyances set aside without doing justice between the parties. We do not think so, even if the situation had not changed as in the case at bar.\\nBut the situation has changed. It appears that buildings of the value of approximately $65,000 were erected before the commencement of this action. It is held that a city and the taxpayers may, under certain circumstances, be estopped when they sit by and permit large expenditures to be made pursuant to an invalid transaction. McQuillan, supra, sections 1254, 1261. But the parties to assert the estoppel are not before the court. Furthermore it appears that the buildings are occupied. Section 89-3908, Rev. St. 1931 provides, in substance, among other things, that a party holding under a deed and who has received his title without collusion or fraud shall not be evicted from the property unless he has been paid for his improvements, provided, however, that the owner may elect to be paid for the value of the property without such improvement. It has been held that a void deed is a sufficient basis for the right under such a statute. Benton v. Realty Co., 161 Ia. 600, 143 N. W. 583; Nowler v. Coit, 1 Ohio 519; Flanigan v. Mathisen, 78 Nebr. 412, 110 N. W. 1012. In 31 C. J. 329 it is said that \\\"it may be stated generally that in the absence of a statute requiring a particular title, any species of title, legal or equitable, which is apparently good in form and which if valid would be sufficient to convey title to the land in question, ordinarily is sufficient to constitute color of title.\\\" In the case of Krause v. Means, 12 Kans. 335, it appears that a halfbreed Indian conveyed certain lands. He had no capacity to convey, and hence the deed was absolutely void. Later Congress gave him capacity to convey, and he conveyed to another grantee. It was held that the first grantee had the right of an occupying claimant under a statute similar to ours. In the case of Brown v. Nelms, 86 Ark. 368, 112 S. W. 373, an appraiser of property bought it at an administrator's sale. By reason of being such appraiser he t was disqualified from purchasing. It was held, however, that though the deed to him was invalid, he had the right of an occupying claimant. There can be no doubt, in the case at bar, that the purchaser from the city, and the subsequent purchasers, all have acted in good faith and without actual fraud or collusion. No such fraud or collusion is, in fact, claimed herein, and it seems that counsel for appellants brought this action more for the purpose of calling the attention of officials in this state that they must not be interested in contracts with the city, than for any other reason, evidently deeming it his duty, as a citizen of the state, to do so, even without reference to the outcome of this particular case. It would seem clear, accordingly, under the foregoing authorities, that the purchasers of the improved property herein would be entitled to the benefit of the occupying claimant law of this state. But they are not before the court to assert their rights. Section 89-3914, Rev. St. 1931, gives the real owner the right to choose whether he will pay for the improvements or whether he will tender a deed for the property and elect to receive payment for the vacant property. We are inclined to agree with counsel for appellants that the city has no right to \\\"traffic\\\" in houses. If that is correct, the only alternative which the city in the case at bar would have \\u2014 if we should assume that the original purchase could be invalidated \\u2014would be to elect to take the value of the property, so improved. In other words, the title thereto would be good, leaving in the case at bar at most the question of whether the amount of $4150 already paid is sufficient. We might say, incidentally, that when at the sale at auction the city received a bid for $65,886.16 plus the amount of $4150 already received and then returned the $65,886.16, the city, in a round-about-way, merely recognized the rights given under the occupying claimant law.\\nAnother and independent factor enters into the transactions with W. H. Andrew, Frank Yager and A. W. Harris, who bought separate properties at the last sale by the city heretofore mentioned. We do not know whether counsel claims that these sales should be held invalid. At least no direct claim to that effect is made. They bought at auction, as the statute provides, and there is no pretense that Mr. Allison was in any way connected with them, so that no illegality can be claimed at least on this account. Counsel contends generally that the auction sale was but an attempted ratification of the first sale, and that no void sale can be ratified. We do not perceive the force of that contention. Simply because the city held a sale in August, 1935, which was not in compliance with the statute, can certainly be no reason why the city could not hold a sale in compliance with such statute subsequently. Nor do we know of any reason, and none has been pointed out, why the bidders at the first sale (let alone Andrew, Yager and Harris) could not be bidders at the second. The contention that there was no consideration for the auction sales is not well taken, as already pointed out. The city at that time had $4150 belonging to the purchasers. It retained that sum. It would have been an idle ceremony if the city had paid that sum to the Home Builders Company, only to be returned the next minute, and the consideration paid by Andrew, Yager and Harris was contained in that sum. There is no indication that these parties were not in perfectly good faith. It would seem that the most which could be said in connection with the sales to these parties would be that they were improvident, but there is at least a doubt, as already indicated, that taxpayers can bring any action on that account.\\nIt is apparent, from what has been said, that the question of the original invalidity, in whole or in part, of the transactions above mentioned is to a more or less extent, if not entirely, relegated into the background, on account of the changed conditions since the time of the original sale in August, 1935. The Home Builders Company and the purchasers from it have certain rights which they might set up in any case which might be brought against them. We. ought not to make any decision herein which would prejudice those rights. Section 89-2411, R. S. 1931, provides that \\\"When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceedings.\\\" In the case of City and County of Denver v. Denver Land Company, 85 Colo. 198, 274 Pac. 743, the controversy related to the creation of a storm sewer district and the assessment of property. Certain property-owners were not made parties to the action. The court said:\\n\\\"The only parties before the court in this action are the defendant city, which has in contemplation the adoption of a public improvement, the cost of construction of which contemplates an assessment upon property therein on the area plan, and plaintiffs, owners of property within the district, and they are opposed to the area plan and favor the benefit plan which only, they say, is valid. The complaint itself alleges that there are many owners of property within the district who are in favor of the area plan. They are not parties to this action, and they would not be bound by any judgment we might render. To pronounce a declaratory judgment in this case, when parties who favor the area plan would not be bound thereby, would be not to save costs or time. To determine here which of the two plans should be adopted by the city would or might give rise to a flood of litigation, instituted by property owners within the district not parties to this proceeding who object to the benefit plan and insist upon the adoption of the area plan. Such a proceeding as this is unauthorized under the existing facts. Desire-able as it might be to have an announcement of this court upon the question, it would be improper for us to decide it in the absence of the necessary parties.\\\"\\nIn the case of the Southern Nebraska Power Co. v. Village of Deshler, 130 Nebr. 133, 264 N. W. 462, the court said:\\n\\\"The Uniform Declaratory Judgments Act provides as follows: 'The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the unc\\u00e9rtainty or controversy giving rise to the proceeding.' Comp. St. 1929, Sec. 20-21, 145. It is clear that the trial court in this case had no jurisdiction to determine any controversy between the plaintiff and the members of the village board of Deshler, because the members of the board are not parties to this action. Declaratory Judgments Act is applicable only where there is a present, actual controversy, and only where justiciable issues are presented and all interested persons are made parties to the proceeding. Therefore, this action cannot be maintained under the Uniform Declaratory Judgments Act, as all interested persons are not made parties.\\\"\\nSubstantially the same principle has been announced in a number of other cases, all comparatively recent. Continental Mutual Ins. Co. v. Cochrane, 89 Colo. 462, 4 P. 2d) 308; Adams v. Slavin, 225 Ky. 135, 7 S. W. (2d) 836; Ex parte Hearst Committee, 245 Ky. 132, 53 S. W. 211; Perry v. City, 160 Tenn. 102, 22 S. W. (2d) 359; Cummings v. Shipp, 156 Tenn. 595, 3 S. W. (2d) 1062; Harrell v. Mortgage Co., 161 Tenn. 646, 32 S. W. (2d) 1023; 162 Tenn. 371, 36 S. W. (2d) 888; Wilcox v. Board of Commissioners, 262 Mich. 699, 247 N. W. 923 (rehearing denied in 262 Mich. 699, 249 N. W. 467); Jefferson County v. Fiscal Court, 259 Ky. 661, 83 S. W. 16; Ladner v. Siegel, 294 Pa. 368, 144 Atl. 274; Union Trust Co. v. Kaplan, 159 Misc. 1, 286 N. Y. S. 17; McDermott v. Bryer, 62 F. (2d) 297; Morton v. Construction Co., 36 Ariz. 97, 283 Pac. 281.\\nWe think, as held in City & County of Denver v. Denver Land Company, supra, quoted above, that it would be improper for this court to make any announcement which would prejudice the rights of necessary parties absent herein. It remains, then, to consider as to what order we should make herein. On oral hearing, we asked counsel that question, but did not receive any answer, or satisfactory answer. Under Section 89-4820, R. S. 1931, a reversal in a case carries costs in favor of appellant. The latter, who have instituted this proceeding without bringing in the necessary parties, are clearly not entitled thereto. The only course, accord ingly, which we can properly pursue, is to send the case back to the district court with direction to dismiss it at the cost of the plaintiffs, and it is so ordered. The costs on this appeal will be assessed against appellants.\\nRemanded with instructions.\\nKimball, J., concurs.\\nRiner, J., concurs in the result.\"}"
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+"{\"id\": \"8514595\", \"name\": \"A. E. WILDE, STATE EXAMINER v. ELOISE AMORETTI\", \"name_abbreviation\": \"Wilde v. Amoretti\", \"decision_date\": \"1934-06-19\", \"docket_number\": \"No. 1852\", \"first_page\": \"193\", \"last_page\": \"200\", \"citations\": \"47 Wyo. 193\", \"volume\": \"47\", \"reporter\": \"Wyoming Reports\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T19:11:39.369705+00:00\", \"provenance\": \"CAP\", \"judges\": \"Kimball, Ch. J. and Blume, J., concur.\", \"parties\": \"A. E. WILDE, STATE EXAMINER v. ELOISE AMORETTI\", \"head_matter\": \"A. E. WILDE, STATE EXAMINER v. ELOISE AMORETTI\\n(No. 1852;\\nJune 19, 1934;\\n33 Pac. (2d) 399)\\nThe cause was submitted for plaintiff and appellant on the brief of W. E. Hardin, of Lander.\\nThe cause was submitted for the defendant and respondent on the brief of G. J. Christie, of Lander.\", \"word_count\": \"1828\", \"char_count\": \"10209\", \"text\": \"Riner, Justice.\\nThe action below was brought in the District Court of Fremont County November 17, 1928, by the then State Examiner, A. L. Putnam. Before the case was tried January 7, 1933, William Reeves, having subsequently succeeded to the duties of that office, was substituted as plaintiff. Thereafter, the personnel having again changed in the office aforesaid, A. E. Wilde, the present plaintiff and appellant, came into the case by court order of substitution duly made on June 5, 1933. The judgment in question is here for review by direct appeal.\\nThe petition in the district court was filed to recover on a promissory note signed by Eloise Amoretti, defendant and respondent, and, shortly summarized, alleged that Amoretti, Welty, Helmer and Company was a partnership, and on and prior to November 25, 1927, was engaged under that name as a firm in the banking business under the state law at Dubois, Fremont County, Wyoming; that on that date the firm became insolvent and the State Examiner took possession of its assets, and as such official, was entitled to receive and collect all debts and claims belonging to it. These allegations were followed by the usual averments descriptive of the note in suit which is one dated May 12, 1926, for the principal sum of $1000, due six months after date, payable at the firm's office in Du-bois, with interest at 10% per annum, and 10% attorneys' fees in case of suit. A copy of the note was attached to and made a part of the pleading. It is then alleged that, though matured, the note has not been paid, except that there was credited thereon on December 9, 1926, the sum of $50, and on June 7, 1927, a like sum, both amounts being applied on interest, and on November 25, 1927, the sum of $8.50 was credited on the principal of the note. Judgment was asked for |1,243.42, including principal, interest, and attorneys' fees.\\nThe answer of the defendant, so far as material to be considered here, admitted the existence of the partnership aforesaid and its conduct of a banking business, as the petition alleged, but denied both that the firm was insolvent and that the State Examiner had authority or right, as such official, to take control of the business or to bring the action. The remaining allegations of the petition were also put in issue. The defendant further answering, alleged that at the request of the firm some time in 1915, she executed to it a promissory note for $1000 which was renewed from time to time, also, at the payee's request; that she never paid anything on said note, never received any consideration therefor, and \\\"that same was executed and delivered solely for the accommodation of said bank.\\\" The plaintiff's reply was a general denial, except as to the answer's admissions.\\nThe trial of the cause was to the court and it was disposed of by a general finding in favor of the defendant and against the plaintiff upon which judgment was entered that plaintiff take nothing by his action and that defendant recover her costs.\\nIt is contended on behalf of the plaintiff that the promissory note in question is not an accommodation note and that, accordingly, the court erred in finding and giving judgment for the defendant. This necessarily raises a question of fact.\\nThe only evidence upon the point adduced at the trial is as follows: Plaintiff produced the note which contains the words \\\"for value received\\\" and, after proving its execution by the defendant, offered it and it was received in evidence. After establishing its nonpayment, plaintiff rested its case. For the defense, the defendant testified in her own behalf that she never received any consideration for the note; that her husband, Eugene Amoretti, one of the members of the firm, asked her if she would sign a note, and that she said she would if it was necessary to accommodate the bank, and that she signed the note and gave it to Mr. Helmer, and that the bank kept possession of it. On cross examination, she testified that she never paid anything on the note. To the question, \\\"And any endorsements of payments on this note that may appear, were made without your, authorization and without payment on your part?\\\" she again responded, \\\"I did not.\\\" Eugene Amoretti, called as a witness for the defendant, testified that he asked his wife if she would give the bank an accommodation note. Requested by counsel to state the circumstances of the execution and delivery of the instrument in question, he answered, \\\"I asked my wife, Mrs. Amoretti, if she would give the bank an accommodation note. This note \\u2014 it was given to help out a payment on the.bank stock, we were a little short and after Mr. Helmer came to me and asked me if I thought Mrs. Amoretti would sign a note to help out on the deficit of the stock in the bank, of the amount that was necessary, that we had to have. I told him I would ask her and she told me that she would gladly do it if it was to help us out at the bank.\\\" To the question, \\\"Do you know whether or not Mrs. Amoretti, the defendant in this case, ever received any consideration for this note?\\\" he replied, \\\"Not a dollar.\\\" The entire cross examination of this witness, a member of the firm, and the person who procured the execution and delivery of the note, is contained in the following three questions and answers:\\n\\\"Q. As I understand it then, Mr. Amoretti, the bank was a little short of money, and this note was given to make up that shortage, is that true?\\n\\\"A. Yes, short in the stock, or whatever it was, I don't remember.\\n\\\"Q. Yes. Is it a fact that you had not paid for all of your shares in the bank, and that this was to make up for the balance that you owed or something?\\n\\\"A. Not that way, no sir. It might be a part, but a very small part that we all owed, as I remember it.\\n\\\"Q. But this was to enhance the assets of the Amor-etti, Welty, Helmer & Company bank, and that is the purpose for which it was given?\\n\\\"A, Yes, I would say so.\\\"\\nThereupon, both parties rested and no further evidence was offered or received. It will be noted from the foregoing recital of the evidence that counsel and witnesses alike use the words \\\"bank\\\" and \\\"firm\\\" interchangeably.\\nIn view of this state of the record, we fail to see how we can say that the general finding of the district court, made as aforesaid, was unsupported by substantial evidence. It is perfectly clear, as the record stands, that the defendant herself received no consideration for the note. The firm's records, in possession of the plaintiff, apparently failed to show that she received anything for the note either by credit given her account or otherwise, as they were not offered in evidence. It is far from clear, also, that Eugene Amoretti or any other member of the firm received a benefit in consequence of the delivery of this note to it, assuming that such fact if established would aid the plaintiff. 8 C. J. 260 states the law to be:\\n\\\"Where a bill or note has been made, accepted, or indorsed for the benefit of one of the members of a firm, the firm, although purchasers for value before maturity, cannot maintain an action thereon against the accommodation party, because the position of the firm can be no better than that of the partner who is the accommodated party.\\\"\\nAmoretti says that it was not given to make up a share deficiency payment, but states only that, \\\"It might be a part, but a very small part that we all owed,\\\" as he remembered it \\u2014 whatever meaning may be attached to that statement. He was not asked to explain it. He does say that the note was to enhance the assets of the bank \\u2014 how or for what purpose is left to pure conjecture. It is not shown who made the alleged interest or other endorsements on the note, or who made the alleged payments. The defendant testifies she did not.\\nIt is true that after the case was closed, plaintiff through his counsel, asked leave to amend the reply to accord with the proofs, by alleging that the defendant was estopped from setting up the note as one for accommodation because it was given for the purpose of enhancing the assets of the bank and was actually so used. This request was denied. Error was assigned on this ruling, but it does not seem to be argued, and, hence, must be regarded as waived. Automobile Insurance Co. v. Lloyd, 40 Wyo. 44, 273 Pac. 681, and cases therein cited. But even if this were not so, there is serious doubt whether reversible error could be predicated upon the ruling thus made. There was no proof of the insolvency of the firm, the State Examiner \\u2014 so the record reads \\u2014 being simply requested by the surviving members of the firm, Helmer having died, to take over the firm's assets for liquidation. There was no proof either that the State Examiner had been deceived relative to this note appearing in the firm's assets or that creditors, depositors, or any other persons dealing with the bank had been misled to their prejudice thereby. All the elements necessary to create an estoppel in the case against the defendant do not appear to be present. See Whitcher v. Waddell, 42 Wyo. 274, 292 Pac. 1091; and as pointed out, by the author of the note in 38 Harvard Law Review 239, entitled \\\"Liability on a Note Given to a Bank as a Fictitious Asset,\\\" in conclusion:\\n\\\"Thus it may be possible to support many of the cases on the doctrine of estoppel. But the limitations of the doctrine should not be ignored. Here it is founded upon loss to creditors. Therefore, it should not be invoked in a suit by the bank. Nor should it be applied to the extent of the face value of the note where the caused loss is less. And finally, if there has been no caused loss, the suit should fail. The receiver sues to protect private rights, not to punish falsifiers.\\\" See, also, Hudson State Bank v. Richardson, 128 Kan. 238, 276 Pac. 815.\\nThe judgment of the district court of Fremont county will, consequently, be affirmed.\\nAffirmed.\\nKimball, Ch. J. and Blume, J., concur.\"}"
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+"{\"id\": \"8514639\", \"name\": \"BUILDING INSPECTOR, ET AL. v. McINERNEY\", \"name_abbreviation\": \"Building Inspector v. McInerney\", \"decision_date\": \"1934-06-26\", \"docket_number\": \"No. 1864\", \"first_page\": \"258\", \"last_page\": \"284\", \"citations\": \"47 Wyo. 258\", \"volume\": \"47\", \"reporter\": \"Wyoming Reports\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T19:11:39.369705+00:00\", \"provenance\": \"CAP\", \"judges\": \"Kimball, C. J., and Blume, J., concur.\", \"parties\": \"BUILDING INSPECTOR, ET AL. v. McINERNEY\", \"head_matter\": \"BUILDING INSPECTOR, ET AL. v. McINERNEY\\n(No. 1864;\\nJune 26, 1934;\\n34 Pac. (2d) 35)\\nL. C. Sam-pson and H. B. Henderson, Jr., both of Cheyenne, for appellants, who filed a brief and made oral arguments.\\nFor the appellee there was a brief and oral argument by Clyde M. Watts and Carleton A. Lathrop, of Cheyenne.\", \"word_count\": \"7618\", \"char_count\": \"43662\", \"text\": \"Riner, Justice.\\nThis is a proceeding brought under the provisions of Section 22-1007, Wyo. Rev. St. 1931, one of the sections of the zoning law enacted to enable the cities, towns, and villages of the state, as the law itself (section 22-1001, Wyo. Rev. St. 1931) declares, \\\"for the purpose of promoting health, safety, morals and the general welfare\\\" of their respective communities, \\\"to regulate and restrict by ordinance,\\\" among other things, \\\"the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes, and may also establish setback building lines.\\\" By this proceeding, a review is sought of a judgment of the District Court of Laramie County which disposed of what the section of the statute first above cited designates as an \\\"appeal\\\" to that court from the decision of the Board of Adjustment, which said section authorizes municipalities to create, and which, in the instant case, was established by the City of Cheyenne, under an ordinance passed in 1931, pursuant to the statutory authority just mentioned.\\nThe facts necessary to be considered now, as they are presented by the record before us, are briefly these:\\nThe south half of Block 365 in the original plat of the City of Cheyenne is bounded on its southerly side by 17th Street; on its easterly side by Morrie Avenue; on its northerly side by an alley extending through the said block in an easterly and westerly direction; and on its westerly side by Russell Avenue. This half block is composed of four lots, each originally pl\\u00e1tted as 66 feet in width and 132 feet in length, each in its width dimension abutting on 17th Street, and the two corner lots each extending lengthwise along Morrie and Russell Avenues, respectively. The several lots are numbered 5 to 8, inclusive, commencing with the corner lot adjoining Russell Avenue. The property chiefly concerned in the present litigation is the East 52 feet of the corner Lot 8 in said block, at the intersection of Morrie Avenue and 17th Street.\\nOn June 7th, 1933, Andy Kozel, being the owner of that portion of Lot 8 aforesaid, made a signed application, upon a form partly written and partly printed, to the Building Inspector of the City of Cheyenne for a permit to build, on the aforesaid portion of Lot 8, a four-family brick dwelling, the address thereof being given in writing in the application as \\\"1702 Morrie,\\\" and as located within a \\\"B\\\" zoning district. On the reverse side of the application, as required by the printed regulations on the form, aforesaid, was set forth a \\\"plot plan\\\" showing the portion of the lot aforesaid, and the location of the proposed structure thereon. This plan indicated the distance from the southerly or side line of the building to the lot line on 17th Street would be 27 feet; that from the easterly or front line of the building to the lot line on Morrie Avenue would be 12 feet 3 inches; the distance from the northerly side line of the building to the lot line on the alley aforesaid would be 44 feet 4 inches; and 3 feet between the extreme westerly or rear line of the structure and the westerly line of the premises owned by Kozel. The extreme dimensions of the building were shown to be 36 feet 9 inches by 60 feet 8 inches, the latter dimensions fronting on Morrie Avenue.\\nThis application was accompanied with certain blueprint sheets showing the details of construction of the proposed building, and that its main entrance and front elevation faced Morrie Avenue.\\nThe following day, June 8th, 1933, a Building Permit was issued to Kozel, to which was affixed the name of the Building Inspector by a Miss Amy Sherard, an employee in the Inspector's office. This Permit was numbered 5702 and reads in part as follows:\\n\\\"THIS MAY CERTIFY, That Andy Kozel has permission to erect a 4 family brick residence on the E. 52' of Lot 8, Block 365, fronting on Morrie Avenue, between 17th Street and 18th Street, provided, that the owner or his agents, the architect and builder, shall, in every respect, conform to the terms of the application and to the provisions of the Ordinances of the City of Cheyenne, relating to the regulations for the construction and inspection of buildings.\\n\\\"Should any section of the Building Ordinance be violated or evaded in any particular, this Building Permit shall immediately be revoked.\\\"\\nAll the owners of the remaining portion of the half block aforesaid, being dissatisfied with the issuance of this Permit, thereafter appealed to the Board of Adjustment, as allowed by the State Statute (section 22-1007, Wyo. Rev. St. 1931) and by the Ordinance of the City, previously mentioned. A meeting was had on June 27th, 1933, by the said Board, as the minutes thereof recite, \\\"for the purpose of considering an appeal from the decision of the Building Inspector or City Engineer, in granting Permit No. 5702 to erect a four family apartment house fronting on Morrie Avenue on the East Fifty-two (E. 52) feet of Lot Eight (8) in Block Three Hundred Sixty-five (365) in the City of Cheyenne.\\\" All the parties were heard and the Board took the matter under advisement until July 12th, 1933, when it announced its decision that the Building Permit aforesaid \\\"was issued in accordance to ordinance and therefore the Board found no reason for taking further action in the matter.\\\"\\nThe Appellee, W. H. McInerney, thereupon commenced proceedings as indicated by the provisions of section 22-1007, Wyo. Rev. St. 1931, to obtain a review of this determination of the Board of Adjustment by the District Court of Laramie County, and the matter was subsequently heard by that court on September 11, 1933. Evidence was introduced on behalf of McIn-erney, and also for the Board, the Building Inspector, and the Permittee Kozel. On September 14th following, the District Court entered its judgment wherein it found generally for McInerney, and that said Building Permit No. 5702, issued as described above to Andy Kozel, was \\\"illegal and void,\\\" and accordingly adjudged that the decision of the Board of Adjustment should be reversed, and that said Permit \\\"be cancelled and held for naught.\\\" It is this judgment of which complaint is here made by the several appellants for whom evidence was given, as stated above, in the court below.\\nIt is contended, on behalf of appellants, that the District Court erred in taking jurisdiction of the proceeding instituted by appellant (now appellee), McIn-erney, to review the decision of the Board of Adjustment, as provided by section 22-1007, supra, which, among its many provisions declares that, \\\"The decision of the board of adjustment, upon any objection made within the time and in the manner herein prescribed, may be reviewed by the District Court, upon an appeal thereto taken in the following manner,\\\" the statute then setting forth the details of the procedure to be pursued to effect this result. Relative to the hearing on matters of this kind, the section last cited also provides that:\\n\\\"If upon such hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.\\\"\\nOur attention is directed to Section 10 of Article 5 of the Constitution of this State, which reads:\\n\\\"The district court shall have original jurisdiction of all causes at law and in equity and in all criminal cases, of all matters of probate and insolvency and of such special cases and proceedings as are not otherwise provided for. The district court shall also have original jurisdiction in all cases and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court; and said court shall have the power of naturalization and to issue papers therefor. They shall have such appellate jurisdiction in cases arising in justices' and other inferior courts in their respective counties as may be prescribed by law. Said courts and their judges shall have power to issue writs of mandamus, quo warranto, review, cer-tiorari, prohibition, injunction and writs of habeas corpus, on petition by or on behalf of any person in actual custody in their respective districts.\\\"\\nIt is said that, in order to uphold the jurisdiction of the district court to act as the statute directs it shall \\\"it is necessary to construe the acts of the Board of Adjustment as acts of an inferior court of the county\\\"; that the Board is simply an administrative tribunal and that, as a general rule, a statute which authorizes an appeal to the courts from the action of a non judicial body \\\"is an unconstitutional invasion of the powers of such body.\\\" 12 C. J. 877, \\u00a7 379, and 3 C. J. 373, \\u00a7 130, are cited in support of these propositions. But we do not believe that the general contention that the district court was without power to act in this matter, as grounded on these reasons, can be upheld.\\n[it is material to inquire concerning the nature of the powers exercised by the Board of Adjustment, as those are defined by section 22-1007, supra. Under this statute, the Board is vested with quite extensive duties and powers. Among them, we find it is required to adopt rules in accordance with the provisions of any city ordinance enacted pursuant to Article 10 of Chapter 22, Wyo. Rev. St. 1931 (the state zoning law); the presiding officer of the Board may administer oaths and compel the attendance of witnesses; its meetings are public; minutes must be kept of its proceedings, which \\\"shall be a public record\\\"; it hears and decides appeals where it is alleged error exists in any order, requirement, decision, or determination made by an administrative official in the enforcement of the zoning law or any ordinance passed pursuant to it; it hears and decides, also, special exceptions to the terms of the ordinance upon which it must pass under such ordinance; it may authorize upon appeal, in specific cases, such variance from the terms of the ordinance as will not be contrary to the public interest where, due to special conditions, a literal enforcement of such terms will result in unnecessary hardship; and in disposing of appeals to it, it may reverse, or affirm wholly or partly, or may modify the order, requirement, decision, or determination brought before it on appeal, as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken?)\\nIn Bellofatto v. Board of Adjustment of Town of Montclair, 6 N. J. M. 512, 141 Atl. 781, the Supreme Court of New Jersey, in considering the powers of a board of adjustment, in many respects analogous to those possessed by the Board in the case at bar, used this language:\\n\\\"The powers of the board of adjustment were defined by chapter 146, p. 324, P. L. 1924, and chapter 315, p. 526, P. L. 1926. Thereunder the board had power, among other things to make special exceptions to, and in specific cases make such variance from, the terms of the ordinance as would not be contrary to public interest, where, owing to special conditions, a literal enforcement would result in unnecessary hardship, and so that the spirit of the ordinance should be observed and substantial justice done, and, further, to determine whether the ordinance, so far as it affected the use of the property in question tended to promote the public morals, health, safety, or welfare, and, if it did not in such instance, it might modify or vary any requirement thereof. The board was also given power to administer oaths and compel attendance of witnesses. Such board, when it acts, acts judicially on a lawful ascertainment of facts. Bilt-Wel Co. v. Dowling, (N. J. Sup.) 135 A. 798.\\\"\\nIn the somewhat earlier case of Hendey v. Ackerman, 103 N. J. Law 305, 136 Atl. 733, 735, the same court had said:\\n\\\"It is the undoubted purpose of the statutes, creating boards of adjustment, to make them quasi judicial bodies and that they are to proceed in a judicial manner to pass upon and render judgment in those matters which, by statute, they are given jurisdiction over.\\\"\\nSpeaking of the powers of the board of standards and appeals of the City of New York, in dealing with an appeal to it from, the action of the superintendent of buildings refusing a permit for an automobile garage, under zoning regulations, it is said in People v. Leo, 198 N. Y. S. 397, 399, subsequently affirmed, 215 App. Div. 696, 212 N. Y. S. 897, that:\\n\\\"The board of appeals can in no sense act other than in a quasi judicial capacity. It does not perform a single administrative or legislative act. As its name implies, it is an appellate tribunal. It passes upon matters formally brought to its attention, much the same as courts. It hears evidence and argument, and decides controversies as the evidence dictates. It cannot act without some evidence. The record here shows that it denied this application for good reason and upon sufficient evidence to sustain its conclusion. There was not a scintilla of evidence presented to the board to warrant it in changing its final disposition of this proceeding. Presumably it had thoroughly considered the matters before it. A committee of its members had viewed the premises, and they had heard the parties in favor of and in opposition to the application. They acted judicially, and adopted one of the only two courses open to it, namely, to grant or deny the application.\\\"\\nIn State v. Roberson, 198 N. C. 70, 150 S. E. 674, 675, we find the following language used relative To the functions of the board of adjustment, under the zoning law in North Carolina:\\n\\\"Our statute law with respect to zoning regulations is embraced in C. S., 2776 (r) et seq. Section 2776 (x) provides for the appointment of a board of adjustment, who shall hear and decide appeals from and review any order, requirement, decision, or determination made by an administrative official charged with the enforcement of any ordinance adopted pursuant to the act. It further provides that every decision of the board shall be subject to review by proceedings in the nature of certiorari. The statute thus confers upon the board the right to exercise the functions and powers of a quasi judicial body. This is the court's conclusion as stated in Harden v. Raleigh, 192 N. C. 395, 135 S. E. 151, and in Little v. Raleigh, 195 N. C. 793, 14 S. E. 827.\\\"\\nSo, in Anderson v. Jester, 206 Iowa 452, 221 N. W. 354, 357, the court, discussing the provisions of the Iowa zoning statutes which authorized the establishment of a board of adjustment, and used phraseology in many respects identical with that employed in section 22-1007, supra, said:\\n\\\"Section 6461 authorizes appeals to the board of adjustment, and Section 6463 confers upon the board 'the following powers:\\n'1. To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this chapter or of any ordinance adopted pursuant thereto.\\n'2. To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance.\\n'3. To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.'\\n\\\"Section 6464 empowers the board, in conformity with the provisions of the chapter, to make 'such order, requirement, decision, or determination as ought to be made.'\\n\\\"The board of adjustment exercises administrative and quasi judicial power. In re Appeal of Head, 141 Iowa 651, 665, 118 N. W. 884; Harden v. City of Raleigh, 192 N. C. 395 (135 S. E. 151); Norcross v. Board of Appeal, 255 Mass. 177 (150 N. E. 887).\\\"\\nThe Supreme Judicial Court of Massachusetts, in Coleman v. Board of Appeal of Building Department of Boston, 281 Mass. 112, 183 N. E. 166, 167, is authority for the following statement concerning the powers of the board of appeal aforesaid, under the zoning law of that state:\\n\\\"The authority conferred on the respondents by the statute is quasi judicial in its nature. They are required to exercise sound judgment in the proceedings which are brought before them. Their decisions may be examined by certiorari. Their return on a petition for certiorari is 'conclusive as to all matters of fact within the jurisdiction,' passed upon by them. Tewks bury v. Middlesex County Commissioners, 117 Mass. 563, 565; Marcus v. Board of Street Commissioners, 252 Mass. 331, 333, 147 N. E. 866.\\\"\\nRecurring just here to 12 C. J. 877, \\u00a7 379, cited by appellants, that text, after stating in substance that, generally speaking, statutes allowing an appear from the action of a non judicial body may not stand as constitutional, nevertheless says: \\\"but such an appeal may be authorized from an action of a non judicial body in a case involving individual or property rights of which the court was entitled to take jurisdiction under some other form of procedure.\\\" And the other citation taken from the same text, 3 C. J. 373, \\u00a7 130, is to the following effect:\\n\\\"No appeal will lie from the decision of a special tribunal, constituted for a particular purpose, unless such appeal is expressly authorized by statute. The legislature, however, may provide for such an appeal to review judicial, as distinguished from ministerial or administrative, decisions.\\\"\\n[Under these authorities, we think it clear that the Board of Adjustment, acting pursuant to the statute here involved, exercises both administrative and quasi judicial functions; and that certainly, in this case where the claim is presented that the Board is acting without authority of law in affirming the issuance of the permit in question, the legislature could properly authorize what it designated an \\\"appeal\\\" to the district court to correct such action. That court, in the exercise of its general and ordinary jurisdiction, is authorized to keep official action within the bounds marked out for it by law. In this connection, it will be recalled, as said in Budge v. Board of Commissioners, 29 Wyo. 35, 208 Pac. 874, that:\\n\\\"The generally accepted doctrine is that under constitutional provisions similar to those of this State the legislature may 'pass any acts that are not expressly or by necessary implication inhibited,' by the state or the United States Constitution (12 C. J. 746 and extended list of cases cited in Note 5).\\\"\\nTo the same effect are State ex rel. Agricultural College v. Irvine, 14 Wyo. 318, 389, 84 Pac. 90, 106; State ex rel. Budge v. Snyder, 31 Wyo. 333, 343, 225 Pac. 1102. There is nothing in Section 10 of Article 5 of the Wyoming Constitution which in any wise denies the power of the legislature to provide for an \\\"appeal\\\" to the district court from a board exercising such powers as those with which the Board of Adjustment here involved is invested, to consider matters such as judicially should be determined^\\nThere is another view of this question which leads to the same result. While the word \\\"appeal,\\\" when used in its technical sense, suggests the removal of a case from an inferior to a superior court for review, it does not always have that meaning when used in statutes regulating procedure. It is not infrequently employed in the sense of being simply a method of bringing before a court for judicial determination a controversy of a character such that it comes fairly within the court's original jurisdiction. As illustrative of this use of the word \\\"appeal,\\\" we refer to the following cases:\\nIn Appeal of Hotel Bond Co., 69 Conn. 143, 93 Atl. 245, 248, there was involved an \\\"appeal\\\" to the superior court of Connecticut from a finding and award made by a commissioner under a Workmen's Compensation statute, and, concerning its nature, the Supreme Court of Errors said:\\n\\\"An \\\"appeal' from an administrative official or board to the superior court is a familiar remedy in our statute law. We hold such 'appeal' to be an original application to the superior court to exercise its appropriate judicial power in respect to acts done by the administrative tribunal in excess of its power, or in the unlawful abuse of that power. Moynihan's Appeal, 75 Conn. 358, 53 Atl. 903.\\\"\\nAnother and later case from the same jurisdiction, that of De Flumeri v. Sunderland, 109 Conn. 583, 145 Atl. 48, 49, dealt with an \\\"appeal\\\" authorized by the statute, and taken by De Flumeri from the action of the Mayor of the City of Danbury in denying the former's application for' a certification of approval of the location of a gasoline filling station. In harmony with the views previously expressed, the court enlarges upon the matter thus:\\n\\\"The nature of the so-called 'appeal' allowed by various statutes from the decisions of administrative boards has been discussed in numerous cases in this court, and its true character is definitely settled. It is not an appeal in the sense of a transfer of jurisdiction from one court to another, but simply provides 'a process, under the misleading name of appeal, for invoking the judicial power to determine a legal injury complained of, or the legality of an act done by the officers of another department.' Malmo's Appeal, 72 Conn. 1, 6, 43 A. 485, 487.\\\"\\nIn Police v. The Industrial Commission of Ohio, 23 Oh. Cir. Ct. (N. S.) 433, it appeared that the court of common pleas had declined to entertain an appeal of the plaintiff from the final action of the Industrial Commission of Ohio but had dismissed it for want of jurisdiction, the plaintiff asserting that the commission had denied him that award for injuries sustained to which he was legally entitled. The law in question provided that the claimant, within thirty days after the notice of final action of such board, might, \\\"by filing his appeal in the common pleas court of the county wherein the injury was inflicted, be entitled to a trial in the ordinary way and be entitled to a jury if he demands it.\\\" Reversing the judgment below, the Court of Appeals, among other things, said:\\n\\\"We are inclined to think that much of the discussion as to whether this case in its progress from the commission to the common pleas court was an appeal in strictness of words or not, has been too technical and grudging in scope to promote the ends of the law. The word appeal has different meanings in different jurisdictions, and varies widely in its application to various sets of circumstances. Of course, the appeal here was not an appeal in the sense that it brought the case up from an inferior to a superior court or judicial body; the defendant's functions are administrative. Constitutionally, they can not be assimilated to those of a court. This point has been settled, specifically, in State, ex rel. Yaple v. Creamer, 85 O. S. 349 (97 N. E. 602, 39 L. R. A. (N. S.) 694), where the predecessor of the present law in question was under review.\\n\\\"What really is meant by the word appeal, as applied to the right of the plaintiff to come into the court below, is a mode of removing his cause from an administrative to a judicial tribunal \\u2014 he having, as he says, been denied his legal right by the action or non-action of the former. In a popular and perhaps inaccurate sense of the term, this method of passing his grievance on to a court from a board may be called an appeal, and in this sense we think the word is used when the statute authorizes the removal. Considering the just and beneficent end sought by the entire enactment, it should not be defeated in any case by applying a mere verbal rule of strictness destructive of its plain intendment. 'The letter (of the law) killeth, but the spirit giveth life.' \\\"\\nThe case of Routh v. Board of Com'rs of Finney County, 84 Kan. 25, 113 Pac. 397, was one where the Supreme Court of Kansas was required to consider whether the district court had jurisdiction to render a judgment in an \\\"appeal\\\" taken from the board of county commissioners, pursuant to statute, by one whose claim for rent had been rejected by that body. Affirming the power of the district court to act in the matter and disapproving the contention that that court had only appellate jurisdiction in the premises and that, as the county board had no jurisdiction to adjudicate the question of title of real estate, the district court on appeal had none, the appellate court pointed out that:\\n\\\"This argument assumes that the commissioners in effect constitute a court, and exercise a strictly judicial function in passing upon claims against the county. That is the rule in many states (7 A. & E. Encycl. of L. 1003; 35 Am. St. Rep. 203, note), but not in Kansas (Leavenworth Co. v. Keller, 6 Kan. 510, 522, 523). In the case cited it was said: 'It is true that the allowance was so far judicial that an appeal could be taken from the decision if adverse to the claimant; but not in the sense which is usually given to word 'judicial.' The appeal is given that the case may be heard judicially, and the method of getting the case into court is by appeal.' As suggested by the language quoted, what is called an appeal is really only a means of getting the controversy before a court. It is a substitute for filing a petition and causing a summons to issue. The district court in the one case as in the other acquires and exercises original and not appellate jurisdiction, and has power to pass upon a question of title to real estate if the validity of the claim in controversy is affected thereby.\\\"\\nSo, in Rowland v. The Little Vermilion Special Drainage District, 254 Ill. 543, 98 N. E. 969, 971, it was held that a statute was not unconstitutional in providing for an appeal to the county and circuit courts from the decision of drainage commissioners relative to the classification of lands for assessment purposes, and the opinion employs the following pertinent language :\\n\\\"The jurisdiction of a court to hear and determine a matter brought to it by an appeal from a non-judicial body depends upon the nature of the rights involved rather than upon the character of the body from which such appeal is taken. A reference to the cases decided by this court which are cited in Conover v. Gatton, supra, (251 Ill. 587 [96 N. E. 522]), and reviewed in the dissenting opinion, will show that this court has sustained statutes allowing appeals from non-judicial boards and bodies where the subject matter involved was some personal or property right which it is the province of courts to determine and protect. The drainage commissioners, in making the classification of the lands of the district, are dealing directly with a valuable property right of the tax-payers. The classification is the basis upon which future assessments are to be made. It is, in effect, a valuation, for assessment purposes, of the benefits each tract of land will receive from the proposed improvement. It is the exercise of a power over the property of the citizen which, if improperly used, may result in the end in a violation of the constitutional right of the property owner, in that he may be required to pay a larger proportion of the cost of the improvement than his lands are benefited, or he may be required to pay a larger proportion of taxes than others in proportion to benefits received. It would be a reproach to our judicial system if there were no redress for possible wrongs that might be inflicted by an unequal and oppressive classification of lands in a drainage district for assessment purposes. The legislature has provided a remedy by an appeal to the county court by any land owner who appears and objects to his classification, and since, as we have attempted to show, the nature of the rights involved are such as are properly cognizable by the judiciary when properly brought before it, the statute authorizing an appeal as a means of bringing the matter before the court is not unconstitutional.\\\"\\nSee, also, Reppy v. Jefferson County, 47 Mo. 66; Gurnee v. Brunswick, 1 Hughes 270, Federal case No. 5872; Chicago etc. R. Co. v. Railroad Commission of Indiana, 38 Ind. App. 439, 78 N. E. 338, 79 N. E. 520. It may well be that the so-called appeal, in section 22-1007, supra, from the board of adjustment to the district court may be regarded simply as a method of invoking the original jurisdiction of that court. We have already indicated that the rights sought to be enforced in the case at bar are such as are properly cognizable by the district court in the exercise of that jurisdiction.\\nIt is urged that the first \\\"appeal\\\" taken by McIner-ney and the other property owners, other than Kozel, in the half block aforesaid, from the issuance out of the Building Inspector's office of the permit in question, was not properly grounded, but no question of that sort appears to have been presented to the Board of Adjustment. That body proceeded to hear the parties and dispose of the appeal by holding that the permit was issued according to law. In our judgment, such a contention presented in the court below or this court for the first time comes quite too late. It must be remembered in this connection, too, that proceedings of this character must necessarily be somewhat informal and not be measured by the strict rule ordinarily applied to the removal of cases on appeal from court to court. In addition, it is apparent from an inspection of the statutory source of the Board's power that the functions performed by that body in the consideration of an appeal of this character before it are hardly confined strictly to a review of the matter such as would, for instance, prevail in an ordinary case on appeal to this court from a district court. There is the significant language in the law declaring that the Board, in disposing of an appeal by modification, reversal, or affirmance of the order, decision, requirement, or determination, \\\"as ought to be made, shall have all the powers of the officer from whom the appeal is taken.\\\"\\nAppellants here contend that the permit aforesaid was issued in strict accord with the requirements of the zoning ordinance of the City of Cheyenne, and that the district court accordingly \\u00e9rred in finding that such permit was \\\"illegal and void.\\\" In order to determine this question, the one chiefly argued on the hearing, it will be necessary to examine certain provisions of the zoning ordinance aforesaid.\\nWhen the application for the permit under consideration was made, the half block of which the property affected was a part was located in what the zoning ordinance classifies as a \\\"Residence 'B' District.\\\" In such district, it is required by section 5 of said ordinance that:\\n\\\"For. every building there shall be a front yard and a rear yard each of not less than 20 feet in depth and there shall be side yards the same as required in a Residence 'A' District.\\\"\\nThe yards prescribed for a \\\"Residence 'A' District\\\" are indicated in section 4 of the ordinance, as follows:\\n\\\"For every building there shall be a front yard and a rear yard each of not less than 25 feet in depth and a side yard on each side of the building of not less than 5 feet in width; provided that for each 1 foot added to the width of one side yard over and above 5 feet, the width of the other side yard may be decreased 1 foot, but no side yard shall be less than 3 feet wide; provided further that for public or semi-public buildings there shall be side yards of not less than 10 feet in width.\\\"\\nIn section 2 of said ordinance, under the title \\\"Definitions,\\\" we find the following terms employed therein explained as follows:\\n\\\"Yard, Front \\u2014 A front yard is an open space on the same lot with a building, unoccupied except as hereinafter permitted, extending the full width of the lot and situated between the street line and the front line of the building projected to the side lines of the lot.\\nYard, Rear \\u2014 A rear yard is an open space on the same lot with a building, unoccupied except as hereinafter permitted, extending the full width of the lot and situated between the rear line of the lot and the rear line of the building projected to the side lines of the lot.\\n\\\"Yard, Side \\u2014 A side yard is an open space on the same lot with a building, unoccupied except as hereinafter permitted, situated between the side line of the building and the adjacent side line of'the lot and extending from the rear line of the front yard to the front line of the rear yard. If there be no front yard the front boundary of the side yard shall be the street line and if there be no rear yard the rear boundary of the side yard shall be the rear line of the lot.\\n\\\"Frontage \\u2014 All the property abutting upon one side of a street between two intersecting streets, measured along the street line.\\n\\\"Corner Lot \\u2014 A lot situated at the junction of two or more streets.\\n\\\"Interior Lot \\u2014 A lot other than a corner lot.\\\"\\nIn area subdivision 6 of section 11, dealing with sundry height and area exceptional cases, under said ordinance there is used this language:\\n\\\"On corner lots the side yard regulations shall be the same as for interior lots except in the case of reversed frontage where the corner lot faces an intersecting street. In this case there shall be a side yard along the street side of the comer lot of a width equal to not less than 50 per cent of the depth of the front yard required on the lots in the rear of such corner lot, and no accessory building on the corner lot shall project nearer the street than the front yard line of the lots in the rear.\\\"\\nIn connection with these regulatory provisions and definitions may very well be considered the following judicial interpretations of the word \\\"front\\\" when applied to a building or a city lot, in their relation to adjoining thorofares:\\nIn Dinnick v. City of Toronto, 3 D. L. R. 310, the court said: \\\"Any side or face of a building is a front, although the word is more commonly used to denote the entrance side.\\\"\\nThe meaning of the words \\\"front foot\\\" was in question under a municipal resolution assessing for street improvements according to that method certain abutting property, in Betz v. The City of Canton, 18 Oh. Cir. Ct. 676, 32 Wkly. Law Bull. 92, and, in concluding the opinion filed, this language was used:\\n\\\"We think the legislature used the words 'front foot' in the ordinary popular signification, and that in this case the front of a lot is determined by the architectural construction of the main buildings, their use and occupancy, and not by the entrance into subordinate or out buildings.\\\"\\nSimilarly, in Haviland v. City of Columbus, 50 Oh. St. 471, 34 N. E. 679, 680, a case which also presented the question of assessing abutting property by the front foot rule, the court expressed its views thus :\\n\\\"Lots usually front breadthwise, and not lengthwise, on a street. But a lot may be built upon, used, and occupied with reference to a street on which it lies lengthwise, and in such case, for the payment of an improvement on the street, should be assessed for its full length, where the mode of apportionment' adopted is by the front foot.\\\"\\nIn Adams v. Howell, 58 Misc. 435, 108 N. Y. S. 945, 947, the plaintiffs sought to restrain the defendant from violating certain building restrictions contained in a deed relative to the use of a lot on the corner of Summit Avenue and Amherst Street. The defendant urged that these restrictions had no application to Amherst Street frontage. Rejecting this contention, the court points out that:\\n\\\"It must be conceded that, as plotted by Thorne & Angel\\u00ed, it was contemplated that the defendant's lot should front on Summit avenue, and not on Amherst street. The defendant, however, has by his acts changed the frontage, in part at least, by converting what was originally a side line into a front line, by facing the proposed dwelling on Amherst street.\\\"\\nAnother case where the remedy by injunction was sought for the same purpose as in that last above cited is Rhinehart v. Leitch, 107 Conn. 400, 140 Atl. 763, where the court said:\\n\\\"The issue turns upon the question whether or not the foundation of the house as now planned will be within twenty-five feet 'of the street line on which said lot fronts.' The word 'front' as applied to a city lot has little, if any, inherent application, but it takes on a borrowed significance from the building which is or may be constructed thereon. Connecticut Mutual Life Ins. Co. v. Jacobson, 75 Minn. 429, 432, 78 N. W. 10; Adams v. Howell, 58 Misc. 435, 108 N. Y. Supp. 945, 947. As applied to a building, 'front' in general usage refers to that side of it in which is located the main entrance. Howland v. Andrus, 81 N. J. Eq. 175, 180, 86 Atl. 391; Oxford and Standard Dictionaries, 'front.' When used of a lot with a house upon it, it means that portion of the lot abutting upon the street toward which the house faces.\\\"\\nThe opinion in Bianco v. City Engineer & Building Inspector, 187 N. E. (Mass.) 101, 103, expresses the view that:\\n\\\"The front line and the rear line of a lot cannot well be described by a hard and fast rule of law applicable to all cases. The determination of the question is largely a matter of fact.\\\"\\nSee, also, Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S. W. (2d) 545, 551.\\nIn the case at bar, under the facts disclosed in the record, when examined in the light of these authorities there can be not the slightest doubt as to the location of the front line of the proposed building. It unquestionably faces Morrie Avenue on which the application, itself, for the permit in question, places the address number; the permit, too, is for a building \\\"fronting on Morrie Avenue\\\"; the blueprint plans of the structure themselves disclose the same fact; and the Board of Adjustment likewise regarded the position of the building as \\\"fronting on Morrie Avenue,\\\" for its minutes so indicate.\\nSubdivision 6 under section 11 of the zoning ordinance, it will be remembered, deals with the exceptional case of a corner lot where what is designated as \\\"reversed frontage where the corner lot faces an intersecting street\\\" prevails. It is plain from the definition given by the ordinance to the term \\\"frontage\\\" that, in the ordinary situation where all the buildings on all the lots front one way, i. e., as the lots were platted, Morrie Avenue and Russell Avenue would be regarded as \\\"intersecting\\\" streets with relation to the lot frontage in the half block aforesaid, on 17th Street. Webster's Dictionary, however, defines the term \\\"reversed\\\" as \\\"turned backward or the contrary way; turned side for side or end for end.\\\" What is meant, then, by \\\"reversed frontage\\\" is such a case as we now have, where the owner of the lot, by the manner in which he has located his building, has, as a matter of fact, turned the frontage of that portion of Lot 8, which he owns and which as platted would front on 17th Street, \\\"side for side or end for end,\\\" causing, so far as the use of the property is concerned, it to have its frontage on Morrie Avenue. It is, of course, unquestioned that the use of the property is what the ordinance undertakes specifically to regulate.\\nThis view of the matter harmonizes, too, with the definition of front, rear, and side yards, as prescribed by the ordinance. For example, a front yard is the space situated \\\"between the street line and the front line of the building projected to the side lines of the lot.\\\" If the side lines of the lot as platted be regarded as what are meant by this definition, in the case of \\\"reversed frontage,\\\" the definition merely results in nonsense. By regarding the lot frontage as \\\"turned side for side or end for end\\\" by the owner's use thereof, the definition is easily applied. As repeatedly pointed out above, there is no question in this case as to which way the proposed building was to face or front, and, hence, in determining the front yard area, the \\\"front line of the building projected\\\" must extend in a northerly and southerly direction. Again, there is, as we have seen, a special regulation of side yard areas in the case of reversed frontage which would serve no useful purpose and really be devoid of meaning, if the lot lines as platted were only to be taken into consideration. As we interpret this last men tioned clause of the ordinance, it serves to prevent the owners of corner lots, who reverse their frontage, from cutting off light and air from the buildings on the interior lots.\\nApplying the conclusions thus reached to the matter in hand, it is apparent that the proposed use of the property by the permittee does not coincide with the requirements of the ordinance in question. The front yard proposed is but 12 feet 3 inches from the line of Morrie Avenue to the front line of the building as planned, when it should have been 20 feet. So the rear yard should have had a depth of 20 feet, yet the one proposed is but 3 feet. It follows that the permit was issued contrary to the provisions of the zoning ordinance, and the district court properly held it to be illegal and void.\\nIt may be that the construction of the ordinance as thus announced may, in the case at bar, practically result in forcing a frontage of the proposed building on 17th Street. But that is not due alone to the requirements of the zoning ordinance. It is due quite as much to the fact that the permittee purchased the portion of the lot he did. If he had bought only the east 32 feet of Lot 8 aforesaid, employing the front and rear yards even as proposed b^ the permittee and as allowed by the permit would render the location of a practicable building on the property rather doubtful, to say the least, when fronted as proposed. But however this may be, no reason or authority has been advanced in the argument or brief of appellants in this court why the result thus reached in this case would conflict with fundamental law as an unreasonable or unconstitutional exercise of the police power\\u2014 the power from which all municipal zoning regulations derive their efficacy. We have discovered none.\\nBefore concluding this opinion, it should be noted that the ordinance under consideration designates the Building Inspector as the official who shall, in the first instance, issue permits under the zoning law. No other person seems to be assigned that duty and authority. In the record of this matter ,there is undisputed testimony that the Building Inspector never even saw the application made by Kozel until after a permit had been issued \\u2014 in short, that it was issued by an employee in the Inspector's office whose legal authorization to do so does not appear. It is unnecessary, perhaps, to say that such a procedure is fraught with danger, and may raise serious question as to the validity of the permit issued in such manner. The point does not seem to be urged, however, by appellee.\\nThe judgment of the district court will be affirmed.\\nAffirmed.\\nKimball, C. J., and Blume, J., concur.\"}"
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+"{\"id\": \"8515174\", \"name\": \"STEPHENS v. SHORT, ET AL.\", \"name_abbreviation\": \"Stephens v. Short\", \"decision_date\": \"1930-03-10\", \"docket_number\": \"No. 1585\", \"first_page\": \"324\", \"last_page\": \"344\", \"citations\": \"41 Wyo. 324\", \"volume\": \"41\", \"reporter\": \"Wyoming Reports\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T19:07:57.666973+00:00\", \"provenance\": \"CAP\", \"judges\": \"Blume, C. J., and Kimball, J., concur.\", \"parties\": \"STEPHENS v. SHORT, ET AL.\", \"head_matter\": \"STEPHENS v. SHORT, ET AL.\\n(No. 1585;\\nMarch 10, 1930;\\n285 Pac. 797)\\nFor the appellants there was a brief by Fred Wychoff of Thermopolis, Wyoming, and Sterling M. Wood of Billings, Montana, and oral argument by Mr. Wood.\\nFor the respondent there was a brief and oral argument by C. A. Zwring of Basin, Wyoming, and Lin I. Noble of Thermopolis, Wyoming.\\nFred Wyokoff and Sterling M. Wood in reply.\", \"word_count\": \"5810\", \"char_count\": \"33906\", \"text\": \"Riner, Justice.\\nA proceeding by direct appeal from a judgment of the District Court of Hot Springs County, in favor of Yaughn Stephens, plaintiff and respondent, brings this cause here for review. The case appears to have been tried twice, the jury in the first trial disagreeing and the judgment in question being entered upon the verdict of the jury rendered upon the second submission. The defendants and appellants, George B. Short, as administrator of the estate of Frank B. McFarlane, deceased, and Massachusetts Bonding and Insurance Company, a corporation, will be mentioned hereinafter either as the \\\"administrator\\\" and the \\\"surety\\\" respectively, or generally as the \\\"defendants\\\"; while the plaintiff and respondent will be referred to as the \\\"plaintiff.\\\"\\nThe action in the court below was brought by plaintiff upon the official bond of Frank B. McFarlane, as sheriff of Hot Springs County, Wyoming. The defendants were severally the duly qualified administrator of his estate and the surety.upon said bond. That obligation was in the penal Sum of $4,000, and one of the conditions of the instrument demanded by the statute under which it was given (Sec. 1459, C. S. Wyo. 1920) and appearing therein was that McFarlane, as sheriff of said county of Hot Springs, should \\\"faithfully perform the duties of sheriff of said county as required by law.\\\" Plaintiff's cause of action was grounded upon alleged negligence on the part of McFarlane as sheriff and one Ed Goodfellow, his under-sheriff, in asserted violation of this condition of the bond, whereby plaintiff suffered severe injuries to his damage in an alleged amount more than double its penalty. A claim for damages in this sum was presented to the administrator and by him rejected, and these facts were duly pleaded in plaintiff's petition. The particular acts of negligence in substance alleged by plaintiff were that the sheriff and un-dersheriff, being required by law to exercise ordinary and reasonable care for the safety of plaintiff while in their custody and while he was being officially taken in their ear to Thermopolis, Wyoming, negligently and carelessly operated the automobile so that it was precipitated over the edge of a ravine and plaintiff injured.\\nThe defendants by their answer put in issue the negligence charged, admitting the execution of the bond and its terms, as well as most of the details of the transaction leading up to the accident out of which plaintiff's injuries arose.\\nOn the trial the proofs on plaintiff's behalf \\u2014 the defendants not introducing any evidence whatsoever \\u2014 showed in the main the following state of facts:\\nPursuant to a sworn complaint, a criminal warrant had been, on August 21, 1927, issued by a justice of the peace of Hot Springs County, Wyoming, directing Sheriff Mc-Farlane to arrest the plaintiff and Cal Stephens, his father, and to bring them before the justice to answer a charge of grand larceny. Thereafter and on August 23, 1927, Mc-Farlane and Ed Goodfellow, his undersheriff, proceeded to execute this warrant. They drove in an automobile seven or eight miles easterly from the town of Thermopolis, Wyoming, to an oil lease where plaintiff and his father were employed. Upon arrival at their destination the officers served the warrant, placed the two men under arrest, directed them to get into the back seat of the auto, and the party then started on the return journey to Thermopolis. The undersheriff, Goodfellow, drove the car and McFarlane sat on the front seat beside him.\\nThe road leading back to Thermopolis ran through some rough country and at one point it led, on a down grade, to the edge of a precipice and made such a sharp turn to the left along the edge of the declivity that while a small car could make the turn in safety, a large car, such as the officers had, could not do so without backing up at least once and then proceeding forward around the turn. When the automobile in which the four men were riding approached this turn, the undersheriff, according to plaintiff's testimony, slowed the car nearly to a stop, but he did not cause it to move backward; instead he then shifted the gears of the car in such a way that the vehicle lurched forward and fell over the edge of the cliff, with the result that plaintiff suffered the injuries concerning which complaint is made and all the other occupants of the automobile were killed.\\nObjection was made on behalf of both defendants and for each of them individually that plaintiff's testimony concerning what took place at the time of the accident was inadmissible against either or both by reason of the provisions of Section 5807, Compiled Statutes of Wyoming 1920. This objection was overruled and due exception was saved to the ruling. Upon the conclusion of plaintiff's case, the defendants renewed this objection in the form of a motion for a directed verdict in their favor on that as well as other grounds. This motion being denied by the court and an exception to this ruling also taken by defendants, the cause was submitted to the jury and the verdict already mentioned followed. The judgment entered was against both the administrator and the surety.\\nThe official bond given by the sheriff was in form joint and several, and, as required by law (Sec. 1459, W. C. S. 1920) ran to the State of Wyoming, as obligee. However, under Section 5581, W. C. S. 1920, plaintiff, as a \\\"person injured\\\" was entitled to bring the action in his own name. Lynch v. Burgess, 40 Wyo. 30, 273 Pac. 691, 62 A. L. R. 849.\\nThe action of the trial court in receiving plaintiff's testimony over the objection of defendants, made as above recited, as well as the overruling of their motion for a directed verdict, are among the assigned errors presented for our consideration.\\nSection 5807, supra, contains, among others, the following provisions:\\n\\\"A party shall not testify where the adverse party is an executor or administrator, #\\n\\\"5. In an action or proceeding by or against a partner or joint contractor, the adverse party shall not testify to transactions with, or admissions by, a partner or joint contractor since deceased, unless the same were made in the presence of the surviving partner or joint contractor; and this rule shall be applied without regard to the character in which the parties sue or are sued.\\n\\\" # and when a case is plainly within the reason and spirit of the last three sections, though not within the strict letter, their principles shall be applied.\\\"\\nFrom an inspection of this statute as it first appeared in our legislation, as well as the legislation of the state from which it was borrowed, it is clear that the words \\\"the last three sections\\\" appearing in the concluding sentence of Section 5807 were originally intended to refer to the pro visions of Sections 5804 to 5807 inclusive \\u2014 Section 5805 originally not being a separate section but being included in the following section dealing with privileged communications. The word \\\"transaction\\\" as used in such a statute, is a very broad term and has been held to embrace \\\"every variety of affairs which can form the subject of negotiations, interviews, or actions between two persons, and includes every method by which one person can derive impressions or information from the conduct, condition or language of another.\\\" Kentucky Utilities Co. v. McCarty's Adm'r, 183 S. W. 237, 239, 169 Ky. 38. To the same effect is 4 Cyc. 2314. See also 7 Words & Phrases (3rd Series) 574, et seq. The word evidently should be regarded as including the accident involved in the instant case.\\nThe contention of defendants is, in general terms, to the following effect: This is a suit on the official bond signed by the sheriff and his surety for an alleged violation of its obligation through his claimed negligence in the particulars above recited, in not protecting plaintiff while in the sheriff's custody; the sheriff is no longer living and his administrator is an adverse- party to the plaintiff in the suit; hence Section 5807, supra, forbids plaintiff to testify concerning the accident caused by the sheriff's asserted negligence and that this prohibition protects not only the administrator of the deceased sheriff's estate, but also his surety as well.\\nFor the purpose of this discussion we shall assume, without deciding, that the sheriff is chargeable with and fully liable for the acts of the undersheriff in driving the automobile as he did.\\nIn considering the effect to be given the section of our law thus relied upon by the defendants \\u2014 the portions of which pertinent to this case have been quoted above \\u2014 it may be observed first that this section, like most of our civil code, was borrowed from the legislation of the State of Ohio, and came upon the statute books of Wyoming through Section 250 of the Laws of 1886 in territorial days. While the decisions in other jurisdictions, generally, dealing with the rights of survivors in joint contracts with a party since deceased as against the adverse party are not always helpful, because of wholly dissimilar statutes, yet there are some states whose law, like that of Wyoming, is so framed as, in certain circumstances, to protect surviving joint contractors with the decedent or persons jointly interested or liable with him.\\nFor example, in Hefflebower v. Detrick, 27 W. Va. 16, where the statute read: \\\"No party to an action, nor any person interested in the event thereof shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the time of such examination, deceased, against the executor, administrator, heir at law, next of kin, assignee, legatee, devisee or survivor of such deceased person in applying it the court said:\\n\\\"Under this section it is apparent that the plaintiff Hefflebower was incompetent to testify as to any personal transaction between himself and Reinhart who was dead, at the time the plaintiff was examined, as against either Detriek or Nunemaker who were survivors of said Rein-hart, who with them, had executed the note in controversy; and Henry Stouffer for whose use the action was brought, being interested in the event thereof, was also incompetent to testify as to any personal transaction or communication between himself and Reinhart, then dead, as against the survivors or either of them, and therefore so much of the testimony given by Hefflebower and Stouffer as details any personal transaction or communication between either of them and Reinhart during his lifetime, must be disregarded in considering this demurrer to evidence. ' '\\nIn Gavin v. Bischoff, 80 Iowa 608, 45 N. W. 306, 307, the suit was against a surviving husband upon a contract under which it was averred that both husband and wife were jointly and severally liable, and, concerning the phase of the case in which we are interested, the opinion reads:\\n\\\"If it is claimed that, as the contract was made for necessary family expenses, for which both husband and wife were jointly and separately liable, under Code, Section 2214, the action may be maintained against the husband. The ready reply is that the defendant in this ease is the survivor of his joint debtor, the wife, and the plaintiff, upon whose evidence the claim is wholly based, cannot testify in the action to charge him as such. Code, Sec. 3639. The application of the section in this case accomplishes the very purpose of its enactment; namely, it prevents living witnesses from establishing contracts, by their own evidence, as to personal transactions and communications with parties whose lips are sealed by death, in actions to which such witness and the representatives, privies and survivors of the deceased are parties. ' '\\nAn instance where the particular rule established by the statute involved was invoked against a surviving joint and several obligor precluding him from testifying against the plaintiff, is Carter v. Hale, 32 Grattan (Va.) 115. The case is illustrative of protection afforded by the statute to the adverse party and against the surviving joint contractor. The law there under consideration read: \\\"And where one of the original parties to the contract or other transaction, which is the subject of the investigation, is dead, or insane, or incompetent to testify by reason of infamy, or other legal cause, the other party shall not be permitted to testify in his own favor, or in favor of any other party having an interest adverse to that of the party so incapable of testifying, unless he shall be first called to testify on behalf of such last mentioned party; ' ' applying the statute, the following language was used by the court:\\n\\\"These two causes are heard together. The same questions precisely are presented for decision in each. Only one of those questions need be considered and decided, and that is, whether, under the law as it stood on the 28th day of April, 1876 (the date of trial in the court below), in an action of debt instituted on a joint and several bond by the obligee against the surviving obligors, or against the personal representative of a deceased obligor, any one of tbe surviving obligors was a competent witness on bebalf of the defendants against the plaintiff.\\n\\\"Upon the authority of several recent decisions of this court, this question must be resolved in the negative. ' '\\nA case where the statute before the court was in phraseology more closely related to that used in the Wyoming law is that of Niccolls v. Esterly, 16 Kans. 82. There the plaintiff Esterly instituted his action against Niecolls upon a note executed jointly by the latter with McCord and Stewart. The defendant's answer was that the note had been paid in full by Stewart, who had died prior to the commencement of the action. The burden of proof being upon the defendant, he opened the ease and called the plaintiff to the witness stand, where the latter was interrogated concerning certain facts of the transactions with the deceased obligor Stewart. When plaintiff testified subsequently in his own behalf, he undertook to state additional facts concerning these transactions about which he had already been questioned. Objection to the competency of this testimony was made by the defendant under a cited section of the civil code of Kansas. The objection was overruled and while this action of the trial court was affirmed, because the defendant having offered plaintiff's testimony on part of the facts of these transactions, the plaintiff was entitled to have the remainder thereof, yet Mr. Justice Brewer, speaking for the court, said:\\n\\\"That portion of the section referred to which bears upon the question provides, that a party shall not be competent to testify 'to any transaction had personally by such party with a deceased partner or joint contractor in the absence of his surviving partner or joint contractor, when such surviving partner or joint contractor is an adverse party.' This language seems applicable to the case at bar, and to render the testimony offered incompetent; and so we should be constrained to hold but for what had previously transpired.\\\"\\nIn the very recent case of Buchan v. Bolte, 284 Pac. (Kans.) 374, decided February 8, 1930, the same court, applying this Kansas law, held that the purchaser of real estate suing a surviving partner on account of a deceased partner's alleged false .representations made in connection with the sale, was incompetent to testify as a witness in her own behalf concerning her dealings with the deceased partner which tended to establish such false representations.\\nUnder a statute (Rev. St. Ill. 1874, p. 486, Sec. 4) reading : \\\"In any action, suit or proceeding, by or against any surviving partner or partners, joint contractor or contractors, no adverse party or person adversely interested in the event thereof, shall, by virtue of Section 1 of this act, be rendered a competent witness to testify to any admission or conversation by any deceased partner or joint contractor, unless some one or more of the surviving partners or joint contractors were also present at the time of such admission or conversation,\\\" the case of Edward R. Henry, et al. v. Tiffany, 5 Ill. App. 548, arose. The suit was upon a penal bond executed by George B. Henry, as principal, and the appellants Edward R. Henry and others as his sureties. George B. Henry, the principal, had died and the action was against his sureties. Appellee, plaintiff below, was permitted by the trial court to testify to an admission or conversation with the deceased principal, Henry, whereby the latter's liability for breach of the conditions of the bond was made to appear. This testimony was admitted over objections of the sureties, based upon the quoted statute. Reversing the ease, the reviewing court said :\\n\\\"This statute applies to penal bonds as well as to any other class of contracts. Mestling v. Hughes, 89 Ill. 389. The action of debt on bond is purely an action ex contractu resting wholly upon an obligation which one or more persons enter into with another or others. The statute was intended to place the parties upon equal footing before the court, and not to give one an undue advantage over the other. When, therefore, one party seeks to charge another by his own testimony, concerning any admission or a con versation, be can be permitted to testify only wben there remains on the other side a living witness to the same admission or conversation. Langley v. Dodsworth, 81 Ill. 86; Merrill v. Atkin, 59 Ill. 19; Stone v. Cook, 79 Ill. 424; Branger v. Lucy, 82 Ill. 91. ' '\\nMention has been made of the fact that onr statute, Section 5807, was borrowed from the state of Ohio. From the decisions in that state it is apparent that the 5th division of the section under consideration underwent some slight revision before it crystallized in the form in which our legislators appropriated it. In the early case of Baxter v. Leith, 28 O. St. 84, decided in 1875, the subdivision in question read:\\n'1 In all actions by or against a surviving partner or partners, or a surviving joint contractor or contractors, no adverse party to the suit shall be competent to testify to transactions which took place with, or declarations or admission made by, the deceased partner or joint contractor, in the absence of his surviving partner, or joint contractor. ' '\\nUnder this language in the cited decision it was held that an adverse party to the action brought by a surviving partner was not a competent witness to testify to the transactions which took place or the declarations made or a conversation had by a deceased partner concerning the partnership business in the absence of the surviving partner.\\nThereafter, in the year 1884, two years prior to the original enactment of said Section 5807 by the Wyoming Territorial Legislature, we find Subdivision 5 of the Ohio statute (Rev. St. 1880, Sec. 5242) of similar purport before the court of last resort in that state, in the case of Harrison v. Neely, 41 O. St. 334. We also find that this subdivision had assumed a form identical in language with that now before this court. In that case it was held that under this section, in an action upon a promissory note when the survivor of two joint payees and the administrator of the other are plantiffs, an adverse party may testify to admissions made or acts done by either payee in the presence of the survivor. In the course of its opinion, concerning the true meaning of Subdivision 5, the court said:\\n\\\"We think exception 5 should be read as if its form were similar to that of each of the other exceptions in this section; that is as a permission to admit, in the cases named, testimony otherwise excluded by the opening prohibition. Obeying at the same time the instruction of the concluding lines of the section, the following- seems to be, upon the whole the true meaning:\\n\\\" '5. In actions relating to joint contracts, or partnership transactions, the adverse party may testify to words said, or acts done, in presence of the surviving partner, or joint contractor.' \\\"\\nThis court, in the case of Bamforth v. Ihmsen, Adm'r, 28 Wyo. 282, 204 Pac. 345, 356, 205 Pac. 1004, approached rather closely to the matter now in hand when it said:\\n\\\"Defendant complains of the action of the court in striking out the evidence of the defendant showing that he built the Park ditch and while admitting that the witness was incompetent to testify against the administrator and heirs of Gardner now deceased, claims that the evidence should have been admitted against Arnold. That claim was not made on the trial and the court's attention was not directed to that point as it should have been. Aside from that, the record does not show that Arnold's interest in the ditch is separate and apart from that of the interest of the estate. If not, the evidence was not admissible even against him under Sec. 5807 of our statute, and we cannot, therefore, say that the action of the court in this matter was prejudicial.\\\"\\nWith the authorities cited above in view, as well as the express language of Subdivision 5 of Section 5807, supra, it would seem clear that in the case at bar, it being a suit upon a joint contract for an alleged violation of its provisions, the plaintiff should be held incompetent to testify to any act done in his presence by one of the joint obligors relative to matters covered by such contract, unless the sur viving joint contractor was also present at tbe time. When the policy and spirit of the law are regarded, we are unable to perceive that the fact that the contract was in form several, as well as joint, injected any other element into the situation which should properly lead to a different conclusion.\\nBut if it should be thought we are mistaken in this interpretation of Subdivision 5 of Section 5807 aforesaid, there is yet another view of the matter which cannot be overlooked and this arises upon a contention made on behalf of the surety to the following effect: The testimony of the plaintiff concerning the accident being given in an action where the adverse party was an administrator, it was incompetent as to him, under the plain terms of the statute, and to hold such testimony to be competent against the surety and yet incompetent against the administrator would circumvent the statute and effectually nullify its real intent.\\nIt is necessary in determining the force to be given this contention, to have in mind the law regarding the rights of a surety when he is sued with his principal, or if when sued alone he notifies the principal to come in and defend.\\nIn Konitsky v. Meyer, 49 N. Y. 571, it is held that where one party, at the request of another, enters into a contract as surety for the latter, the law implies a promise of indemnity, and the indemnitor is bound by a judgment in a suit brought against the surety upon such contract, of which suit the indemnitor had notice, although there is no provision to that effect in his contract. In Hare v. Grant, 77 N. Car. 203, the decision is of similar purport, it being, as accurately stated in the syllabus of the case, that \\\"where a surety is sued with his principal or where he is sued alone and notifies his principal, the recovery against the surety is the measure of damages in an action by surety against principal for money paid to his use, and the record of such recovery is conclusive against the principal in such action. ' '\\nThe well considered language of the court in Littleton v. Richardson, 34 N. H. 179, 66 Am. Dec. 759, citing many authorities, states the rale thus:\\n\\\"But when a person is responsible over to another, either by operation of law or by express contract \\u2014 2 Cowen & Hill's Notes 5 \\u2014 and he is duly notified of the pendency of the suit and requested to take upon him the defense of it, he is no longer regarded as a stranger, because he has the right to appear and defend the action, and has the same means and advantages of controverting the claim as if he was the real and nominal party upon the record. In every such case, if due notice is given to such person, the judgment, if obtained without fraud or collusion \\u2014 Coates v. Roberts, 4 Rawle (Pa.) 100 \\u2014 will be conclusive against him, whether he has appeared or not; ' '\\nTo the same effect is 1 Brandt on Suretyship and Guaranty (3rd Ed.) Sec. 235, p. 474; and Stearns on Suretyship (3rd Ed.) See. 286.\\nThe statement of the law, as set forth by the authorities last above cited, we deem to correctly define the surety's rights against his principal, under the circumstances premised. In the ease at bar we understood counsel for plaintiff at the argument to concede \\u2014 and we think rightly \\u2014that the testimony of the plaintiff concerning the accident was not properly received against the administrator, and that judgment was incorrectly entered against him. No one except the plaintiff could or did testify at the trial as to what took place when the accident occurred. It was by his testimony that the violation of the terms of the sheriff's bond was undertaken to be established through the asserted negligence of that officer. If it be said that this testimony was rightly admitted against the surety, and the verdict and judgment rendered should stand as against it, then under the principle in the law of surety-ship announced in the authorities last above cited, that judgment would be conclusive against the administrator in an action by the surety for exoneration. To urge that the judgment would not have sneb effect would be to deprive the surety of all right to indemnity and make it, in practical effect, the only obligor on the bond in suit. The right of the surety to recovery over against the estate being clear, the consequence of admitting plaintiff's testimony in the ease at bar would obviously be to establish indirectly the liability of the estate of the deceased sheriff by the very judgment which could not be directly entered against it. This, we think, to be squarely in violation of the plain reason and spirit of Section 5807, supra. We are not without authority in support of this view.\\nThe case of Miller v. Motter, 35 Md. 428, was one where Miller, the plaintiff, sued Motter alone upon a joint and several note signed by Motter and one Wason. At the time the suit was begun, Wason was dead. Motter pleaded the statute of limitations and for the purpose of removing the bar of the statute Miller tendered himself as a witness to prove that Wason had made a payment on the note and at the time of the payment had in his own hand writing endorsed the same upon the paper. The plaintiff's competency as a witness to prove these facts was objected to, the objection sustained and judgment was given for the defendant. Upon appeal the only question before the court was appellant's competency as a witness under the circumstances detailed. In affirming the judgment the appellate court, after quoting the statutes dealing with the competency of witnesses in the state of Maryland, they being of similar purport with our Sections 5804 and 5807, supra, and concluding that: \\\"A party to a contract or cause of action is not competent to testify on his own offer, either when an original party to it is dead or insane, or when an executor or administrator is a party to the suit,\\\" said in part:\\n\\\"The appellant comes directly within the express terms of exclusion under the second section, inasmuch as James Wason, 'am, original party to the contract or cause of action' sued on, was dead at the time of the trial below. But it was contended that both the appellant and appellee were parties to the contract, and that as the suit was against the appellee alone, they stood upon an equality and that both of them could testify. But the evidence sought to be introduced by the appellant was of a transaction alleged to have been had with Wason alone, who was then dead, and could not give his version of that transaction, and consequently there would have been none of that 'justice, mutuality and fairness,' which the legislature designed to secure, in permitting the appellant to testify. In addition to this, in the event of a recovery of a judgment against the appellee, he would have had a remedy over against the personal representatives of James Wason, and thus the estate of the latter would have been burdened by means of the testimony of the appellant, when it would have been inadmissible as against the personal representatives of Wason in a suit brought directly against them upon the same cause of action. To permit this to be done by indirect means, when it could not directly, would be to defeat 'justice, mutuality and fairness, ' and to violate the spirit and intent of the law.\\n\\\"After the death of James Wason, the appellant was clearly not a competent witness to testify, on his own offer, as to transactions between them during his lifetime.\\\"\\nAgain, in State ex rel. Bryant v. Morris, 69 N. Car. 444, the action was brought upon the official bond of Morris, a constable, against the defendant, one of the sureties thereof. In their complaint the relators alleged several breaches of the condition of the bond in that the constable had collected money upon claims put in his hands and not paid it over to relators to whom it was due, and had also negligently failed to collect other claims placed in his hands for collection when the debtors were solvent and they had since become insolvent, resulting in the loss of the claims. The proof established that Morris, the constable, was dead. His personal representative was not made a party to the action. The relators, by one of themselves, were allowed, over objection made to his competency on account of the fact of the constable's being dead, to prove claimed admissions and transactions with the deceased constable, which tended to establish the breaches of the bond as charged. The jury rendered a verdict in favor of the relators and judgment was given accordingly. Holding that the ruling was error and awarding a venire de novo the court said:\\n\\\"If the plaintiff had sued the administrator of the dead constable, he could not have testified as to any transaction between him and the deceased so as to affect his estate. C. C. P. S. 343.\\n\\\"But the defendant is not sued as administrator, but as surety of the dead constable, and the question is whether the plaintiff can testify as to transactions between himself and the deceased, which affect the defendant as his surety. It is said that he ought not to be allowed to do this, because whatever he recovers of the defendant as surety, the defendant can recover of the estate of the deceased constable.\\n' ' This would seem to be so; and therefore to allow the evidence against the surety is to allow it indirectly against the principal, which is the evil meant to be guarded against by the exception in the statute. So that while the objection to the evidence is not within the letter, it is within the spirit of the statute.\\\"\\nMany years afterward, a somewhat similar situation came before the same court in the case of McGowan v. Davenport, 134 N. Car. 526, 47 S. E. 27. Concerning the case in hand then, the court, in the course of its opinion, remarked :\\n\\\"The defendant L. A. McGowan, wife of G. A. McGowan, was but a surety for her husband (Shinn v. Smith, 79 N. C. 310), and, if a recovery is had against her, she will have her action over against her husband's estate for exoneration. Lewis v. Fort, 75 N. C. 251. Any testimony therefore which makes against her, will, in a material respect and in the same degree, though indirectly, affect her husb\\u00e1nd's estate. The plaintiff being a party and directly interested in the result, was incompetent to give this testimony. This has been expressly decided.\\\"\\nRegarding tbe Bryant case, supra, which it specifically followed and applied, the court said this:\\n\\\"The ease of Bryant v. Morris had careful consideration by a court of exceptional ability, one of the justices having been a member of the commission which prepared and framed The Code of Civil Procedure. It was decided sometime after Section 343 (now 590) became a law, and at a time when that section had frequently been under consideration by this court, and when it was, as we are inclined to think, quite as well understood as it is now. The case has never been overruled nor questioned as a precedent, but, on the contrary, has been cited with approval, as we will presently show. The principle it lays down being a just and reasonable one, we do not see why the case should not continue to be accepted as an authority. ' '\\nIn the light of these authorities and with the emphatic and positive command of the concluding words of Section 5807, supra, before us, ' ' and when a case is plainly within the reason and spirit of the last three sections, though not within the strict letter, their principles shall be applied, ' ' we are constrained to conclude in the case before us that plaintiff's testimony concerning the accident was wholly inadmissible against either defendant and that there was error in the trial court's ruling to the contrary. What we have said in the preceding portion of this opinion makes it unnecessary for us to consider the effect of the ease of Aucker v. Adams, 23 O. St. 543, with reference to Section 5581, W. C. S. 1920 \\u2014 a matter very ably argued by counsel for both parties.\\nThe judgment of the District Court of Hot Springs County is therefore reversed, with instructions to grant a new trial.\\nReversed.\\nBlume, C. J., and Kimball, J., concur.\"}"
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+"{\"id\": \"8515231\", \"name\": \"THOMAS vs. BIVIN\", \"name_abbreviation\": \"Thomas v. Bivin\", \"decision_date\": \"1926-02-09\", \"docket_number\": \"No. 1309\", \"first_page\": \"317\", \"last_page\": \"324\", \"citations\": \"34 Wyo. 317\", \"volume\": \"34\", \"reporter\": \"Wyoming Reports\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T23:41:29.115708+00:00\", \"provenance\": \"CAP\", \"judges\": \"PotteR, C. J. and Kimball, J., concur.\", \"parties\": \"THOMAS vs. BIVIN\", \"head_matter\": \"THOMAS vs. BIVIN\\n(No. 1309;\\nFebr. 9, 1926;\\n243 Pac. 130.)\\nFred Wy chaff and Thomas & Thomas for appellant.\\nG. H. Harhms for respondent.\", \"word_count\": \"2104\", \"char_count\": \"11828\", \"text\": \"Blume, Justice.\\nOn February 25, 1922, Theodore H. Thomas, the appellant herein, filed a suit in the District Court of Hot Springs county, against the special administrator of the estate of Xury Whiting, seeking judgment on a claim against the estate of said decedent. Later on, during that year, W. T. Bivin, tbe general administrator of tbe estate of said decedent, was substituted as defendant in that case. Tbe canse was tried and final judgment was entered therein on May 19, 1924. It does not appear in whose favor tbe judgment terminated, but probably in favor of the administrator of the said estate. On the following day, namely May 20, 1924, the appellant herein filed a motion for an order allowing him to file a claim against the estate of said decedent. He supported his motion by an affidavit, in which he alleges the following facts, namely: That he is now and for twenty years has been a resident of the state of Colorado; that he is the claimant and owner of a just and meritorious claim against the estate of X. 'Whiting, deceased; that W. T. Bivin, now is and has been since about June, 1922, the duly qualified and acting administrator of the estate of said decedent; that on or about the 13th day of July, 1922, the administrator of said estate duly published a notice requiring all persons having claims against said estate to exhibit them for allowance to the administrator within the time provided by law; that affiant had no knowledge of the publication of the notice aforesaid, by reason of being out of the state of Wyoming; that the first information affiant had thereof was on May 15, 1924, when he was in Thermopolis attending court, and discovered that fact for the first time upon examination of the records of the estate of said decedent; that affiant had not been in the state of Wyoming during 1921, 1922 and 1923, and that he did not learn from his attorney or from any one else that any notice to creditors had been published by the administrator of said estate; that said estate is in process of being administered and settled; that the assets of said estate amount to $80,000, and that no decree of the distribution has been made in said estate.\\nAn order and judgment was entered on the motion aforesaid on January 3, 1925, substantially as follows: This matter comes on for hearing in open court this 21st day of November, 1924, upon the motion of Theodore H. Thomas, supported by his affidavit filed herein on October 31, 1924, for an order allowing said Thomas to present his claim against the estate of X. 'Whiting, deceased. Said Thomas appears by Fred Wyekoff, his attorney, and said estate appears by C. H. Harkins, its attorney, and it is stipulated and agreed in open court that the claim sought to be presented in this proceeding is the same claim upon which said Thomas filed suit in this court against said estate on February 25, 1922, which said claim was tried in this court and final judgment entered therein on May 19,1924. The court accordingly finds: That said Thomas filed suit in this court against said estate upon the identical claim which he asks permission to present to said estate; that said suit was filed February 25, 1922, against the special administrator of said estate; that thereafter the general administrator of said estate was substituted as party-defendant therein; that said suit was tried and final judgment entered therein on May 19, 1924; that said Thomas is not entitled to an \\u2022 order authorizing him to present his claim against the administrator of said estate. It is accordingly ordered, adjudged and decreed by the court that the motion of said Thomas be, and the same is, denied. From the order and judgment of the court so entered, said Theodore H. Thomas has appealed to this court.\\nSection 6887, W. C. S. 1920, provides that an administrator or executor shall publish notice of his appointment, stating the date thereof, and requiring all persons having claims against the estate to present them within six months after the date of the letters, and if not presented within one year from the date of said letters, the claim shall be forever barred. Section 6889 provides that all claims arising upon contract must be presented within the time limited in the notice, and that any claim not so presented is barred forever. The section further provides as follows:\\n\\\"Provided, however, that when it is made to appear by the affidavit of claimant to the satisfaction of the court or a judge thereof, that the claimant had no\\u2022 notice as, provided in this chapter, by reason of being out of the state, it majr be presented at any time before a decree of distribution is entered.\\\"\\nThe notice to creditors in the case at bar was duly published, as appears in the record before us, on July 13, 1922, and it is conceded that the claim of appellant herein would be barred, unless he is entitled to relief under the quoted provisions of section 6889, supra, as a non-resident of this state.\\n1. There may be some doubt as to whether or not the order appealed from is a final order. See Tropico Land etc. Co. v. Lambourn, 170 Cal. 33, 148 Pac. 206. But we shall not pass upon the point, in view of the fact that it has not been presented or argued herein. But we might say, before proceeding further, that appellant's position is unique. It would seem to be rather remarkable that when notice to creditors was duly published as required by law, and appellant litigated his claim against the estate of the decedent for a period of over two years, he should, upon being defeated, and after the time for filing claims for parties generaly had expired, be able to say that he had no actual knowledge of the publication of such notice and accordingly assert a right to file or refile his claim thereafter, and be permitted to relitigate it all over again. We have been cited to no precedent of that kind, and we do not think that any can be found. Respondent says that the claim is res judicata, and it appears to be so. Appellant, however, contends that, in view of the conceded fact that the estate of the decedent was not yet distributed, the only point before the district court in this proceeding was as to whether appellant had knowledge of the publication of notice to creditors by reason of his absence from the state, and that the defense of res judi- cata could not be raised at that time. Whatever merits there might ordinarily be in that contention, appellant did not object to the course pursued by the trial court. In fact, he agreed to that course, and he is not now in position to say that such defense was not decided at the proper .time. The judgment in the former ease is not in the record before us, to show us the scope thereof. It does not even appear, as heretofore stated, whether it was in favor of, or against, appellant, and for aught that is shown herein, appellant may already have a judgment in his favor for the claim now in controversy. It may be, .however, that we should assume, in view of appellant's present contention, that the judgment went against him. It is possible that the decision was not upon the merits, and may have been rendered upon grounds not barring another action (see 34 C. J. 778-9, 887; Westboy v. Gray, 116 Cal. 660, 48 Pac. 800); but the judgment in the present proceeding states that the action above mentioned was prosecuted to final judgment, and that a final judgment was entered therein on May 19, 1924. We cannot construe this finding to mean anything else than that the judgment was final in its true sense, namely that the decision was upon the merits, and if that is not true, the appellant should, in some manner, we think, have made that fact to appear in the record in the present proceeding. This has not been done, and we think that when the lower court found that the claim sought to be presented by appellant against the estate of the decedent had already been finally adjudicated, it was not compelled by virtue of section 6889, supra, to grant leave to file it, as requested. That section cannot be construed to compel a court to make a useless order.\\n2. We need not rest our decision upon the preceding point alone, and think that the trial court was justified in refusing to grant the appellant the relief which he asked, on the ground that he made no sufficient showing of his want of knowledge of the notice given to creditors. Ordi narily, doubtless, au affidavit by a non-resident creditor of an estate, which, sets forth the fact of his non-residence and of his want of knowledge contemplated by section 6889 supra, would make a prima case, and the court should not arbitrarily decide that it is not satisfied of the truth of the facts shown. Cullerton v. Mead, 22 Cal. 96. Nevertheless, the court must be satisfied, to the extent that a reasonable, fair and impartial mind is satisfied, that the claimant had no notice, and it is not at all bound by the allegations in the claimant's affidavit, if under all of the facts presented or circumstances shown in the proceeding, it appears that a claimant in fact had knowledge or must be held to have had knowledge. See Tropico Land etc. Co. v. Lambourn, supra.\\nIt may be fairly inferred from the affidavit which appellant filed in this proceeding that he had a resident attorney in this state, who represented him in the litigation already mentioned, and which involved the identical claim now in controversy. It is not shown that such attorney did not have full knowledge of the publication of the notice to creditors. It is only alleged that he did not inform appellant thereof. But he and appellant both knew of the death of the decedent, as well as the fact that Bivin had been appointed and was acting as general administrator, and both certainly had reasons to believe that the latter would do his duty and would give the ordinary notice to creditors required by law. If, as appellant now claims, the fact of giving such notice was important as to him, the litigation in which he was engaged with the administrator would naturally have suggested an investigation in connection therewith; in fact, the failure to make it would, under the circumstances, seem to have been gross negligence, if, we repeat, the giving of such notice was of any importance to appellant, and we shall assume with him that it was. But upon that theory, it was just as important for appellant to inquire as to the publication of such notice as it was to present his claim to the adminis trator for allowance before bringing suit, and allege that fact in his petition, as was stated to be necessary in O'Keefe v. Foster, 5 Wyo. 351, 40 Pac. 525. It has been held that if a claimant has actual knowledge of the appointment of an administrator, presents his claim to him and deals with him as such, the fact that no notice to creditors at all is given is wholly immaterial as to him. Walker v. Gill, 2 Bailey (S. C.) 105; Collamore v. Wilder, 19 Kan. 67; Danzey v. Swinney, 7 Tex. 617. In the case at bar appellant litigated with Bivin, the general administrator of the Whiting estate, for a period of nearly two years, over the identical claim now in controversy. He must have done so,- of course, upon the theory that he had knowledge of all the facts requiring him to conduct that suit, and that it was proper to litigate the claim at that time. He ought not to be permitted to change his position now, but should be held, so far as this proceeding is concerned, upon the facts here shown, to have had knowledge of the notice given to creditors, when he carried on the action.\\nThe judgment of the district court should accordingly be affirmed and it is so ordered.\\nAffirmed.\\nPotteR, C. J. and Kimball, J., concur.\"}"
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+"{\"id\": \"8515293\", \"name\": \"MELDRUM v. STATE\", \"name_abbreviation\": \"Meldrum v. State\", \"decision_date\": \"1915-03-08\", \"docket_number\": \"No. 788\", \"first_page\": \"12\", \"last_page\": \"46\", \"citations\": \"23 Wyo. 12\", \"volume\": \"23\", \"reporter\": \"Wyoming Reports\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T22:55:01.273291+00:00\", \"provenance\": \"CAP\", \"judges\": \"Potter, C. J., and Beard, J., concur.\", \"parties\": \"MELDRUM v. STATE.\", \"head_matter\": \"MELDRUM v. STATE.\\n(No. 788;\\nDecided March 8th, 1915;\\n146 Pac. 596.)\\nAppeal and Error \\u2014 Jurors\\u2014Challenge to Array \\u2014 Selection oe Jury List \\u2014 Duty oe Jury Commissioners \\u2014 Substantial Compliance With Law \\u2014 Duties oe Clerk oe Court \\u2014 Evidence\\u2014 Documentary Evidence \\u2014 Stenographer's Notes oe Former Trial \\u2014Admissibility \\u2014 Municipal Ordinances \\u2014 Certified Copies \\u2014 Criminal Law \\u2014 Intent and MIotive \\u2014 Rights oe Accused \\u2014 Confrontation by Witnesses \\u2014 Town Marshals \\u2014 Duty of Peace Officers \\u2014 Homicide by Arresting Officer \\u2014 Arrest Without Warrant \\u2014 Self-Defense\\u2014Murder in Second Degree \\u2014 Trial\\u2014 Instructions \\u2014 Presumption\\u2014Harmless Error.\\n1. Jury Commissioners in making up a list of names of persons believed to be competent and qualified to serve, as trial jurors, as prescribed by Sections 978 and 979 Compiled Statutes, 1910, are not required to include names of persons known to them to be incompetent or disqualified to serve, notwithstanding\\\" notations in that regard made on the assessment roll by the assessor pursuant to Section 1266 Compiled Statutes, 1910. Such notations are merely advisory and are not binding upon the Commissioners as against their own personal knowledge.\\n2. A substantial compliance with the law in the preparation of a jury list is sufficient; a substantial compliance requires, that an assessment roll must have been made from which to select; the selection must be made from the names of such roll and must consist of substantially all whom the Commissioners believe to be qualified.\\n3. Section 984 Compiled Statutes, 1910, requiring every Commissioner to select from the last assessment roll of the County and make a list of the names of all persons whom they believe to be competent and qualified to serve, as trial jurors, commits. the question of qualification and competency to their judgment and decision and it is no ground for an attack upon a list so made, that others might disagree with them in regard to the qualifications of persons, whose names appear in the list, or others whose names have been omitted.\\n4. The duty of the Clerk to prepare jury lists and place the names in the boxes according to Compiled Statutes 1910, Sections' 987. 992 and 996, is purely ministerial and is limited to the list of names furnished him by the Jury Commissioners; the Clerk should not on the theory that they are disqualified omit some of the names, nor assume judicial power in passing upon the exemption of one from jury service.\\n5. A finding made by a trial court that a foundation laid was sufficient for the admission of stenographic notes of the testimony of witnesses given at a former trial, and who have left the jurisdiction, when fairly supported by the showing will not be disturbed.\\n6. The admission of testimony given by absent or deceased witnesses on a previous trial, where accused had the right to cross-examine does not violate his Constitutional right to be confronted by the witnesses against him.\\n7. A copy of a municipal ordinance certified to by the Clerk under the seal of the town is admissible in evidence under the provisions of Section 1587 Compiled Statutes 1910.\\n8. Where accused, who was' a town marshal, claimed that believing he was acting in the line of his duty, as a police officer, he attempted to arrest deceased and in the affray that followed he fired the fatal shot, evidence of t\\u2019\\\" municipal ordinance, under\\u2019which accused claimed to have acted, is admissible where it had not been questioned, though the vote on it had not been recorded, as required by Statute.\\n9. When a defendant in a \\\"homicide case submits himself, as a witness, he may be inquired of, as to his motive or intent in firing the fatal shot or striking the fatal blow, and notwithstanding the provisions of Section 1355 Compiled Statutes 1910, making it the duty of all peace officers to promptly arrest, without warrant, any person violating within his presence any law of the state, and Section 1356 Compiled Statutes 1910, rendering any peace officer liable to removal from office for failure to do so, a defendant, who claimed to have been acting as town marshal in arresting-, or attempting to arrest deceased for the violation of a town ordinance, .was entitled to have such ordinance, as well as an ordinance relating to his official authority submitted as evidence to the jury on the question of his motive.\\n10. As a general rule, a peace officer is not permitted to kill or maim one who is resisting arrest for a misdemeanor, but where there is evidence of resistance coupled with an assault and battery by deceased upon defendant, it should go to the jury on the question of self defense.\\n11. A town marshal, who, after deceased had broken the peace by shouting, followed him until he entered a hotel, may, on deceased leaving the hotel after eating dinner, arrest him; it being the right of a peace officer to follow and arrest without a warrant one who in his presence broke the peace; hence, where the marshal killed deceased in making the arrest an instruction that, if an offense had not been committed in the presence of the peace officer, or within his view immediately before or at the time of the arrest, the arrest was not justified, was improper.\\n12. Defendant and deceased having engaged in an encounter at or about the time of the homicide, at a place where bystanders could not plainly observe their movements on account of darkness, the evidence showing that defendant emerged with a broken nose and serious bruises, and defendant having testified at the trial, that he believed the killing was necessary in self defense, it was improper for the court to exclude testimony that deceased had thr\\u00e9atened accused.\\n13. Where a town marshal, who shot one whom he was trying to arrest, claimed self defense, evidence of the marshal\\u2019s reputation for being a prudent, discreet and cautious officer is inadmissible.\\n14. To constitute murder in the second degree, the killing must be done purposely and maliciously and an instruction defining it, which omits those essentials, is erroneous.\\n15. In a murder case, an instruction that malice means ill will, hatred, a wilfull intention to do an unlawful act, or a willful act done without just cause, while not carefully worded, was not-prejudicial.\\n16. A charge that, to reduce a voluntary .homicide to the grade of manslaughter, it is not only necessary that there should be an adequate cause to produce a degree of anger suffi- dent to render the mind incapable of cool reflection, but such state of mind must actually exist; hence when a voluntary homicide takes place under the immediate influence of sudden passion, and no excuse exists which will justify the commission, then, to determine whether it is manslaughter or murder in the second degree, the test is, was there an adequate cause to produce such passion? and, if there was such adequate cause, the homicide will be murder in the second degree, is obviously erroneous in omitting the word \\u201cnot\\u201d after \\u201cwas\\u201d in the last clause.\\n17. Such instruction is also erroneous as practically informing the jury there is a presumption that the offense is murder instead of manslaughter, thus placing on accused the burden of showing innocence.\\nError to the District Court of Carbon County, Hon. V. J. Tidball, Judge.\\nR. D. Mddrum was convicted of murder in the second degree, upon an information charging that on the 12th day of January, 1912, at the County of Carbon, in the State of Wyoming, he did feloniously, purposely and with premeditated malice, kill and murder one John or \\u201cChick\\u201d Bowen. The defendant was Town Marshal of the Town of Baggs, in Carbon County, and was attempting to arrest deceased at the time of the homicide. A motion for a new trial was overruled and the defendant brings error. Other material facts are stated in the opinion.\\nN. B. Corthell and N. R. Greenfield, for plaintiff in error.\\nThe proceedings had in the selection of the jury list from which the jury was drawn in this case were invalid. (State v. Bolin, et al., 10 Wyo., 439, 471.) The foundation laid for the introduction of a transcript of the stenographer\\u2019s notes of testimony of witnesses given at the former trial was insufficient. (Comp. Stat., 4560;. 2 Cyc., 35; Cooper v. Galbraith, 24 N. J. D., 219; Baldwin v. Flagg, 43 N. J. L., 495; People v. Ballard, 1 Cal. App., 222; 81 Pac., 1040; People v. McFarlane, 138 Cal., 481; 71 Pac., 568; People v. Long, 44 Mich., 296; 6 N. W., 673; Wheat v. State, no Ala., 68; 20 So., 449.) The admission and reading of the transcript to the jury was a violation of defendant\\u2019s constitutional rights. (Art. 1, Section 10, Wyoming Constitution.) Only three states permit the testimony of a living witness given at a former trial and who has left the jurisdiction, to be proven by secondary evidence. (Jacobi v. State, 32 So., 158, (Ala.); Young v. People, 130 Pac., ion, 1018 (Colo.) ; Grant v. State, 148 S. W., 760, 763, (Tex. Cr. App.) The rule excluding such evidence is supported by the better and more abundant authority. (State v. Lea, 33 Pac., 690, (Mont.) ; Commonwealth v. McKenna, 158 Mass., 207; 33 N. E. 389; State v. Wing, 64 N. E., 514, (Ohio St.) ; Kirchmer v. Laughlin, 5 N. M., 365; 23 Pac., 175; Montgomery v. Commonwealth, 37 S. E., 841-842, (Va.) ; United States v. Angel\\u00ed, 11 Fed. 34; Cline v. State, 36 Tex. Cr., 320; Porch v. State, 51 Tex. Cr., 7, (Overruling Cline Case); 17 Ill., 426; 178 N. D., 469; 17 Q. B., 238; 117 Eng. Rep., 1271.) Certified copies of town ordinances are admissible in evidence. (Comp. Stat., 1587; Linds\\u00e1y v. Chicago, 115 Ill., 120; 3 N. E., 443.) The enactment of the ordinaces offered was within the power of the town. (Comp. Stat., 1578, Par. 12 and 16; White v. Kent, 11 Oh. St., 550; Schmidt v. Indianapolis, 80 N. E., 632, 634; Ex Parte Moffman, 99 Pac., 517, 518, (Cal.) ; 28 Gyc., 698, 699.) The constitutionality of the enactment cannot be raised against an officer acting thereunder. (Kead}'' v. People, 32 Colo., 57; 74 Pac., 892, 895.) The ordinances were competent, as bearing upon the question of motive and intent. (Warfield v. People, 41 Colo., 203; 92 P'ac., 24; State v. Rrannigan, 24 Pac., 767, 770, (Utah) ; State v. Plalliday, i ii La., 47; 35 So., 380; Earles v. State, 52 Tex. Cr., 140; 106 S. W., 138; Neeley v. Com., 123 Ky., 1; 29 Ky. L. R. 408; 93 S. W., 596; State v. Johnson, 8 Wyo., 506.) On an issue of self-defense, evidence of uncommunicated threats is admissible. (Wharton Crim. Evi. 9th Ed., 757; State v. Baldwin, 155 N. C., 494; 71 S. E. 212; See note page 482 Ann. Cas., 1912, C. 6 Ency. of Evi., pp., (787-797) and cases cited; People v. Scroggins, 37 Cal., 676; Babcock v. People, 13 Colo., 516; 22 Pac., 817; State v. Spendlove, 44 Kan., 1; 24 Pac., 67; State v. Jackman, 29 Nev., 403; 91 Pac., 143; State v. Tarter, 26 Ore., 136; 37 Pac., 53; State v. Cushing, 14 Wash., 527; 45 P., 145; 53 Am. St. R,., 883; People v. Taylor, 69 N. E., 534; 177 N. Y., 237; Enlow v. State, 154 Ind., 664; 57 N. E. 539; State v. Peterson, 24 Mont., 81; 60 Pac., 809.) Evidence offered of defendant\\u2019s reputation, as a prudent, discreet and cautious peace officer was competent and it was error to exclude it. (1 Wigmore on Evi., Sec. 59, note page 129; State v. Surry, 23 Wash., 655; 63 Pac., 557; Saye v. State, 99 S. W., 551, (Tex. Cr.). Instructions numbered one and two defining murder in the second degree and the word \\u201cmalice\\u201d were erroneous. -(Downing v. State, 11 Wyo., 86, 102; Cribbs v. State, 6 So., 109, no, (Ala.) ; Trumble v. Territory, 3 Wyo., 280, 282; Wharton\\u2019s Crim. Evi. 9th Ed. Sec. 738; Territory v. Gutierez, 79 Pac., 7x6, (N. M.) ; Vollmer v. State, 24 Nebr., 838; 40 N. W., 420; Milan v. People, 60 Pac., 485; Zipperian v. People, 33 Colo., 134; 79 Pac., 1018; Brooks v. State, 90 Ind., 428. Instruction number three as framed had the effect of changing the doctrine of reasonable doubt and depriving defendant of the benefit of such doubt. (Spivey v. State, 45 Tex. Cr. App., 496; 77 S. W., 444.) The last clause of the instruction was misleading and incorrect, as a statement of the law. Instruction number five, defining material allegations of the information, while approved in the cases of Horn v. State, 12 Wyo., 80, and State v. Hollywood, 19 Wyo., 493, and perhaps correct under the facts in those cases was prejudicial under the facts here. (State v. Press-ler, 16 Wyo., 2x4, 221.) If given at all, this instruction should have been limited to voluntary manslaughter. (Milan v. People, 60 Pac., 485; 27 Colo., 206; Fahnstock v. State, 23 Ind., 262; Ross v. State, 8 Wyo., 385.) Instruction number nine placing dying declarations upon the same footing as that of witnesses present and testifying in court was, and is sufficient in itself to require a reversal of the judgment. (State v. Scott, 142 Pac., 1053; Nordgren v. People, 211 Ill., 425; 71 N. E., 1042; 21 Cyc., 992, 993; 10 Am. & Eng. Ency. of Law (2 Ed.) 386; Roscoe on C'rim. Evi. (xo Ed.) 251; Wharton\\u2019s Crim. Evi. (9th Ed.), Sec. 276, et seq.; People v. Kraft, 148 N. Y., 631; 43 N. E., 80; People v. Corey, 157 N. Y., 332; 51 N. E., 1024; State v. Doris, 51 Ore., 136; 94 P'ac., 44; State v. Valman, 140 Pac., 1119; State v. Eddon, 8 Wash., 292; 36 Pac., 139; -Zip-perm v. People, 79 Pac., 1018; 33 Colo., 134; Bush v. State, 34 S. E., 109 Ga., 120; People v. Warren, 102 N. E. 201, (Ill.). While courts may pass upon the admissibility of the declaration offered, a ruling iri favor of admission is not conclusive, that it is a dying declaration, which question is one to be finally determined by the jury. (People v. Thompson, 145 Cal., 717; 79 Pac., 435-437; State v. Dtoris, 94 Pac., 48; State v. Read, 53 Kan., 767; 37 Pac., 174; 42 Am. S. R., 322; Smith v. State, no Ga., 255; 34 S. E., 204.) Where the right to make an arrest without warrant exists, it-may be made at any subsequent time, as' well as at the time of the commission of the offense. (3 Cyc., 878-883.) The instruction given, as to the powers and duties of peace officers, were in the main prejudicial. The right of the defendant to have received in evidence the town ordinances,' as well as his clear right to explicit and positive instructions to the jury, as to his powers and duties in making the arrest, are fully sustained by the authorities.. (Bishop N'ew Crim. Proc., Sec. 160, and cases cited; State v. Dierberger, 96 Mo., 66; 9 A. S. R., 380; 10 S. W., 168; State v. Fuller, 96 Mo., 165; 9 S. W., 583; State v. Phillips, 119 Iowa, 652; State v. Gosnell, 74 Fed. 737; Stevens v. Com., 194 Ky., 32; 30 Ky. L. R., 200; 98 S. W., 284; Lynn v. People, 170 Ill., 527; 48 N. E., 964; State v. Bland, 97 N. C., 438; 2 S. E., 460; Hawkins v. Com., 61 Am. Dec. note pp. 151, 164; Boykin v. State, 22 Colo., 496; 45 Pac., 419; State v. Weston, 98 la., 125; 67 N. W., 84; Peter v. State, 23 Tex. App., 684; 5 S. W., 226; State v: Sigman, 106 N. C., 726; 11 S. E-, 520-; Doolin v. Com., 95 Ky., 22, 29; 23 S. W., 659, 684; State v. McNally, 87 Mo., 644.) Instructions numbered twelve and thirteen dealing with the subject of self-defense were misleading under the facts in the case. Instruction number thirteen may be permissible to the extent that it declares that the defendant urging self defense must not say or do anything for the purpose of provoking a difficulty. The remainder of the sentence goes beyond the limits allowed by the authorities on the subject. In instructing on the subject of self defense, it is the duty of the court to keep in mind, not only the theory of the prosecution, but also the theory of the defense, insofar as it is supported by any substantial evidence. (Boykin v. People, 22 Colo., 496; 45 Pac., 422; Meuly v. State, (Tex. Cr. App.) g S. W., 563, 566; Drake v. State, (Tex. Cr. App:) 80 S. W., 1005; Winters v. State, (Tex. Cr. App.), 40 S. W., 303.) The closing sentence of instruction number sixteen apparently places the burden upon defendant to establish facts of self defense by a preponderance of the evidence. Such a burden is not properly laid upon the defendant in any case. (Poley v. State, 11 Wyo., 464, 480.) Instruction number twenty-eight dealing with the weight and credit to be attached to the transcript of testimony of absent witnesses, which was read to the jury, directed the same consideration to be given to- that evidence, as to all other evidence in the case. The court exceeded its province in giving an instruction which would lead the jury to believe that in law an arbitrary valuation was to be placed upon the same, equal in all respects to that of each and every witness who had testified in the presence of the jury. Affidavits filed with reference to certain misconduct of the jury fully justify the granting of the motion made for a new trial. (Nicholson v. State, 18 Wyo. 298, 314-315.) The denials of the jurors and officers also presented by affidavits were insufficient to overcome the showing of misconduct made by affidavits presented by defendant. (Hempton v. State, 86 N. W. 596 (Wis.) ; Commonwealth v. Bisher, 226 Pa. St. 189, 75 Atl. 134; 134 Am. St. Rep: 1027, 26 L. R. A. (N. S.) 1009; State v. Strodemier, 41 Wash. 159, 83 Pac. 22; Gamble v. State, (Fla.) 33 So. 471; Ryan v. Harrow, 27 la. 494, 500; 3311-ton v. Territory, 1 Okla. Crim. 560, 99 Pac. 163; Churchill v. Cir. Judge, 56 Mich. 536, 23 N. W. 211; State v. West (Ida.) 81 Pac. 107; Davis v. State, 35 Ind. 496, 9 Am. Rep. 760; People v. Backus, 5 Cal. 275; Cantwell v. State, 18 Oh. St. 477; State v. Heller, 22 Colo, 11, 43 Pac. 124, 126.) Visiting the barber shop was misconduct, although accompanied by the bailiffs. (State v. Nelson, 65 Kan. 689, 70 Pac. 633.) It was error for counsel for the state to suggest in the presence of the jury that they be permitted to attend the ball game. (Parker v. State, 10 Oh. St. 89, 92; Coleman v. State, 163 Ind. 503, 72 N. E- 568, 570.) Communications with a jury during their deliberations are prejudicial. (State v. La Grange, 99^ Iowa xo, 68 N. W. 557; Show v. State, 79 Miss. 577, 31 So. 209; Renfro v. State, 79 S. E. 758 (Gia.) ; Brown v. State, 106 N. W. 536; Richards v. State, 74 Ind. 275; State v. Heller, 22 Colo, xi, 43 'Pac. 124, 126; Booker v. State, 54 Tex. Cr. 80, in S. W. 744.)\\n'The above cases apply with equal force to the proposition, that it is prejudicial error on the part of the jury and officers in charge to permit a bartender to communicate with members of the jury, especially when most of the witnesses on the part of the prosecution were bartenders and stage drivers, who may be assumed to have found an agreeable companion and sympathizer in \\u201cMarley\\u201d, the bartender.\\nThe procedure relative to taking depositions should be definitely settled. There is no provision of statute authorizing an opposing party to submit oral interrogatories, when depositions are taken upon commission. In addition to the provisions of our statute, the general rule is that all interrogatories must be in writing. (4 Ency. of Evi. 418, note 89; Neeves v. Gregory, (Wis.) 56 N. W. 909; Cook v. Shorthill, (la.) 48 N. W. 85; Burnham v. Stoutt, (Utah) 99 Pac. 1072.)\\nD. A. Preston, Attorney General; A. McMicken, County and Prosecuting Attorney, and Charles B. Blydenburgh, for defendant in error.\\nThe proceedings had in the selection of the jury list from which the jury was drawn were in conformity with the statute (Sec. 984 Comp. Stats. 19x0; State v. Tighe, 71 Pac. 3, 24 Cyc. 213, 217, 218.) In taking depositions an oral examination is not permitted on written interrogatories, (Cook v. Shorthill, 48 Nev. 85; 13 Cyc. 891; Burn-ham v. Stoutt, 99 Pac. 1072) unless otherwise provided by statute. (Wainwright v. Low, 49 Hun, (N. Y.) 283; Anderson v. West, 9 Abbott Prac. (N. S.) 209, Clayton v. Yarrington, 16 Abb. Pr. 273, Nbte; Laidly v. Rogers, 22 N. Y. Supp\\u2019l. 468; Grill v. Screw Co. L. R. CdP. 600.) The requirements of the bill of rights or constitution that the accused shall be allowed to meet the witnesses face to face is complied with, when he has at a former trial been confronted by the absent witnesses and offered the opportunity to cross-examine them and at the latter trial meets the witness who gives evidence of what such former testimony was. (State v. Nelson, 73 Pac. 506, 507, 68 Kas. 566; State v. King, 24 Ut. 482, 68 Pac. 419, 91 Am. St. Rep. 808; State v. Harmon, 70 Kas. 47, 78 Pac. Rep. 805; People v. Fish, (N. Y.) 23 N. E. 322, 323; Cooley on Const! Limitations, 5 Ed. 389; People v. Williams, 35 Hun, 516; State v. Banks, 35 So. 370; Com. v. Cleary, (Pa.), 23 Atl. iito; Brown v. Com. 73 Pa. St. 321; Sneed v. State, 1 S. W. 68 (Ark.) ; Hurley v. State, 29 Ark. 22; Shackleford v. State, 33 Ark. 539; Dolan v.State, 40 Ark. 461; Vaugn v. State, 24 Ark. 889; Cooper v. State, 7 Tex. Crim. Ap. 194; Post v. btate, 10 Tex. Crim. Ap. 579; Garcia v. State, 12 Tex. Crim. Ap. 335; Parker v. State, 18 Tex. Crim. Ap. 72; Connor v. State, 23 Tex. Crim. Ap. 378; McCullum v. State, 29 Tex. Crim. Ap. 162; People v. Oiler, 4 Pac. 1060, 66 Calif. 101; State v. Johnson, 12 Nev. 121; People v. Chin Hane, 41 Phc. 700 (Calif.); State v. Vance, 38 Vt. 1, no Pac. 434; State v. Green, 38 Ut. 389, 115 Pac. 181; State v. Inlow, (Ut.) 141 Pac. 533.) Secondary evidence of the testimony of a witness given at a former trial, who was then cross-examined by defendant is made admissible upon a proper showing, that the witness has since died or removed from the jurisdiction. The case of Kline v. State, 36 Tex. Crim. Ap. 320, holding to the contrary was overruled in Porch v. State, 99 S. W. 1124 (Tex.) (People v. Plyer, 58 Pac. 904; Brown v. Com. 73 Pla. St. 321, 23 Atl. 1112; State v. George, 63 N. W. 100 (Minn.) ; State v. Elliott, 2 S. W. 411 (Mo.); Stigh v. People, 11 N. W. 782 (Mich.); U. S. v. McComb, 5 McClain 287; Vol. 17 Meyer Eed. Dec. Page 13\\u00d3, Sec. 436; Jackson v. State, 51 N. W. 89; Spencer v. State, 132 Wis. 509, Vol. 13 Am. &c. Eng. Anno. Cases 973; Hobbs v. State, 112 S. W. 308; State v. Simmons, 98 Pac. 277; People v. Penhollow, 42 Hun, 103 (N. Y.) ; People v. Gilhooley, (N. Y.), 95 N. Y. St. 636, 181 N. Y. 551, 80 N. E. 1116; Ray v. State, 45 So. 698 (Ala.) ; Jones v. State, 128 Ga. 23, 57 S. E. 313; Lake v. Com. 104 S. W. 1003; State v. Herlihy, 102 Me. 310, 66 Atl. 643; Dowd v. State, 108 S. W. 389-, Pratt v. State, 109 S. W. 138; Pteople v. Garnett, 98 Pac. 247 (Cal.) The showing may be made by affidavit and a finding that it is sufficient will not be disturbed, if the finding is fairly supported by such evidence. (Young v. People, 130 Pac. 1018 (Colo.) The authorities cited by plaintiff in error are cases wherein there was an insufficient showing of diligence. The great weight of authority supports the proposition, if the showing be sufficient. (Enc. of Evi. Vol. 14, Pgs. 583-585.) The ordinances offered in evidence were not properly authenticated and were inadmissible. (Enc. of Evi., Vol. 2, Pg. 967.) Affidavits may be used to support objections to documentary evidence. (1 Enc. of Evi. ^26.) Their exclusion was not prejudicial for the reason that defendant was permitted to testify as to what he regarded his duty to be in regard to making the arrest under the ordinance. An ordinance repugnant to the laws of the state is invalid. (Section 1578 Compiled Statutes.) There is no authority for an arrest with out warrant for a violation of municipal ordinances or misdemeanors, except upon view. (Dillon on Municipal Corporations, 5th Ed., Vol. x, Sec. 390; Low v. EVans, 16 Ind. 486.) An arrest without a warrant is not justifiable, if the person arrested was not engaged in a breach of the peace or about to escape, after the commission of a felony. (Pinkerton v. Verber, 44 N. W. 579 (Mich.) ; Wiggins v. State, 80 S. E. 724.) A defendant is permitted to establish his good character for the particular trait involved in the offense for which he is being tried. The only question involved in a murder case, as to defendant\\u2019s character, is whether his character was that of peace and quietude. (Underhill on Criminal Evidence, Page 96, Section 77; Enc. of Evi., Vol. 3, Pg. 20; Walker v. State, 102 Ind. 502, 1 N. E. 855; State v. Bloom, 68-Ind., 54; State v. Surry, 23 Wash. 655, 63 Pac. 557.) An exception is recognized where negligent homicide is charged and the Texas case cited by plaintiff in the 99 N. E. is of that class. Evidence offered to show that defendant\\u2019s reputation was that of a prudent, discreet and cautious peace officer was properly excluded. The evidence disclosed that Bowen was unarmed;' that defendant was armed and that Bowten did not strike a blow until after one or more shots had been fired. The rule is that no threat previously made by the deceased whether communicated to the defendant or not is admissible in trials for homicide, unless the evidence shows that at the time of the killing the deceased was making some demonstration towards the accomplishment of a perpetration of such threats. (Roberts v. State, 68 Ala. 164; Green v. State, 69 Ala. 9; Ragsdate v. State, 134 Ala. 24, 32 So. 674; Hughey v. State, 47 Ala. 97-, Burke v. State, 71 Ala. 377; People v. Campbell, 59 Calif. 243, 43 Am. Rep. 257; Smith v. State, 25 Fla. 517, 6 So. 482; Turpin v. State, 55 Md. 462; Jenkins v. State, 80 Md. 72, 30 Atl. 566.) Where defendant is the aggressor, he cannot under the pretext of self defense bring on a difficulty and shield himself by proof of previous threats. (Burke v. State, 71 Ala. 377; Scroggins v. State, 120 Ala. 369' and cases there cited; Steele v. State, 14 So. 841 (Fla.) ; Bond v. State, 21 Fla. 738; Gamer v. State, 28 Fla. 113, 9 So. 835, 12 So. 638; Wilson v. State, 30 Fla. 234, 11 So. 556.) Defendant being the aggressor, an un-communicated threat by Borden was not admissible in evidence as tending to show an overt act on the part of Bowen. (Vaughn v. State, 16 S. E. 64; Vann v. State, 83 Ga. 46, 9 S. 'E. Rep. 945; Dingo v. State, 29' Ga. 470; Carr v. State, 14 Ga. 358; Hoye v. State, 39 Ga. 718: Peterson v. State, 50 Ga. 142; State v. Elliot, 45 la. 486; Morrison v. Com. 74 S. W. 277; Payne v. Com. 58 Ivy. 379; Riley v. Com. 94 Ky. 266, 22 S. W. 222; Com. v. Hoskins, 35 S. W. 284; 3 Rice on Evidence 362; Wharton Crim. Ev., Sec. 757; 9 Am. & Eng. Ency. Law 673; Johnson v. State, 54 Miss. 430; State v. Alexander, 66 Mo. 148; State v. Fontenot, 48 Da. Ann., 19 So. 111; Harris v. State, 47 Miss. 318; Edwards v. State, 47 Miss. 581; Hill v. State, 16 So. 901; State v. Hall, 9 Nev. 58; State v. Ferguson, 9 Nev. 106; State v. Stewart, 9 Nev. 120; Irwin v. State, 43 Tex. 236; State v. Kenyon, 18 R. I. 217, 26 Atl. 199; People v. Iialliday, 5 Ut. 467, 17 Pac. 118.) There was no proper foundation laid for the introduction of evidence regarding uncommunicated threats. (Rutledge v. State, 88 Ala. 83, 7 So. 335; Note 76, Pg. 789, Vol. VI, Ency. of Evi.; State v. King, 47 Da. Ann. 28, 16 So. 366; Creswell v. State, 14 Tex. App. ; State v. Williams, 46 La. Ann. 709, 15 So. 82; Chase v. State, 46 Miss. 683; Gafford v. State, 122 Ala. 34, 25 So. 10; State v. Ford, 37 La. Ann. 443; State v. Spell, 37 La. Ann. 20; State v. Cushing, 17 Wash. 344, 50 Pac. 312; State v. Janvier, 37 La. Ann. 644; State v. Cushing, 17 Wash. 544, 50 Pac. 516; Wharton Crim. Evidence, Sec. 691; State v. Frierson, 51 La. Ann. 706, 25 So. 396; State v. Barker, 46 La. Ann. 798, 13 So. 98; King v. State, 8 So. 856 (Ala.) ; Stidwell v. State, 107 Ala. 16, 19 So. 322; Wilson v. State, 30 Fla. 234, 11 So. 556, 17 L. R. A. 654; Garner v. State, 28 Fla. 113, 9 So. 835, 29 Am. St. R. 232; State v. Christian, 44 La. Ann. 950; Slate v. Beck, 46 La. Ann. 1419; State v'. P\\u2019erioux, 107 La. Ann. 601, 31 So. 1016; State v. Walsh, 44 La. Ann. 1122, 11 So. 811; Helms v. U. S. 52 S. W. 63.) Meldrum was a trespasser and the aggressor from the beginning. (Robertson v. State, 29 So. 537-539.) Lie had no right to arrest without process, except where the offense was committed or attempted on view. (Sections 1597 and 5392 Compiled Statutes 1910.) Hie did not arrest Bowen until thirty or forty minutes after the alleged breach of the peace was committed, and he had inquired of Vernon and Burch and others if Bowen had hollered. He was dragging Bowen to a jail of his own on his own premises; he dragged him outside of the store lights and shot him to death. \\u2022 See Bowen\\u2019s djbng declaration. The true meaning of Section 6249 Compiled Statutes is that trial jurors in a capital case shall not be allowed to separate. As to jurors separating, jurors may separate to attend a call of nature, when in charge of a bailiff. (Neal v. State, 64 Ga. 272; Skates v. State, 64 Mo. 644; State v. Payton, 90 Mo. 220; Masterson v. State, 144 Ind. 240; State v. Wash-burn, 91 Mo. 571; State v. Lytle, 27 N. C. 58; Edwards v. Territory, 1 Wash. Ter. 195; State v. Dyer, 139 Mo. 199; Carter v. State, 78 Miss. 348.) 'To visit a dying brother; (Coleman v. State, 59 Miss. 484.) To visit their homes for a change of linen; (State v. O\\u2019Brien, 7 R. I. 337.) Or, a juror seriously ill may be put to bed in a room separate from but communicating with the jury room. (Goerson v. Com. 106 Pa. St. 477; People v. Bush, 68 Cal. 623; People v. Bonner, 19 Cal. 426; Jack v. State, 52 Wis. 211; Coleman v. State, 17 Fla. 206.) A new trial will not be granted merely because the jury while in charge of an officer attended a theater. (Moore v. People, 26 Colo. 213, 57 Pac. 857; Jones v. People, 6 Colo. 452, 45 Am. Rep. 526.) Or a church. (State v. Kent, 5 N. Da. 516, 67 N. W. 1052, 35 L. R. A. 518.) Or, walked through a jail. (State v. Barber, 74 Mo. 292, 41 Am. Rep. 314.) Or, had their pictures taken in a photo gallery. (State v. Taylor, 134 Mo. 109, 35 S. W. 92.) Or, in taking a ride by per mission of the Court, rode by the scene of the homicide. (Palmer v. State, 65 N. H. 221, 19 Atl. 1003.) A sick juror allowed to walk in .charge of a bailiff. (State v. Griffin, 71 la. 372.) It is proper to permit jurors to be supplied with medicines. (O\\u2019Shields v. State, 55 Ga. 696.) Change of clothing. (State v. Caulfield, 23 La. Ann. 148.) And other necessaries where it can be done without exposing them to unfair influences. Broadly speaking, no merely temporary separation of the jury is sufficient to justify a reversal, if during the time of the separation they are in charge of an officer, and he 'keeps them in his actual sight and hearing, or when this is not possible, the circumstances are such that it is apparent that they have not been tampered with or influenced.to the prejudice of the defendant. (12 Cyc., Pg. 774 and cases cited under notes 54 and 55.) The separation of jurors while dining at a hotel is allowed. (Wright v. State, 35 Ark. 639; Kee v. State, 28 Ark. 155; Territory v. King, 6 Da. 131, 50 N. W. 623; Coleman v. State, 17 Fla. 206; State v. Riley, 41 La. Ann. 693, 6 So. 730; Territory v. Hart, 7 Mont. 489, 17 Pac. 718; State v. Baker, 63 N. C. 276; Odie v. State, 6 Bax\\u2019t (Tenn.) 159.) The lodging of jurors in different sleeping rooms of the same hotel ranging along and opening upon a common hall. (Wright v. State, 35 Ark. 639; People v. Bush, 68 Cal. 623, 10 Pac. 169; Minor v. Com., 5 Ky. L. Rep. 176; State v. Duvall, 51 La. Ann. 497, 25 So. 384; Kennedy v. Com., 2 Va. Cases 510.) It is not an improper separation of the jury where the officer having them in charge keeps the entire jury within his view and hearing while they are eating, or locks and guards the rooms or portions of the house in which they lodge. As a general rule a new trial will not be granted when it clearly appears that defendant has not been injured or prejudiced by the misconduct. (Wright v. State, 35 Ark. 639; People v. Boggs, 20 Calif. 432; People v. Lee, 17 Calif. 76; State v. Plarrigan, 9 Houst. 369 (Del.) ; Cornwall v. State, 91 Ga. 277; Hunter v. State, 43 Ga. 483; State v. Reed, 3 Ida. 754; Reins v. People, 30 Ill. 256; Midlar v. State, 26 Ind. 171; Whelchel v. State, 23 Ind. 89; State v. Allen, 89 la. 49; State v. Bruce, 48 la. 530; State v. Gould, 40 Kan. 258; State v. McKinney, 31 Kan. 570; Stout v. State, 76 Md. 317; Com. v. White, 148 Mass. 429; Com. v. Roley, 12 Pick. 496; State v. Madigan, 57 Minn. 425; Pope v. State, 36 Miss. 1.21; Browning v. State, 33 Miss. 47; State v. Fairland, 121 Mo. 137; Carleton v. State, 43 Neb. 373.) It is gross misconduct on the part of jurors to use intoxicating liquors to excess, during the trial or \\u2022during their deliberations and perhaps improper to use them at all. But, whether a new trial should be granted for this cause, depends on the circumstances. (12 Cyc., pgs. 725-726; State v. Cucuel, 24 N. J. L. 249; State v. Livingston, 64 la. 560; Wilson v. Abrahams, 1 Hill (N. Y.) 207; Stone v. State, 4 Hump. (Tenn.) 27; U. S. v. Gilbert, 2 Summ. (U. S.) 19; Pratt v. State, 56 Ind. 179; Russell v. State, 53 Miss. 368; Roman v. State, 41 Wis. 312; Westmoreland v. State, 45 Ga. 225; Wood v. State, 34 Ark. 341; Tuttle v. State, 6 Tex. App. 556; State v. Tallow, 34 Kan. 80; State v. Barber, 74 Mo. 292; State v. Washburn, 91 Mo. 571; Jones v. People, 6 Colo. 452; People v. Williams, 142 Pac. 124, 128; People v. Romero, 12 Calif. App. 406, 107 Pac. 700, 711; People v. Dugan, 88 Cal. 602, 26 Pac. 500.) A juror cannot impeach his own verdict. (12 Cyc. 749, 750; Nicholson v. State, 18 Wyo. 314; Tracy v. State, 46 Neb. 361; McAvoy v. State, 58 S. W. 1010.) The criticism of instruction number one defining murder in the first degree is not well taken. (Felton v. United States, 96 U. S. Rep. 699, 24 L. C. P. Co. Ed. 875; Castner v. State, 79 N. W. 713 (Neb.) ; People v. Roberts, 81 Pac. 734 (Calif.) The word \\u201cirresistible\\u201d used in instruction number two was approved in Downing v. State, ir Wyo. 104. See also State v. Davis, 62 Am. St. Rep. 837. Malice may be implied from acts. (Ross v. State, 8 Wyo. 380; Gustaveson v. State, 10 Wyo. 324.) The instruction on material allegations is supported by Horn v. State, 12 Wyo. 152; Hollywood v. State, 19 Wyo. 515. Dying declarations, if admissible, as such should be given the same weight as testimony of the declarant, if sworn in the case. (Brennan v. People, 86 Pac. 79 (Colo.); Bateman v. State, 80 S. W. 88; State v. Kuhn, 90 N. W. 736, 21 Cyc. 1026; O\\u2019Boyle v. Com. 40 S. E. 124; Com. v. Johnson, 165 S. W. 985; Allen v. State, 68 S. W. 28, 21 Cyc. 982; Smith v. State, 44 S. E. 817.) The instructions given, as to the powers and duties of peace officers in making arrests without warrant are supported by the authorities. (Sections 1577 and 1355 Compiled Statutes 1910; People v. Johnson, 13 L. R. A. 165 (Mich.) ; Wahl v. Walton, 16 N. W. 397 (Minn.) ; Pow v. Beckner, et al., 3 Ind. 473; In Re McKay (Gen. Sess.) City HI. Rec. 95; Com. v. Cosier (Quar. Sess.) 8 Kulp. 97; Marshall v. Cleaver (Del.) 56 Atl. 380; Wiggins v. State, 80 S. E. 724.) The justification for killing a person sought to be arrested for a misdemeanor rests upon the ground of self defense. (Com. v. Rhoades, 23 Pa. Super. Ct. 512; Com. v. Grear, 20 Pa. Co. Ct. 535; Plasters v. State, 1 Tex. App. 673; Smith v. State, 59 Ark. 132, 43 Am. St. Rep. 20, 26 S. W. 712; Thomas v. Kin-caid, S3 Ark. 502, ts L. R. A. 558, 29 Am. St. Rep. 68, 18 S. W. 354; Clements v. State, 50 Ala. 117 ;\\u25a0 State v. Smith, 101 N. W. no, (la.) A peace officer who attempts illegally to make an arrest cannot plead self defense, where the resistance grows out of resistance of such arrest. (Robertson v. State, 53 Ark. 516, 14 S. W. 502; State v. Rollins, 113 N. C. 722, 18 S. E. 394; Peter v. State, Tex. App. 584, 5 S. W. 228; Johnson v. State, 58 Ark. 57, 23 S. W. 7; State v. Deitz, 59 Kas. 576, 53 Pac. 870; State v. Phillips, 67 L. R. A. 292, 3 Cyc. 878, 880.) Instruction number thirteen on self defense is a correct statement of the law. Where the evidence is dear, as to guilt, the case will not be reversed for erroneous instructions, if it does not appear that the instructions misled the jury. (Eidle-hoff v. State, 5 Wyo. 19; Ross v. State, 8 Wyo. 387; Miller v. State, 3 Wyo. 663; Woody v. State, 136 Pac. 430.)\", \"word_count\": \"13132\", \"char_count\": \"72700\", \"text\": \"Scott, Justice.\\nThe plaintiff in error 'brings error to reverse a judgment upon a verdict convicting him of the crime of murder in the second degree. It appears from the evidence that Mel-drum was at the time of the homicide Marshal of the Town of Baggs in Carbon County in this State, an^ on the evening of January 12, 1912, was calle'd by phone from the supper table at his boarding house by the Mayor of the town to quiet a disturbance within the town limits and several blocks from his boarding house by some drunken oiv partially intoxicated men, among whom, he was informed, was the deceased, who was known as John or \\\"Chick\\\" Bow'en. The marshal investigated the disturbance and found Bowen and three companions in a saloon known as Davis' saloon and then and there accused Bowen with \\\"hollering\\\" and making a disturbance and told him to quit hollering on the street. Bowen resented the accusation and said that anyone who said he was hollering was a liar. The marshal told Bowen he would investigate further and departed from the saloon. Shortly thereafter Bowen and his companions went out on the street again and continued the disturbance. The marshal then being directly across the street and within hearing of the disturbance started after the parties who went down the street and entered the Elkhorn Hotel and, when the marshal reached the hotel, they were seated at a table in the dining room preparatory to taking their supper. The parties were in the hotel from one-half to three-quarters of an houx-, when they came out of the hotel, after finishing their supper, and the defendant then placed Bowen and one Salisbury under arrest. The former resisted and did not go willlingly and the marshal used foixe to compel him to accompany him, while Salisbui-y followed at a short distance. In this manner they progressed about sixty feet diagonally across the street when Bowen and the marshal came to a standstill, and an altercation took place between them, during which several shots were fired by the marshal with his pistol and he and Bowen -fell to the ground, the marshal face downward and Bowen across his back. One of the shots resulted in a mortal wound from which Bowen subsequently died. There is a conflict in the evidence as to the events immediately preceding the shooting, the defendant testifying that Bowen struck him on the head and in the face and broke his nose and that he fired the shots in self defense. The witnesses for the State did not see any blows. Bowen in his dying declaration said he struck the defendant a time or two after they fell. The defendant 'said the shots were fired before they fell and at the time when Bowen had his left arm about his neck and was beating him in the face with his right fist. The defendant testified that he was 47 years old and that Bowen was 30 years old and weighed about 50 pounds more than the defendant. After the shooting the marshal was found to have a broken nose and bruises on the back of his head. All the witnesses agree that both men were constantly and rapidly shifting their positions and that because of this and the darkness it was difficult to see the movements of the respective parties. There is some conflicting evidence as to previous threats by Bowen against the defendant and as to a remark claimed to have been made by the defendant to Bowen, after the shooting, that he \\\"told him he would get him.\\\" Bowen was unarmed at the time of the shooting.\\n1. The defendant assigns as error the overruling of his challenge to the array and which challenge is based upon the following grounds, to-wit: \\\"x. Because said regular 'panel was not drawn in compliance with the provision of Chapter 80 of the Statutes of the State of Wyoming. 2. Because the said regular panel was not drawn from the body of the county. 3. Because the said regular panel was drawn almost entirely from Jury Box No. 3, and that said Jury Box No. 3 does not contain all the names of the qualified jurors residing within the fi-ve-mile limit, and that in addition to the names of the qualified jurors residing within the five-mile limit contained in said Jury Box No. 3, there reside within said five-mile limit about 100 per sons possessing all the qualifications of jurors whose names have not been placed in said Jury Box No. 3. That the paper hereto attached, marked Exhibit 'A' and made a part hereof, consisting of three pages and containing a list of names and addresses contains all the names of the persons whose names have been placed in said Jury Box No. 3, and from which the regular panel has been largely made up, as defendant is reliably informed and verily believes, and defendant is further informed that all the names contained on said Exhibit 'A', are not in said Jury Box No. 3, and contains merely the list of the names from which the jury commissioner selected the names that were placed in said Jury Box No. 3, but that all of said names were not placed in said box. Defendant is further reliably informed and believes that the names contained and recited in Exhibit 'B' is a full, true and correct list of the persons residing within the five-mile limit who are qualified to serve as jurors and whose names appeared upon the assessment roll and that as appears from a comparison of said Exhibits 'A' and 'B' the said Jury Box No. 3 does not contain the names of all the persons residing within said five-mile limit. Wherefore the defendant prays judgment and that said regular panel be quashed.\\\" This challenge and exhibits referred to therein are verified by the defendant. Exhibit \\\"A\\\" is a list of approximately 288 persons, the names of whom, it is alleged, were placed in jury box number three. Exhibit \\\"B\\\" contains a list of approximately 353 persons whose names it is alleged were not all placed in jury box number three. In opposition to the challenge the affidavit of the clerk of the court was filed, in which he deposed as follows:\\n\\\"\\u00cd am the duly and regularly elected, qualified and acting Clerk of the District Court in and for the County of Carbon, State of Wyoming. That as such Clerk I was present at the time when the Jury Commissioners provided by statute made the list of jurors from the assessment list for the year 1912 for use during the year 1913, and have knowledge of the facts as to the method in which said list was made. That in making said list said Jury Commissioners did not fail to put upon the list any names of any persons appearing upon the assessment roll whom they believed to be a qualified juror as their names and qualifications appeared thereon. That some of the names that appeared upon the assessment list did not have attached thereto, or in any way in connection with said names, the qualifications for a juror. That names were left off that appeared upon the said list when it appeared to the said Commissioners from information, or their own knewledge, that any of said names were those of persons who were not qualified by reason of non-citizenship or not possessed of sufficient knowledge of the English language, or being over-age, or having any physical disability, or for other cause, were exempt from jury duty, but in all other cases where it appeared that there was no reason to believe otherwise that the said names were those of persons who were qualified to serve as jurors, the names were put upon the said list. That I have examined and heard read the Challenge to the Array, and would say that as to the names put in Jury Box No. 3, some of those that did appear upon the list, with their residence as being Rawlins, were known to have their residence more than five miles from the Court House, and such names were not put in Jury Box No. 3; and in other cases it was known and believed that persons that were upon the said assessment roll had either died or left Rawlins and no longer resided within the said five-mile limits. That there may be some names that do not appear in said Exhibit 'A' attached to said Challenge to. the Array, the ballots for which, since being put in said box, have been destroyed by order of the court, or having served upon the jury at the last term of court are now in Box No. 2, and that the names now contained in Box No. 3 do contain all of the names of the qualified jurors whose qualifications were stated upon the assessment roll and who were believed to be qualified jurors and who are not exempt, and who resided within the five-mile limit, as a matter of fact, at least substantially.\\\"\\nThere was no evidence before the court other than the defendant's verified challenge to the array and the exhibits thereto attached and made a part thereof, and the affidavit of Charles R. Watson, the Clerk of the Court, in opposition thereto. It is here claimed that the Jury Commissioners appear to have assumed that the right to claim an exemption from jury service was a disqualification unddr the statute, and erroneously acted on that assumption. By Section 983, Comp. Stat. 1910, the chairman of the board of county commissioners, the county treasurer and the county clerk of each county must meet at the county seat of each county at the office of the county clerk on the second Monday of January of each year for the purpose of making a list of persons to serve as trial jurors for the ensuing year. Section 984 provides that the officers present must select from the last assessment roll of the county, and make a list of the names of all persons whom they believe to be competent and qualified to serve as trial jurors as prescribed by Sections 978 and 979, but in making the list the officers shall omit therefrom the names of all persons known by them to be incompetent or not qualified to serve as trial jurors. It will be observed that the commissioners are not required to place the name of a person On the jury list who is personally known to them to be incompetent or disqualified to serve as a trial juror, notwithstanding what notation in that regard has been made on the assessment roll by the assessor in pursuance of the requirements of Section 1266. Such information so noted by the assessor is only advisory to the Jury Commissioners in the performance of their duties and. they are not bound thereby as against their own personal knowledge. It is said by this court in commenting upon the present statute in State v. Bolln, 10 Wyo. 439, 70 Pac. 1, that the spirit of the law must be followed and a substantial compliance therewith is sufficient, and it is also said: \\\"From the very nature of the duties imposed upon the Jury Commissioners, it is impossible to frame an accurate definition, applicable in all cases, of what would constitute a substantial compliance with the statute. By the terms of the act, they are required to place upon the list only those whom they believe to possess the qualifications of jurymen. This language commits that question to their judgment and decision, and it is no ground for an attack upon a list so made up that others might disagree with them in regard to the qualification of persons whose names appear in the list or of others whose names have been omitted. But it is beyond controversy that an intentional disregard of the statute, by reason of an erroneous interpretation of its provisions, or otherwise, cannot be deemed a substantial compliance with it.\\\" The court further said: \\\"It is a necessary qualification of a juryman that he must have been assessed upon the last assessment roll of the county, and no authority is conferred upon the Jury Commissioners to make a jury list except from the assessment roll. It is also necessarily implied in the statute that the jury list shall consist of the names on the assessment roll of all persons whom the commissioners believe to be. competent and qualified to serve. And we think a substantia compliance with these requirements is necessary; that is to say, an assessment roll must have been made from which to select, the selection must be made from the names on such roll and must consist of substantially all whom they believe to be qualified. We do not hold, and there is no reason for holding, that the mere absence of a name or names from the list which should properly be upon it, or the presence of a name or names not upon the assessment roll, without proof that such errors occurred corruptly, would vitiate the list.\\\".\\nApplying that rule to the record of this case, and without deciding whether the Jury Commissioners may jprop-erly omit from the list the names of persons known to be exempt but believed to be otherwise competent and qualified, we do not think there was a sufficient showing of a failure of a substantial compliance by the Jury Commissioners with and we see no such departure from the law as would Warrant a reversal of the judgment on this ground. There is no willful disposition shown by the commissioners to disregard the law. It is not shown that all of the names, or a considerable portion thereof, which were left off the list did not fall within the class as disqualified under or that there was not a substantial compliance with the statute nor is the good faith of the commissioners challenged. The commissioners were not held to a strict but only to a substantial compliance with the law in the performance of their duties.\\nIt is the duty of the Clerk of the District Court, immediately after the jury list has been delivered to him, to prepare suitable ballots by writing the name of each person in the list with his place of residence and other additions, on a separate piece of paper of uniform size and properly folded and which he must deposit in \\\"jury box number one.\\\" (Sec. 987.) The regular panel for the term is drawn in open court from this box as provided by Section 992, and, after the adjournment of the term, the names of those who attended and served shall be placed in \\\"jury box number two.\\\" Section 996 is as follows: \\\"The Clerk must keep, in addition to the two boxes specified, in the last section, a third box known as and marked \\\"jury box number three\\\", in which he must deposit duplicate ballots containing the names with the proper additions of all persons selected and returned as jurors who reside within five miles of the city or town where a trial term or session of a court of record is held,. pursuant to law.\\\" The duty of the Clerk of the District Court is ministerial. He deposes that jury box number three does contain all of the names of the qualified jurors whose qualifications were stated on the assessment rolls and who were believed to be qualified jurors and who are not exempt and who resided within the five-mile limits, as a matter of fact, at least substantially.\\\" The affidavit of the Clerk is not very clear as to this matter. If it be subject to the interpretation that he assumed to reject or withhold from jury box number three the names of persons solely on the ground that they were exempt then he exceeded his power. A person otherwise qualified who is exempt from jury service may waive or claim his exemption. An exemption may be for any cause set forth in the statute. Such cause must be presented and a favorable ruling by the court invoked by the person claiming such exemption before the right accrues. (Sec. 980.) It is clearly not within the power of the Clerk of the Court to pass upon the exemption of one from jury service because to do so would be the assumption of a judicial power. The Clerk is limited in his duties in placing the ballots in the jury boxes to the list as furnished him by the Jury Commissioners. He cannot leave out names appearing on said list because he may believe some of them are not qualified or may be exempt.\\n2. The State, over defendant's objection, was permitted to introduce -in evidence and read to the jury from the transcript of the stenographer's notes the testimony of three witnesses given in chief and upon cross-examination upon a former trial of this case. It was admitted that the transcripts were correct arid that one of the witnesses had died since that trial. As a foundation for the admission Of the evidence of the two other witnesses the affidavit of the Prosecuting Attorney was filed, setting forth that in ample time he had procured a subpoena to issue and placed it in the hands of the proper officer for service who had returned it with the officer's return indorsed thereon \\\"not found\\\"; that these witnesses had lived at Baggs, the place of the homicide, and that deponent had made diligent search and inquiry to locate and discover their whereabouts and that he had been unable to do so and to the best of his information they were somewhere in the State of California, and that their absence from the State and the trial was without his knowledge, consent or connivance. Upon this ex parte affidavit the court held the foundation sufficiently laid for the admission of the evidence given by -the absent witnesses at the former trial. The evidence fairly supports the finding of the court as to the laying of the foundation and that being so the finding ought not to be disturbed. (Young v. People, (54 Colo. 293), 130 Pac. 1018, (March 3, 1913) ; People v. Ballard, (1 Cal. App. 222), 81 Pac. 1040.). It is, however, contended that defendant's constitutional right to be confronted by the witnesses against him was violated. The evidence was given upon a former trial of the same issue here presented and in the presence of the accused and he had a full and fair opportunity to and did cross-examine the witnesses. The defendant was then, confronted b.y ths witnesses in a legal proceeding between the same parties involving the same subject matter at issue in this case. The presence of the deceased witness could not be obtained and the other absent witnesses were shown to be beyond the jurisdiction and process of the court. Upon the record the defendant was deprived of no constitutional right by the admission of the evidence. (Secs. 1397, 1403, 1404, 1405,. Wigmore on Ev.; 16 Cyc. 1091; 5 Ency. of Ev. 896, 937.)\\n3. It is admitt\\u00e9d that defendant was the marshal o.f the Town of Baggs at the time of the homicide, which occurred within the limits of that town and he claimed to have been acting within the line of his duties as prescribed by the ordinances of the town in attempting to arrest Bowen. He sought to introduce certified copies of certain ordinances under the certificate of the Town Clerk and the corporate seal of the town. The purpose of this offer as stated at the time being to show the nature and extent of his powers as marshal in the matter of the arrest of Bowen and, also, as bearing upon the question of intent This evidence was objected to by counsel for the State as follows: \\\"We object to this, anyway, because this ordi-nace in our judgment would be contrary to law as to the duties or privileges of officers. In addition thereto this ordinance should be offered from the original books if it is offered. This is not a true certificate as shown by the records. I ask leave to file a counter affidavit.\\\" The court reserved its ruling until a later day during the trial, when the counsel having filed the counter affidavit which was objected to as incompetent and immaterial by the defend ant, the matter again came before the court. The object and purpose of the affidavit was to impeach the certificate of the Town Clerk as to the existence and correctness of the ordinance.\\nWe do not approve, or in any wise, assent to the method here adopted in attempting to vitiate the certificate. The certificate of the Clerk, under the seal of the town, made the ordinance admissible in all courts without further proof. (Section 1587, Comp. Stat.) If the question rested here there could be but one conclusion reached (Lindsay v. City of Chicago, 115 Ill. 120, 3 N. E. 443), but it was orally admitted in the course of the trial that the 'yea'' and \\\"nay\\\" vote upon the adoption of the ordinance was not recorded on the journal as required by Section 1585, id. The Town Council was not inhibited from enacting such an ordinance, either by the Constitution or laws of the State. These ordinances had never been judicially determined to be invalid prior to the homicide nor is it shown that defendant had ever been informed or that he had any reason to believe that they were invalid, and the evidence shows that the)'- were given him as a guide in the performance of his duty by the Mayor of the town.\\nIn homicide, the defendant, when he submits himself as a witness, may be inquired of as to the motive or intent which actuated him when he fired the fatal shot or struck the fatal blow. When he answers that he believed he was acting in the line of his duty as a peace officer, as he did so answer here, what objection can there be in supplementing his evidence by proof of ordinances under which he claimed to have been acting whether the ordinances were properly enacted or not? Why should not the jury have this evidence to better judge of the surrounding conditions as to the intent or motive which actuated the defendant at the time of the homicide? It may be conceded that the ordinances were inadmissible for some purposes, but here they were offered as bearing on the question of good faith and intent of defendant in making the arrest and for that purpose we are of the opinion that they were competent.\\nThe defendant testified as a witness in his own behalf. He again produced and offered in evidence a copy of the ordinances given him by the Mayor when he was appointed and entered upon the discharge of his duties as Town Marshal. This offer was met with the objection which was sustained that the ordinances were incompetent, irrelevant and immaterial. In making this ruling the court said: \\\"I will state find I wish it to go into the record, that the defendant may show what he regarded his duties to be in regard to making the arrest under the ordinances.\\\" An exception was- reserved to this ruling.\\nIt seems to have been the theory of the trial court that the defendant could justify under the general law, if at all, for making the arrest. The jury was instructed that the statute (Section 5902) provides that: \\\"Whoever by any loud or unnecessary talking, hallooing, interrupts or disturbs the peace of any community in this State or of any of the inhabitants thereof, shall be guilty of a breach of the peace and, upon conviction thereoi, shall be fined not more than fifty dollars, or confined in the county jail not more than thirty days, or both,\\\" and if Bowen committed any such act in the marshal's presence it then became the positive duty of the latter to make the arrest. There can be no doubt as to the correctness of this instruction. Section 1355, Comp. Stat. 1910, provides: \\\"It shall be the duty of every sheriff, marshal, policeman, constable and other peace officer promptly, and at the time and without warrant, to arrest any person who in his presence shall be found violating any law of the State of Wyoming, and forthwith to take such person before the nearest magistrate having jurisdiction of such offense, and forthwith before such magistrate to make complaint on oath of such person concerning such offense.\\\" By Section 1356 it is provided: \\\"Any such sheriff, marshal, policeman, constable or other peace officer, who fails or refuses to arrest any person committing any offense in his presence as above required, may be complained of, under oath, concerning such failure or refusal, before the District Court of the county within which he exercises his office, by any voter of such county, and if found guilty of such failure or refusal he shall, by the judgment of such court in such proceeding, be ousted from his office, and such office shall thereby become'vacant.\\\"\\nIt may be conceded that the ordinance is no broader in its terms than the statute, but, as bearing on the question of intent, they were admissible. The marshal claimed to have made or attempted to arrest Bowen for violating an ordinance, yet he was not permitted to prove the ordinance.\\nIt is- the general rule that a peace officer is not permitted to kill or maim one who is resisting or who does not peaceably submit to the arrest. The degree of force used by the officer is not permitted to go to that extent unless the culprit assaults the officer, when the right of self defense accrues to the officer. By Section 1355, however, it is made the duty' of the marshal to arrest anyone who in his presence is found violating any law of the State. It will be observed that the statute is mandatory in its terms and the marshal who refuses or fails to effect the arrest of an offender who commits or is committing an offense within his view subjects himself to the penalty of removal. This is trot a case where there was a peaceable submission to the arrest or where one who is running away from the officer is killed or maimed by the officer, but where there was evidence of resistance and assault and battery by-Bowen upon defendant sufficient to go to the jury on the question of self defense.\\nIn this connection the court instructed the jury that if the offense was not a penitentiary offense and for which the marshal was attempting to arrest the deceased and if such offense had not been in the presence of the peace officer or within his view immediately before or at the time of such attempted arrest, then the officer was acting illegally in attempting to arrest or restrain the deceased, and he will not be protected in any way as-an officer would be in attempting to make a lawful arrest. The court by a separate instruction told the jury that \\\"immediate\\\" or \\\"immediately\\\" as used in the instructions, \\\"does not necessarily mean instantly, but means promptly and expeditiously. An officer has a right to arrest without a warrant for an offense committed in his presence, but in order to do so he must act with such expedition and promptness as the circumstances will permit. He is not permitted to allow the person accused to go off without attempting to apprehend him, and then some time after during an interval within which he might have procured a warrant, upon meeting him again, arrest him.\\\" This instruction ignored the right recognized by all the decisions that a peace officer may follow and arrest a person who commits a misdemeanor in view of such officer. It is true that he must resort to a warrant when he' abandons the trail, but that is not the case here. The evidence tends to show that Bowen and his companions came onto the street from the Jim Davis saloon, where defendant had left them shortly before, and in pursuance of a boast that he would do so, Bowen again hollered, this time in view and hearing of the defendant, who started toward the crowd for the purpose of making the arrest and followed them to the Elkhorn hotel, where they had gone for their supper and upon their leaving the hotel the defendant arrested, or attempted to arrest, Bowen as promptly and expeditiously as the safety of the conditions would warrant without abandoning the trail. Whether the disturbance at the time they came out of the saloon was a continuation of the former disturbance or not so much at least was in view of the defendant, whose duty as marshal under the statute, required him to make the arrest, and it may also have been his duty to have arrested Bowen under the ordinances. We are of opinion that as applied to the facts here the instruction was misleading for, upon the facts, the defendant, as he had a right to do, arrested Bowen and Salisbury after they came from the hotel onto the street for hollering and making; a disturbance a short time before in his presence as they emerged from the Davis saloon on their way to the hotel.\\n4. The defendant offered to prove threats of Bowen against him uttered prior to the homicide, which offer was objected to and rejected on the ground that such threats were not shown to have been communicated to the defend-, ant. Much of the testimony was directed to the question as to whether the deceased or defendant was the aggressor. The defendant testified that he believed the killing was necessary in self defense. Owing to its being dark the bystanders could not see plainly as to their movements. The defendant emerged from the encounter with a broken nose and some bruises on the back of his head as evidence of a powerful blow having been delivered, whether directly delivered or received indirectly from falling is not clear from the evidence. There was at least evidence to go to the jury upon the question as to whether the shots were fired in necessary self defense and any evidence on the question as to who was the aggressor was material as bearing on that defense., This rule of evidence is uniformly adhered to by the courts. In our opinion the trial court erred in excluding the evidence. (Sec. no Wig. on Ev.)\\n5. The court rejected defendant's offer to prove by several witnesses that he bore the reputation of being a prudent, discreet and cautious peace officer. This offer was rejected and the court limited the question of reputation to peace and' quietude. In speaking of the use of evidence as to reputation and the kind of character- that may be shown it is said in Section 59, Vol. 1, of Wigmore on Evidence, that the limitation of such use is imposed by the principle of relevancy, and to be admissible the character or disposition offered in evidence whether for or against the accused must involve the specific trait related to the act charged. In State v. Surry, 23 Wash. 655, 63 Pac. 557, the defendant was on trial on a charge, of assault and battery while making an arrest. He offered to prove that he bore the reputation of a careful, conservative and conscientious peace officer in the community in which he lived. This offer was rejected. The court say: \\\"Complaint is made of the action of the court in refusing to permit, the appellant to prove his reputation as a careful, conservative and conscientious peace officer in the community in which he resided, and it is insisted that the particular trait of character sought to be proved was in issue, and hence admissible in evidence. But we are unable to assent to that proposition: It is a general rule in criminal cases that evidence of the character of the accused, when offered by him, is relevant, and therefore admissible. But the character or reputation he is entitled to prove must always be such as would make it unlikely that he would commit the particular offense with which he is charged. (What. Cr. Ev. (9th Ed.) \\u00a7 60.) In this case the appellant's character as a peace officer was not involved, but his character as an individual was involved in the offense charged against him, and therefore evidence of his reputation as a peaceable and quiet citizen in the community where he resided would have been admissible. But no such evidence was offered.\\\" This decision is criticized and denominated as unsound in the note to the text on Page 129, Vol. 1 of Wigmore on Evidence. In the case before us the question as to who was the aggressor and the defense involved the issue of self defense while in the Washington case the element of self defense was not involved. In Saye v. State, 99 S. W. 551, (50 Tex. Cr. App. Jan. 23, 1907) the accused was tried and convicted for negligent homicide charged to have been committed in making an arrest as a peace officer. He offered evidence to prove his general reputation in the community in which he resided for being a cautious and prudent officer which was rejected. This ruling was held error for which a new trial was granted. In that case the accused was a deputy sheriff engaged in connection with the Marshal of Milissa, to help discover and arrest some disturbers of the peace and in the attempt to arrest one of the disturbers the defendant's revolver was accidentally discharged and killed the deceased. The last case illustrates the relevancy rule and. its application so as to permit the admission of the general reputation of a peace officer for cautiousness and prudence in the performance of his duties, and upon the facts is not applicable here.' There is no suggestion in this case that the homicide was the result of negligence. Upon the facts here the court's ruling was correct.\\n6. Over defendant's objection the court instructed the jury, by a paragraph in the second instruction) as follows: \\\"If the defendant, Meldrum, killed the deceased, Bowen, with a deadly weapon, such as a gun loaded with gunpowder and leaden balls, by shooting the gun at a vital part of Bowen, without such provocation as was apparently sufficient to excite in the defendant an irresistible passion and such killing was not in lawful self defense, then you may find, if you are satisfied beyond a reasonable doubt from all the evidence, the killing to have been malicious, the defendant guilty of murder, and if such killing was deliberate and premeditated it will be murder in the firsst degree.\\\" The killing of a human being must be done purposely and maliciously to constitute murder in the second degree. Purposely as an element of the crime is not used which makes the instruction erroneous. The jury must find from the evidence beyond a reasonable doubt that all of the elements constituting the crime charged were present at the time of its commission before they are authorized to return a verdict of guilt, and anything less does not satisfy the law.\\n7. It is urged that the. court erred ha its definition of malice. The jury was told that, \\\"Malice means ill-will, hatred, illnatured, wilfullness, a wilfull intention to do an unlawful act; a wilfull act done intentionally without just cause or excuse. It, also, denotes a state of mind from which acts are done regardless of others.\\\" While this definition might have been better and more carefully worded we do not understand how it could have been prejudicial.\\n8. Over defendant's objection the jury were told that, \\\"Tn order to reduce a voluntary homicide to the grade of manslaughter, it is necessary not only that there should be adequate cause to produce a degree of anger, rage, sudden resentment or terror, sufficient to render the mind incapable of cool reflection, but also that such state of mind did actually exist at the time of the homicide. Thus, when a voluntary homicide takes place under the immediate influence of sudden passion, as explained above, and no excuse exists which will commonly justify or excuse the commission, then to determine whether such homicide is manslaughter or murder in the second degree, the true test is: Was there an adequate cause to produce such passion? If there was such adequate cause, the homicide will be murder in the second degree.\\\"\\nThis instruction in so far as quoted does not state the law. It is claimed that the word \\\"not\\\" is omitted after the word \\\"was\\\" in the last sentence, but we cannot assume that the jury read the word into the instruction. It was the duty of the court to correctly instruct as to the law of the case and of the jury to take the law from the court. The defendant was not guilty of murder in the second degree upon evidence of an adequate cause to produce in his mind a sudden heat of passion at the time of the commission of the homicide. That would be tending to establish the crime of manslaughter but not murder in the second degree. So much of the instruction as-quoted would have a tendency to impress the jury with the idea that the burden shifted to the defendant or, in other words, that it was his duty to prove himself not guilty when the truth is that in a criminal case in this jurisdiction the burden of proof never shifts. One who is on trial for a crime has a right to have the question of his guilt determined by the jury upon a fair and impartial examination, comparison and consideration of all of the evidence, both for the state and the defense. There was no presumption that the defendant was guilty of murder in the second degree upon proof if any that he committed the homicide upon a sudden heat of passion. The inherent vice of this instruction is apparent and it was error to give it; nor do we think the error was cured by other instructions to the effect that the burden of proving guilt beyond a reasonable doubt rested upon the State for that burden never shifts.\\n9. Misconduct of the jury is assigned as error. It is unnecessary to discuss this question in view of our conclusion upon other grounds discussed as the acts alleged to be misconduct will in all probability not occur upon another trial.\\nFor prejudicial error appearing on the face of the record and herein referred to the judgment will be reversed and a new trial granted. Reversed and remanded.\\nPotter, C. J., and Beard, J., concur.\"}"
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+"{\"id\": \"8515355\", \"name\": \"ALBERT D. KELLEY, doing business as A. D. Kelley Realty Co. v. CHARLES EIDAM\", \"name_abbreviation\": \"Kelley v. Eidam\", \"decision_date\": \"1924-12-30\", \"docket_number\": \"No. 1160\", \"first_page\": \"271\", \"last_page\": \"282\", \"citations\": \"32 Wyo. 271\", \"volume\": \"32\", \"reporter\": \"Wyoming Reports\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T00:44:51.972430+00:00\", \"provenance\": \"CAP\", \"judges\": \"Potter, Ch. J., and Kimball, J., concur.\", \"parties\": \"ALBERT D. KELLEY, doing business as A. D. Kelley Realty Co. v. CHARLES EIDAM\", \"head_matter\": \"ALBERT D. KELLEY, doing business as A. D. Kelley Realty Co. v. CHARLES EIDAM\\n(No. 1160;\\nDecember 30, 1924\\n231 Pac. 678.)\\nW. L. Walls, for appellant.\\nMarion A. Kline for respondent.\", \"word_count\": \"3339\", \"char_count\": \"19283\", \"text\": \"BrowN, District Judge.\\nFor convenience in this opinion the plaintiff below will be called plaintiff, and the defendant below, defendant.\\nThis is an action on a promissory note given by the defendant Charles Eidam to the plaintiff, under the name of A. D. Kelley Realty Company. The plaintiff filed his petition in the District Court of Laramie County, Wyoming, in the name of A. D. Kelley Realty Company, plaintiff. The petition was the usual petition on a promissory note. It contained no allegations as to the legal capacity of the plaintiff. The defendant filed a motion in the cause before answer day, in which he moved that the court require the plaintiff to make his petition more definite and certain in this, to-wit: ' ' That plaintiff state whether A. D. Kelley Realty Company is an individual, partnership or a corporation. If an individual, who it is, ' ' etc. Confessing and complying with the motion, before answer day, under Section 5704, Compiled Statutes 1920, plaintiff filed an amended petition, a copy of which was delivered to the attorney for the defendant. The original contains this acknowledgment: \\\"Service of a copy of the amended petition in the above entitled matter hereby acknowledged this 27th day of October, 1922, (Signed) H. S. Ridgely, attorney for defendant.\\\"\\nThis amended petition is entitled, Albert D. Kelley, doing business as A. D. Kelley Realty Company, plaintiff, vs. Charles Eidam, defendant. It contains the following allegations : ' ' That plaintiff is engaged in the real estate business in the city of Cheyenne, Wyoming, and carries on such business under the name and style of A. D. Kelley Realty Company.\\\"\\nThereafter on the 21st day of December, 1922, the plaintiff through his attorney filed a motion for judgment on default. On December 26th following, the defendant thxouglL his attorney, H. S. Ridgely, filed a motion to require the plaintiff to make his petition more definite and certain by requiring him to set forth when he became the owner and holder of the alleged promissory note fox* the payment of the sum due thereon this action is predicated.\\nJanuary 9th, thereafter, plaintiff appearing by Marion A. Kline, his attorney, and the defendant appearing by W. L. Walls, his attorney, the court struck from the files the motion to make more definite and certain, filed by the defendant on December 26th, for the reason that such motion was filed too late, and sustained the motion of the plaintiff, filed December 23rd, asking that defendant be adjudged to be in default for failure to answer, and gave the plaintiff judgment for the amount prayed for in his petition.\\nOn February 8th following, the defendant through his attorney, W. L. Walls, filed a motion to vacate and set aside the judgment theretofore rendered, and asking leave to file an answer within five days from the date of such order. This motion was supported by the affidavit of the attorney, W. L. Walls, and the affidavit of the defendant Charles Eidam, and set up the following reasons for having the judgment vacated.\\nFirst: That originally the defendant had employed H. S. Ridgely to represent him in this case, and that Ridgely had represented him for a time, but it became necessary for the said Ridgely to absent himself from the State of Wyoming, and before leaving he turned over this matter to affiant (Walls) for attention.\\nThe affidavit of the attorney recites: ' ' That the rule in the District Courts\\\" of this state in which this affiant has heretofore practiced, requires the litigants to whose pleading a motion or demurrer has been filed, to procure a ruling on such pleading, and if the same is confessed or sustained, upon such pleading being amended to meet the objection, he, who tenders the amended pleading is required to obtain a rule upon his adversary to answer or otherwise plead within a time certain. ' '\\nSecond: That no notice was ever given the defendant or his attorneys of the filing of the amended petition.\\nThird: By the affidavit of the defendant, that he had purchased from one Goldstein, through the Kelley Realty Company, certain real property in the city of Cheyenne, making an initial payment of $750.00, the note in suit being given for a part of this payment. That the written agreement between the defendant and Goldstein was placed in the First National Bank of Cheyenne, in escrow. That under said agreement the defendant was to make monthly payments on said property. That defendant, because of un-forseen circumstances, was unable to meet the first monthly payment, and that thereupon he went to the Kelley Realty Company and informed said company of his inability to make the payments as provided bjr the contract. That he was informed by the company that if he couldn't make the necessary payment to prevent losing all he had put in the property, if he would sign his name on the back of the contract for the purchase and sale of said property, and the escrow receipt, and send them to the Realty Company, that said company would sell the property and return to him his note. That he acted on said proposal, but that said Realty Company had failed to do as it promised and failed to return to him the note.\\nThe plaintiff opposed the motion to set aside and vacate said judgment and in support of said opposition filed an affidavit of the plaintiff, Albert D. Kelley, Marion A. Kline, his attorney, and J. H. Wenandy. Among other, things set forth, in these affidavits, the plaintiff claims that while he had the conversation with the defendant referred to in his affidavit, he had agreed only to endeavor to sell said real 'estate in order to prevent the defendant from losing the money he had put into it. That defendant delayed so long in signing and delivering the papers to the said Realty Company, that the company was nnable to make the sale. That in the meantime Goldstein had demanded the papers from the bank and they had been delivered to him. That \\u2022the attorney appearing for defendant was present in the court room when defendant's motion to require the plaintiff to make his petition more definite and certain was stricken, and took an exception thereto, and then left the court room.\\nThe issue on the motion to set aside and vacate said judgment was submitted to the court on the 19 th day of February, and the order thereon recites that after considering the motion and the resistance to said motion filed by plaintiff and said affidavits filed supporting said motion and the affidavits supporting said resistance, and having heard arguments of counsel and being- fully advised in the matter, the court overruled the motion and refused to vacate and set aside the judgment.\\nThe appellant urges two grounds in his specifications of .error for the reversal of the action of the lower court. First, that the court erred in rendering judgment in favor of the plaintiff, and second, that the court erred in denying defendant's motion to vacate and set aside the judgment.\\nTwo propositions are presented in appellant's brief:\\nFirst: That in the original petition filed in this action, the plaintiff named was not. a real or artificial person and therefore could not maintain this action, and, being a fictitious name, the petition could not be amended by the substitution of another plaintiff, and therefore the judgment rendei'ed on said amended petition was void.\\nSecond: That no notice of the filing of the amended petition was served upon defendant.\\nThe defendant bases his first contention upon the rule that an action must be brought in a name which under the lex fori is a legal entity, or it is a nullity, and should be dismissed. 30 Cyc. 21; The Pembinaw v. Wilson, 11 Ia. 479; Detroit Schuetzen Bund v. Detroit Agitations Verein, 44 Mich. 313, 6 N. W. 675; 38 Am. St. Rep. 270; St. Paul Typothetae v. St. Paul Bookbinders Union, No. 37, 94 Minn. 351, 102 N. W. 725; 3 Ann. Cas. 695; Mexican Mill v. Yellow Jacket Silver Mining Co.; 4 Nev. 40; 97 Am. Dec. 510; Fruit Cleaning Co. v. Fresno Home Packing Company (C. C.) 94 Fed. 815. Parties plaintiff must be either a natural or artificial person \\u2014 'that is, plaintiff must be an individual, or a corporation, or, in some jurisdictions, a partnership or an unincorporated association.\\nThe strictness of this rule has been very materially modified, if not completely destroyed, in the general run of eases. Although an action brought in a name that has no legal entity is a nullity, an action in which a legally existing plaintiff has been misnamed, is still an action of which a court can take cognizance, subject to the defend-, ant's right to object to the misnomer. 30 Cyc. 28, and eases cited. In the following cases from the Georgia court, the court permitted an amendment correcting the defect in the name of the plaintiff on the announced theory that the name of the plaintiff imported a legal entity and an amendment correcting the defect was proper. Adas Yeshurun Society v. Fish, 117 Ga. 345, 43 S. E. 715; Smith v. Columbia Jewelry Co., 114 Ga. 698, 40 S. E. 735; St. Cecilia's Academy v. Hardin, 78 Ga. 39, 3 S. E. 305. And in Western etc. Ry. Co. v. Dalton Marble Works, 122 Ga. 744, 50 S. E. 978, an amendment was denied on the theory that the name of plaintiff did not import a legal entity and was not amendable.\\nWe think from a careful inspection of the eases that they properly fall within the rule above stated. In the first three cases the plaintiff was a legal entity, and the defect was in the petition failing to so state, while in the last case the plaintiff was not such legal entity.\\nIt' has been held that where the plaintiff sues in a fictitious name and in the body of the petition discloses the true plaintiff and the fact that he is suing in a name that has no legal entity, an amendment correcting the name of plaintiff, is proper. Henderson v. Superior Court, 26 Calif. App. 437, 147 Pac. 216; Miller v. Superior Court, 26 Calif. App. 411, 146 Pac. 72.\\nIn Kenawa Dispatch v. Fish, 219 Ill. 236, 76 N. E. 352, where an action was brought in a name that had no legal entity, adopted by several railroad companies for convenience in handling freight, it was held proper to permit an amendment enabling the real parties in interest to sustain the action. In the case of Omaha Furniture & Carpet Company v. Meyer, 115 N. W. 310, where suit was brought in the name of \\\"Omaha Furniture & Carpet Company,\\\" which was a trade name under which Henry J. Abrahams did business, the court said: \\\"The amendment permitted by the District Court certainly did not affect the substantial rights of the defendant. Henry J. Abrahams Avas the Omaha Furniture & Carpet Company and vice versa. The lease under which the plaintiff was claiming the right to take the property was executed in the name of Omaha Furniture & Carpet Company, but the parties all well knew that the Omaha Furniture & Carpet Company was really Henry J. Abrahams. The substitution of Henry J. Abrahams as plaintiff therefore was no more a change of the real parties than if the suit had been commenced in the name of Henry Abrahams and upon discovery of the clerical error after suit was commenced, plaintiff was permitted to change the name to Henry J. Abrahams. ' '\\nWhere there is a legally existing plaintiff and the defect is in not so stating, an amendment curing the defect is proper. Where the defect is amendable, the defendant must take advantage of it at the threshold or it is waived. 30 Cyc. 28, note 62.\\nThe plaintiff Albert D. Kelley was an individual possessing the necessary legal requirements to maintain an action. The defect was in not so stating in the body of the original petition, and under the rule above stated an amendment to the petition, curing the defect, was proper.\\nAn amendment to the petition curing the defect in stating the name of the plaintiff being proper, the next question that naturally arises is, was the amendment properly made? Under our procedure amendments to the petition may be made in either of two ways. By permission of court duly obtained, or under Section 5704, Compiled Statutes 1920, before answer day, without leave, as of course. The latter method was followed in this ease. There can be no doubt but that this method is as effectual in amending a petition if the statute is followed as though leave of court were duly obtained upon proper application. \\\"Was the statute followed in this case ? The defendant says that it was not, for the reason that no such notice as is contemplated by statute was given him of the amendment. The position taken by the defendant is that the service of a copy of the amended petition filed or about to be filed is not such notice as is contemplated by this section.\\nThe statute provides: \\\"The plaintiff may amend his petition without leave, at any time before the answer is filed, without prejudice to the proceedings; but notice of such amendment shall be served upon the defendant, or his attorney The amended petition filed in this case on the 27th day of October bears the following acknowledgment : ' ' Service of a copy of the amended petition in the above entitled matter hereby acknowledged this 27th day of October, 1922. H. S. Ridgely, attorney for the defendant.\\\" The exact question before us is. whether or not the service of a copy of the amended petition on the day it was filed in the office of the clerk is notice under the statute. '1 Notice is the information given of some act done or the interpellation by which some act is required to be done.\\\" \\\"Actual knowledge exists when knowledge is actually brought home to the party to be affected by it.\\\" Bouvier's Law Diet. 2368. The author of the above quotation goes on to say that the above statement has been criticized as being too narrow, but for our p\\u00farpose we need not notice the modifications. In this case a copy of the amended petition was served upon the attorney for the defendant, and thereby actual knowledge of the filing or the intended filing of the amended petition was brought home to him. This Ave think Avas sufficient. After the filing of the amended petition the defendant appeared in the case by motion on tAvo separate occasions, using Avithout objection the neAV title given plaintiff. He therefore AAmived any objection he could have had to the method of amendment. \\\"Where a defendant comes in and voluntarily pleads by the name alleged by the plaintiff, he is estopped to allege anything against it.\\\" Robinson v. Magarity, 28 Ill. 423.\\nAfter judgment, defendant filed a motion supported by affidavit, asking that the default be set aside, and that he be alloAA>-ed to answer. This application Avas not made under Section 5923, Compiled Statutes 1920, biit was a general application made during term, seeking to haAre the default that had been entered, set aside, and the judgment opened and that the defendant be relieved from its consequences, and addressed to the sound discretion of the court.\\nAn application of this character to be successful must present facts shoAving surprise, misfortune, mistake, or excusable neglect, and that if the judgment is allowed to stand, an injustice Avill be done. It should not be done for light and trivial causes.\\nThe application in this case is based on the change of attorneys, and the excusable neglect of the last one appearing in the case. The affidavit recites that the attorney first employed Avas \\\"required to absent himself from the jurisdiction of the court and the State of Wyoming, and before leaA\\u00dcng, turned this matter over to this affiant (the attorney appearing in this court) for attention. That the rule in the District Courts of this State in which this affiant has heretofore practiced requires the litigants to whose pleading a motion or demurrer has been filed, to procure a ruling on such pleading, and if the same is confessed or sustained, upon such pleading being amended to meet the objection, he, who tenders the amended pleading is required to obtain a rule upon his adversary to answer or otherwise plead within a time certain.\\\"\\nThis is in the nature of excusable neglect on the part of the attorney. 34 C. J. 307 says, \\\"It is a general rule that the negligence of an attorney is imputable to his client, and that the latter cannot be relieved from a judgment taken against him in consequence of the neglect, carelessness, forgetfulness, or inattention of the former, unless such neglect was excusable under the circumstances. \\\" And also, 34 C. J. 311, \\\"It is a general rule that a party cannot be relieved from a judgment taken against him in consequence of the ignorance or mistake of his counsel, with respect to the law, whether it concerns the rights and duties of the client, the legal effect of the facts in the case, or the rules of procedure.\\\" \\\"In some jurisdictions the negligence or mistake of an attorney is not imputable to his client, and does not debar him from obtaining relief from a judgment due thereto, but the decisions in most of the States are to the effect that the neglect or mistake of an attorney or agent must be treated as that of his principal, and hence wherever the mistake, negligence, or inad-vertanee relied upon is of so gross a character that it would not have entitled the party to relief had it been his own, it is equally available to procure him relief when attributable to his attorney.\\\" 15 R. C. L. 711.\\nThe affidavit of defendant's attorney is clearly insufficient. He does not say that he was relying upon the rule in the District Courts where he had heretofore practiced, or that he was misled thereby, or that he otherwise would have appeared and answered. See Valley State Bank v. Post Falls Land & Water Co., 29 Idaho 587, 161 Pac. 242, for a discussion 'of the sufficiency of the affidavit in applications to open a judgment.\\nThe record sIioavs that the attorney was present when the motion, filed by defendant's former counsel, to make more definite and certain, Avas stricken, and that he took an exception thereto. He then left the court room Avithout ansAvering or making any effort to answer, or to have a time set in Avhich he might answer.\\nThe record contradicts the facts that he must have alleged to have made a proper showing to have the judgment opened. From the record it affirmatively appears that there was no surprise, casualty, misfortune, or misadventure, and without them or one or more of them the defendant is not entitled to relief. A party seeking relief against a judgment must shoAV diligence on his part.\\nIssue was joined on defendant's application to have the judgment opened, counter affidavits were filed by plaintiff, and the issue thus raised Avas determined by the trial court. The action of the trial court in the matter will not be disturbed by this court, unless there was an abuse of its discretion. We think there was not only no abuse of discretion, in this case, but from the record before us it is doubtful whether the trial court would have been justified in any other decision. It follows that the judgment of the District Court should be affirmed, and it will be so ordered.\\nAffirmed.\\nPotter, Ch. J., and Kimball, J., concur.\"}"
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+"{\"id\": \"8515428\", \"name\": \"MERRILL, ET AL. v. ROCKY MOUNTAIN CATTLE CO. ET AL.\", \"name_abbreviation\": \"Merrill v. Rocky Mountain Cattle Co.\", \"decision_date\": \"1918-06-23\", \"docket_number\": \"No. 898\", \"first_page\": \"219\", \"last_page\": \"249\", \"citations\": \"26 Wyo. 219\", \"volume\": \"26\", \"reporter\": \"Wyoming Reports\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T00:10:44.726945+00:00\", \"provenance\": \"CAP\", \"judges\": \"Beard, C. J., and Blydenburgh, J., concur.\", \"parties\": \"MERRILL, ET AL. v. ROCKY MOUNTAIN CATTLE CO. ET AL.\", \"head_matter\": \"MERRILL, ET AL. v. ROCKY MOUNTAIN CATTLE CO. ET AL.\\n(No. 898;\\nDecided June 23rd, 1918;\\n181 Pac. 964.)\\nVendor and Purchaser \\u2014 Sufficiency of Titee \\u2014 Reae Estate\\u2014 Submission to Arbiters \\u2014 Corporation Agreement with Stockholders \\u2014 Contract\\u2014Time the Essence of \\u2014 Agreement to Convey Public Lands \\u2014 Issuance of Patent \\u2014 Construction of Contract \\u2014 \\u201cMuniments of Title\\u2019\\u2019 \\u2014 Specific Performance \\u2014 Land Contract' \\u2014 Mutuality\\u2014Change in Value of Property.\\n1. Where vendors agreed to convey all lands to which it secured good title 'during a two-year period and at the expiration of the period to submit muniments of title to named arbiters for determination a's to sufficiency of its title to lands not theretofore conveyed, they were not required, upon expiration of the period, to tender the deed to land for which they had only such muniments of title possessed at date of contract, and were not bound to submit such muniments of title to arbiters; purchasers having been dissatisfied therewith at date of contract.\\n2. Where a corporation, having arranged to distribute the assets to its stockholders according to their respective interests, agreed to convey to certain stockholders such lands as it could perfect its title to during two-year period, and gave the stockholders possession thereof during such period, time was of the essence of the contract.\\n3. Vendor being owner of forest lieu scrip in the name of another, giving it the right to select, enter, and patent in the name of such,other party, vacant public lands, and having agreed to convey such lands to which it is able to obtain title during a certain period, was not bound to convey land patented during period, where the land was not conveyed to vendor by grantee named in patent within period.\\n4. Title passes to grantee named in patent to United States vacant public land on date that patent is issued and recorded in proper office at Washington.\\n5. A contract, requiring vendor to convey lands to which it obtains title during certain period and to submit to arbiters at expiration of period such \\u201cmuniments of title as it or its agents or trustees then possess or possesses,\\u201d construed to provide for submission to arbiters of documentary evidence of title in actual possession and control of vendor, as distinguished from constructive possession, at the expiration of period.\\n6. If a land contract be construed as obligating vendors to sell after a certain date and does not obligate purchasers to accept land after such date, it is lacking in mutuality and will not be specifically enforced.\\n7. Where purchasers, knowing that vendors had obtained title to land they had agreed to convey upon obtaining title within a certain period, and knowing of prospective increase in value because of discovery of oil wells on other lands, did not sue for specific performance until after tests had been made and the land found to produce oil, they will be estopped from asserting their right to specific performance at such time.\\n8. Specific performance of a land contract is not decreed as a matter of course, but is granted or withheld according as equity and justice seem to demand in view of all the circumstances of the case.\\nError to District Court, Hot Springs County, HoN. E. C. Raymond, Judge.\\nAction by George -Merrill, et al., against the Rocky Mountain Cattle Company, et al., for specific performance of contract for the sale of real estate. Judgment for defendants and plaintiffs bring error. Other material facts are stated in the opinion.\\nC. A. Zaring and Frank Pierce, for plaintiff in error\\nThe contention that the execution of a bond 'by plaintiff in error was a condition precedent to full performance by defendant in error is without merit for the reason that the bond was waived; but this provision was not a condition precedent. (Raley v. Umatilla County, 15 Ore. 172, 3 A. S. R. 142; 2 Devlin on Deeds, Sec. 964 (2 Ed.) ; 2 Washburn on Real Property (5 Ed.), p. 3, sec. 2.) Stipulations are not to be construed as conditions precedent unless made necessary by the terms of the contract. (Deacon v. Blodgett, in Cal. 416 (see 70 A. S. R. 832, notes); 9 'Cyc. 588; Waterman on Specific P'erformance, sec. 435.) Waiver may be shown by circumstances. (40 Cyc. 267.) Waiver operates as estoppel. (Bigelow on Estoppel (6 Ed.), 717; 10 R. C. L. 694; Wilmore v. Stetler, 137 Ind. 127, 45 A. S. R. 169 and note; 16 Cyc. 791, 792; Louisville Ry. Co. v. Flanagan, 113 Ind. 488, 3 A. S. R. 674, 678.) One cannot appropriate benefits and disavow burdens arising on contract. (Blackwell v. Kercheval, 27 Idaho 537, 149 P'ac. 1060; Miller v. Piare, 43 W. Va. 647, 39 L. R. A. 491; Lane v. P. I. N. Ry., 8 Idaho 230, 67 Pac. 656.) Equity will not countenance inconsistent positions; defendants first relied solely on the time limit. They cannot now change their base. (Railway Co. v. McCarthy, 96 U. S. 267; Ger-mania Fire Ins. Co. v. Pitcher, 160 Ind.- 392, 64 N. E. 92T ; Bigelow on Estoppel (6 Ed.), 744-745; Davis v. Wakelee, 156 U. S. 690; McDonough v. Co., IT2 Fed. 636; Stanton v. Barnes, 72 Kan. 544, 84 Pac. 117.) The case of Frank v. Stratford-PIandcock, 13 Wyo. 37, is unlike the present case, as will appear from an examination of the pleadings and facts. The title to Parcel 3 vested in defendants May 7th, 1914, two days before the expiration of the contract, title passes, by the signing of a United States patent. (United States v. Schurz, 102 U. S. 378.) Title of the assignee of forest scrip relates back upon the issuaUce of the patent to the time of entry. (Frank E. McCain, 34 L. D. 126; Kern Oil Co. v. Clarke, 30 L. D. 550; French v. Spencer, 21 Howard 228.) The principle is supported by numerous other authorities. When a contract has been partly executed by possession taken under it, the court will enforce performance, if possible. (Fry Spec. P'er. 335; Pomeroy Spec. Per. 96.) .No reliance should be placed upon the discovery of mineral subsequent to the contract. Inadequacy of price that will defeat specific performance must exist at the time the contract was made. (Hale v. Wilkinson, 21 Gratt. 75.) Increase in value after date of contract is not ground for refusing specific performance. (Low v. Treadwell, 12 Me. 441; Cady v. Gale, 5 W. Va. 547; Willard v. Tayloe, 8 Wall. 557; Meehan v. Nelson, 137 Fed. 731; Am. Ann. Cas. 1912, 'C. 560.) While the granting of specific performance is discretionary, it will ordinarily be granted as a matter of course, where the contract is in writing, certain in terms based on valuable consideration, fair and just and capable of being enforced without hardship to either party. (4 Pom. Eq. 1404.) The court erred in granting the motion of the Ohio Oil Company for non-suit. It should have been kept in the case pending settlement of the controversy between the other parties. (Frank v. Strat-ford-Handcock, 13 Wyo. 37.)\\nEdward T. Clark, Herbert V. Lacey and John W. Lacey, for defendants in error.\\nThe memorandum opinion of the trial court is not material to this inquiry. (Tittle v. Co., 100 S. W. 561; Holland v. Ry. Co., 101 N. W. 608; Martin v. Martin, 67 N. E. 1; Morgan v. Co., 107 Pac. 695; Randall v. Co., 43 N. E. 540.) There was a separate contract for each parcel of land and each admitted of separate execution in the matter of a separate agreement. (Perkins v. Plart, ir Wheaton (24 U. S.), 237, 250; Small v. Co., 20 Fed. 753; Myers v. Croswell, 45 O. S. 543; Wooton v. Walters, 14 S. E. 734; McGrath v. Cannon, 57 N. W. 150.) The contract as to Parcel 3 expired not later than May 13th, 1914, removing any possible right to specific performance. Plaintiffs failed to perform an election to furnish a stipulated bond; under the facts there was no waiver of this requirement. (Rice v. Deposit Co. (8th .Cir.), 43 C. C. A. 270.) A waiver in law is the intentional relinquishment of a known right. (Aron-son v. Ins. Co., 99 Pac. 537.) There must be acts of relinquishment amounting to an estoppel. (Bank v. Maxwell, 55 Pac. 980; Perin v. Parker, 18 N. E. 747; Holdsworth v.'Tucker, 143 Mass. 3693 Berman v. Assc., 78 Atl. 462 ; List v. Chaise, 88 N. E. 120.) No estoppel is pleaded and the point is not available. (Nebraska Co. v. Blust, 60 N. W. 1016; Homberger v. Alexander, 40 Pac. 260; Union Co. v. Bank, 72 Pac. 586.) But no estoppel was proven.' (Norton v. Kearney, 10 Wis. 1043.) There was no evidence that plaintiff accepted benefits; there was no possession and no improvements made by plaintiff. The doctrine of relation as to the passing of land titles has no application here. Equity will not aid plaintiffs in error, since it is clear that they are seeking to open a contract which on their agreement had been closed, and this for the purpose of profiting by oil discoveries. (Whitney v. Fox, 166 U. S. 637; Turn- lick v. Marbury, 91 U. S. 587; Johnson v. Standard Co., 148 U. S. 360; Patterson v. Hewitt, 195 U. S. 309.) The decree of the court below should be affirmed.\", \"word_count\": \"11559\", \"char_count\": \"65769\", \"text\": \"Potter, Justice.\\nThis is an action for specific performance wherein, as the case is presented here, the plaintiffs are seeking a decree requiring execution and delivery to them of a good and sufficient deed conveying a tract of land containing approximately forty acres and described as Lot Two (2) of Section Nineteen (19) in Township Forty-six (46) North of Range Ninety-eight (98), West of the 6th Principal Meridian, in this state. Upon a trial in the District Court, judgment was rendered upon a general finding in favor of the defendants, and the case is here on error.\\nAs the plaintiffs in error were plaintiffs below and the defendants in error defendants -below, they will be referred to respectively as plaintiffs and defendants, when not mentioned by name, but a reference to the defendants collectively will include only the Rocky Mountain Cattle Company and L. G. Phelps, against whom only a decree for specific performance is sought. The plaintiffs are George Merrill, H. J. Guthrie Nicholson, and George Pennoyer.\\nThe contract upon which the action is based is in writing and set out in full in the amended petition upon which the action was tried, and the material parts thereof are as follows :\\n\\\"This Agreement Made and entered into, in triplicate this 9th day of May A. D. 1912 by and between Rocky Mountain Cattle Company, a corporation, duly organized and existing under the laws of the State of Wyoming, by L. G. Phelps, its President, duly authorized, party of the first part, and George Merrill, G. J. Guthrie Nicholson and George' A. Pennoyer, of Embar, Big Horn County, Wyoming, parties of the second part, and L. G. Phelps, wit-ne'sseth :\\n\\\"That Whereas, Under the terms of a certain contract made and entered into by certain of the stockholders of the Rocky Mountain Cattle Company on the 13th day of August 1910 wherein it was agreed by the said stockholders that the assets of the Company should be distributed upon terms therein designated, which said contract was duly ratified at a regular meeting of the stockholders of the said Company at the office of the Company on August 13th, 1910, and,\\n\\\"Whereas, Under the terms of the said contract there was no time limit placed upon the acquisition of titles to certain lands then initiated, which said lands were subsequently conveyed by warranty deed to George Merrill, G. J. Guthrie Nicholson and George A. Pennoyer under the terms of the contract aforesaid, and\\n\\\"Whereas, The parties hereto have agreed that title to the following lands included in the lands described in the warranty deed aforesaid, viz: (describing several tracts of land, containing a total of 1040 acres, and including the 40 acre tract aforesaid) which were initiated at the date of the contract aforesaid, so entered into, should not have been included in the Warranty Deed aforesaid, title not having inured to the Rocky Mountain Cattle Company.\\n\\\"Now, Therefore, for and in consideration of the payment of the sum of Twenty Thousand Eight Hundred ($20,-800.00) Dollars to them in hand paid, the receipt whereof is hereby acknowledged, the parties of the second part herein do hereby agree to execute and deliver to the party of the first part herein a quit-claim deed to all of the property hereinbefore enumerated, and the party of the first part herein agrees that it will use all due diligence to obtain title to the lands hereinbefore described within Two (2) years from this date and will convey the same to the parties of the second part herein for the sum of Fourteen ($14.00) per acre, it Being Understood and agreed that the party of the first part herein is not required, under the terms of this contract, to obtain such title whenever it would be required to pay anjr sum in excess of Fourteen ($14.00) dollars per acre for such land. And the parties of the second part herein agree that they will pay the said sum of Fourteen ($14.00) Dollars per acre upon tender of good and sufficient title, as the same may be secured from time to time during the period of Two (2) years aforesaid, to any of the lands herein set forth and will execute a good and sufficient 'bond in favor of the party of the first part herein conditioned that upon tender of good and sufficient deed to any of such lands save and excepting where surface rights only are required by the party of the first part under the terms hereof, then and in that event such surface rights shall be considered a full compliance with the terms hereof and such payment of Fourteen ($14.00) dollars per acre shall be made, it being understood and agreed, however, that such purchase and payment of and for the lands hereinbefore designated is conditioned upon the sale and disposal of all of the stock of the parties of the second part herein in the Rocky Mountain Cattle Company under the terms of this agreement prior to such purchase and payment; should such title be perfected and offered before the sale of the stock of the parties of the second part herein, then the payment shall be made at the rate of Twenty ($20.00) per acre for such land.\\n\\\"It is understood and agreed by and between the parties hereto that the right of possession of the parties of the second part, without let or hindrance of the party of the first part, to the lands hereinbefore set forth shall continue during the period of Two (2) years herein designated and that the Quit-claim deed shall contain a clause to that effect and the parties of the second part paying the taxes thereon.\\n\\\"It is understood and agreed by and between the parties hereto that a deed or deeds to the lands hereinbefore designated, as titles shall be acquired from time to time under the terms hereof, shall be tendered to S. C. Parks, of Cody, Wyoming, who shall be authorized by the parties of the second part herein to receive such deed or deeds and make payment therefor within Thirty (30) days of such tender.\\n\\\"It is further understood and agreed by and between the parties hereto that the party of the first part herein does not guarantee the procurement of title to any of the land herein-before designated within the time designated, but agrees to use all reasonable diligence to procure the same under the terms and conditions of this contract and the parties of the second part agree that they will not molest or hinder the party of the first part in its endeavor to procure such titles.\\n\\\"It is further understood and agreed by and between the parties hereto that at the expiration of Two (2) years from the date hereof the party of the first part shall submit to E. E. Enterline and E. T. Clark of Sheridan, Wyoming, at Sheridan, Wyoming, such muniments of title as it or its agents or trustees then possesses or possess to lands herein-before described but which have not been, in the meantime, conveyed, to the parties of the second part, under the terms of this agreement, and the said E. E. Enterline and E. T. Clark shall thereupon determine what muniments of title are sufficient, in their judgment, to warrant the party of the first part conveying or assigning its right thereto in the lands to which such muniments of title pertain to the said parties of the second part, as well as the parties of the second part receiving the same, and designate the character of instrument or instruments in writing by which the ownership thereto shall pass from the party of the first part to the parties oi the second part, the parties of the second part, agreeing to pay the sum of Fourteen ($14.00) Dollars per acre for all such lands or muniments of title so conveyed or assigned.\\\"\\nThe petition aforesaid, after setting out said contract, describes the lands covered thereby to which said petition relates by classifying them as Parcels 1, 2, 3 and 4, respectively, and designating the land in controversy here as Parcel 3. The allegations as to Parcel 4 were eliminated upon demurrer. The petition alleges and the answer admits that title to the separate tracts described as Parcels 1 and 2 respectively was acquired by the defendant Phelps and conveyed to the plaintiffs within the two year period prescribed by the contract, \\u2014 title to Parcel 1 having been acquired in May, 19x3, and conveyed to plaintiffs in August of that year, and title to Parcel 2 having been acquired in June, 1912, and thereafter conveyed to plaintiffs. The averment as to Parcel 2 does not state the date of its conveyance to the plaintiffs, but it must have been within said two year period, for, as shown by the evidence, no muniments of title covering that parcel were submitted at the end of that period.\\nThe petition aforesaid alleges certain other facts which are admitted by the answer of said defendants, including the following:\\nThat the defendant Phelps for a long time prior to May 9, 1912, was and ever since has been the president of the Rocky Mountain 'Cattle Company, and executed and delivered said contract as such officer; that he owned a large majority of the stock of said company, and managed its business and dictated.its policy; that in his proceedings to secure title to said lands he was acting for the company; that said company was at all times dominated and controlled by him; and that he signed and executed said contract, thereby binding himself to all the covenants and conditions thereof. That during all the times referred to said Company was the owner of 320 acres of \\\"Jed R. Washburn Forest Rieu Scrip\\\", authorized by certain stated Acts of Congress and regulations of the Secretary of the Interior, which gave the owner of such scrip the right to select, enter and receive patent in the name of said Jed R. Washburn, but for the use and benefit of the owner of the scrip, a number of acres of vacant public lands open to settlement equivalent to the amount of scrip so held by the owner. That when said contract was executed most of the lands therein described had been selected by this state under its various land grants, and applications had been made by the defendant Phelps on behalf of said company to purchase the same from the state; that the remainder of said lands had theretofore been entered with said \\\"Forest Rieu Scrip\\\" for or on behalf of the defendants; and that the defendants, at the date of the contract, had already secured substantial rights to each and every parcel of land described therein. That on April 5, 1911, the defendant Phelps, acting for.and on behalf of said company, selected and caused to be entered in the United States land office at Rander, Wyoming, in the name of said Jed R. Washburn, the lands described as Parcel 3, using for said entry a part of said 320 acres of the Jed L. Washburn Forest Lieu Scrip, owned by said company, and that said defendants used great diligence to obtain title to said Parcel 3, and on the 7th day of May, 1914, patent thereto was issued by the United States in the name of said Jed L. Washburn.\\nIt is also alleged as to said Parcel 3, but denied by the answer, that after the issuance of the patent thereto, and on the 13th day of August, 1914, and in violation of the terms of said contract, the defendant Phelps caused said land to be conveyed to himself and that he still holds the legal title thereto. It is assumed in the brief of plaintiffs that it was intended by the denial of said averment to deny only that the conveyance alleged was in violation of the contract, and presumably that is what was intended, for it appears that the land was conveyed to the defendant Phelps on the date alleged, under a power of attorney executed by said Jed L. Washburn to whom the patent was issued.\\nThe petition further alleges that said defendants at the expiration of two years from the date of the contract refused and still refuse to submit any muniments of title to .said Enterline and Clark, claiming that plaintiffs have no right to any of said lands. This was also denied by the answer. There are other averments of the petition denied by the answer which need not be recited here but may be referred to in the course of the discussion if found necessary.\\nThe answer alleges as a separate defense that the defendants did not, during the two-year period aforesaid, \\u2014 two years from May 9, 1912, possess any muniments of title to the lands designated in the contract, save and except to those parcels which were conveyed during that period to the plaintiffs under the terms of the contract, and that the plaintiffs were notified of that fact on May 13, 1914, and that the contract was terminated and closed. That no demand was made upon the def\\u00e9ndants for the conveyance of the land designated as Parcel 3 until August 28, 1914, at which time the plaintiffs believed the land to be of great value because of the discovery of valuable mineral thereon, which dis covery had 'been made by said defendants a few weeks prior to that date, and that such demand was made solely because of such valuable discovery of mineral. That on May 9, 1914, said defendants were not in a position to offer the plaintiffs any better title to the said land than they were on May 9, 1912, when the contract was entered into, and c^uld not on May 9, 1914, and for a month subsequent thereto, offer any other muniment of title thereto than they were in possession of at the date of the contract. A reply was filed denying generally said new matter in the answer.\\nThe following facts are shown by the evidence: On May 9, 1912, the date of the contract aforesaid, the plaintiffs executed to the defendant company a quit claim deed conveying the land' described in the contract, which deed was thereafter duly recorded, and it contained, as required by the contract, a provision reserving a right of possession in the plaintiffs \\\"for two years hereafter,\\\" that is to say, two years after the date of said deed, or until and including May 9, 1914. That deed, or the copy thereof in the record, also recites as the consideration therefor the payment to the grantors, the plaintiffs herein, of the sum of $20,400.00, by the said grantee, the defendant company; but the contract states such consideration as $20,800.00, and that sum is mentioned in the testimony as the consideration. Mr. Nicholson, one of the plaintiffs, explained the consideration and the reason for the contract provision for the deed, when testifying as a witness, as follows:\\n\\\"In the original agreement of the dissolution of the Rocky Mountain Cattle Company we arrived at so much land should go to Mr. Merrill and myself and so much should go to himself. On the books of the company there were two charges, $200,000 against L. G. Phelps and $100,000 against Merrill, Pennoyer and myself. For that $100,000 so much land was to be turned over to us by warranty deed. It was made out and when it was gone into and we hunted up the titles there was a certain part of that for which there was no title so that in 1912 we agreed to quit claim back the land to Phelps and he was to surrender to us that $20,800 for which he had already charged us.\\\"\\nMr. Phelps testified concerning the matter: \\\"Growing out of a deed in 1911, the sufficiency of which was questioned, at a meeting, of at several meetings, in May, 1912, the present agreement was entered into by which under the contract I bought back or the Rocky Mountain Cattle Company bought back all the lands in which the titles was questioned, and $20,800 was paid in cash for this property and I entered into possession of it, or the Rocky Mountain Cattle Company, whichever you wish to style it, and in order to compromise any question and to settle all matters amicably it was agreed that for two years Merrill, Nicholson and Pennoyer were to occupy the lands and I was to use my best endeavor to secure title to the land.\\\" An objection being made to the statement of the witness, \\\"it was agreed\\\", he added: \\\"I have stated the reason, part \\u00f3f my titles were questioned and I bought back the land,\\\" paying $20,800 for it.\\n,The defendants had no notice or knowledge of the issuance of the patent to Parcel 3 on May 7, 1914, until the receipt by Mr. Phelps between the 19th and 23rd of May, 1914, of a postal card from the Land Office at Lander, Wyoming, dated May 15, 1914, stating that a patent had been issued to Jed L. Washburn, and that upon surrender of the proper evidence of ownership it would be delivered to the holder of the title; and the patent was obtained by Mr. Phelps on August 13, 1914. On that date also the land was conveyed to him by deed executed in' the name of Jed L. Washburn by Ed. T. Clark, his attorney in fact.\\nBy an agreement dated August 12, 1914, but acknowledged on August 13, 1914, Mr. Phelps leased the land to the Ohio Oil Company, a defendant in this case, for the purpose of mining and operating for oil and gas and laying pipe lines, constructing tanks, buildings and other structures thereon to take care of said products. Under that lease a producing oil well was drilled on the land by said oil company in October, 1914. The land is shown to be valuable for oil purposes, and to be worth \\\"several thousand dollars\\\". And Mr. Phelps testified, and we think the fact is to be inferred also from other testimony, that when the land was leased it appeared to have a large prospective value because of oil discoveries on other lands; but it does not appear whether such discoveries were or were not in the immediate neighborhood of the land in controversy.\\nThe two-year period prescribed by the contract having expired on May 9, 1914, Mr. Phelps, on that date, wrote to the Mr. Clark named in the contract to act with Mr. Enter-line in passing upon any muniments of title submitted by defendants at the expiration of said period requesting him to inform Mr. Enterline that he, Mr. Phelps, had no other muniment of title, and, therefore, desired to terminate the contract; and on May 13, Mr. Clark wrote to Mr. Enter-line to the effect that he had received a letter \\\"from Mr. Phelps stating that with the exception of some lands already conveyed and for which he had been paid there was no change in the conditions affecting the remainder of the lands and that \\\"we would be glad to take up this matter with you so that it may be closed.\\\" He received no answer to that letter, but on the day it was written he met Mr. Enterline, told him that he had written the letter and explained its contents, whereupon he was asked by Mr. Enterline if there were any different muniments of title, if he had any other muniments of title than they had on May 9, 1912. Mr. Clark replied: \\\"No, we have no other proof of title than we had at that time.\\\" And Mr. Enterline then said that he should consider the contract closed and would write his clients (the plaintiffs) to that effect. On August 26, 1914, Mr. Enterline notified Mr. Clark that he wished a consultation about the Nicholson-Phelps contract, and Mr. Clark then informed him that \\\"we considered the contract closed\\\".\\nAs testified by two of the plaintiffs, money was left or deposited by the plaintiffs with Mr. S. C. Parks of Cody, during all the time after the date of the contract, to pay for such deeds as might be tendered and accepted under the contract.\\nThe exact time when the plaintiffs first learned that a patent to the land had been issued or when demand for a conveyance of the land was made upon Mr. Phelps, is not definitely shown by the record, owing to the absence therefrom of a letter and telegram introduced in evidence, as exhibit, through no fault, however, of the official reporter who certifies that the missing exhibits were, after the trial, handed to one of the attorneys for the plaintiffs at his request and had not been returned, but, as he, the reporter, was informed, they had been mislaid or lost. But the time when the plaintiffs learned about the patent seems to have been after the first of June, 1914; and the demand for a conveyance, which was by telegram from Mr. Enterline,\\u2014 the missing telegram, was probably in August, at or about the time when Mr. Enterline notified Mr. Clark of his desire for a consultation about the matter, or on August 28, 1914, as alleged in the answer.\\nThe contract aforesaid, in addition to the provisions thereof above quoted, provided for the sale or division among its stockholders of certain other real and personal property of the defendant company, which, as recited in the contract, included all the property of said company, and for the division thereafter of its cash assets, and that after such division of cash assets the parties of the second part named in the contract, \\u2014 the plaintiffs herein, shall deliver to L. G. Phelps all the capital stock of the company held by them, viz: 1100 shares, at a price of ten cents per share. A time limit was fixed for the sale or division of the property. Thus the sale of a specified ranch by the company to Phelps at a stated price was provided for within 7 days from the date of the contract, with a provision for repayment of part of the price to Phelps by the plaintiffs if the scrip title to a forty acre tract should fail within 2 j^ears from the contract date. The division of certain live stock within 6 days was provided for, and also within the same period the purchase of other live stock of the company by Phelps at a valuation fixed by the plaintiffs, or upon his failure to purchase them, within said period of 6 days, then for their purchase at such valuation by the plaintiffs. Provision was made for rebrand-ing all such live stock, and for suspending the use of their former brand for one year; and that if Phelps should purchase the cattle as authorized he should have 2 years in which to gather them, at the expiration of which time the brand should become the property of plaintiffs, or if the cattle were purchased by plaintiffs the title to the brand should vest in them at the expiration of one year.\\nIt appears from the evidence that all the shares of stock of the plaintiffs in said company were delivered to Mr. Phelps sometime in August, 1913, thereby eliminating the condition fixing the price to be paid for the land at $20 per acre. The provision of the contract for the payment of that sum instead of $14 per acre is explained in the testimony of the plaintiff Nicholson as follows: \\\"If the land was deeded to us prior to the delivery of the stock to Mr. Phelps, Merrill, Pennoyer and myself would have participated in our $20 paid. After the delivery of the stock, $14 went to Mr. Phelps, and we had no participation in it then.\\\"\\nThe question which we think first necessary to be considered is the character and extent of the obligation of the defendants, under the contract, to convey any of the land therein described to the plaintiffs, and in that connection what obligation was imposed upon defendants to tender a deed to the land in controversy, or submit muniments of title thereto. The contract contains two provisions which, while interdependent and to be construed together in the light of the whole contract, are in a sense separate and distinct. The one which we shall refer to as the first because it first appears in the contract requires due diligence on the part of the defendant company to obtain title to the lands described in a preceding paragraph within two years from the date of the contract and the conveyance thereof to the plaintiffs for the sum of $14.00 per acre, and that the plaintiffs shall pay that sum per acre upon tender of good and sufficient title during said period of two years, as the same may be secured from time to time, during that period. That is to say, we think that provision is to be construed as obligating the plaintiffs to accept and pay for any of the land upon tender of good and sufficient title during said two-year period, so that the plaintiffs would not be bound under that provision, even though title was secured during said two-year period, to accept or pay for any land unless a good and sufficient title was tendered during that period;, and a tender of title under that provision is required to be made to S. C. Parks of 'Cody, who was to be authorized by the plaintiffs to receive such deed or deeds and make payment therefor within 30 days of the tender.\\nThe consideration for the agreement to use diligence in securing title and then to convey was the reciprocal agreement of the plaintiffs contained in the same paragraph to pay the prescribed sum per acre upon tender during the two-year period of good and sufficient title. The consideration for such agreement was not the payment of the sum of $2Q,8oo recited in the beginning of the paragraph, for that was the consideration passing to the plaintiffs for their quit-claim deed. And that sum was actually paid to the plaintiffs for their conveyance back to the company, as representing, according to the evidence, the amount which had been charged against them on the books of the company for the land. We find nothing in the evidence or admitted facts to substantiate the statement in the brief of plaintiffs that the contract was made to relieve the company from its covenant of warranty, and that for such release defendants agreed to acquire title to the 1040 acres and convey same to plaintiffs. On the contrary, we think the reasonable inference from the evidence and the contract itself is that the plaintiffs did not care to rely on the warranty and hold the lands with the imperfect titles, but preferred a return of the money charged against them therefor, and thereafter to take the lands only if and when good title should be acquired and conveyed within the time specified in the contract. And that would not have been an unreasonable preference in any case, 'in the absence of some intended special use sufficient to justify the taking of chances of title being perfected; the future prospective value of the land for oil purposes not 'being then apparent. But since all the property and assets of the company were soon to pass into private hands, leaving no ostensible reason for the continued existence of the company, it seems entirely reasonable for plaintiffs to have preferred a return of the money consideration.\\nThe second provision requires the company, at the expiration of said period of two years, to submit to E. E. Enterline and E. T. Clark at Sheridan, Wyoming, such muniments of title as it or its agents or trustees then \\\"possesses or possess\\\" to lands which had not in the meantime been conveyed to the plaintiffs, who shall determine what muniments of title are sufficient, in their judgment, to warrant a conveyance or assignment by the company of its right to the plaintiffs, or their receiving the same, and designate the character of instrument to be executed to pass the ownership in the lands to which such muniments pertain, and that for all stick lands or muniments of title so conveyed or assigned plaintiffs shall pay said sum of $14 per acre. This provision seems to eliminate the necessity of tender of a deed or deeds to Mr. Parks for any land embraced in or covered by muniments of title submitted thereunder at the expiration of said two-year-period. There is a slight indication by the words used in this provision that there may have been in the minds of the parties at the time a thought of a transfer under it of something less than a complete and perfect title; but, if so, it must certainly have comprehended more than was possessed at the date of the contract.\\nNow this contract is in some important respects unlike the ordinary contract for the sale of land, where there is, an unqualified agreement to sell and buy, assuming that the vendor has or will be able to convey a good and sufficient title. The parties to this contract all understood that the vendor did not have a perfect title and might not acquire such a title to any of the lands within the specified time, if at all; and the plaintiffs knew exactly the kind of right and title then held. And, since the plaintiffs had obj ected to that title as imperfect or insufficient, and required by the contract as a condition to their accepting and paying for any of the land, first, a tender of good and sufficient title within two years, expressly without a guaranty that such title would be secured within that time, or, second, a submission, at the expiration of said period, of muniments of title to parcels not previously conveyed, then in the possession of defendants, their agents or trustees, for determination by certain named representatives of the parties respectively, as to whether the rights to lands shown thereby shall be conveyed or assigned or accepted, the defendants had the right to assume that if they had no further muniments of title than at the date of the contract they would not be accepted nor a deed conveying the land covered thereby. And they were not required, we think, at or before the expiration of the two-year period, as to lands for which they possessed only such muniments of title as they,had at the date of the contract, to either tender a deed thereto or submit such muni-ments of title. That this was also the understanding of the parties may be inferred from the fact stated in the testimony of Mr. Phelps and undisputed that as to each tender of a deed during the two-year period a very clear showing of good title was required, supplemented, if needed, by the testimony of Mr. Merrill that Mr. Parks did not feel capable of determining whether a tendered deed was good and thought someone should be appointed, and that Mr. Walls (an attorney of Cody) was suggested \\\"to say whether it was a good and sufficient deed.\\\" This testimony of Merrill was given when asked on cross-examaniation what his instructions were in reference to muniments of title before the money of plaintiffs in the hands of Mr. Parks should be paid, the witness having testified that Mr. Parks had been instructed to pay over the money if there was a sufficient deed.\\nThis contract was the result of an arrangement between the stockholders of the defendant company to dispose of its property and assets by distributing the same among such stockholders according to their respective interests, and was a part of the process adopted to accomplish that object. The buying of certain of the property by particular stockholders or by one of them seems to have been but a means to that end. And this tends to explain the care exercised by the plaintiffs to have a good title to the lands described in the contract if they were to take them instead of their estimated value in money, and the provision of the contract for the conveyance and acceptance thereof only with good title and within the limited period aforesaid. Time was clearly of the essence of the contract. Even the right of possession reserved in the plaintiffs by the contract and quitclaim deed was limited thereunder to two years, possession, as shown by the evidence, having been taken under the warranty deed. The provisions of the contract relating to these lands are to be construed in the light of the purpose aforesaid clearly revealed by the contract itself.\\nAlthough the patent to the parcel now in controversy was issued at Washington, D. C., on May 7, 1914, two days before the expiration of the two years/that fact was not known to either of the parties until at least ten days after the expiration of said period, when the defendant Phelps received notice by mail from the Land Office where the entry had been made. In the meantime, Mr. Enterline, representing the plaintiffs, was notified on behalf of defendants that they had no further muniments of title than at the date of the contract for land not already conveyed, and upon receiving that information he declared that he should consider the contract closed and would write his clients, the plaintiffs, to that effect. In that notice to Mr. Enterline there was clearly no intentional misrepresentation of the fact, nor, as we think, any actual misrepresentation, within the meaning of the contract.\\nTo complete the title held at the date of the contract not only a patent from the United States was necessary, but also a deed from the grantee named in the patent, though provision for the latter, as we understand, had been made through a power of attorney, presumably in the possession or under the control of the defendants at the date of the contract, since, as admitted by the pleadings, the land was entered at the land office in April, 1911. But the execution of a deed from such grantee could not properly 'be required or expected until the issuance and delivery of patent, or at least until the parties knew that the patent had been issued; and if a deed had been executed and tendered or submitted under this contract, without a showing or knowledge that patent had issued, and a deed from the grantee named therein, it is quite improbable that it would have been accepted or regarded as a compliance with the contract requiring payment of the agreed price. And there is nothing in the case even tending to show that the ignorance or want of knowledge of the parties that patent had issued was inexcusable.\\nThus the only muniments of title to the parcel in question that could in fact or actually have been tendered or submitted on that date were those which the defendants held at the date of the contract; and there was no apparent reason for submitting those muniments of title on the date of the expiration of the two-year period, unless accompanied by other muniments acquired after the contract was made. But the contention of the plaintiffs as to this particular parcel is that as title was actually obtained by defendants within the two-j^ear period, they became obligated to convey the same to the plaintiffs for the stipulated price. That is not, however, technically or in fact, true. A legal or fee simple title was not then acquired by defendants because no deed to either of them conveying the title of the grantee named in the patent had been executed, and the defendants, through no fault on their part, were without knowledge or information of the fact that might have made the execution of such a deed proper. Title did actually pass to Jed L,. Washburn, the grantee named in the patent, on the date that it was issued and recorded in the proper office at Washington, viz: May 7, 1914, assuming that it was recorded on the date that it was issued, for delivery of a land patent by the United States is not essential to the taking effect of the granting clause in the instrument, and the defendant Phelps or the company had the right to possession of the patent, upon complying with the rules of the land department in that respect. (U. S. v. Schurz, 102 U. S. 397, 26 L. Ed. 167.) On that date, however, as well also on the date of the expiration of the two-year period, the defendants did not have actual possession of the patent, and could not produce it in support of a tender of title by deed or for submission as a muniment of title; and they did not obtain such possession of it until August 13, 1914. According to the notice received by Mr. Phelps from the land office, proper evidence of ownership was required as a condition to the delivery of the patent.\\nWhile in a broad sense, taking into consideration the fact of the issuance of the patent not known to either of the parties at the time, the tender of a deed during the last three days of the two-year period properly conveying Washburn's title to the plaintiffs might have been a tender of good and sufficient title, the defendants were not then in a position to make such tender with muniments of title confirming its sufficiency, as contemplated by the contract and as required in the case of tender of title to other parcels, to require acceptance and payment by the plaintiffs. And we think it plain that the defendants were not at fault in failing to make a tender as to the parcel in question. Indeed, this action does not seem to be predicated upon a wrongful failure to tender title under the first provision of the contract for transferring title, but only upon the alleged refusal of the defendants to submit muniments of title at the expiration of the two-year period. For there is no averment in the petition to the effect that the defendants wrongfully failed or refused to tender title within the time prescribed therefor.\\nWe think there can be no doubt that the provision of the contract requiring the defendant company to submit to Mr. Enterline and Mr. Clark, at the expiration of two years from the date of the contract, such muniments of title as it or its agents or trustees \\\"then possesses or possess\\\" has reference to muniments possessed at the expiration of said period, that is to say, on May 9, 1914, as distinguished from muni-ments possessed after but not on or before that date; and also, we think, to muniments so possessed as to be capable of being submitted in some proper way at the time specified. The word \\\"possess\\\" or \\\"possesses\\\", as used in that provision of the contract, must be considered and construed in connection with what was required to be done, and in view of the circumstances aforesaid under which the contract was made, and the evident purpose thereof. The word seems to be used in this contract not only in the sense of or as implying ownership, or the right to possession or control, but equally in the sense of custody or actual as distinguished from merely constructive possession. \\\"Muniments of title\\\" is said to be a general expression for all means of evidence, by which title to real property may be defended. (28 Cyc., 1779.) Or as generally defined it refers to title deeds and other documents relating to the title to> land. That which is required to be submitted at the expiration of said period is, therefore, documentary evidence of title.\\nThe defendant company did not, however, at the time stated, possess the patent, except perhaps constructively, and of that'it had no knowledge, nor was it in the-possession of an agent or trustee of the company. Constructive possession merely without knowledge of the fact or facts creating it, due diligence having been used to obtain title, is not, we think, what was intended or contemplated. And it may be doubtful if mere knowledge that it had been issued, communicated to the arbiters, without ability then to submit it, would have required them to consider it, or the plaintiffs to accept and pay for the land.\\nSo that without fraud, collusion or fault on the part of the company or any agent or trustee it could not submit the patent for the consideration and determination provided for, at the time specified. It did all that it was then able to do. Promptly at the expiration of the period aforesaid notice was given to Mr. Clark and by the latter to Mr. Enterline that the defendants had no further muniments of title to land covered by the contract provisions aforesaid not already conveyed. An'd upon that, the contract was verbally declared closed. This, we think, amounted to a rejection of muniments held at the date of the contract as insufficient and relieved the defendants from the duty of presenting them.\\nNo provision was made in the contract for any further examination of titles; but the plaintiffs bound themselves as to land for which muniments were to be submitted at the expiration of the period aforesaid only to pay for lands or muniments of title conveyed or assigned under the determination provided for upon muniments so submitted. If the defendants had been negligent or at fault in failing to learn of the patent, or had fraudulently concealed a f\\u00e1ct known to them, a different question might, perhaps, be presented. But within the meaning of the contract, as we think it must be construed, they complied with the provisions of the contract as to this land for submitting muniments of title at the expiration of the period of two years. Had they thereafter proposed to submit the patent after learning of its issuance and receiving it, or other muniments acquired or received after the expiration of the two-year period, plaintiffs might or might not have accepted the same, but without obligation to do so. And there would be lacking a determination of the arbiters named in the Contract as to the sufficiency of such muniments and the character of instrument for assignment or conveyance, provided for as a condition to the obligation of plaintiffs to pay the specified price. (Church v. Shanklin, 95 Cal. 626, 30 Pac. 789, 17 L. R. A. 207; Farm Farm Mort. Co. v. Wilder, 41 Okla. 45, 136 Pac. 1078; Bank v. Clay (Okla.), 177 Pac. 115; Simmons v. Zimmerman, 144 Cal. 264, 79 Pac. 452, 1 Ann. Cas. 850; Goodwine v. Kelley, 33 Ind. App. 57, 70 N. E. 832; Hudson v. Buck, 7 Eng. L. Rep. Chan. Div. 1877-8, 683; Averett v. Lipscomb, 76 Va. 404; Warvelle on Vendors (2nd ed.), secs. 300-302.)\\nChurch v. Shanklin, supra, was an action to foreclose a mortgage to secure notes made payable by defendants to plaintiff \\\"whenever he perfects the title to\\\" certain described lots \\\"to the satisfaction of 'Church & Cory, attorneys.\\\" It was conceded that there was a defect in the title when the notes were executed requiring action by the plaintiff to cure; and it was not shown that the disapproval of the title by the attorneys named was through any fraudulent or improper motive. It was held that as the parties had made the attorneys the umpires between them, if the latter exercised their best judgment in good faith, their conclusion was final and binding, and not subject to the revisory power of the courts without doing violence to the plain words of the contract. This upon the principle upheld in many cases and stated in Butler v. Tucker, 24 Wend. 445, 449, as follows: \\\"But when parties fix on an umpire and agree to abide by his decision, neither of them, without consent of the other, can withdraw the question of performance from the common arbiter for the purpose of referring it to the decision of a jury.\\\"\\nIn Bank v. Clay, supra, it appeared that a contract for the sale of an oil and gas lease stipulated that the vendor should furnish to the plaintiffs a complete abstract of title to the land to be submitted to a certain named attorney for the vendees, and that the lease should take effect and the mutual obligations of the parties accrue only in case such' attorney should approve the title. The abstract was furnished and upon examination by the attorney named he disapproved the title. Suit was thereupon brought by the vendees to recover a sum of money which had been deposited by them as \\\"earnest money\\\" to secure their faithful performance of the contract. The plaintiffs were allowed to recover, and the following rule was stated: \\\"A vendee cannot be compelled to accept a title which is in fact perfect, but which his attorney in good faith refuses to approve where his contract requires the title to be perfected to the satisfaction of such attorney.\\\"\\nIn the English case above cited, Hudson v. Buck, the contract provided for approval of title by the solicitor of Buck, the vendee. And it was held that said solicitor having disapproved the title, the vendor could not enforce specific performance, in the absence of mala tides or unreasonableness on the part of the purchaser or his solicitor. Discussing the question, the court said:\\n\\\"What, then, does the law imply in the sale of a leasehold property ? It implies that the vendor shall make a good title to the property. Is that the same thing as a stipulation that the contract shall be subject to the approval of the title by the purchaser's solicitor? It appears to me that it is not. Observe the difference between the results in the two cases. Tn the one case the approval or disapproval of the person specified is, in my opinion, in the absence of bad faith or unreasonable conduct, conclusive as to the goodness of the title shewn. In the other case the goodness of the title may be a matter for the decision of the court. It appears to me that it is not unreasonable to suppose that the purchaser should desire to preclude the possibility of such a protracted litigation, and that he should intend to stipulate that the opinion of a particular person, his own solicitor, should be conclusive as to the sufficiency of the title deduced, and that, in the absence of compliance with that condition, the contract should not be capable of being enforced.\\\"\\nThus upon the theory that the contract requires the defendants to convey the land in controversy to the plaintiffs, the requisite mutuality of obligation and remedy to justify a decree for specific performance would be lacking, under either provision of the contract relating thereto. In Frank v. Stratford-Hadncock, 13 Wyo. 37, 77 Pac. 134, 67 L. R. A. 571, 110 Am. St. Rep. 963, after stating that several so-called exceptions to the general rule that as a prerequisite to specific performance there must exist both mutuality of obligation and remedy had become established in modern equity practice, this court said:\\n\\\"Where a contract is intended to bind both parties, or where it is of such form or nature that it contains mutual executory provisions, that is to say, where both parties have bound themselves or intended to bind themselves by reciprocal obligations, then no doubt the doctrine as to the requirement of mutuality applies; and in such a case, if for any reason one of the parties is not 'bound, he cannot compel performance by thd other.\\\"\\nAnd in our opinion that principal would apply to the contract in this case if it is to be construed as obligating the defendants to convey this land upon the facts aforesaid. We do not, however, understand the obligation of defendants to convey land to which title shall be obtained within two years to be as broad as plaintiffs contend. The agreement in that respect does not stand alone but is qualified by the provisions for tendering title within said period and submitting at the expiration thereof muniments of title then possessed, for examination as to whether the title is good and sufficient in case of a tender, or the determination provided for upon the submission of muniments of title as to whether they are sufficient to warrant conveyance or acceptance. So that the defendants would not become obligated to convey any particular parcel of the land described unless title thereto was obtained and they were also in a position, acting diligently and in good faith, to tender good and sufficient title within said two-year period, or, at the expiration of said period could produce and submit muni-ments of title that might be declared sufficient to warrant conveyance under the provision of the contract for a determination as to that matter.\\nAnd without an obligation to convey there would be no ground for specific performance. Certainly the agreement to use all due diligence to obtain title within the period named, standing alone, would not furnish a basis for specific performance. (Parker v. Sargent, 201 Ill. App. 574 ) In the case cited it was held that an agreement of a defendant to use his \\\"best endeavors to convey\\\" property to the complainant is not an agreement to convey. But here it is alleged that due diligence was' used to obtain title.\\nFor the above reasons the judgment denying specific performance must be affirmed. Blit there is a further ground upon which we would feel constrained also to affirm the judgment, and that is the laches of the plaintiffs in asserting their alleged right, in view of the changed conditions affect ing the value of the land and the rights and interest of the parties.\\nA decree for the specific performance of a contract for the sale of real estate does not go as a matter of course, but is granted or withheld according as equity and justice seem to demand in view of all the circumstances of the case. (McCabe v. Matthews, 155 U. S. 550, 15 Sup. Ct. 190, 39 L. Ed. 253.) And courts of equity will not decree specific performance when to do so would be plainly inequitable and unjust. (Pomeroy v. Fullerton, 131 Mo. 581, 33 S. W. 173.) In Holgate v. Eaton, 116 U. S. 33, at page 40, 6 Sup. Ct. 224, 29 L. Ed. 538, it is said by Mr. Justice Miller that the following language of Mr. Justice Story in Taylor v. Longworth, 14 Pet. 172, 174, 10 L. Ed. 405, has become a legal maxim in this class of cases, viz: \\\"In the first place, there is no doubt that time may be of the essence of a contract for the sale of property. It may be made so by the express stipulation of the parties, or it may arise by implication from the very nature of the property, or the avowed objects of the seller or purchaser. And even when time is not, thus, either expressly or impliedly, of the essence of the contract, if the party seeking a specific performance has been guilty of gross laches, or has been inexcusably negligent in performing the contract on his part; or if there has, in the intermediate period been a material change of circumstances, affecting the rights, interests or obligation of the parties; in all such cases courts of equity will refuse to decree specific performance, upon the plain ground that it would be inequitable and unjust.\\\"\\nIn Pickering v. Pickering, 38 N. H. 400, the court said, stating a well-settled principle: \\\"Relief by specific performance is matter not of absolute right in the party, but of sound, reasonable discretion in the court, and the granting of such relief must always be entirely equitable. The court will never compel specific performance, where, looking at all the circumstances on both sides, it is apparent that injustice would or might probably be done thereby.\\\"\\nIn such cases a court of equity will not allow of a delay which would enable a party to take advantage of the turn of the market, and have the contract performed, only in case it suits his interest. And in Drees v. Waldron, 212 Fed. 93, 128 C. C. A. 609, it is said: \\\"The existence of laches is primarily determined not by lapse of time but 'by considerations of justice.\\\" In Patterson v. Hewitt, 195, U. S. 309, 25 Sup. Ct. 35, 49 D. Ed. 264, the court by Mr. Justice Brown, speaking for the court, states the rule applicable under circumstances such as are found in this case as follows :\\n\\u2022 \\\"The defence of laches which prompted the dismissal of the bill in this case, has so often been made the subject of discussion in this court that a citation of cases is quite unnecessary. Some degree of diligence in bringing suit is required under all systems of jurisprudence. In actions at law, the question of diligence is determined by the words of the statute. If an action be brought before the statutory time expires, it will be sustained; if a day after, it will be defeated. In suits in equity the question is determined by the circumstances of each particular case. The statute of limitations consorts with the rigid principles of the common law, but is ill adapted to the flexible remedies of a court of equity. The statute frequently works great practical injustice \\u2014 the doctrine of laches, never. True, lapse of time is one of the chief ingredients, but there are others of almost equal importance. Change in the value of the property between the time the cause of action arose and the time when the bill was filed; complainant's knowledge or ignorance of the facts constituting the cause of action, as well as his diligence in availing himself of the means of knowledge within his control, are all material to be considered upon the question whether the suit was brought without unreasonable delay.\\\"\\nIn an opinion by the same learned justice, in a case involving mining property, where there had been a great increase in value, it is said: \\\"Under such circumstances, where property has been developed by the energy and at the expense of the defendants, courts will look with disfavor upon the claims of those who have lain idle while awaiting the results of this development, and will require not only clear proof of fraud, but prompt assertion of plaintiff's rights.\\\" (Johnston v. Standard Min. Co., 148 U. S. 360, 13 Sup. Ct. 585, 37 L. Ed. 480.) And we quote the following from the case of Twin Lick Oil Co. v. Marbury, 91 U. S. 587, 23 L. Ed. 328, referring to the fluctuating value of oil wells: \\\"Property worth thousands today is worth nothing tomorrow; and that which today would sell for a thousand dollars at its fair value, may by the natural changes of a week, or the energy and courage of desperate enterprise, in the same time be made to yield that much .every day. The injustice, therefore, is obvious of permitting one holding the right to assert an ownership in such property to voluntarily await the event, and then decide, when the danger which is over has been at the risk of another, to come in and share the profit.\\\" (And see Anderson v. Luther Min. Co., 70 Minn. 23, 72 N. W. 820.)\\nIn Patterson v. Hewitt, supra, it was further said: \\\"indeed, in some cases the diligence required is measured by months rather than by years.\\\" So in the case of In re. Casey, 195 Fed. 322, the court said: \\\"Laches is measured sometimes by years and sometimes by days, depending on the nature of the case and the circumstances.\\\"\\nIn this case the land involved was of comparatively small value when the contract was made, but at or about the time of the expiration of the two-year period a possible or prospective increase in value became apparent through the discovery of oil upon other lands, and it appears that the plaintiffs were approached by representatives of the Ohio Oil Co., who proposed a lease to them for drilling upon the land, but the plaintiffs declined to lease it on the ground that they did not have title to it, showing this contract disclosing the extent of their interest. They learned of the issuance of the patent sometime thereafter, but just when does not appear, though, as we have stated above, probably -between the early part of June and sometime in August, 1914, and then, through Mr. Enterline, made some demand upon the defendants, \\u2014 probably for a- conveyance, since the answer alleges that no demand for a conveyance was made until August 28, 1914.\\n. After such demand it appears that the plaintiffs entered into some arrangement with another party to whom they assumed to give possession of the land, presumably for the purpose of exploring for oil, for it is shown that some oil well casing was placed on the land. On September 21, the Ohio Oil Company also placed some casing on the. land; and the petition alleges, without stating the time, that said company, although warned not to enter into possession of the ground, did actually 'by force enter thereon and exclude the plaintiffs therefrom, and commenced drilling thereon. They succeeded in drilling a producing oil well in October of the same year. This suit was brought by the filing of the original petition on February 13, 1915, praying, in addition to specific performance as against the principal defendants a showing and accounting by the Ohio Oil Company of the oil and other substances taken from the land, a judgment against said company therefor, and the appointment of a receiver, if found necessary, pending the litigation.\\nThus, with knowledge of the facts, the plaintiffs' waited before asserting their right here claimed until the value of the land for oil purposes had been demonstrated by the defendant Phelps through his lease to said operating company, allowing their decision to insist upon what they now claim as their right to depend upon the success or failure of the drilling operations carried on at the expense of others. We think that a very prompt assertion of their alleged right was necessary to justify the exercise of equity jurisdiction for the enforcement thereof. With respect to the time intervening before suit was brought, as affecting the question of laches, it is apparent that the situation would not be materially different if there had been a much longer delay. The changed conditions causing the increase in value had already occurred, and while the plaintiffs remained inactive so far as this record discloses.\\nThe defendants strongly insist upon another ground as a complete defense to the action, in addition to the matters above considered, viz: The failure of the plaintiffs to execute the bond provided for in the contract. And the point is discussed at some length in the briefs, 'especially with reference to whether the defendants waived the bond by tendering title to and conveying other parcels of land, or are estopped from claiming any right under the provision for the bond and a non-compliance therewith. While we are not convinced that there was a waiver of the bond as to the parcel of land in controversy here, or that the doctrine of estoppel applies, we think it unnecessary to decide those questions or any other question relating to the effect of the provision for the bond or the failure of the plaintiffs to comply with it. The judgment is affirmed.\\nBeard, C. J., and Blydenburgh, J., concur.\"}"
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+"{\"id\": \"8515463\", \"name\": \"WHITE v. VEITCH\", \"name_abbreviation\": \"White v. Veitch\", \"decision_date\": \"1921-05-23\", \"docket_number\": \"No. 976\", \"first_page\": \"401\", \"last_page\": \"409\", \"citations\": \"27 Wyo. 401\", \"volume\": \"27\", \"reporter\": \"Wyoming Reports\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T18:00:15.732166+00:00\", \"provenance\": \"CAP\", \"judges\": \"PotteR, C. J., and Kimball, J., concur.\", \"parties\": \"WHITE v. VEITCH\", \"head_matter\": \"WHITE v. VEITCH\\n(No. 976;\\nDecided May 23, 1921;\\n197 Pac. 983)\\nForcible Entry and Detainer \\u2014 Sufficiency of Complaint \\u2014 Jurisdictional Defects \\u2014 Waiver\\u2014Amendment.\\n1. A complaint in a forcible entry and detainer proceeding merely alleging that plaintiff is lessee and entitled to possession of certain premises withheld from him by defendant without right is insufficient to give the justice jurisdiction.\\n2. Forcible entry and detainer and unlawful detainer are statutory remedies of a summary nature that were unknown to the common law, and unless the procedure pre scribed by statute is substantially complied with the proceedings will be void.\\n3. In forcible entry and detainer, or unlawful detainer eases the complaint must allege facts bringing the case within the statute (Comp. Stats. 1920, See. 6621) which provides two classes of eases, (1) where an unlawful and forcible entry is made; (2) where lawful and peaceable entry has been made, but the premises 'are subsequently unlawfully or forcibly held. The particular facts upon which plaintiff relies must therefore be alleged in order to invoke the statute and give the justice jurisdiction.\\n4. Where the justice court was without jurisdiction in an action of forcible entry and detainer because of a defective complaint, the point was not waived by failure to object in that court nor could the jurisdictional defect be cured by amendment after appeal to the District Court. (Jenkins v. Jeffery, 3 Wyo. 669 29 Pac. 186, distinguished.)\\nERROR to the District Court, Natrona County; Hon. Chas. E. Winter, Judge.\\nForcible entry and detainer proceedings by Robert J. Veitch against Henry L. White and others, begun in the Justice Court and appealed to the District Court. Judgment was for plaintiffs and defendant brings error.\\nHagen, Stanley & Murane, for Plaintiffs in Error.\\nThe complaint was fatally defective in that it did not comply with the requirements of the statute. (5353 Comp. Stats. 1910.) The justice was without jurisdiction, (Low-man v. West, 36 Pac. 258 (Wash.) . The District Court acquired no jurisdiction since the complaint could not be cured by amendment there. The cause should have been dismissed. (Brown v. Grady, 16 Wyo. 151.) An amendment of a void complaint will not save the jurisdiction, (Lowmah v. West, supra., Dennis v. Wood, 48 Cal. 363.) The evidence in the District Court was insufficient in any event to support the action. (Campbell v. Foster, 30 Atl. 223.) There was no authority to make a lease. (Thiel Co. v. McClure, 142 Fed. 953; Fillmore v. U. P. R. R. Co. 2 Wyo. 95; Kozel v. Dear-love, 32 N. E. 542; Clement v. Co. 67 Atl. 82.) The pretended lease is void. (3751 Comp. Stats. 1910; Marshal v. Rugg, 6 Wyo. 283; McDowell v. Simpson, 27 Am. Dec. 338; Minnesota Co. v. McCrossen, 85 N. W. 1019.) EMoppel must be specially pleaded.\\n\\u25a0 George W. Ferguson and Nichols & Stirrett, for Defendant in Error.\\nTbe amended petition met the requirements of the statute of forcible entry and detainer. Defendant held a lease prop-rly executed by an authorized agent; The judgment is amply supported by the evidence. Failure to object to the petition in Justice Court was a waiver of defects in the complaint. The cause was tried de novo in District Court. The petition was amended to conform to the facts proven, (See. 4437 Comp. Stats. 1910. Lowman v. West), cited by plaintiff is not in point. In that ease a demurrer was filed in Justice Court and was overruled. There was a ratification of the lease which amounts to a plea of estoppel. (Matzger v. Co. 141 Pac. 900.) The evidence showed that Stewart had authority -to make the lease which was subsequently ratified by plaintiff\\u2019s conduct. (Hassard v. Tomkins, 84 N. E. 174; Clark v. Hyatt, 118 N. Y. 563).\", \"word_count\": \"2942\", \"char_count\": \"17044\", \"text\": \"Blume, J.\\nThe defendant in error filed in justice court of Natrona. County his petition in forcible entry and detainer, alleging (omitting the formal parts) \\\"First: That he is the lessee of the following described premises, and entitled to the immediate, exclusive and continued possession of the same, being (describing the premises). Second: That defendants are in possession of said premises and occupy and hold the same from the possession of the plaintiff, without any right to the possession thereof.\\\" Then follow allegations of the notice given to quit the premises, and the prayer. An answer was filed and trial had, which resulted in' favor of the defendant in error. An appeal was duly taken to the district court, where the ease was tried by the court without a jury. At the beginning of the trial the plaintiffs in error, for the first time, moved the court to dismiss the action, and objected to the introduction of any evidence, for the reason that the petition fails to state facts to constitute a cause of action; that it is apparent from the pleadings that the court has no jurisdiction in the case, and that it is not an action of forcible entry and detainer under the statute. The ruling was reserved until the close of the case, when the above objections were renewed but overruled, and defendant in error was permitted, over objection, to file an amended complaint. Judgment was entered for the defendant in error, a motion for new trial, assigning, among other things, the overruling of the above motion as error, was filed and overruled, and the case is here upon a petition in error, assigning, inter alia, as error the overruling of the motion made at the trial.\\nThe allegations contained in the original petition filed in the justice court are very similar to the allegations contained in the petition involved in the case of Jenkins v. Jeffrey, 3 Wyo. 669, 29 Pac. 186. In that case the plaintiff claimed to be the owner of the premises in controversy, .but stated nothing as to who was entitled to possession. In the case at bar the plaintiff below alleges that he is lessee, and entitled to the possession of the premises in controversy. The differences are not vital and the court in the Jenkins ease held that the petition in that case was insufficient as a a petition in forcible entry and detainer, and that the justice was without jurisdiction to try the action. That ease was certified to the district court upon motion of the defendants, where they appeared and filed answer, and the case was there tried as a case involving title. Under these circumstances this court held that the defendants could not properly be heard to object that the district court assumed to try the case, of which it had original jurisdiction, as an action in ejectment, but in the case at bar no such course was followed. Here the case came to the district court on appeal; the plaintiffs in error did not voluntarily submit to the trial in the district court, but objected. The case was tried throughout as a ease of forcible entry and detain- er, and the defendant in error at the close of the testimony-filed an amended petition so as to bring the ease within some of the provisions of onr statute providing for such actions. We cannot hold, therefore, that the district court could have tried the case at bar as an action in ejectment, as though originally brought in that court, but we might rest the decision herein upon the holding in the Jenkins case, that the original petition filed in the justice court gave the justice no jurisditcion over the subject matter. Inasmuch, however, as the court in that case did not fully discuss the question as to what facts are necessary to be alleged in order to give the justice jurisdiction, and inasmuch as the defendant in error contends that even if the original petition failed to state a cause of action, that the defect was cured when the amended petition was filed in the district court, we shall state the law applicable to this case somewhat more fully.\\nA civil proceeding for forcible entry and detainer or unlawful detainer was not known to the.common law. The proceeding is statutory, summary in its nature, may, under our statute, work a forfeiture of possibly valuable rights within a period of a few days, and according to the universal rule, the statute conferring jurisdiction must be at least substantially complied with in the method of procedure prescribed by it, or the jurisdiction will fail to attach, and the proceeding will be coram non \\u00bfjudice and void. (19 Cyc. 1147; 24 Cyc. 1436; Taylor L. & T. (9th Ed.) \\u00a7 721; Tiffany L. & T., p. 1786 and cases cited below.) Sec. 6625 of the Compiled Statutes of 1920 provides that in such cases .the plaintiff, before the justice may proceed with the case, must file a complaint, describing the property in controversy, ' ' and the facts upon which he relies, in order to recover the premises, which must be sustained by proof or the action must be dismissed. ' ' This complaint is not even dispensed with in case the defendant does not appear. It is, therefore, the basis of the action, without which the justice is powerless to act. Summary as the action is, drastic as may be its consequences, the legislature evidently deemed it wise to guard against the misapplication of this proceeding. Whatever may have been the reasons of its adoption, the statute is imperative, and the courts cannot ignore the plain provisions which a co-ordinate branch of our government has a right to make. See Clendenning v. Guise, 8 Wyo. 91, 55 Pac. 447. Statutes similar to ours, requiring the facts to be stated in such complaints, are found in Wisconsin, Texas, New Jersey, Utah and perhaps other states. Under statutes such as this, the facts must be clearly stated, so as to bring the case within the provision of the statute relied on, and if any material fact is omitted, the defect is fatal, and the justice acquires no jurisdiction of the subject matter. This is the rule even in states where no such specific statutory provision exists. (Emerson v. Emerson, (Tex. Civ. App.) 35 S. W. 425; Fowler v. Roe, 25 N. J. L 549; State v. Lane, 51 N. J. L. 504, 18 Atl. 353; Barnes v. Cox, 12 Utah, 47, 41 Pac. 557; Haskins v. Haskins, 67 Ill. 446; Eveleth v. Gill, 97 Me. 315, 54 Atl. 756; Kahakalies v. Dukais (Me.) 81 Atl. 1011; McDermott v. McIlvain, 75 Pa. St. 341; Kiphart v. Brenneman, 25 Ind. 152; Burgett v. Bothwell, 86 Ind. 149; 19 Cyc. 1150; Caswell v. Ward, 2 Doug. (Mich.) 374; 24 Cyc. 1437; Taylor L. & T. (9th Ed.) \\u00a7 721; Tiffany L. & T. p. 1786.) See also Gilledge v. White, 73 Tex. 489, 11 S. W. 527; Laffey v. Chapman, 9 Colo. 304; 12 Pac. 152; Lasater v. Font (Tex. Civ. App.) 43 S. W. 321; Conley v. Conley, 78 Wis. 665, 47 N. W. 950, where it was said that the reasoning is but an application of the doctrine applied to affidavits filed in attachment and garnishment proceedings.\\nSection 6621 of our statutes provides for two classes of cases in which an action of this bind may be brought; 1st,, where an unlawful and forcible entry is made, and, 2nd; where a lawful and peaceable entry has been made, but where the premises are subsequently unlawfully or forcibly held. The original petition filed herein is obviously not sufficient to make out a case under the first of the above classes (19 Cyc. 1151, 1156), nor does it state any facts so as to bring it within any of the classes specified in Section 6622 of the statutes. Does it then state facts sufficient to come within the second of the above classes under section 6621, commonly called unlawful detainer?\\nInasmuch as the statutes on this subject are evidently designed only for the purpose of trying the right of possession in eases where the titles of the premises cannot be disputed or called in question (Jenkins v. Jeffrey, supra), it is frequently said that \\\"the proceedings in unlawful detainer are, and of necessity, must be, limited to those cases, ' ' where the relation of landlord and tenant, (Richmond v. Court, 98 Pac. 57; 24 Cyc. 1407) or other similar relation is shown to exist and that this relationship must be fully shown in the complaint. 24 Cyc. 1438, and see most of the eases cited supra. But without reference to that, the original petition herein lacks some of the essential averments specifically provided for in the statute to constitute an action under the second class contemplated in \\u00a7 6621. In such case, there must appear to exist (1) a lawful and peaceable entry, followed subsequently by (2) unlawful or forcible detainer. Nothing is said in the original complaint herein as to the entry. For aught that appears, it might have been by force or by stealth; again, peaceable but unlawful; again, peaceable and lawful. In Caswell v. Ward, supra, the court said: \\\"In order to give the court below jurisdiction of a case it is necessary that the complaint should embody such a statement of facts as brings the party clearly within some one of that class of cases for which a remedy is provided. Now the statute gives a remedy, 1st, against those who make unlawful and forcible entry into lands; 2nd, against those who, having made lawful or peaceable entry into lands, unlawfully and by force detain the same. Under which of the heads does the case in question come? If under either, it is the second; but in that case it should have been averred that the premises were entered peaceably or lawfully, and that the detention was not merely unlawful but forcible. \\\" So in any view of the case the justice court was without jurisdiction for want of essential allegations in the complaint. That being true, the objection was not waived by failing to raise the question in the justice court. (Campbell v. Mallary, 22 How. Pr. 183; Potter v. Mission Soc. 52 N. Y. S. 294), and cases cited. Nor could an amended complaint, filed in the district court, cure such jurisdictional defect. (Redfern v. Batham, 70 Ill. App. 253.) As was said in Kiphart v. Brennemen, 26 Ind. 152, a case very similar to the ease at bar: ' ' Our statute is liberal in regard to amendments, but an amendment necessarily presupposes something, however defective, to be amended, but in the present case the cause of action, being without the jurisdiction of the justice, does not constitute a defective complaint, but is simply a nullity, and that cannot be amended.\\\" That case was approved, and followed in Burgett v. Bothwell, supra, wherein it was further held, that such complaint will not be deemed sufficient even after verdict, but that a motion in arrest of judgment should be sustained. See also Blyth & Fargo Co. v. Swenson Bros., 7 Wyo. 303, 51 Pac. 873. And in Dicks v. Hatch, 10 Ia. 380, a case peculiarly applicable here because the district court in this state has no original jurisdiction in such actions, (Jenkins v. Jeffrey, supra.) The court said: \\\"The justice alone had original jurisdiction in this summary proceeding, and the district court can obtain jurisdiction in no other way than by appeal. The case, then, of course, must be tried in the district court upon the same issues upon which it was tried in the justice's court. If it is tried otherwise; that is, if the issue is materially changed by amendments, and thus tried, the district court assumes to itself jurisdiction which it has not in this class of cases.'' See also Lasater v. Font, supra, Eveleth v. Gill, supra; 19 Cyc. p. 1179, 24 Cyc. 729, 735. True, Section 6537 of our statute permits the district court to allow amendments in the furtherance of justice, and counsel cite us to Section 5707, Comp. Stat. 1920, providing for amendments in fur therance of justice even after judgment. But Section 6536 of the same statute provides that, where a case is appealed from justice court, the trial in the district court \\\"shall be had upon the pleadings and issues filed and made in the court appealed from.\\\" Whatever may be the effect of the two sections of the statute first mentioned, it is clear, construing all these sections and section 6625 in pari passu, that in a forcible entry and detainer case, no amendments to the complaint made in the district court on appeal can confer jurisdiction of the subject matter when it did not exist in the justice court. When such complaint, fatally defective, and conferring no jurisdiction of the subject matter on the justice, comes before the district court on appeal, it is like a lifeless body which that court is powerless to animate. Its effect is, as though no complaint whatever had been filed, and no issues whatever made in the justice court, in which case, as we have held, there is nothing to try in the district court. (Italian-Swiss Agricultural Colony v. Bartagnoli, 9 Wyo. 204, 61 Pac. 1020; Walton v. Spinner, 15 Wyo. 297, 88 Pac. 650, 89 Pac. 575.\\nThe motion made by plaintiffs in error at the commencement of the trial in the district court to dismiss the action should have been sustained. In view of the foregoing conclusions, it is unnecessary to consider the other errors assigned.\\nThe judgment of the District Court of Natrona County herein is reversed, and the case remanded to that court with directions to enter judgment for the plaintiffs in error, dismissing the action.\\nReversed and remanded.\\nPotteR, C. J., and Kimball, J., concur.\"}"
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+"{\"id\": \"8515507\", \"name\": \"BACHMAN v. HURTT\", \"name_abbreviation\": \"Bachman v. Hurtt\", \"decision_date\": \"1919-10-27\", \"docket_number\": \"No. 912\", \"first_page\": \"332\", \"last_page\": \"349\", \"citations\": \"26 Wyo. 332\", \"volume\": \"26\", \"reporter\": \"Wyoming Reports\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T00:10:44.726945+00:00\", \"provenance\": \"CAP\", \"judges\": \"Potter, J., and Mentzer, District Judge, concur.\", \"parties\": \"BACHMAN v. HURTT.\", \"head_matter\": \"BACHMAN v. HURTT.\\n(No. 912;\\nDecided Oct. 27, 1919;\\n184 Pac. 709.)\\nHomestead \\u2014 Exemption or Separate Property of Wife \\u2014 Evidence \\u2014Parol Evidence op Purpose of Mortgage Admissible \\u2014 Mortgages \\u2014 Renewal of Mortgage as Extinguishment of Lien.\\n1. A married woman, against whom a personal judgment is rendered, even though such judgment is also against her husband, is, under Comp. Stat. 1910 \\u2014 4615-\\u2014entitled to a homestead exemption in her separate property on which she lived with her husband, though she is not the head of a family and as such entitled to the exemption provided by Sec. 4755.\\n2. Parol evidence is admissible to show the purpose for which a mortgage is given where it does not tend to contradict the written evidence, and the notes and mortgages, hut was for the purpose of proving an extraneous fact or surrounding circumstance, to-wit: The purpose and intention of the parties in making the transaction evidenced by the writing.\\n3. Where there was a substitution of one mortgage for another upon the same property, without the payment of money, for the convenience of parties, the acts being practically simultaneous, and parts of the same transaction, with the intent that the debt and security shall continue, the result is a renewal of and not an extinguishment of the mortgage lien, and it does not give priority to an intervening judgment, even though there was a- change in the mortgage debtor.\\nAppeal from District Court, Sheridan County, HoN. E. C. Raymond, Judge.\\nAction by Theodore Bachmann against Nora D. Hurtt and others. From an adverse judgment, Wyoming Loan and Trust Co. appeals.\\nClark and Wolcott, for Appellant.\\nThe former owner of the land, Ida M. Powers, not being the head of a family, was not entitled to a homestead exemption (Const. Art XIX, Jones v. Losekamp, 19 Wyo. 83); the judgment of the Trust Co. became a lien upon the cancellation of the old mortgage, which lien was superior to the new mortgage, taken by the plaintiff Bachmann. Under statutes similar to ours it is held that only the head of a family is entitled to the exemption (McGinnis v. Wood, 47 Pac. 492; Towne v. Rumsey, 5 Wyo. 11; Barry v. Assurance Co., 49 Pac. 148; Ness v. Jones, 88 N. W. 706); there being no homestead exemption, the judgment of the Trust Co. became a lien upon the release of the old mortgage; where a senior lien holder impairs the security of a junior lien holder by releasing the principal debtor from personal liability, he subordinates his lien to that of the second lien holder (Sexton v. Pickett, 24 Wis. 346; Barnes v. Mott, 64 N. Y. 397; McKeen v. Haseltine, 49 N. W. 195; Edwards v. Thom, 5 So. 707; Mather v. Jenswold, 32 N. W. 512; Marple v. Ma'rple, 65 Pac. 645; Conner v. Welsh, 8 N. W. 260).\\nMets and Sackett for respondents, Nora L. and John M. Hurtt; H. Glenn Kinsley, for respondent, Theodore Bach-mann.\\nHomestead exemptions are provided by the 'Constitution and Statutes'of Wyoming (Art. XIX; 4755-4760 C. S.) ; the statute recognizes a homestead exemption in the separate property of the wife; a wife who is the owner of a homestead is considered the head of the family (McFee v. O\\u2019Rourke, 15 Pac. 420) ; the purpose of the statute is to protect the family (Orr v. Schraft, 22 Mich. 260; Edmond-son v. Meecham, 50 Miss. 390; no designation other than occupancy is required by the Wyoming statute; the exemption is good as against mechanics\\u2019 or laborers\\u2019 liens for improvements (Lumber Co. v. Vance, 88 Pac. 896) ; the exemption applies to separate property of the wife, even though the husband is living thereon (Herring v. Johnson, 72 S. W. 793; Hardin v. Wolve, 29 La. Ann, 333). The case of McGinnus v. Wood, cited by the counsel, involved a purchase money mortgage, and is not in point; the requirements of occupancy precludes any danger of allowing two homestead exemptions; the discharge of the old mortgage did not give an intervening judgment priority, since the new mortgage was a mere renewal of the old one; moreover, the new mortgage was a purchase money mortgage; the mortgagors having assumed the payment of the old mortgage upon purchasing the land (Curtis v. Root, 20 Ill. 53; Jones on Mortgages, 399, 924, 927; Swift v. Kraemer, 13 Cal. 526; Childs v. Stoddard, 130 Mass, no)'; a change in the form of the security, or the substitution of a new mortgage for the one given at the time of the purchase does not affect the operation of a renewal (Powers v. Pence, 20 Wyo. 339: Bankers Co. v. Hornish, 27 S. E. 459) \\u2022\\nClark and Wolcott, in reply.\\nThe constitution does not contemplate two homestead exemptions; the right is limited to the heads of families; Sec. 5610 C. S., adopted from California, has no application, since it relates to the selection of homesteads, for which we have no law. McFee v. O\\u2019Rourke and Cumber Co. v. Vance, cited by respondents, are not in point, owing to different constitutional provisions; there can be but one head of a family, and the phrase is synonymous with the owner of the home; the old mortgage was discharged and satisfied, and appellants\\u2019 judgment took priority over the new mortgage; there are different mortgagors, so that the new mortgage cannot logically be considered a renewal of the old one.\", \"word_count\": \"6383\", \"char_count\": \"36212\", \"text\": \"Winter, District Judge.\\nThis is an action to foreclose a mortgage dated August 5th, 1914. It secured a promissory note of the same date for $1,600.00, bearing interest at 10 per cent. These instruments were signed by the defendants, Nora D. Hurtt and John M. Hurtt. On February 24, 1914, the defendant Wyoming Doan and Trust 'Company, duly obtained and docketed a judgment in the District Court of Sheridan County for $1,620.30 and costs, against Ida M. Powers and her husband, E. E. Powers, at which time the said Ida M. Powers was the record owner of the real estate in question.\\nOh August 6, 1914, Ida M. Powers and her husband sold the premises, subject to a mortgage of $1,600.00, to the de-, fendant, Nora D. Hurtt, and on November 4, 1914, the sale was consummated and possession transferred.\\nIn June, 1910, one Spracklen and wife, then the owners of the premises, gave a mortgage for $1,600.00 to one Mary M. Kueny. Thereafter, and prior to the judgment of the defendant, Wyoming Doan and Trust 'Company, the Kueny mortgage was assigned to plaintiff.\\nThe defendants, Nora D- Hurtt and John M. Hurtt, filed an answer and cross-petition in which they admitted the judgment of the Trust Company, but alleged that the said Ida M. Powers and E. E. Powers were, at the time said judgment was rendered, occupying said premises as a homestead, and that the mortgage in suit was given h> take the place of the Kueny mortgage above mentioned, which had never been paid and that at the time the property was purchased by them from Powers its value did not exceed $2,400.00.\\nThe case was then tried upon the theory that the former owner, Ida M. Powers, had a homestead interest in the real estate in question, which was-exempt from levy and sale on execution under the Trust 'Company's judgment; that the homestead interest amounted to $1,500.00 (the then statutory limit of exemption) ; that the mortgage given in 1910 by Spracklen for $1,600.00 to Kueny and assigned to Bach-mann, the plaintiff, in 1911, was never paid; that there was a substitution in its place of the new note and mortgage and its purpose was to continue the security of the old mortgage; and that the said homestead exemption and the new note and mortgage herein sued upon were superior to the judgment of the Trust Company. Further, that the lien, if any, of the Trust Company's judgment could be satisfied, if at all, only out of any equity there might be in this property, over and above $3,100.00; that the property never at any time had a-value equal to $3,100.00, and that therefore the property passed from Powers to Hurtt free and clear of any lien of the Trust Company.\\nUpon the trial of the case, the District Court, upon the law and the evidence, sustained this theory, made findings of fact and conclusions of law in conformity therewith, and rendered judgment for the plaintiff, denying the lien of the Trust Company. The defendant, Wyoming Loan and Trust Company, appeals.\\nThe first question in this case is: Was the former owner of the land, Ida M. Powers, entitled to a homestead interest or exemption in the premises ?\\nThe provision of our constitution was, and is, as follows:\\nArticle 19 of the Constitution: \\\"Homesteads, Section 1, Exemption Of. A homestead as provided by law shall be exempt from forced sale under any process of law and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes or for the payment of obliga tions contracted for the purchase of said premises, or for the erection of improvements thereon.\\\"\\nThe statutory provisions regarding homesteads are Sections 4615, 475s, 4756, 4757, 4760, 5610. Sec. 4755, Compiled Statutes 1910, in force at the time of the transactions herein involved, is as follows :\\n\\\"Every householder in the State of Wyoming, 'being the head of a family, and every resident of the State who has reached the age of sixty years, whether the head of a family or otherwise, shall be entitled to a homestead not exceeding in value the sum of Fifteen Hundred Dollars, exempt from execution and attachment arising from any debt, contract or civil obligation entered into or incurred.\\\"\\nThe authorities and arguments of counsel for the parties hereto centered upon the above section as the positive act creating \\\"a homestead as provided by law\\\".\\nThe contentions of counsel were upon the meaning, scope and limitations of the words \\\"being the head of a family\\\". Had this been the only section contained in our statutes bearing directly upon the question, 'it might be contended with considerable support, from the authorities submitted and examined, that Ida M. Powers (the property being in her name), living upon the premises, with her husband and family, the husband supporting and maintaining them, could not be considered as \\\"the head of a family\\\" within the meaning of the above Section 4755. But we need not review the cases and the arguments upon this question or determine what the law would be were it to rest on Section 4755 alone, as the positive statute on the subject, as the matter is placed beyond controversy by Section 4615, 'Compiled Statutes 1910, which is as follows:\\n\\\"When a married woman sues or is sued alone, like proceedings shall be had, and judgment may be rendered and enforced as if she were unmarried, and her separate property and estate shall be liable for the judgment against her; but she shall be entitled to the benefit of all exemptions to heads of families.\\\"\\nThe Ohio Code, section 5319', Revised Statutes of 1880, was identical with our section 46x5. That section in the Ohio Code was amended in 1884* but without any change except the omission of the word \\\"alone\\\" following the words \\\"when a married woman sues or is sued\\\", which change was made because of the amendment of another section of the code in the same amendatory act which provided that a married woman shall sue and be sued as if she were unmarried/and that her husband shall 'be joined with her only when the cause of action is in favor of or against both her and her husband. We do not regard that difference in the present Ohio statute as material so as to create any distinction in construing the last clause of the section entitling the married woman against whom a personal judgment is rendered to the benefit of all exemptions to heads of families. Nor was it regarded as material in that respect by the courts in Ohio. Before as well as after the amendment the statute was construed as giving a married woman the exemptions aforesaid under a judgment rendered against her. Under the statute as it read in 1880, identical with our statute, it was held in Patrick v. Littell, 36 O. St. 79, decided at the January Term, 1880, wherein a married woman was sued jointly with her husband upon a contract for the payment of money, that the statute gave her such exemptions as are provided for heads of families, since, quoting from the opinion in. that case, \\\"she might have been sued alone.\\\" The. court said:\\n\\\"It is a contract or obligation upon which, under section 28 of the 'Code, as amended March 30, 1874, she might have been sited alone; and being of that character, the statute requires the like judgment to be rendered and enforced, in all respects, as if she were unmarried (71 Ohio Taws, 47). It was one of the objects of this section, as thus amended, to so far modify the disabilities of coverture, as to authorize a personal judgment to be rendered against a married woman, where such judgment would have been proper, had she remained unmarried. Prior to the date at which a personal judgment was authorized, the decree, according to the English practice, and that of some of the states, was directed against the estate, declaring the separate estate vested in the wife at the date of the decree which it was within her power to dispose of, chargeable with the payment of the debt. But under the statute as amended, the same judgment is required, with the same process for its enforcement as would be awarded if the wife were sole; and, saving to her such exemptions as are provided for heads of families, her separate estate is made liable for any judgment rendered against her, to the same extent as would be the property or estate of her husband, for any judgment rendered against him.\\\"\\nIn Hill v. Myers, 46 O. St. 83, 19 N. E. 593, decided at the January Term, 1887, Dickman, J., referring to said section 5319, Ohio Revised Statutes, says:\\n\\\"But in proceeding by way of execution against the wife's separate property, the law has in a liberal and humane spirit, guarded all her rights of homestead. It is provided by Section 5319, stipra, that she shall be entitled to the benefit of all exemptions to heads of families\\\" \\\"With the changed remedy against a married woman, allowing a personal judgment followed by execution, goes pari passu the statutory protection of her homestead.\\\" \\u2022\\nThis position is further supported by Kimmel et al. v. Paronto, 52 O. St. 469, 43 N. E. 1040, and Shaw v. Foley, 62 O. St. 30, 56 N. E. 475. These cases, construing the Ohio provision, are conclusive, and on Section 4615, together with Sections 4755 and the other sections mentioned which harmonize with this view, we hold that Ida Mr Powers had a homestead interest in the premises which was exempt, that the judgment of the appellant, Wyoming Loan and Trust Company, did not attach and said company was not entitled to a judgment for a lien on the premises.\\nThe second question to be determined is whether the discharge of the Spracklen-Kueny mortgage automatically made the judgment of the Trust Company a prior lien. The answer depends upon the facts as to whether the Hurtt-Bachmann mortgage was given for the purpose and with the intention of continuing the security of the old mortgage. It is urged by appellant that the trial court erred in admitting oral evidence to show this fact.\\nWe think the evidence was admissible, as it did not tend to contradict the written evidence and the notes and mortgages, but was for the purpose of proving an extraneous fact or surrounding circumstances, to-wit: the purpose and intention of the parties in making the transaction evidenced by the writing. It is possibly in the nature of a separate, oral agreement on a subject not included in or disclosed by the writings, and not inconsistent with their terms (Ency. of Ev., Vol. IX, page 350, and cases .cited). The evidence so admitted proved beyond question that such was the intention of all the parties thereto. This was not contradicted by the writings or any oral evidence. The evidence sustains the findings of fact of the trial court upon this point.\\nThere was a substitution of one mortgage for another, without the payment of money, for the convenience of the parties, the act being practically simultaneous' and parts of the same' transaction, with the intention, that the debt and security should continue.\\n\\\"Entering satisfaction of a mortgage and taking a new one, when designed by the parties to be merely a continuation of the first mortgage, and when the two acts are practically simultaneous or parts of the same transaction, is not an extinguishment of the mortgage, but a renewal thereof, and does not give priority to an intervening judgment or mortgage creditor of the mortgagor, especially where it is done in' good faith, in ignorance of the existence of the intervening lien, and without any intention to release the lien of the mortgage\\\" (27 Cyc. 1222, and cases cited. Packard v. Kingman, 11 Ia. 219; Ponder et al. v. Ritsinger et al., 1 N. E. 44;. Jones on Mortgages, Par. 924, 927; Story Eq. Par. 1035 c, 1035e; Swift v. Kraemer, 13 Cal. 526; Childs v. Stoddard, 130 Mass. 110).\\n\\\"The taking of a new note in place of the one originally given does not operate as an extinguishment of the mortgage lien, unless that is shown to be the actual and express intent of the parties\\\" (First National Bank v. Citizens' State Bank, 11 Wyo. 62).\\n\\\"A change in the form of the security and the substitution of a new mortgage for the one given at the time of the purchase does not affect the operation of the rule, and the principle is not rendered inapplicable by the fact that the new or substituted mortgage is executed to a third party for money advanced or loaned for the purpose.\\\"\\n\\\"And so where the money is borrowed for the purpose of paying the original purchase money mortgage upon the giving of a new mortgage to the lender to secure the amount, since the lender might have first taken an assignment of the first mortgage, and released it upon receiving a new mortgage in its place, the transaction may /be regarded in equity as if that had been done, where the intention appears to have been to substitute the new for the old mortgage, giving the new mortgagee the same lien\\\" (Powers v. Pence, 20 Wyo. 339, and cases cited; 20 Ency. E. (2nd Ed.) 1063).\\nThe appellant insists that. the above authorities are inapplicable because in this case there was a change of debtor and not merely a renewal between the same parties. The rule is clearly applicable where there is a change of creditor. We see no reason why the same rule should not apply where there is a change of debtor. There was no extinguishment of the debt. The intention of the parties as disclosed by the evidence was that the debt and the security should continue.\\n\\\"The thing secured is the debt, rather than the note and other evidence thereof, and so long as the debt can be traced, whatever form it may assume, the security remains good as security for the debt\\\" (First National Bank v. Citizens' State Bank, 11 Wyo. 62; 2o Ency. L. (2nd Ed.) 959; 2 Jones on Mort. 924; Simmons Hardware Co. v. Thomas, 147 Ind. 313; Bray v. First Avenue Coal Mining Co., 148 Ind. 599; McCoughrin v. Williams, 15 S. C. 505).\\nIn each of the cases cited by appellants the money was paid and the debt extinguished. Such were not the facts in the case at bar.\\nWe conclude, therefore, under the evidence in this case, and the law applicable thereto, that the judgment of the Trust Company did not become a prior lien to the mortgage, and that, there being a homestead interest exempt, said judgment did not attach to or become a lien on the premises. The judgment of the Distfict 'Court is affirmed. Affirmed.\\nPotter, J., and Mentzer, District Judge, concur.\\nHon. Charles E. Winter and Hon. William C. Mentzer, District Judges, were called in to sit in place of Beard, C. J., and BlydEnburgh, J., who were unable to sit by reason of illness.\\nPotter, Justice.\\nJudge Winter, then Judge of the Sixth Judicial District, having sat as a member of the court upon the submission of this cause, prepared the foregoing opinion prior to his recent retirement from the office of District Judge, upon resigning that office, to be filed as the opinion of the court in the cause. But the absence of a majority of the sitting judges prevented an order disposing of the cause prior to Judge Winter's vacation of his office. The opinion expresses the conclusions of the court upon the questions submitted, and its reasons for disposing of the cause by affirming the judgment, and the same is now ordered filed as the opinion of the court in the cause.\\nI deem it proper, however, to add something, in a concurring opinion, upon the question of the right of Ida M. Powers to a homestead exemption as against the appellant's judgment, under section 4615, Compiled Statutes, 1910, that section not having been referred to by counsel in any of the briefs.\\nThe appellant's judgment was obtained on February 24, 1914, and was against Ida M. Powers, and her husband, E. E. Powers. At that time the property was encumbered by a recorded mortgage for $1,600, given on June 27, 1910, by one Spracklen and wife, then the owner of the property, to Mary M. Kueny, which, prior to the date of said judgment had been assigned to the plaintiff Bachmann. Prior to the date of said judgment also, .through mesne conveyances and a sufficient deed to her, Ida M. Powers became the owner of the property, who then and thereafter resided thereon with her husband and their six children until sometime in 1914, subsequent to the date of said judgment, when she sold and conveyed the property, her husband j oin-ing in the deed, to Nora'L,. Hurtt, one of the defendants in the court below and a respondent here, said grantee thereupon entering into possession and occupancy of the premises and residing thereon with her husband and children; and Mrs. Powers arid her husband then entering into possession and occupancy of other land contemporaneously conveyed to her by Mrs. Plurtt as a part of the consideration for the sale arid conveyance of the property in question; Mrs. Hurtt assuming the Bachmann mortgage, and Mrs. Powers with her husband executing a mortgage to Mrs. Hurtt upon the property conveyed to her for the amount of the Bachmann mortgage. No execution is shown to have been issued or levied upon the land under the appellant's judgment, but the appellant was joined as a defendant in the action to foreclose the Bachmann mortgage, executed by Mrs. Plurtt and her husband upon the land formerly owned by Mrs. Powers to take the place of the original mortgage executed by Spracklen and wife and assigned to Bachmann. And the appellant 'by answer alleged its judgment and that it constituted a valid and superior lien upon the premises.\\nThe trial court found that the value of the property did not at any time during the period involved exceed in value the sum of $2,500; that the mortgage indebtedness thereon was at all times during said period the sum of $1,600, and at the date of the judgment in this cause amounted to $1,824.66, exclusive of costs; and, as a conclusion of law, that as the mortgage lien and homestead exemption exceeded the value of the land the appellant was without any lien thereon at any time under its judgment.\\nPreliminary to a consideration of section 4615, under which Mrs. P'owers is held by this court to have been entitled to a homestead exemption, it is well to call attention to certain other sections of the Code relating to homesteads and judgment liens. The section declaring a homestead exemption in force until 1915, when it was amended by increasing the exemption from $1,500 to $2,500 (Laws 1915, Ch. 104, secs. 2 & 9), provided that every householder being the head of a family, and every resident of the state who has reached the age of 60 years, whether the head of a family or otherwise, shall 'be entitled to a homestead not exceeding in value the sum of $1,500, exempt from execution and attachment arising from any debt, contract or civil obligation entered into or incurred (Comp. Stat. 1910, sec.. 4755). The succeeding section (4756) provides that such homestead shall only be exempt while occupied as such by the owner thereof, or the person entitled thereto, or his or her family, or while the owner is actually living within this state.\\nSection 4759 provides in substance that when a creditor shall be of the opinion that any homestead is of greater value than $1,500 (now $2,500), on filing an affidavit of that fact with the clerk of the district court, he may proceed against such homestead as in ordinary cases, and if it shall sell for more than $1,500 (now $2,500) and costs, the excess shall be applied to the payment of the demand'of such creditor, but in all cases the sum of $1,500- (now $2,500), free of charge or expense, shall be paid to the owner of the homestead; and if it shall not sell for more than $1,500 (now $2,500) and costs, the one instituting the proceedings shall pay all costs thereof, and they shall cease without affecting or impairing the rights of the owner of the homestead.\\nThe next succeeding section (4760) provides that in case of sale of a homestead on execution or otherwise, the proceeds of sale, not exceeding the amount of the exemption, shall be exempt from attachment or lev}'' on execution, and any subsequent homestead acquired by the proceeds thereof, shall also be so exempt, and no judgment or other claim against the owner of such homestead shall be a lien against the same, in the hands of a bona fide purchaser for a valuable consideration.\\nA judgment lien is provided for as follows: Section 4683, Comp. Stat., declares that lands and tenements, including vested interests therein, and permanent leasehold estates, renewable forever, and goods and chattels, not exempt by law, shall be subject to the payment of all debts, and shall be liable to be taken on execution, and sold as'thereinafter provided. It is provided by section 4684 that \\\"such lands and tenements\\\", within the county where the judgment is entered, shall be.'bound for the satisfaction thereof from the first day of the term at which judgment is rendered; but judgments by confession, and judgments rendered at the same term at which the action is commenced, shall bind such lands only from the day on which such judgments are rendered; and all other lands shall be bound from the time they are seized in execution. Thus a judgment lien without levy of execution, exists under the statute only upon lands and tenements \\\"not exempt by law\\\". So that to give appellant's judgment the standing of a lien upon the land in question while owned and occupied 'by Mrs. Powers, it must not have been exempt by law, though upon filing an affidavit that the homestead was of greater value than the amount of the exemption, it might have been proceeded against by the creditor under section 4759, subject to the conditions therein stated. The record does not show that any such proceeding was instituted by the appellant in this case. If the property was exempt, then, under the provision of the last clause of section 4760, the judgment would not be a lien against the land in the hands of Mrs. Plurtt, to whom it was conveyed by Mrs. Powers, for she was, without question, -a bona fide purchaser thereof for a valuable consideration. .\\nAppellant's only contention upon the question of a homestead exemption in the land in question is that Mrs. Powers was not the head of a family and was not entitled to a homestead exemption for that reason, and that therefore the judgment of the appellant became a lien upon her property subject only to the old Kueny mortgage which had been assigned to Bachmann; but that contention, as well as the argument presented in support thereof, entirely ignores the provisions of section 4615, which was adopted as a part of our Code of Civil Procedure enacted in 1886', following the language of original section 5319 of the Ohio Code as published in the Revised Statutes of that state in 1880, which section had been construed by the Supreme Court of Ohio in a case cited in the opinion by Judge Winter, Patrick v. Tittell, 36 O. St. 79. That case was decided at the January Term, 1880, and had reference to this provision of the code, though it refers to it by citing the chapter of the Ohio Taws of 1874, by which, through amendment, it became a part of the code, and as so construed it was held to save to the married woman against whom a judgment might -be rendered and enforced thereunder as if she were unmarried the same exemptions as are provided for heads of families.\\nThe only question that could possibly arise under that section affecting the right to such exemption would be whether it applies where the wife sues or is sued jointly with her husband. But that was not deemed material in the Ohio case cited, for in that case 'the action was brought against both husband and wife for services rendered and money paid for them under a contract signed by both of them. And it is clear, we think, that it is immaterial whether the wife is the sole party plaintiff or defendant, or sues or is sued jointly with her husband or with any other person, if it is sought in the action to recover a personal judgment or enforce a personal liability against her. The word \\\"alone\\\" in the phrase \\\"when a married woman sues or is sued alone\\\", is evidently used in the sense of \\\"feme sole\\\", and it was intended to provide that when a married woman sues or is sued as a feme sole, or as unmarried, \\\"like proceedings shall be had\\\" &c. It reads: \\\"When a married woman sues or is sued alone, like proceedings shall be had, and judgment may be rendered and enforced as if she were unmarried\\\" &c. The use of the word \\\"unmarried\\\" in that connection seems plainly to indicate that the section was intended to apply to any action brought by or against a married woman as feme sole.\\nIt was not unusual to speak of a married woman as suing or being sued alone, when expressing the thought that she might be sued as if unmarried. The manifest purpose of the provision was to authorize a personal judgment against a married woman in an action brought to enforce a personal liability on her part, and the enforcement of that judgment in the same manner as if she were unmarried. And certainly it could not have been intended that such purpose might -be obviated by joining her husband or any other person with her as a party plaintiff or defendant, who might be also liable upon the same contract or for the same debt or obligation.\\nBy amendment in 1884 of the section as it appeared in the Ohio Revised Statutes of k88b the word \\\"alone\\\" was omitted. But in the act making that amendment a preceding section prohibited joining a husband with his wife in any action, except when the cause of action is in favor of or against both of them. That section amended section 4996 of the Ohio Code, and provided: \\\"A married woman shall sue and be sued as if she were unmarried, and her husband shall be joined with her only when the cause of action is in favor of or against both her and her husband.\\\" The commission appointed to redraft our code, and which reported the present code to the legislature of 1886, evidently took the section as it was found in the published revision of 1880 of the Ohio statutes, without noticing the amendment of 1884, or deeming it immaterial. B'ut, as explained in the foregoing and in this opinion, the decisions under the provision were the same in Ohio before and after the amendment. Our code did not adopt section 4996 as found either in the Ohio Revised Statutes of 1880 or the Ohio amenda-tory act of 1884, but instead it was provided in our code' that it shall not be necessary to join a husband with his wife as a party except in a case where it would -be necessary to join him without reference to the fact of his marriage to such woman ('Comp. Stat. 1910, sec. 4314).\\nPrior to the adoption of our Code in 1886, in view of the provision of the code then in force requiring that when a married woman is a party her husband shall be joined with her, except that, when the action concerns her separate property, she may sue alone, and when the action is between herself -and husband, she may sue or he sued alone, and the several provisions of the act of December 4, 1869 with reference to married women (Comp. Daws, 1876, Ch. 82), which authorized a married woman to sue and be sued in relation to her property, person or reputation, as if she were sole, and also to sue and be sued as if sole in .regard to her trade, business, labor, services and her earnings, the question was1 unsettled whether the said act of 1869 or the provision of the code applied in suits brought by or against a married woman, even as to those cases provided for in said act of 1869. (See Granger v. Dewis Bros., 2 Wyo. 231.) A dissenting opinion in that case held that the Married Woman's Act, in the respect indicated, was not repealed by implication by the code of 1873 containing the provision aforesaid requiring a husband, except in the two cases mentioned, to be joined with his wife as a party. But the majority opinion held that it was unnecessary to determine the effect of said Married Woman's Act, holding, however, that the trial court erred in taking from the jury the issue as to the coverture of the defendant at the time of the transaction involved in the suit and the institution thereof.\\nSection 46x5 aforesaid granting to a married woman under a judgment rendered against her the benefit of all exemptions to heads of families is in line with a provision of the debtor exemption statutes with respect to personal property which has been in force since 1871. Personal property of any kind of character to be selected by a debtor, being the head of a family and residing with the same, not to exceed the value of $500, is declared to be exempt, and it is then provided: \\\"That in any case where the property before mentioned shall be the sole and separate property of the wife, it shall, to the same extent and for all purposes, be exempt for the debts of the wife\\\" ('Comp: Laws 1876, Ch. 48, secs. 2 &4; Comp. Stat. 1910, secs. 4762, 4763).\\nPlaving concluded that the trial court properly found that Mrs. Powers was entitled to a homestead exemption in the premises under the provisions of section 4615, it is not necessary to consider whether she would be entitled to such exemption under the provisions of the homestead statutes standing alone, or whether her husband would he entitled to such an exemption in the property held in her name. That property held in the wife's name might be a homestead, at least when conveyed to her by her husband, seems to have been the view of the court when deciding the case of North Platte Milling 'Co. v. Price, 4 Wyo. 293. In that case, where the property had 'been conveyed to the wife pursuant to an ante-nuptial contract, but after the husband had become indebted, and a creditor attacked the conveyance as fraudulent, the court, by Conaway, J., said: \\\"The property was and is a homestead and not subject to sale on execution in the ordinary way. To the amount of $1,500.00 it is exempt.\\\" (See also Arp v. Jacobs, 3 Wyo. 4891; 21 Cyc, 501, 507.) But it is not intended to decide the question in this case, nor is it clearly presented here by the findings or briefs. And of course but one homestead exemption in this property could be allowed.\\nThe conclusion of the trial court that the amount of the prior mortgage lien should be first deducted from the value of the land in ascertaining the extent of the exemption, and that the exemption should be allowed as to the excess, is not questioned here, but that conclusion is amply supported by authority and is, I think, in accord with the spirit and a reasonable construction of our homestead statutes (21 Cyc. 492; 15 Am. & Eng. Ency. L. 692; Kilmer v. Garlick, 185 Ill. 406; Reames v. Morrow, 193 Ill. App. 155; Meyer v. Nickerson, 101 Mo. 184; Houf v. Brown, 171 Mo. 207; Hoy v. Anderson, 39 Neb. 386; Prugh v. Portmouth Sav. Bank, 48 Neb. 414; Morrill v. Skinner, 57 Neb. 164; Crosby v. Anderson (Utah), 162 Pac. 75; in re. Barrett's Est., 140 Fed. 569; Hinson et al. v. Adrian et al., 92 N. C. 121; White v. Fulghum, 87 Tenn. 281; White v. Horton, 154 Cal. 103, 97 Pac. 70, 18 L. R. A. (N. S.) 490, & note, citing cases).\"}"
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+"{\"id\": \"8515784\", \"name\": \"CONWAY & NICKERBOCKER ET AL. v. THE SMITH MERCANTILE COMPANY ET AL.\", \"name_abbreviation\": \"Conway v. Smith Mercantile Co.\", \"decision_date\": \"1898-09-10\", \"docket_number\": \"\", \"first_page\": \"503\", \"last_page\": \"504\", \"citations\": \"7 Wyo. 503\", \"volume\": \"7\", \"reporter\": \"Wyoming Reports\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T22:16:54.879337+00:00\", \"provenance\": \"CAP\", \"judges\": \"Coen, J., and Scott, J., concur.\", \"parties\": \"CONWAY & NICKERBOCKER ET AL. v. THE SMITH MERCANTILE COMPANY ET AL.\", \"head_matter\": \"CONWAY & NICKERBOCKER ET AL. v. THE SMITH MERCANTILE COMPANY ET AL.\\n[Decided September 10, 1898.]\\nON petition for rehearing.\\nOriginal hearing reported 6 Wyo., 468.\\nO. G. Wright, for plaintiffs in error.\\nBurke d\\u00e9 Fowler, and John W. Lacey, for defendant in error Okie.\", \"word_count\": \"322\", \"char_count\": \"1895\", \"text\": \"Knight, Justice.\\nThis cause was first here upon motion of defendant Okie, asking that purported bill of exceptions be stricken. This motion was overruled. The opinion being reported in 44 Pac., 940; 6 Wyo., 327, and was afterward heard upon petition in error and decided upon its merits, sustaining the decision of the lower court, this decision being reported in 46 Pac., 1084; 6 Wyo., 468. Subsequently a motion was filed for a rehearing, to which objection is made for the reason that such applications by the rules of this court should be by petition. An examination of this record discloses the fact that the trial judge died before the record to this court was prepared in full. Of the court that passed upon the merits of the case here, the justice who rendered the opinion has died, and the term of office of the then presiding chief justice has expired; and upon the motion for rehearing a complete submission of the issues presented was allowed. The evidence was voluminous and contradictory, and it can not be said the judgments rendered by both the trial court and this court are unsus-tained by the testimony. We have carefully looked into the same, and there is no reason apparent upon this record for disturbing-the former adjudication.\\n.Motion for a rehearing will be denied, and the judgment will be affirmed.\\nPotter, C. J.,\\nwas disqualified, having been of counsel in the district court, and Hon. R. H. Scott, Judge of the District Court of the First Judicial District, was called in under the constitutional provision, and sat in the hearing and determination of this cause.\\nCoen, J., and Scott, J., concur.\"}"
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+"{\"id\": \"8515854\", \"name\": \"STARKE v. STATE\", \"name_abbreviation\": \"Starke v. State\", \"decision_date\": \"1908-06-23\", \"docket_number\": \"\", \"first_page\": \"55\", \"last_page\": \"65\", \"citations\": \"17 Wyo. 55\", \"volume\": \"17\", \"reporter\": \"Wyoming Reports\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T20:36:33.152891+00:00\", \"provenance\": \"CAP\", \"judges\": \"Potter, C. J., and ScoTT, J., concur.\", \"parties\": \"STARKE v. STATE.\", \"head_matter\": \"STARKE v. STATE.\\nCriminal Law \\u2014 Jury\\u2014Competency oe Juror \\u2014 As Affected by Membership in Association for Detection and Prosecution of Similar Crime \\u2014 Larceny of Live Stock \\u2014 Instructions'\\u2014Appeal and Error \\u2014 Conflicting Evidence.\\n1. The fact that one called as a juror on the trial of a defendant charged with stealing sheep is a contributing member of an association of wool growers or stock growers, which\\u2019 has for one of its objects the detection and prosecution of parties for the larceny of sheep or live stock, does not necessarily disqualify him as a juror, in the absence of a showing that the association is in some manner connected with or interested in the prosecution of the case on trial.\\n2. Where, in a prosecution for larceny, the court instructed the jury that it was\\\" incumbent upon the prosecution to establish beyond a reasonable doubt the material allegations of the information, and the material allegations were stated without omitting any essential element of the crime, whereby the jury was as fully advised as to the facts necessary to be established as if the crime had been specifically defined, the failure of the court to define the crime of larceny was not prejudicial error.\\n3. The evidence being conflicting, the credibility of the witnesses and the weight to be given to their testimony are questions for the jury.\\n4. Where, in a criminal case, there is a substantial conflict in the evidence, but there is evidence upon which the verdict of guilty, not appearing to be the result of passion or prejudice, may be fairly based, the verdict and judgment will not be reversed on the ground of the insufficiency of evidence.\\n[Decided June 23, 1908.]\\n(96 Pac. 148.)\\nError to the District Court, Converse County; Hon. Rodericic N. Matson, Judge.\\nJ. A. Starke was prosecuted for grand larceny upon an information charging the stealing of 400 sheep, the property of the Mountain Home Company, a corporation. He was convicted and thereupon prosecuted error. The material facts are stated in the opinion.\\nFred D. Hammond and Claude S. Wilson, for plaintiff in error.\\nThe three jurors who were members of an association or associations of stock or wool growers were incompetent and the defendant\\u2019s challenge of such jurors for cause should have been sustained, since it appeared that one purpose of each of such associations was the detection and prosecution of parties for stealing live stock. (Fleming v. \\u2022State, 11 Ind. 234; Pierson v. State, id. 341; State v. Moore, 48 Fa. An. 380; Com. v. Fagan, 70 Mass. 18; Com. v. Moore, 143 Mass. 136; Jackson v. Sandman, 64 Hun, 634; State v. Fullerton, 90 Mo. App. 411; Martin v. Ins. Co., (Mich.) 102 N. W. 656; McLaughlin v. Light Co., 100 Ky. 173.) Where defendant\\u2019s challenge of a juror for cause is erroneously overruled, the error is not cured by the fact that such juror was afterwards challenged peremptorily by the defendant, although the jury was impaneled without exhausting the peremptory challenges allowed to the defendant by law. (Baxter v. People, 8 Ind. 368; Meaux v. Town, 8 Ill. App. 173; Fletcher v. Crist, 139 Ind. 121; People v. McGonegal, 136 N. Y. 621; Dowdy v. Com., 9 Grat. 727; People v. Weil, 40 Cal. 268; Hubbard v. Rutledge, 58 Miss. 7; People v. Casey, 96 N. Y. 115; Brown v. State, 70 Ind. 576; State v. McCoy, 109 La. 682; State v. Stentz, 30 Wash. 134; Birdsong v. State, 47 Ala. 68; Iverson v. State, 52 Ala. 170; Lithgow v. Com., 2 Va. Cas. 297; Republican v. Richards, 1 Yeates, 480; People v. Bodine, 1 Den. 281; Boyle v. People, 4 Colo. 176.) The decisions have so far respected the principle that a party interested in any way in the litigation should not sit as a juror, that a taxpayer has been held incompetent as a juror in an action against a city for damages. (Goshen v. England, 119 Ind. 368; Wood v. Stoddard, 2 'Johns. 194; State v.- Williams, 30 Me. 484; Gibson v. Wyandott, 20 Kan. 156; Columbus v. Goetchins, 7 Ga. 139; Bailey v. Trumbull, 31 Conn. 581; Cramer v. Burlington, 42 la. 315; Diveny v. Elmira, 51 N. Y. 506; Hearn v. Greenburgh, 31 Ind. 119; Garrison v. Portland, 2 Ore. 123; Watson v. Tripp, 11 R. I. 198; Fullweiller v. St. Louis, 61 Mo. 479; Fine v. Pub. Sch., 30 Mo. 166; Kendall v. Albia, 73 la. 243-)\\nIt is the duty of the court in felony cases, whether requested to do so or not, to fully instruct on all the law of the case. (State v. Bransetter, 65 Mo. 149; State v. Banks, 73 Mo. 592; Cole v. State, 40 Tex. 147; Sanders v. State, 41 Tex. 306; Miers v. State, (Tex.) 29 S. W. 1074;' Charlton v. Sate, 43 Neb. 373; Piaron v. S'ate, 47 Neb. 294; Fulcher v. State, 41 Tex. 233.) The failure of the court to define the crime of larceny with which the defendant was charged was error. (Sledge v. State, 99 Ga. 648; Railroad v. Harris, 76 Ga. 510; State v. Heinze, 66 Mo. App. 135; State v. Kolb, 48 id. 269; Hardy v. State, 7 Mo. 607; Shaw v. State, 40 Tex. 60; Sims v. State, 9 Tex. App. 586; Benendes v. State, 14 id. 478; Jackson v. State, 15 id. 84; State v. Taylor, 118 Mo. 153; Plix v. People, 157 Ill. 382; State v. McCaskey, 104 Mo. 644; Cady v. State, 4 Tex. App. 238; Lindley v. State, 8 id. 445; Parker v. State, 136 Ind. 284; State v. Bardetta, 73 Ind. 185; Whately v. State, (Ala.) 39 So. 1014; State v. Desmond, (la.) 80 N. W. 214; State v. Fulford, 32 S. E. 377.) It is not necessary to copy the statute where the charge embodies all the elements of the crime. (Adkins v. State, 56 S. W. 63.) The court not only failed to define larceny but gave an instruction which stated a portion only of the elements of the crime.\\nIt was the duty of the prosecution to prove affirmatively the absence of consent on the part of the owner of the stolen property to the taking, and where one person is the owner and another has the control and management of the property, the want of the consent of each must be proved. (Williamson v. State, 13 Tex. App. 514; Boling v. State, id. 338; Schultz v. State, 7 id. 363.) Property is taken with the consent of the owner so that there is no larceny, where one employed by cattle owners to catch thieves, with their consent and authority \\u201coperates with suspected thieves\\u201d in planning, and in taking the cattle for the purpose of having them arrested for stealing them. (State v. Hull, (Oi'e.) 54 Pac. 159; Love v. People, 160 Ill. 508; Connor v. People, 18 Colo. 73.)\\nWhile appellate courts will hesitate before disturbing a verdict, yet where it is perfectly evident that to sustain the ends of justice it should be reversed, a reversal is not precluded. (State v. Newton, (Wash.) 81 Pac. 1002.) A verdict is contrary to law when the evidence, if true, will not justify a verdict as a matter of law. (Richardson v. Van Vorhis, 3 N. Y. Supp. 599.) A verdict in disobedience of instructions is a verdict against law. (Emerson v. Santa Clara County, 40 Cal. 543; Declez v. Save, 71 Cal. 552; Bunten v. Ins. Oo., 4 Bosw. 254; Valerious v. Richard, 57 Minn. 443.) On motion for new trial it is the duty of the trial court to weigh the evidence, although conflicting, and to set the verdict aside if manifestly against the weight of the evidence. (People v. Knutte, in Cal. 453; People v. Baker, 39 Cal. 686; 105 Cal. 409; 20 Ill. 93; 5 Mass. 353; 8 Nev. 61; n N. Y. Supp. 452; 40 W. Va. 484, 593; 14 Ency. PI. & Pr. 781.) If the sheep alleged to have been stolen were taken with the knowledge and consent of Hartman, who h\\u00e1d charge of them and in whose possession they were, as alleged by the defendant, then there was no larceny. (Hall v. Com., 78 Va. 678; Johnson v. State, 39 Tex. 393; Bailey v. State, 18 Tex. App. 426; Powell v. State, 11 id. 401; Morrison v. State, 17 id. 434; Frazier v. State, 18 id. 434; 12 Ency. L-, 1st Ed., 16.) Whether Hartman consented to the taking as claimed by the defendant under an agreement between them, or was laying a trap in which to catch defendant, there would be in either case want of consent, and the prosecution must fail. (Allen v. State, 40 Ala. 334; Com. v. People, 18 Colo. 373; People v. McCord, 76 Mich. 200; Saunders v. People, 38 Mich. 218; Spieden v. State, 3 Tex. App. 163.) It seems to be clear upon the evidence that the property alleged to have been stolen was taken with the knowledge and consent of Hartman, and it matters not what his motive was. It is sufficient to cause a reversal that Hart man knew the property was to be taken, and that it was taken with his consent.\\nW. B. Mullen, Attorney General, for the State.\\nThe cases cited by counsel for plaintiff in error do not sustain the contention that the taking in this case was in law by consent of the owner. If the criminal design originates with the accused, and the intended victim does not actually urge him on to the commission of the crime, the mere fact that he facilitates the execution of the scheme and that his agents co-operate in its execution will be no defense for the accused. The evidence in this case clearly brings it within this rule. (People v. Plenselman, 76 Cal. 460; 1 Bish. Cr. L. 262; Com. v. Nott, 135 Mass. 269; State v. Jensen, 22 Kan. 498; Pigg. v. State, 43 Tex. 108; Varner v. State, 72 Ga. 745.) Where the goods are in the mere, custody of a servant or other person, his consent to a taking will not prevent it from being larceny. (25 Cyc. 38-44.) The fact that the owner consents to and does not prevent the taking is no defense, nor that the owner so places his property or takes such other steps as to facilitate the taking. (18 Ency. E. 471-472.) There is some conflict in the evidence, but the jury having passed upon it the verdict will not be disturbed, since there Is evidence tending to support it. (Phillips v. Ter., 1 Wyo. 82; O\\u2019Brien v. Eoglesong, 3 Wyo. 57; Cornish v. Ter., 3 Wyo. 95; Rains-ford v. Massengale, 5 Wyo. 1; Jackson v. Mull, 6 Wyo. 55-)\\nA juror is not incompetent on the ground of pecuniary interest because he may have contributed to the fund for the prosecution of that class of offenses or for the prosecution of a particular offense. (24 Cyc. 270.) Membership in an organization, the object of which is to prosecute criminals and persons charged with a particular kind of crime, but which is under no legal obligation to do so, does not, as a matter of law, necessarily disqualify. (Abbott\\u2019s Cr. Tr. Br., 238 and cases cited.) There is a clear line of distinction between cases where the juror, as an officer or member of such an association, has taken an active part in the prosecution of the particular case on trial, or who, by reason of his connection with an organization for the suppression of a particular class of offenses, shows a personal bias or feeling, and that other class of cases where a juror is merely a contributing member of the organization, but has taken no .active part in the prosecution of the case on trial, or similar cases, either as an officer of such organization or as a private individual. (Guy v. State, 96 Mo. 692; Musick v. People,.40 Ill. 268; Boyle v. People, 4 Colo. 176; Com. v. O\\u2019Neil, 6 Gray, 346; State v. Wilson, 8 la. 410; U. S-v. Noelke, 1 Fed. 426; U. S. v. Barger, 7 Fed. 193; Koch v. State, 32 O. St. 356; Com. v. Burroughs, 145 Mass. 242; State v. Flick, 48 Kan. 146; Heacock v. State, 13 Tex. App. 129; State v. Hoxsie, 15 R. I. 1.)\\nThe decided weight of authority supports the rule that a failure to instruct the jury in whole or in part is not error in the absence of a request in the first instance, or a request for more specific instructions in case of a partial non-direction. (11 Ency. PI. & Pr. 230, 231; Abbott\\u2019s Cr. Tr. Br., 612; 12 Cyc. 666-667; Hodge v. State, 85 Ind. 561; Burgett v. Burgett, 43 Ind. 78; Rollins v. State, 62 Ind. 46; Bissot v. State, 53 Ind. 408; Fisher v. State, 77 Ind. 42; Adams v. State, 65 Ind. 565; Powers v. State, 87 Ind. 144; 2 Thompson on Tr., Secs. 2340, 2341.) Our statute does not specifically direct the court in criminal cases to instruct whether instructions are requested or not, but it is the uniform custom of the courts to instruct in a general way in all criminal cases. In this case the court pointed out in its instructions the material allegations of the information which were necessary to be proved beyond a reasonable doubt. Where the instructions taken together explain the issues so that the jury may decide questions of fact, it is sufficient. (Wallace v. Skinner, 15 Wyo. 233.) If the defendant desired an instruction more specifically defining the offense he should have requested it, and failing to have done so he cannot now complain. (Brantley v. State, 9 Wyo. 102; Bunce v. McMahon, 6 Wyo. 24; Hay v. Peterson, 6 Wyo. 419.)\", \"word_count\": \"3830\", \"char_count\": \"21326\", \"text\": \"Buard, Justicu.\\nThe plaintiff in error was tried in the district court of Converse County upon an information containing two counts, the first count charging grand larceny, and the second count charging the receiving of stolen property, knowing the same to have been stolen. He was convicted on the first count of the information and sentenced to imprisonment in the penitentiary, and he brings error.\\nThe grounds upon which he relies for a reversal of the judgment, as stated in the brief of his counsel, are:\\n1. \\\"Error on the part of the trial judge in overruling challenges for cause to certain jurors.\\\"\\n2. \\\"Failure of the court to properly instruct on the crime of larceny and receiving- stolen property and the essential elements thereof.\\\"\\n3.' \\\"Insufficient evidence on behalf of the state.\\\"\\nThe property alleged to have been stolen was four hundred head of sheep. Three of the veniremen called and examined as to their quaiificat'ions to serve as jurors in the .case were challenged by the plaintiff in error for cause on the ground that they were each members of certain associations, one of the purposes of which associations was the detection and prosecution of parties for the larceny of live stock; and it is claimed that for that reason they were not impartial and were disqualified to act as jurors in the case. Upon being examined as to their qualifications, one of them (Mr. Shaw) stated that he was a member and director of the Converse County Cattle Growers' Association ; that the association employed stock detectives to look after horses and cattle, but not sheep; that the detectives were paid out of the general dues as long as they were sufficient; that he did not belong to the sheep growers' association. Another of the jurors (Mr. Jenne) stated that he was a member of the Wyoming Wool Growers' Association; that he did not know whether or not the association expended money for the collection of evidence, or the employment of detectives or attorneys for the purpose of convicting persons charged with the larceny of sheep or other live stock; that he paid dues to the association, and had some time before paid two assessments, but did not know for what purpose the money was used. The other juror (Mr. Williams) stated that he was a member of the Wyoming Stock Growers' Association, the Eastern Wyoming Wool Growers' Association, and the Wyoming Wool Growers' Association. He was then asked and answered as follows: Q. \\\"Do those associations or bodies, as one of the matters for the protection of the sheep growers of Wyoming expend money for the collection of evidence, employment of detectives or attorneys for the purpose of convicting persons charged with the larceny of sheep or other live stock?\\\" A. \\\"I presume they do, yes.\\\" Q. \\\"That is one of the purposes of their organization in a way, for the protection of live stock interests is to punish crime in connection with the live stock business?\\\" A. \\\"I think so.\\\" He also stated that he paid dues to, and was in good standing in those associations. It is not claimed that these jurors were otherwise disqualified. The mere fact that they were members of such associations, paid dues thereto and were liable to assessments by the associations did not necessarily disqualify them as jurors, in the absence of a showing that the association to which they belonged was in some manner connected with or'interested in the prosecution of this case. (Abbotts Trial Brief (Crim. Causes) 238; Guy v. State, 96 Md. 692; Musick v. People, 40 Ill. 268; State v. Flack, 48 Kan. 146; Boyle et al. v. People, 4 Colo. 176.)\\nThe cases cited by counsel for plaintiff in error are not applicable to the facts as disclosed by the record in this case. We will notice a few of them. In Commonwealth v. Moore, 143 Mass., 136, the juror was a member of the Law and Order League which had employed the complainant and another, who were witnesses on the trial, to induce the defendant and others to sell liquor, for the purpose of prosecuting them for a violation of the law. In State v. Moore, 48 La. Ann., 380, the juror stated that he had contributed money for the prosecution of the whiskey cases, including that of the defendant. And in State v. Fullerton, 90 Mo. App., 411, the association to which the juror belonged had employed the witnesses to go from St. Louis to Princeton and make the purchase of the liquor charged in the information. In each of those cases the association of which the juror was a member, or the individual juror, was directly interested in the prosecution of the particular case. In the case before us neither of the persons challenged served upon the jury, but by whom they were excused does not appear in the record. Counsel for plaintiff in error state in their brief- \\u2014 and we have no doubt truly \\u2014 that they were compelled to exercise peremptory challenges as to these jurors; but however that may be, there is no just cause for complaint as the jurors were not shown to be disqualified.\\nIt is next contended that the court erred in failing to properly instruct the jury, in that it failed to define the crime of larceny. The court did not quote the statute or otherwise define the word \\\"larceny\\\"; but in the second instruction told the jury, in substance, that it was incumbent upon the prosecution to establish to their minds beyond a reasonable doubt, the material allegations of the information and that such material allegations were, 1, that the property alleged to have been stolen by the defendant was the property of the Mountain Home Company, a corporation, as charged in the information, and that the property was of some value; 2, that the property was taken by the defendant, or that the defendant had a criminal agency in the taking, with the intention of depriving the Mountain Home Company of the same, and of appropriating the same to his own use, and without the consent of the owner; 3, that it was so taken in the County of Converse and State of Wyoming, and, 4, that it was so taken at some time previous to the filing of the information. By the twelfth and thirteenth instructions the jury was fully informed as to what would constitute consent by the owner to the taking of the sheep by the defendant. Counsel have not pointed out wherein an)' essential element necessary to constitute the crime of larceny is omitted from these instructions, and we discover none. By the instructions as given, the jury was as fully advised as to what facts it was necessary for the prosecution to establish in order to convict the defendant, as it would have been had the court specifically defined the crime of larceny.\\nThe remaining question, and the one most earnestly urged by counsel, is, whether there is sufficient evidence to sustain the verdict and judgment. It is argued on the part of plaintiff in error that the case is what is known as an entrapment case, and that the weight of the evidence shows that the sheep were taken with the consent of the owner. This seems to have been the main contention in the case, and its determination depended largely upon the. testimony of Hartman, the range foreman of the Mountain Home Coin-pany, and the defendant Starke. There is a direct conflict In their testimon)' and each of them is more or less corroborated by the other evidence. The credibility of the witnesses and the weight to be given to the testimony were questions for the jury; and it is not claimed that the jury was not fully and fairly instructed as to what would con-stit\\u00fate consent by the owner to the taking of the sheep, and that the defendant could not be rightfully convicted unless the jury found 'from the evidence that the taking was without the consent of the owner. The jury evidently believed Hartman and disbelieved the defendant, and there is nothing in the record to indicate that the verdict was the result of passion or prejudice. The question was mainly one of veracity between the witnesses, the determination of which was the peculiar province of the jury, and its determination is more likely\\\" to be right in that respect than our judgment can be from reading the evidence in the record. The trial judge who saw the witnesses and heard the testimony had also passed his judgment upon the sufficiency of the evidence in overruling the motion for a new trial. Under the well settled rule that where there is a substantial conflict in the evidence and where there is evidence in the record upon which the verdict may be fairly based, as in this case, this court will not reverse the judgment on the ground of the insufficiency of evidence. We find no prejudicial error in the record, and the judgment of the district court will be affirmed. Affirmed.\\nPotter, C. J., and ScoTT, J., concur.\"}"
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+"{\"id\": \"8515930\", \"name\": \"STATE v. KEEFE\", \"name_abbreviation\": \"State v. Keefe\", \"decision_date\": \"1908-11-19\", \"docket_number\": \"\", \"first_page\": \"227\", \"last_page\": \"260\", \"citations\": \"17 Wyo. 227\", \"volume\": \"17\", \"reporter\": \"Wyoming Reports\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"Beard, J., and Scott, J., concur.\", \"parties\": \"STATE v. KEEFE.\", \"head_matter\": \"STATE v. KEEFE.\\nReserved Questions \\u2014 Jurisdiction\\u2014Criminal Law \\u2014 Right oe an Accused to a Speedy Trial \\u2014 Application to Convict oe the Constitutional and Statutory Provisions for a Speedy Trial\\u2014 Statutory Construction.\\n1. Under the statute providing that constitutional questions only may be reserved for the decision of the supreme court upon' the order of a district court, questions affecting the right of one accused of crime to be discharged for delay in prosecution are properly reserved when they involve the constitutional' right of the accused to a speedy trial, and that right is claimed to have been violated.\\n2. The statute (R. S. 1899, Secs. 5382-5384) providing for the discharge of an accused if not brought to trial within a specified period supplements the constitutional provision for a speedy trial and prescribes a method for securing the right thereby declared.\\n3. Such statute is to be regarded as enacted for the purpose of rendering the constitutional guaranty effective, and as a legislative declaration of what is and what is not, under the circumstances named, a reasonable and proper delay in bringing an accused to trial in respect of his constitutional right to a speedy trial.\\n4. A conviction and sentence for one felony is not a bar to an indictment or trial for another, and a convict while imprisoned in the penitentiary is not exempt from trial and sentence for another crime, whether charged to have been committed before or during such imprisonment.\\n5. Except for the purpose of testifying as a witness, a writ of habeas corpus or some writ or order of that nature authorized by law is necessary to compel a convict serving a sentence in the penitentiary to be brought before the court, and where his presence is sought to try him on another charge, the writ or order will be analogous to, or serve the same purpose as the common law writ of habeas corpus ad prosequendum.\\n6. A convict is not only amenable to the law, but is under its protection as well, and is not excepted from the constitutional guaranty of a speedy trial.\\n7. A defendant who had been committed to jail to await trial upon two informations charging separate crimes, was tried, convicted and sentenced to the penitentiary for a term of years upon one, and thereupon was removed to the penitentiary without a trial upon the other information. Held, that at the time of his trial upon the one information, he was under the protection of the guaranty of a speedy trial as to the other, and that said guaranty did not become lost to him upon his conviction and sentence and removal to the penitentiary.\\n8. The purpose of the provision against an unreasonable delay in trial is not solely a release from imprisonment in the event of acquittal, but also a release from the harassment of a criminal prosecution and the anxiety attending the same, and to avoid a long delay which might result in the loss of witnesses for both the accused and the state.\\n9. The statute providing for the discharge of an accused unless brought to trial within a specified period being intended to secure the right of speedy trial declared by the constitution, that should be taken into consideration in construing and applying the statute, and it should, therefore, be liberally construed in favor of the accused.\\n10. The section of the statute referring to an accused who has been committed to prison is not to be construed as applying to one so committed only during imprisonment while awaiting trial for the particular offense, but as applying also where a defendant has been committed to answer an indictment or information, and is retained in custody, though under a substituted commitment for his confinement upon conviction of another offense in the same or a different prison.\\n11. A defendant having been arrested and committed to jail to answer two informations charging separate crimes was tried, convicted and sentenced to four years imprisonment in the penitentiary upon one information, and immediately thereafter was removed to the penitentiary, without trial upon the remaining .information, though he might have been tried thereon at the same term and before his sentence. Upon being released from the penitentiary at the expiration of his sentence, and again arrested upon the second information, he moved for his discharge on the ground of delay in prosecution. Held, that the fact of his imprisonment in the penitentiary did not constitute a sufficient defense to the defendant\\u2019s application for discharge; that Sections 5382 and 5384 of the Revised Statutes applied to him; and that he had not had a speedy trial as provided in the constitution.\\n[Decided November 19, 1908.]\\n(98 Pac. 122.)\\nRESERVED questions, from the District Court, Albany County, How. Charles E. Carpenter, Judge.\\nFrank J. Keefe, having been charged with the crime of murder in the first degree upon two informations, each charging the killing of a different person, though at the same time, was tried upon one, convicted of manslaughter, and sentenced to four years imprisonment in the penitentiary. After his release from 'such imprisonment he was again arrested upon the remaining information, and he moved to be discharged for delay in prosecution. The questions arising upon said motion were reserved by the order of the district court for the decision of the supreme court. The other facts are stated in the opinion.\\nH. V. S. Groesbeck and W. R. Stoll, for the defendant.\\nThere is in reality but one question before the court, and that is whether Keefe\\u2019s imprisonment in the penitentiary placed him beyond the guaranty of the Constitution as to a speedy trial, or beyond the right to insist upon the provisions of the statute. All other questions are incidental to this one. A defendant\\u2019s right to a speedy trial is elementary and was secured at common law by the commission of jail delivery, which resulted in the jails being cleared, and the prisoners convicted or being punished or given their liberty twice in each year. The common law idea has always been enforced in this country and the defendant has been discharged even after a brief confinement unless extraordinary circumstances seemed to render it unjust to the State to discharge the prisoner without giving it a fair opportunity to prepare its case for trial. That seems to be the rule in 'states where there has been no statute limiting the time within which a defendant shall be brought to trial. \\u25a0 (12 Cyc. 498; U. S. v. Fox, 3 Mont. 512; Ex parte Stanley, 4 Nev. 113; Sample v. State, 138 Ala. 2594 Dudley v. State, 55 W. Va. 472.) The constitutional guaranty of a speedy trial applies to every accused, which means a prisoner against whom a formal accusation is lodged in the regular order of proceedings recognized in courts of justice. The statute .is merely a legislative construction of the constitutional provision, and Section 5382 clearly applies to the defendant. He was a prisoner; had been committed for the offense of murder; had been committed to prison under the indictment; and was still imprisoned until at least February 12, 1907. The defendant was in the penitentiary under sentence of the court, and all the state had to do was to bring him from the penitentiary and thus present him in court for trial. The provisions of the statute are imperative and mandatory. (12 Cyc. 499-500; 1 Bish. Cr. Pr., Sec. 951; Robinson v. State, 12 Mo. 592; Fanning v. State, 14 Mo. 386; In re: Spradlend, 38 Mo. 547; State v Cox, 65 Mo. 29; State.v. Marshall, 115 Mo. 383; State v. Steen, 115 Mo. 474; State v. Ashcraft, (Mo.) 8 S. W. 216; State v. Riddle, (Mo.) 78 S. W. 606; State v. Wear, 145 Mo. 163; Kibbler v. Com., 94 Va. 804; B.v pai'te McGehan, 22 O. St. 442.) The discharge provided for is in effect an acquittal. (State v. Garthwaite, 23 N. J. L. 143; State ex rel. v. Larson, (N. D.) 97 N. W. 537; In re. McMicken, (Kan.) 18 Pac. 473; State v. Dewey, 73 Kan. 735.)\\nThe following additional cases are cited upon the proposition that the statute is imperative and that the defendant is entitled to his discharge where the delay was not caused upon his application and there has been no providential reason preventing the trial. People v. Morino, (Cal.) 24 Pac. 892; In re. Begerow, 133 Cal. 349; State v. Faskett, 5 Rich., (S. C.) 255; State v. Kuhn, 154 Ind. 450; Guth-man v. People, 203 Ill. 260; People v. Heider, 225 Ill. 347; Dudland v. State, 126 Ga. 580; Brooks v. People, 88 Ill. 327; State v. Breaw, 45 Ore. 586; State v. Riddle, 179 Mo. 287; State v. Larson, 12 N. D. 474; Graham v. State, (Ga.) 57- S. E. 1055; State v. Pratt, (S. D.) 107 N. W. 538; State v. Van Waters, 36 Wash. 358; State v. Kelli-son, 56 W. Va. 690; State v. Wigger, 196 Mo. 90; Newling v. People, 221 Ill. 166; Shakel v. People, in Ill. App. 509; In re. Jay, (Ida.) 79 Pac. 202; State v. McDaniel, (Del.) 54 Atl. 1036; Lowe v.' State, 118 Wis. 641; State v. Campbell, (Kan.) 85 Pac. 784; Burnett v. State, (Ark.) 88 S. W. 956; People v. Farrington, 140 Cal. .656; People v. Chadwick, 143 Cal. 116. The following cases sustain the proposition that legislative provisions similar to our statute constitute a construction of the constitutional provision. Shakell v. People, hi Ill. App. 509; Ochs v. People, 124 Ill. 399; People v. Matson, 129 Ill. 591; State v. Larson, 12 N. D. 474; Graham v. State, (Ga.) 57 S. E. 1055; State v. Pratt, (S. D.) 107 N. W. 538.\\nThe fact of the defendant\\u2019s confinement in the penitentiary constitutes no excuse for the failure to bring him to trial. It cannot logically be asserted that he could not have been brought to trial by reason of his confinement in the penitentiary. If he had been needed for any purpose whatever in any judicial proceeding before any court in the state, his presence could have been secured. Even at common law an attainted man could be reached by the writ of habeas corpus ad prosequendum. It is a matter of common knowledge that a prisoner confined in the penitentiary may not only be brought to trial for an offense committed there but for a previous offense. This is elementary. Section 5382 applies by its own terms to any person in prison; and, as the county jail and the state penitentiary are equally a prison, the statute necessarily applies in one case- as well as in the other. A \\u201cprison\\u201d means any place where persons convicted of or charged with a crime are confined, either awaiting trial or serving a sentence, and therefore, includes a penitentiary. (2 Abb. R. Diet.)\\nThe object of the administration of the law is not to de-. feat justice but to do justice, and its object might easify be frustrated if a person confined in a penitentiary for a period of years could not be brought to trial for another offense until the expiration of his first term of confinement; and the principle must apply whether the term be long or short. It seems to be well settled that a person confined in a penitentiary under a sentence may be tried for another offense before the expiration of his sentence. (3 Blackstone Com. (Church\\u2019s Ed.) 686-688; 4.Id., (Chase\\u2019s Ed.) 1034-1039; 1 Abb. Daw Diet, 105-106; 1 Bish. Cr. L., Secs. 953) 966-970; 21 Cyc. 353; People v. Hong Ah Duck, 61 Cal. 387; People v. Majors, (Cal.) 3 Pac. 597; People v. Elynn, (Utah) 26 Pac. 1114; Clifford v. Dryden, (Wash.) 72 Pac. 96; State v. Connell, 49 Mo. 282; Dudley v. State, 55 W. Va. 472.)\\nUnder the circumstances and upon the authorities we think it must be held that neither the district court of Albany County nor any other court has any right to try the defendant under the pending information, and that he is entitled to an immediate discharge.\\nN C. Downey, County and Prosecuting Attorney of Albany County, and N. R. Greenfield, County and Prosecuting Attorney of Carbon County, for the State.\\nThe questions reserved do not seem to involve anything more than the construction of the statutes, and we fail to see that they present a constitutional question. The constitutional provision relating to a speedy trial means that the accused shall have a speedy trial in view of all the circumstances in the case, and hence what would be a reasonable time in one case might be wholly unreasonable in another. The spirit, purpose, intent and history of the constitutional and statutory provisions on the subject should be taken into consideration in construing and applying them as well as the strict letter of the law. The purpose of such provisions is undoubtedly to prevent oppression and vexatious delays on the part of the State, after a defendant has been informed against and imprisoned. In the case at bar the State has done nothing to prevent the defendant from being placed on trial. While he was confined in the penitentiary the other charge remained pending against him, and the State was at all times willing to prosecute him. The theory of the State was and is that it was the duty of the defendant to present himself to the court if he desired a trial before the expiration of his other sentence. By going to the penitentiary he placed himself in practically the same position as though he had become a fugitive from justice.\\nIt has been repeatedly held that such a statute does not apply in case of a mistrial, providential hindrance, failure to secure a jury, destruction of a court house, nolle prosequi and filing of a new information, or want of time to try the case; and the authorities are uniform in holding that the statute does not apply to a prisoner who has escaped. Had the defendant been imprisoned by reason of the information in this case, it, perhaps, would have devolved upon the prosecution to produce him for trial within the statutory time, but such is not the case. Had he been desirous of a trial while in the penitentiary he might easily have secured appropriate orders from the court having jurisdiction for the purpose of being placed on trial, and it was his duty to do so. (Meadowcroft v. People, 163 Ill. 56.) The statute does not apply where the defendant is confined in the penitentiary for another offense. (State v. Brophy, 8 O. Dec. 698; Gillespie v. People, 176 Ill. 238; 56 D. R. A. 5x3 and note.)\\nAs only a constitutional question can be reserved the statute we assume is in no way involved in this proceeding, and the only question that will be determined is whether or not the defendant will have had a speedy trial in view of our constitutional provision should he be now placed on trial upon the pending information. Counsel for the State, however, are willing and desirous that the right of the defendant under the statute as well as the constitution be decided, since the same proposition would be again presented to the district court, should it be held that this court has no jurisdiction to determine the reserved questions. The following cases are cited in support of the construction of the statute and constitutional provisions contended for by the State. State v. Tyre, (N. J.) 67 Atl. 199; Erwin v. State, 29 O. St. 186; Johnson v. State, 42 Id. 207; Bx parte McGehan, 22 Id. 444; McGuire v. Wallace, 109 Ind. 284; Reisenberg v. State, 60 Neb. 628; Cern v. State, (Neb.) 87 N. W. 336.\", \"word_count\": \"11969\", \"char_count\": \"69024\", \"text\": \"Potter, Chief Justice.\\nThis case was sent to this court upon an order of the District Court of Albany County for a decision upon certain reserved questions certified to be important and difficult and to have arisen upon a motion filed by the defendant for his discharge from further prosecution under a pending information charging him with the murder of Thomas J. King, on the ground that he had not been brought to trial within the time required by law. The agreed facts are substantially as follows:\\nOn or about April 22, 1903, the defendant, Frank J. Keefe, was arrested on the charge of murder for the killing of Thomas J. King and John Baxter, and committed to and confined in the county jail of Carbon County to answer said charges. On May 22, 1903, two informations were filed in the District Court of Carbon County charging him with murder in the first degree, one charging the killing of John Baxter, and the other the killing of Thomas J. King, both crimes being charged to have been committed April 20, 1903. The defendant was arraigned upon both infor-mations and pleaded not guilty, and upon his application a change of venue in both cases was granted to Albany County, and the papers were regularly transferred to and filed in the District Court of Albany County August 13, 1903, and the defendant at or about the same time was removed to the county jail of the last named county and was therein confined and imprisoned to await trial or further proceedings upon both informations.\\nAt the following September term- of court the defendant was tried upon the information charging the killing of Baxter and was found guilty of manslaughter by a verdict returned on November 6, 1903, and on November 23, 1903, was sentenced to imprisonment in the state penitentiary for the period of four years. He was immediately thereafter taken to the penitentiary, which is located in Rawlins, the county seat of Carbon County, and was there imprisoned until March 12, 1907, when he was discharged by reason of the expiration of the term of his sentence, less the statutory allowance of time for good behavior.\\nOn September 7, 1903, while the two cases aforesaid were pending in the District Court of Albany County, another information was filed in the District Court of Carbon County charging the defendant jointly with one William Keefe, with the murder of Thomas J. King, in which information it was alleged that William Keefe was a fugitive from justice, for which reason the information was filed without a preliminary examination. William Keefe was never arrested upon this information, hut on March 12, 1907, a bench warrant was issued upon it and the defendant was arrested thereon at or about the time of his release from the peni tentiary, and confined in the county jail of Carbon County. He was arraigned March 26, 1907, and interposed a plea to the jurisdiction of the court upon the ground, among others, that the information filed May 22, 1903, charging him with the same crime for the killing of the same person was pending upon the change of venue aforesaid in the District Court of Albany County. The plea to the jurisdiction was overruled, a plea of not guilty was entered for him upon his standing mute, and the case was set for trial, whereupon a writ of prohibition was applied for in this court to restrain further proceedings, and after a hearing an order was entered by this court on March 21, 1908, prohibiting the District Court of Carbon County from further proceeding against this defendant upon said information during the pendency of the case in the District Court of Albany County upon the first information. (See Keefe et al. v. District Court, 16 Wyo. 381, 94 Pac. 459.)\\nOn March 25, 1907, following defendant's release from the penitentiary, an order was entered in the District Court of Albany County for the issuance of a bench warrant for the apprehension of this defendant, which warrant was duly issued, directed to the sheriff of Albany County, but was not executed, for the reason that the judge of the District Court of Carbon County would not allow the prisoner to be taken out of that county. The present motion for defendant's discharg-e was filed March 23, 1908, two days after the order of this court prohibiting further proceedings in Carbon County upon the information last filed, during the pendency upon change of venue to Albany County of the case upon the first information. Upon the filing of this motion the District Court of Alban}? County caused the issuance of another bench warrant, upon which the defenant was arrested and imprisoned in the county jail of Albany County, and he was there confined at the time the present motion was submitted to the District Court.\\nThe pending motion is not the only one filed for the same purpose. It was preceded by other motions and proceedings during the time of defendant's imprisonment in the penitentiary, having for their object either his discharge or trial. On February 4, 1905, defendant's counsel filed a motion for his discharge, upon the ground that having been in prison he had not been brought to trial before the end of the second term of the court after the information was filed, and the delay had not happened upon his application. That motion was denied in March, 1905, to which ruling an exception was taken. In May, 1905, the prosecuting attorney of Carbon County and the prosecuting attorney of Albany County each appeared in the District Court of the last named county and moved that the case upon the information charging the killing of King be set down for trial, and over defendant's objection it was set down to be tried on the 18th day of September, 1905. The particular ground of the objection to the setting of the case for trial on defendant's behalf is not stated in the order of the court, but it is app\\u00e1rent from the subsequent proceedings that the position taken by counsel for defendant was that he was entitled to be discharged for unreasonable or unlawful delay in bringing him to trial. That is to say, the objection was not to setting the case for trial, if one was then authorized by law, but that because of delay the prosecution had lost the legal right to try the defendant against his objection on that ground.\\nAfter the case had been so set for trial, and on August 13, 1905, the defendant, by his counsel, made a motion in writing to the effect that his removal from the penitentiary to the county jail of Albany County be ordered to enable him to consult with his counsel \\\"and prepare for his trial and for certain pleas to the information which he shall ask to have substituted for his former plea of not guilty, and if said pleas are overruled to prepare for his trial, in order not to delay the court.\\\" Thereupon the court entered an order requiring that the defendant be so removed on September 16, 1905, to await his trial on September 18, 1905, \\\"and in order that he may consult with his attorneys and counsel to be employed by him in the preparation of his defense in this cause, and for such other purposes as may be necessary.\\\" Notwithstanding that order, and the fact that a certified copy thereof was duly served upon the warden of the penitentiary, it was not complied with. On September 18, 1905, the day set for his 'tidal, as aforesaid, defendant's counsel moved for an immediate trial; and ag'ain on September 25, 1905, another motion was filed on behalf of the defendant demanding a speedy trial at that term of court, it being stated in the motion that defendant would apply to be discharged upon being brought before the court for trial, and would also apply to withdraw his plea of not guilty and substitute therefor the plea of former jeopardy, based upon his conviction under the information charging the killing of John Baxter, which, it was alleged, was for the same offense charged in the pending information. These motions for a speedy trial \\u2014 so-called\\u2014were not specificalfy ruled on.\\nIn addition to the above, the agreed statement of facts contains the following:\\n'\\\"After the aforesaid case, to-wit, the case in which the defendant was charged separately with the murder of said King, was transferred by change of venue to the Albany County court, as aforesaid, to-wit, on the 13th day of August, 1903, tbe said case was, at each subsequent term of the said Albany County court, placed upon the trial docket by the clerk thereof; that at each of said terms of court the said defendant, by his counsel acting- for the purpose of making said motion only, demanded a trial, and at each of said terms of court, the State, by the county and prosecuting attorney of Albany County, announced itself ready for trial, and stated at the time that the case might be set down for trial, but no order of the court was made or entered of record except as in this agreed statement of facts is hereinbefore set forth; but that by reason of the absence of the defendant, he being then confined in the Wyoming state penitentiary, as hereinbefore set forth, the court announced orally in open court that it would not set said case for trial until defendant was produced in court.\\\"\\n\\\"That neither on the said 4th day of February, 1905, when the aforesaid application of defendant to be discharged was made to the court, did the court make, nor upon the present application of the defendant for discharge has the court made, any order setting forth that the said court was or is satisfied that there was or is material evidence on the part of the state which could not then or cannot now be had, or that reasonable exertions had or have been made to procure the same, or that there was or is just ground to believe that such evidence could or can be had at the succeeding term of court; that the State did not upon the first of the aforesaid applications of the defendant to be discharged .make any application for continuance; that the State has not made any such application for a continuance upon the present application of the defendant for discharge; and that the defendant has not, at any .time, made any application for continuance.\\\"\\nAfter the denial by the District Court of Carbon County of the defendant's plea to the jurisdiction upon the information filed September 7, 1903, and the entering of his plea of not guilty thereto he was admitted to bail by said court upon his application, and having furnished the required bond was released from custody until his arrest under the bench warrant issued March 25, 1908, by order of the District Court of Albany County.\\nThe questions reserved for decision are substantially as follows:\\n1. Is the defendant entitled to his discharge and the dismissal of said action by reason of the order in 1905 for his removal from the penitentiary to the jail of Albany County to await his trial, set for the 18th day of September, 1903, and the preceding order setting said cause for trial, and the motions of the defendant for speedy trial, filed on the 18th and 25th days of September, 1905, upon which two motions no action was taken by the court except as shown in the agreed statement of facts?\\n2. Was the defendant entitled to his discharge upon his motion, filed February 4, 1905? /\\n3. Should the pending motion of the defendant be granted ?\\n4. Is Section 5382, Rev. Stat. 1899, the legislative construction of Section 10, Article I of the Constitution, giving to a defendant the right to a speedy trial, whereby the Legislature has placed a limit upon the' time within which such defendant must be brought to trial; and if an application for discharge is made by a defendant, under Section 5384, and the court is not satisfied that there is material evidence on the part of the State, which can not then be had, or that reasonable exertions have been made to procure the same, or that there is just ground to believe that such evidence can be had at the succeeding term of court, and there is no application for continuance on behalf of the State, does it become incumbent upon the court to discharge such defendant upon his application?\\n5. Is it now incumbent upon the court to discharge the defendant upon his application, there being no showing on the part of the State for continuance, in case the court should be satisfied that there is no material evidence on the part of the State which cannot now be had, or that reasonable exertions have been made to procure the same, or that there is just ground to believe that such evidence can be had at the succeeding term of court?\\n6. Is it a good and sufficient defense to an application by a defendant for his discharge, under the provisions of Sections 5382 and 5384, that he is incarcerated in the penitentiary at the time such motion is made, under a previous sentence of the court; and if the only reason why the defendant was not brought to trial within the time specified in Section 5382 was that he was was incarcerated in the penitentiary under the previous sentence, is that a sufficient defense to said application for discharge?\\n7. Under Section 10, Article I of the Constitution granting to every defendant a speedy trial, has the defendant, under the facts as set forth in the agreed statement, had a speedy trial; and would he, if he were to be tried at the present time, have a speedy trial, as contemplated by said constitutional provision and as provided in Sections 5382 and 5384, Revised Statutes of 1899; and should he, under the agreed statement of facts, be discharged and not subjected to a trial under the information filed in this case?\\nThe questions thus stated require a consideration of the following constitutional and statutory provisions:\\nSection 10 of Article I of the Constitution declares that \\\"in all criminal prosecutions the accused shall have the right to a speedy trial.\\\" The statute provides as follows:\\n\\\"If any person indicted for any offense and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after such indictment is found, he shall be entitled to be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.\\\" (Sec. 5382, R. S. 1899.)\\n\\\"If any person indicted for any offense, who has given bail for his appearance, shall not be brought to trial before the end of the third term of the court in which the cause is pending, held after such indictment is found, he shall be entitled to be discharged, so far as relates to such offense, unless the delay happens on his application, or be occasioned by the want of time to try such cause at such third term.\\\" (Id. sec. 5383.)\\n\\\"If when application is made for the discharge of a defendant under either of the- last two sections, the court shall be satisfied there is material evidence on the part of the state which cannot then be had, that reasonable exertions have been made to procure the same, and that there is just ground' to believe that such evidence can be had at the succeeding term, the \\u2022 cause may be continued and the prisoner remanded or admitted to bail, as the case may require.\\\" (Id: sec. 5384.)\\nAnother section provides that all provisions of law, applying to prosecutions upon indictments, to writs and pro cess therein, motions, pleadings, ti\\u00f1\\u00e1is and punishments, and to all proceedings in cases of indictment, shall in the same manner and to the same extent, as near as may be, apply to informations and all proceedings and prosecutions thereon. (Id. sec. 5317.)\\nIt is apparent that the ultimate question here involved is whether upon the facts the delay in prosecuting the defendant upon 'the pending information has resulted in depriving him of the right to a speedy trial within the meaning of the constitutional provision, and, in that connection, whether the statutory provisions quoted above were applicable to the defendant during the terin of his imprisonment in the penitentiary, or whether the fact of his conviction, sentence and imprisonment upon the one information furnishes a sufficient excuse for not having brought him to trial upon the other. Indeed, that is practically the sole question that has been argued upon the merits of the case, it being contended on the one hand that the defendant having been in prison comes strictly within the provisions of sections 5382 and 5384, and on the other that while in the penitentiary serving the sentence imposed upon his conviction of another offense, the statute did not apply, because he was not. then and' there detained by virtue of any commitment upon the pending information.\\nA preliminary question of jurisdiction has been suggested. While expressing a preference that the question be decided upon this hearing, thereby saving the prosecution as well as the defendant much trouble and expense should the defendant be entitled to be discharged, counsel for the State suggest that the questions reserved for decision seem to require nothing beyond the construction of the statute, and that since constitutional questions only are authorized by law to be brought here in this manner for decision, the jurisdiction of the court is doubtful.\\nBut we entertain no doubt of the jurisdiction of the court in this proceeding. It is true that none but a pending constitutional question may be reserved and sent to this court for decision upon the order of a district court. (R. S. 1899, sec. 4276, as amended by ch. 72, Sess. Laws, 1903.) But the questions here reserved are clearly constitutional, for they involve the constitutional right of an accused in a criminal prosecution to a speedy trial, which right is claimed to have been violated in this case. The statute supplements the constitutional provision and secures, or provides a method for securing the right thereby declared. It is to be regarded as enacted for the purpose of rendering the constitutional guaranty effective, and as a legislative declaration of what is and what is not, under the circumstances named, a reasonable and proper delay in bringing an accused to trial in respect of his constitutional right aforesaid. The authorities uniformly hold that such statutes are enacted 'for the purpose of enforcing the constitutional right, and that they constitute a legislative construction or definition of the constitutional provision\\u2014 a provision incorporated in most of the state constitutions as well as in the constitution of the United States. (Newlin v. People, 221 Ill. 166; Cummins v. People, (Colo. App.) 34 Pac. 734; State v. Kuhn, 154 Ind. 450; In re McMicken, 39 Kan. 406; Benton v. Com., 91 Va. 782.)\\nTwo regular terms of the District' Court are required by law to be held each year in Albany County, one beginning on the second Monday in March and one beginning-on the second Monday in September, and there is no claim that the terms provided for were not held after the information was filed in that court. Therefore, if the statute applies to the case the defendant would be entitled to be discharged, unless the fact of his imprisonment in the penitentiary constitutes a sufficient excuse for the delay without his consent in bringing him to trial, no other reason for the delay being asserted or even suggested. If the statute does not apply, it will be necessary to inquire whether, under circumstances such as are here disclosed, a convict is within the protection of the constitutional guaranty of a speedy trial, and if so, whether the trial of the defendant has been so unreasonably delayed that to now place him upon trial against his objection will deprive him of his constitutional right.\\nThat an accused should be granted a trial without unnecessary or unreasonable delay is not a new idea in criminal jurisprudence. In theory, at least, the right may be said to have been recognized at common law. Under a commission to the judges of general goal delivery they were empowered to try and deliver every prisoner, whereby the jails were generally cleared at least twice in each year. (12 Cyc. 498; 4 Bl. Com. ch. 19; U. S. v. Fox, 3 Mont. 512; 2 Hawkins' P. C. ch. 6; Cummins v. People, supra.) And by the habeas corpus act of 31 Car. II c. 2 (1680), it was provided, among other things, \\\"that every person committed for treason or felony shall, if he requires it at the first week of the.next term, or the first day of the next session of oyer and terminer, be indicted in that term or session, or else admitted to bail, unless the King's witnesses cannot be produced at that .time; and if acquitted, or if not indicted and tried in the second term, or session, he shall be discharged from his imprisonment for such imputed offense.\\\" (3 Bl. ch. 8, p. 136; 15 Am. & Eng. Ency. L., 2nd Ed., 129 & note 6.)\\nThe term \\\"speedy trial\\\" as it occurs in the constitution has been judicially interpreted as meaning generally a trial as soon after indictment as the prosecution can with reasonable diligence prepare for, regard being had to the terms of court. (12 Cyc. 498.) A trial \\\"conducted according to fixed rules, regulations and proceedings of law, free from vexatious, capricious and oppressive delays.\\\" (6 Ency. L., 2nd Ed., 993.) \\\"A trial regulated and conducted by fixed rules of law, and any delay created by the operation o'f those rules does not work prejudice to any constitutional right of the defendant.\\\" (Church on Hab. Corp., sec. 254; Sample v. State, 138 Ala. 259.)\\nIn United States v. Fox, 3 Mont. 512, the speedy trial, to which an accused is entitled under the constitution, is stated to be \\\"a trial at such a time, after the finding of the indictment, regard being had to the terms of court, as shall afford the prosecution a reasonable opportunity, by the fair and honest exercise of reasonable diligence, to prepare for a trial; and if the trial is delayed or postponed beyond such period, when there is a term of court at which the trial might be had, by reason of the neglect or laches of the prosecution in preparing for trial, such delay is a denial to the defendant of his right to a speedy trial.\\\"\\nIn parte Stanley, 4 Nev. 116, it is said: \\\"But what is to be understood by a speedy trial is the embarrassing-question now to be determined. It is very clear that one arrested and accused of crime has not the right to demand a trial immediately upon the accusation or arrest being made. He must wait until a regular term of the court having jurisdiction of the offense with which he is charged, until an indictment is found and presented, and until the prosecittion has had a reasonable time to prepare for the trial. Nor does a speedy trial mean a trial immediately .upon the presentation of the indictment or the arrest upon it. It simply means that the trial shall take place as soon as possible after the indictment is found, without depriving the prosecution of a reasonable time for preparation. The law is the embodiment of reason and good sense, hence, whilst it secures to every person accused of crime the right to have such charge speedily determined by a competent jury, it does not exact impossibilities, extraordinary efforts, diligence or exertion from the courts, or the representatives of the state; nor does it contemplate that the right of a speedy trial which is guaranteed to the prisoner shall operate to deprive the state of a reasonable opportunity of fairly prosecuting criminals.\\\"\\nThe Legislature of this state has determined for us, not unreasonably it seems, what, in certain cases at least, is to be regarded as a speedy trial within the meaning of the constitutional requirement. As to a defendant indicted or charged by information and committed to prison it is in effect declared that a speedy trial means a trial before the end of the second term of court after indictment found or information filed, unless the delay shall happen on the prisoner's application, and that as to a defendant out on bail it means a trial before the end of the third term of court, unless the delay happens on his application, or for want of time to try the case; and unless in either case upon an application of a defendant for discharge, the court is satisfied, notwithstanding the lapse of such terms that there is material evidence for the state not then obtainable, but which the prosecution has made reasonable exertions to obtain, and that there is just ground for believing the same obtainable at the succeeding term; in which event the court is authorized to grant a continuance and remand or admit the defendant to bail.\\nUnder similar statutes a delay caused by accident or unforeseen circumstances, though not specifically mentioned, has been held sufficient to prevent a defendant's discharge, such as the sudden illness of the judge which requires an adjournment of the court or term or renders the holding thereof impossible, and inefficient legislation to enable a jury to be obtained. In Tate's case, 76 Ala. 484, it was said: 'When there have been legislative enactments, reasonably adapted to secure a speedy trial, the constitutional guaranty can not operate to discharge the accused, because of mistaken legislation, or because of a failure to foresee and provide for every contingency'' which may occasion delay''. The accused is not entitled to a discharge by reason of any' delay made necessary by the law itself.\\\" That statement is quoted approvingly in Sample v. State, 138 Ala. 259, where a delay was caused through the lack of statutory authority in the court to issue a special venire for a jury, the regular jury-box having been exhausted. There is, however, some conflict in the authorities as to what accidental or unforeseen causes will render a delay excusable under such statutes. The right granted by the constitution may be waived, as by consent to continuances, and perhaps the failure of one out on bail to present himself for trial as required by the conditions of his bond; and the privilege of insisting- upon the right may be lost for a time, as where an accused escapes from prison or becomes a fugitive from justice. In this case there is no question of accidental delay; nor is there a question of waiver or loss of the right, unless an accused becomes deprived of it during imprisonment in the penitentiary for another offense, the only reason here assigned as an excuse for not bringing on a trial being the fact of defendant's commitment to the penitentiary under another information before the expiration of the time limited for bringing him to trial upon the pending one, and his conL tinued imprisonment therein for more than three years.\\nTwo cases are cited by counsel for the State as sustaining their contention that the statute does not apply to a defendant serving a term of imprisonment in the penitentiary under sentence for another offense. One of the cases cited is State v. Brophy, 8 O. Dec. 698, a decision of one of the courts of common pleas of Ohio. There, the defendant was sent to the penitentiary for four years for forgery, and thereupon other indictments against him were \\\"laid away.\\\" In disposing of the defendant's subsequent motion under the statute for his discharge so' far as the other offenses were concerned, the court merely said: \\\"He was practically dead as a civilian, and before he could make this demand he must serve his sentence. The sections above referred to do not applv to a man who is in the penitentiary. He must be either in jail or out on recognizance.\\\" No reference was made to the constitutional right of an accused to a speedy trial. The proposition that a convict cannot be tried for another offense is unsound. The case, however, supports the State's contention on the construction of the statute.\\nThe other case is that of Gillespie v. People, 176 Ill. 238. In that case two defendants, Dunn and Gillespie, had been indicted at the March term, 1897. A trial was had at the following November term, and they were convicted. Prior to the trial each defendant moved for his discharge because he had not been tried within the time provided by statute. The statute relied on was one applying to any person committed for a criminal, or supposed criminal, offense. In reference to Gillespie the court said: \\\"The statute could not be applied to the case of the defendant Gillespie in any event, since he was not committed for this offense. He pleaded guilty to another felony at the March term, 1897, of the same court, and has been in the state penitentiary at Chester ever since, except when brought into court and tried on this charge. This was sufficient answer to his application in any event.\\\" It does not appear from the report of the case that Gillespie had ever been committed or even arrested upon the particular charge; the indications are that he had not. It is stated in the opinion that he pleaded guilty to another felony at the March term, but the date of such plea is not given. It is, however, stated that the indictment as to which the right of discharge was asserted was returned on March 23, t897, and that the defendant was arraigned thereon and pleaded not guilty at the November term, on November 12, 1897. It would seem probable, therefore, that Gillespie had not, in fact, ever been committed upon the indictment complained of, but being already in the penitentiary was brought therefrom to be placed on trial. Indeed, for all that appears in the reported matter, he may have been taken to the penitentiary before the return of the indictment. However this may be, the question was disposed of in the opinion by the statement above quoted, which does not explain the reasons upon which it was concluded that the statute did not apply further than that the defendant had not been committed for the offense. It does not appear that the constitutional right of a speedy trial in the absence of a statute applying to the case was insisted upon, nor that there had been a delay which could reasonably be declared capricious, vexatious or oppressive.\\nIn a case in New York, the original report of which we have not seen, a conclusion seems to have been announced opposed to the proposition insisted upon by the prosecution. The case is referred to in' the notes to In re Begerow, 56 L. R. A. 513, and it is there said to have been held in People v. Smith, 2 N. Y. Cr. Rep. 45, that a defendant was entitled to be discharged on his own recognizance where several indictments had been found against him at the same term, and under one he had been sentenced to five years' imprisonment, and at the expiration of the sentence it was sought to try him on another. The court is reported as saying: \\\"They should all be tried when the witnesses are alive and accessible, and when the testimony for both sides is readily to be had.\\\"\\nUnder a statute plainly applicable to a defendant, it was held in West Virginia that his illegal confinement in the penitentiary for another offense was not a sufficient excuse for a failure to try him upon a pending indictment within the period prescribed by the statute. (Dudley v. State, 55 W. Va. 472.) The statute applied to \\\"every person charged with felony and remanded to the circuit court for trial.\\\" The defendant, who had been previously sentenced to the penitentiary for the term of 18 years, was released upon a conditional pardon, and shortly thereafter was arrested upon another charge, and after such arrest and before indictment found was redelivered to the penitentiary by executive order to serve out the balance of his previous sentence, by reason of the breach of the condition of his pardon. An indictment was afterwards returned, charging him with the offense for which he had been last arrested, resulting in his being brought from the penitentiary to the court for trial, and, the state not being ready for trial, his return to the penitentiary to be confined therein, as ordered by the court, under the former sentence, and later an order on motion of the prosecution .retiring the indictment from the docket. He was subsequently released-from the penitentiary on habeas. corpus by reason of the illegality of the executive order restoring him thereto. Immediately upon such release he was again arrested and lodged in the jail of the count}'- where the indictment aforesaid was pending, and thereupon he petitioned for discharge upon habeas corpus. The court said, after quoting the statute:\\n\\\"The only excuse given for not trying the petitioner as required by this section is that because he had been illegally committed to the penitentiary by order of the governor. It is not claimed that he could not have been tried, as he was in the custody of the law and under order of the court, but that the court and prosecuting attorney were laboring under the belief that he was legally confined in the penitentiary for his former offense, and that would render it unnecessary to try him under the second indictment. The petitioner was not afforded the opportunity to insist on a speedy trial, but was illegally held in custody, and if the indictment had remained a live indictment on the docket, while the state was illegally holding him, he might well i.nsist that he should be discharged under the foregoing section, as his illegal detention does not come within any of its provisions, and he might well claim as he was subject to the order of the court that he was being held to answer the pending indictment against him, as this was the only legal cause for his detention.\\\" It was also held that the retirement of the indictment from the docket without the prisoner's consent, amounted to the same thing as a dismissal for failure of prosecution.\\nIn the' Colorado case of In re Garvey, 4 Pac. 758, a defendant had been convicted of murder, and sentenced to the penitentiary for life. The judgment was reversed on the ground of the repeal of the law under which the conviction was had, and it being held that the defendant could be prosecuted under-the indictment only for manslaughter, the case was remanded, with directions to proceed according to law. Thereupon, without further trial, the defendant was, at the April term, 1883, of the district court, sentenced to the penitentiary for eight years, and was imprisoned accordingly. At the following December term of the supreme court he was on habeas corpus released from the penitentiary and remanded to the county jail, on the ground that his sentence -without trial was void. Upon being again brought before the district court for trial,, he moved to be discharged under the statute, for, although committed for a criminal matter, he had not been' tried on or before the second term of the court having jurisdiction of the offense. Habeas corpus was then applied for, and in disposing of the case the supreme court went back only to the reversal of the first judgment, in May, 1883, and held that as at the time of such reversal the April term of the district court was in session, and it was followed by the September term, 1883, and the January term, 1884, without a trial, the defendant was entitled to be discharged upon his motion at the April term, 1884, notwithstanding that from said April term, 1883, to some time in the following December term of the supreme court he had been in the penitentiary under the aforesaid sentence. The Colorado statute is like that of Illinois.\\nIn an early case in South Carolina it appeared that two indictments had been found against a prisoner for passing counterfeit bank bills. He demanded trial on. both, but was tried only on one, convicted and sentenced to be hung. Afterwards he was pardoned by the governor and set at liberty; whereupon, he was again arrested on the second indictment. Upon an application for his discharge on habeas corpus, a majority of the judges were of the opinion that he was entitled to be discharged. The reasons for such opinion were stated to be as follows: \\\"The conviction on one indictment did not prevent the state from proceeding-on the other. The prisoner demanded his trial in both cases, and he ought to have been tried at the second court, after demanding trial on both indictments, or discharged as to the indictment not proceeded on. The solicitor, and the court, should not have calculated on his suffering death on the conviction first tried. A new trial might have been granted, and the prisoner admitted to bail, or judgment might have been arrested, or (as it happened) there might be a prospect of his being pardoned. To keep him in confinement under these circumstances would be contrary to the spirit and intention of the habeas corpus act.\\\" (State v. Stalnaker, 2 Brevard, (S. C.) 44.)\\nIn State v. Thompson, 32 Minn. 144, it appeared that three indictments had been found against the defendant at the same term, charging several offenses of embezzlement, that he had been arraigned on one, and at the following term tried and acquitted. He was then arraigned upon another, and the trial was continued from term to term, and remained pending. Finally at a term held more than a year after the finding of the indictments, he was arraigned upon the third. He moved that it be dismissed. The court-said: \\\"No sufficient cause is shown for the delay of the state in proceeding to an arraignment Reasons which may have been sufficient for the continuance of the trial upon the other indictments were not a sufficient cause for not arraigning- the defendant upon all indictments against him. The indictment should have been dismissed.\\\"\\nIn the cause before us, it does not seem to be claimed that defendant's conviction and sentence upon the one information or his imprisonment thereunder in the penitentiary rendered it legally impossible to try him upon the other which remained pending. The ancient doctrine of autrefois attaint has been generally repudiated by the courts of this country. (9 Cyc. 875.) And hence it is well settled that a conviction and sentence for one felony is not a bar to an indictment or trial for another, and that a convict, while imprisoned in the penitentiary, is not exempt from trial and sentence for another crime, whether charged to have been committed before or during such imprisonment. (9 Cyc. 875, 876; 7 Am. & Eng. Ency. Law, 497; Thomas v. People, 67 N. Y. 218; Singleton v. State, 71 Miss. 782; Peri v. People, 65 Ill. 17; People v. Majors, 65 Cal. 138, 3 Pac. 597; Coleman v. State, 35 Tex. Cr. 404; Rigor v. State, 101 Md. 465; State v. Wilson, 38 Conn. 126; People v. Flynn, (Utah) 26 Pac. 1114; Brown v. State, (Tex.) 95 S. W. 1039; Huffaker v. Comm. (Ky.) 98 S. W. 331; Clifford v. Dryden, 31 Wash. 545, 72 Pac. 96; Henderson v. James, 52 O. St. 242; Kennedy v. Howard, 74 Ind. 87; State v. Connell, 49 Mo. 282; Ex parte Ryan, 10 Nev. 261.)\\nIn Thomas v. People, supra, a defendant was tried and convicted of murder in the first degree for killing a fellow prisoner in the Auburn (New York) state prison. On error it was contended that the defendant could not be sentenced to be hung before the expiration of the term he was serving in the penitentiary. The court held otherwise, and said:\\n\\\"This is a novel claim, and seems to be based upon the idea that a prisoner under sentence has a right to serve out his term. He has no such right. His term of service may be curtailed by legislation or by executive pardon, or he may be turned loose by the courts or the prison officials without violating any of his legal rights. Convicts, like other persons, are under the protection of the law and are amenable to its penalties. The laws for the punishment of crimes are general and apply to all persons in the staie. Provision is made (Paws of 1847, chap. 4) for taking prisoners out of the state prison for trial upon any indictment found against them. In all cases, but such crimes as are punishable with death, there is no practical difficulty, as the sentence may provide that the term shall commence after the expiration of the former term. (1 Bishop on Cr. Taw (5th Ed.) sec. 933.) * ' To hold otherwise would give a life convict unlimited license to murder without further punishment.\\\"\\nIn Rigor v. State, supra, an indictment had been found against- the defendant in the criminal court of Baltimore City. Before being brought to trial thereon he was convicted of felony in the circuit court for Baltimore County, and sentenced to the penitentiary for a term of years. While in the penitentiary in execution of the sentence he was brought into the criminal court of Baltimore City by habeas corpus to answer the indictment therein pending. He moved to quash the writ of habeas corpus upon the ground that because of his previous conviction and his imprisonment in the penitentiary, he could not be required to answer to the pending indictment. The motion was overruled, and he was required to plead, was tried, convicted and sentenced, and the case went to the court of appeals on error, the action of the court in refusing to quash the writ of habeas corpus, in requiring the defendant to plead, and in proceeding with his trial, being assigned as error, The court of appeals in disposing of the case said:\\n\\\"The penitentiary is not a place of sanctuary; and an incarcerated convict ought not to enjoy an immunity from trial merely because he is undergoing punishment on some earlier judgment of guilt. Why should there be-a delay, in bringing to trial, on an indictment pending against him, a convict who has not yet completed the service of a previous sentence? No reason can be suggested for such a delay in the case of a convict adjudged guilty of some other offense and actually in execution of a sentence thereunder, that does not apply equally to an individual who has been indicted and has not yet been tried. The situation of the two is identical, except for the single circumstance that in the first instance the criminal who has more frequently violated the law has been tried and convicted for some of his offenses, whilst the other has not. If the courts should hold that one already convicted, and actually incarcerated under sentence, could not be brought before the court on a writ of habeas corpus and tried for some other offense, until the expiration of the first sentence, a temptation to commit a crime for the express purpose of escaping altogether, or at least, of deferring punishment for a previous one, would be held out to the evil-minded and depraved. If the contention made in the case at bar is sound, the arm of the criminal law would be paralyzed \\u2014 not a step could be taken towards prosecuting- him so long as the convict remained sheltered within the walls of the penitentiary. That is not the law. The criminal court had jurisdiction to bring the plaintiff in error before it and to place him on trial under the indictment there pending against him.\\\"\\nIn the Washington case of Clifford v. Dryden, supra, a defendant having been tried, convicted and sentenced upon one information was brought out of the penitentiary upon the order of the court in which the conviction was had and tried upon another information, which appears to have been pending at the time of the previous conviction and sentence. The jurisdiction of the court to so try him on the second information was upheld.\\nThat the fact of a convict's imprisonment in the penitentiary constitutes no objection to his trial for another offense, is recognized by our statutes. It is provided that a convict indicted for an offense committed while he is confined in the penitentiary, shall remain in the custody of the warden subject to the order of the court in which the indictment may be found. (R. S. 1899, sec. 5316.) And, further, that good time allowance previously earned by a convict shall be forfeited if he is convicted by a jury of any offense committed during his imprisonment. . (Raws, 1907, ch. 18, sec. 3.)\\nA more serious ,question is whether the court had the power to compel the bringing of the defendant into court for trial during the term of his imprisonment in the penitentiary, by sending its order therefor, to another judicial district, where the penitentiary was located, inasmuch as the statute expressly provides for securing the presence in court for trial on another charge of a convict in the penitentiary only where he has been accused of an offense committed while confined therein. The court is authorized to send its warrant into any other county for the arrest of a defendant. (R. S. 1899, secs. 5314, 5316.) But such process would not alone secure immediate control of the person of the defendant-where he is held in the penitentiary under previous sentence. Except for the purpose of testifying as a witness, a writ of habeas corpus, or some writ or order of that nature, authorized by law, is necessary to compel a convict serving a sentence in the penitentiary to be brought before the court; and where his presence is sought in order to try him upon another charge, the writ or order will be analogous to, or serve the same purpose, as the common law writ of habeas corpus ad prose-quendum.. It may be doubtful whether the statute regu lating generally the issuance of and proceedings upon habeas corpus, which seems to authorize the writ, when issued by a district court or judge, to be served in any part of the state, applies where release from an alleged illegal restraint is not the object of the writ. The petition for the writ is required by that statute to state that the person on whose behalf it is presented is illegally restrained of his liberty, or the writ may be granted without an application whenever the court or judg'e has evidence from some proceeding before them that any person within the jurisdiction of the court or officer is illegally imprisoned or restrained of his liberty. (R. S. 1899, secs. 5464, 5466, 5467, 5473.) Had a writ been issued under the statute the defendant might have been thereby brought into court, or the defendant's presence as a witness might have been obtained by a subpoena directed to the warden. (Laws, 1905, ch. 6.) Being in attendance under such writ or subpoena, the court might perhaps have placed him upon trial. (See State v. Wilson, 38 Conn. 126.)\\nIf it be assumed that the court was without the power to lawfully enforce defendant's attendance for trial during his confinement in the penitentiarjr, then it would appear that the state, having had the defendant within its custody and control and within the jurisdiction of the court, at the September term, 1903, caused or allowed him to be sentenced upon the one conviction and thereupon to be removed to the penitentiary in execution of the sentence, without a trial upon the information that remained pending, and thus practically suspended further proceedings upon that information until the defendant should serve out his sentence or be otherwise discharged.\\nAccording to the agreed facts, the defendant, although the statute does not seem to have required him to do so, demanded a trial upon this information at the same term that he was tried and convicted upon the other, and if there was any substantial reason rendering a trial at that term impossible or even inconvenient to the prosecution or the court, it is not disclosed. On the contrary, it is stated that at that term, as well as at each subsequent term, the prosecution announced itself ready for trial.\\nWhere two informations or indictments for different offenses are pending against the same person, upon each of which \\u2022 the accused has been apprehended and committed, is it permissible for the prosecution to try and convict him upon one, and cause or allow him to be sentenced and taken to the penitentiary upon such conviction, and thereupon, regardless of the length of the sentence, suspend proceedings upon the other information until the prisoner's discharge from the penitentiary upon the expiration of his sentence or otherwise, and then proceed to try him over his objection, where such delay, if the accused had not been in the penitentiary, would have amounted to a denial of the right to a speedy trial? That seems to be the question in this case. If such action in case of two informations is permissible without violating the constitutional provision, then if would seem that should there be more than two the same proceeding might be repeated as to the second and third, and so on, and the defendant might then be required to serve out each sentence before being- tried upon any remaining charge or charges.\\nThe right of a speedy trial is granted by the Constitution 'to every accused. A convict is not excepted. He is not only amenable to the law but is under its protection as well. No reason is perceived for depriving him of the right granted generally to accused persons, and thus in effect inflict upon him an additional punishment for the offense of which he has been convicted. At the time of defendant's trial upon the one information, he was under the protection of the guaranty of a speedy trial as to the other. It cannot be reasonably maintained, we think, that the guaranty became lost to him upon his conviction and sentence or his removal to the penitentiary. Possibly in his case, as well as in the case of other convicts, a trial might be longer delaved, in the absence of a statute con trolling the question, than in the case of one held in jail merely to await trial, without violating the constitutional right, for an acquittal would not necessarily terminate -imprisonment. However, the purpose of the provision against an unreasonable delay in trial is not solely a release from imprisonment in the event of acquittal, but also a release from the harrassment of a criminal prosecution and the anxiety attending the same; and hence an accused admitted to bail is protected as well as one in prison. Moreover, a long delay may result in the loss of witnesses for the accused as well as the state, and the importance of this consideration is not lessened by the fact. that the defendant is serving a sentence in the penitentiary for another crime.\\nAs has been observed, the statute on the subject is intended to secure the right declared, by the constitution, and this should be taken into consideration in construing and applying it. It provides for the discharge in case of delay beyond the specified period without proper excuse of two classes of accused.persons: (1) Those committed to prison; (2) Those who have given bail for their appearance. Prior to his sentence, the defendant came within one of these classes, for he had been committed to prison and was there confined upon the pending ipformation, as (well as the one upon which he was convicted. Ordinarily an accused will be either committed to await trial or admitted to bail, and by the statute it was evidently intended to cover the case of all persons protected by the constitutional provision. If it should be so strictly construed as to exclude an accused in the situation of this defendant, whose first committment is superseded by one for his confinement in the penitentiary, then his only reliance is the constitutional provision. But such a strict construction will, it seems to us, destroy in some measure the purpose of the statute and be opposed to its spirit. The statute might be strictly interpreted, perhaps, as applying to one committed to prison only during imprisonment, while awaiting trial for the particular offense. It should, however, be liberally construed, as it favors the accused and is intended to enforce his constitutional privilege. And it seems that no violence will be done to the language employed by holding it to apply where a defendant has been committed to prison to answer to an indictment or information and is retained in custody, though under a substituted commitment for his confinement upon conviction of another offense in the same or a different prison.\\nTo deny the application of the statute to this defendant and others in a like situation would mean a denial also of its application to an accused committed upon an information or indictment, and while so committed sentenced upon a conviction of a misdemeanor under another indictment to imprisonment in the county jail, so that during the period of such sentence the prosecution would be under no obligation, so far as the statute is concerned, to try him upon the pending information or indictment. Such a limited construction should not, in our opinion, be given the statute. In the absence of a statute clearly covering a case like the one at bar, we would be inclined to hold that upon the facts the defendant is entitled to be discharged, because of a violation of his constitutional right to a speedy trial as a result of the unreasonable delay, being guided largely as to what would be a proper and improper delay by the rule laid down by the statute in other cases. The defendant might have been tried at the same term of his conviction upon the other information, or at some time before his sentence, it appearing that the State was prepared for trial, so that even if the sentence and subsequent imprisonment operated to prevent the prosecution from placing the defendant upon trial, there was previously ample opportunity to do so.\\nThe questions relating to the order that should have been made upon defendant's application in 1905 for discharge, are not necessarily involved in a consideration of the pending motion, and need not, therefore, be decided. What has been said in this opinion answers generally the questions proper to be decided, and we need not refer to and announce a decision upon them specifically. The court decides that the fact of defendant's imprisonment in the penitentiary, under the circumstances set forth in the agreed statement of facts, does not constitute a sufficient defense to the application of the defendant for his discharge; that sections 5382 and 5384 apply to the defendant, and upon the facts the defendant has not had a speedy trial, as provided in the constitution.\\nBeard, J., and Scott, J., concur.\"}"
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+"{\"id\": \"8516098\", \"name\": \"McLaughlin v. Upton, Assignee\", \"name_abbreviation\": \"McLaughlin v. Upton\", \"decision_date\": \"1878-03\", \"docket_number\": \"\", \"first_page\": \"27\", \"last_page\": \"31\", \"citations\": \"2 Wyo. 27\", \"volume\": \"2\", \"reporter\": \"Wyoming Reports\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T18:15:16.430725+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"McLaughlin v. Upton, Assignee.\", \"head_matter\": \"McLaughlin v. Upton, Assignee.\\nAppmcatiox fok New Tkial \\u2014 Extension of Time. \\u2014 Sec. 308 of the Civil Code, provides, that the application for a new trial must he made at the term at which the verdict is rendered, and except for the cause of newly discovered evidence, within three days after the rendition of the verdict, \\u201cunless unavoidably prevented.\\u201d Held, that this provision is directory merely, and that the matter of extending the time in which to make the application is within the discretion of the district court.\\nA motion to dismiss the writ of error in the supreme court on the ground that the time for making the application for a new trial was extended beyond the three days, denied.\\nError to the District Court of Laramie County.\\nMotion to dismiss the writ of error upon the following grounds, 1st, because no motion for a new trial was filed in the court below as required by law; 2d, because the errors complained of in the petition in error, were not first presented to the court below by a motion for a new trial in compliance with law and the rules governing the practice of this court.\\nE. P. Johnson, for the motion.\\nW. R. Steele, contra.\", \"word_count\": \"1404\", \"char_count\": \"7813\", \"text\": \"Peck, J.\\nThe transcript states that on the 15th day of December, 1876, a verdict was returned for the plaintiff below, the defendant here; that on the 18th day following the district court, for good cause shown, made this order in the case: \\\" On application of Thomas J. Street, of counsel for defendant, it is ordered by the court that the time for filing the motion to set aside the verdict and grant a new trial herein be extended until the end of the present term of this court; \\\" that on the 16th day of February, 1877, the defendant filed a motion to set aside the verdict and for a new trial; and that all these proceedings took place at the November term for 1876 of that court. Upon this state of the record the defendant in error moves to dismiss the appeal upon a single ground, stated in two forms, and as follows: first, because no motion for a new trial was filed in the court below, as required by law; secondly, because the errors, complained of in the petition in error, were not first presented to the court below by a motion for a new trial in compliance with law and the rules governing the practice of this court. This involves the consideration of section 308 at page 72 of the Compiled Laws, which declares that the application for a new trial must be made at the term at which the verdict is rendered, and, except for the cause of newly discovered evidence, within three days of the rendition of the verdict, \\\" unless unavoidably prevented.\\\" What constitutes such prevention, must be of course for the district court, if for any one, to decide. Whether in this action a motion for a new trial was requisite to the basis of an appeal, we do not look into the transcript to see. For the purpose of disposing of the motion to dismiss, it is sufficient that the plaintiff in error treated it as requisite, and we therefore assume that it was. Whether section 308 is jurisdictional, or a merely conditional limitation of the discretion of the district court, or is simply a directory provision, it is unnecessary for us to decide, and we do not decide. It is however clearly one of these: but, whichever it is, the defendant in error is not in an attitude to complain of the action of the court below in extending the time for filing a motion for a new trial.\\nTreating the provision as jurisdictional: if the district court exceeded its jurisdiction, and this appeared in the transcript, that fact would per se, that is, by operation of law, raise an exception, and bring the error before this court, without a formal allegation of error, because want of jurisdiction is a want of power, and a powerless act is a void act, and this court would be compelled to .recognize and to treat the fact accordingly. But, for this purpose, the fact must appear in the record; for, if it does not, how stands the matter? The court below had general jurisdiction ; before passing the order, it had acquired jurisdiction of the subject-matter and of the parties. Having that jurisdiction, its subsequent action must be regarded as jurisdictional, unless the contrary appears. Hence, were the record silent as to the ground of granting the motion for a new trial, we would be compelled to presume that it granted the motion jurisdiction ally. But the record is not silent as to the ground; it states that the motion was granted for \\\" good cause: \\\" it was good cause, if it was the cause specified in the statute, and we must take the record of that court, that it had such cause, else we violate the presumption, -which is a rule upon us in the interpretation of the records. Hence the party who comes here to complain of an escess of jurisdiction, as committed by the court below, must present to us a record, which affirmatively shows it. Any other principle would deprive the records of a court of general jurisdiction of all stability, or force them into the most burdensome and inconvenient prolixity.\\nTreating the section as a merely conditional limitation of the discretion of the district court, two things are necessary to bring before this court a violation of the condition of that court; one, that the violation should affirmatively appear in the record, the other, that it should be complained of, if an error of law, by a formal exception taken below. The record is silent in both these particulars. If such error was committed, this defendant could have made the record speak it, and his exception to it; because the motion for an extension was ex parte, and belonged to that class of applications, which may be made ex parte and orally: when granted, the record was notice to the defendant, and it then became his right, by a written and noticed motion with affidavits, to ask for an order vacating the order of extension. That would have spread the merits of the order upon the record, and a denial of the motion would have secured to him an exception to whatever error of law was committed by the district court in the matter; and the exception having been taken and appearing in the record, that error of law would have been presented to this court for revision.\\nHad the error been of fact, and the facts and a formal exception appeared in the record, it would be our duty to revise it under section 2 at page 597 of the Compiled Laws, which declares that \\\" in all cases, brought into the supreme court by writ of error or petition in error, the court is required to revise and correct all rulings of the district court, made during the progress of such cases therein, upon all questions, whether resting for their decision in the discre tion of the court or otherwise.\\\" But, if the error of fact did appear, but no exception to it appeared in the record, whether it would not still be our duty to revise, there may be a doubt; and the doubt is suggested by the fact, that this section puts an unlimited revisory power upon this court. Section 290, page 71 defines an exception to be an exception for error in law, and the statutes define no other exception, leaving it open to the question, whether any formal exception is necessary to set in motion our revisory power under section 2 at page 597, except in case of an error in law. The record however is destitute of the facts which are necessary to raise this question, and we do not decide it. We deem it proper however to say that, if compelled to decide it, we should hesitate to the last to yield to the doubt, for to do so, would be to open our door to the most trivial and petty appellate litigation.\\nTreating section 308 as a simply directory provision; the motion to dismiss is, upon its own theory, not well taken. Upon every ground the -motion must be and is denied.\"}"
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+"{\"id\": \"8516250\", \"name\": \"Hecht v. Boughton\", \"name_abbreviation\": \"Hecht v. Boughton\", \"decision_date\": \"1881-03\", \"docket_number\": \"\", \"first_page\": \"368\", \"last_page\": \"388\", \"citations\": \"2 Wyo. 368\", \"volume\": \"2\", \"reporter\": \"Wyoming Reports\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T18:15:16.430725+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hecht v. Boughton.\", \"head_matter\": \"Hecht v. Boughton.\\nEjectment. \\u2014 In ejectment, it is a uniform principle that if loth parties claim title from the same source, it is treated, for all the purposes of the case, as if the title resided in- that source, each party is estopped from denying it, and so far as respects that source the controversy is reduced to the inquiry: which party, plaintiff or defendant, if either, has title from that source.\\nTax Proceedings. \\u2014 Tax proceedings being in inmtum, are to be strictly construed, and whatever is essential to their validity must he affirmatively shown by the party who claims under them.\\nIdem. \\u2014 Constitutional law forbids the levying of a tax before the owner of property has had an opportunity to object to the assessment.\\nError to the District Court of Laramie County.\\nThe facts are stated in the opinion delivered in the district court, by Peck, \\u00abJ.\\n0. W. Potter M. W. Mann and W. W. Oorlett, for plaintiff: in error.\\nAfter the plaintiffs counsel had announced their case as closed, the court suggested an absence of certain proof, and allowed them to proceed with further testimony in their opening, under the objection of defendant. This may be a right within the discretion of the court, and it may be argued that no matter within the discretion of the court will be reviewed by an appellate court. While such was probably the old doctrine, it is surely exploded now, and appellate courts are continually giving tbeir attention to such matters. Powell on Appellate Proceedings, pages 195-199.\\nThe petition alleges ownership in fee, and for that reason a right to possession. It is true that in ejectment a plaintiff may recover by showing a conveyance from one having had prior adverse possession, with no abandonment thereof, by grantor or grantee, but why ? because from that fact the courts will presume title, and hold that such evidence establishes a prima facie case, on account of that presumption \\u2014 but the possession to warrant a presumption of title must be an adverse possession. Hilliard on Rem. for Torts., see. 56, p. 171; Hilliard on Rem. for Torts., sec. 65, p. 175; Murphy v. Wallingford, 6 Cal., 648.\\nThe law presumes, till the contrary be shown, that a man in possession without title intends to hold for the true owner. Tyler on Ej., 859 ; Harvey v. Tyler, 2 Wall., 828; Morrison v. Hays, 19 Ga., 294.\\nA person in the full possession of all his faculties, and able to read, is hound to know and understand the contents of an instrument executed by him or in his possession as a party to it. Such a person cannot say that he did not read the instrument. Bigelow on Fraud, 73 to 82; Bacon v. Marhley, 46 Ind., 116; Hawhins v. Hawhins, 50 Cal., 558.\\n\\u00bfT. W. Fisher and T. D. W. Yonley, for defendant in error.\\nIt rests in the discretion of the court to allow evidence to be introduced after the testimony has been closed. Moon v. Starbuch, 4 Cal., 274; Bussell v. Kerney, 27 Geo., 96; Wills v. Walker, 29 Geo., 450 ; Fall v. Oathcart, 8 Ala., 725; Priest v. Union Canal Co., 4 Cal., 170.\\nThe delivery of the deed to Mrs. Boughton is not only established by her oath, but is presumptively shown by the fact that the deed is of record. Kille v. Fge, 79 Pa. St., 15; Oecil Y. Beaver, 28 Iowa, 241; Kerr v. Bernie, 25 Ark., 225; JaeJcson v. Cleavland, 15 Mich., 94; Bulittv. Taylor, 34 Miss., 708; Billings v. Starh, 15 Fla., 279; Need v. Bouthet,Q2 Ills., 348; Tuttle v. Turner, 28 Tex., 759; Benson v. Wood-verton, 2 McCarter, N. J., 158.\\nThe true consideration of a deed may be shown in certain cases, even against the recitals of the deed, but it can never be shown that there was no consideration for the deed for the purpose of defeating the deed entirely. Wilt v. Franklin, 1 Bin. (Pa.,) 502; Farrington v. Barr, 36 N. H., 89; Hum v. 'Soper, 6 Harr. & Johns, (Md.,) 276 ; Betts v. Union Bank, 1 Harr. & Gill., 175; Clagett v. Hall, 9 Gill. & Johns. (Md.,) 91; Cole v. Alders, 1 Gil. (Md.,) 423; Klysville Man. Co. v. Okisho Co., 1. Maryland Ch. Decis., 392; Hmv-derson v. Henderson, 13 Mo., 152; Fellows v. Wise, 49 Mo., 850; and see to the same effect, Spec v. Crregg; MyHc v. Wells, 52 Miss., 149.\\nMere difference of opinion between the courts ought not, for obvious reasons, to be deemed sufficient to reverse a judgment. Ide v. Churchill, 14 Ohio St., 377; Kastman v. Wright, 4 Ohio St., 156; Powell on Appellate Jurisdiction, p. 229.\\nAnd the rule is the same when the facts are. found by the court sitting as a jury. Moss v. Atkinson, 44 Cal., 16; Crale v. Water Company, 44 Cal., 46; Smith v. Athern, 34 Cal., 509. ,\\nBut the defendant relied upon a title acquired by him through a purchase at tax sale, and the burden was upon him to show a compliance at every step with, the requirements of the statutes. There is nothing in the statutes of Wyoming making the tax deed for any purpose evidence of the facts therein recited; and without a statute for that purpose, the recitals could not have that effect. Burroughs on Taxation, p. 333. , \\\\\\nThe plaintiff not only failed to show a technical compliance with the statute in the tax proceedings under which he claims title, but, on the contrary, it appears affirmatively, that the law was not complied with. Corporation of Wash \\u2022 ingtonv. Pratt, 8 Wheat., 687; French v. jEdwards, 13 Wall., 606; Ainsworth v. Pean, 1 Foster (N. H.,) 400; Plead's Executors v. Course, 4 Cranch,, 403; Pyer v. Boswell, 39 Md., 465.\", \"word_count\": \"7427\", \"char_count\": \"42416\", \"text\": \"Peck, J.\\nThis is an action of ejectment for lots one (1) and two (2) in block three hundred and fifty-three (353), located in the city of Cheyenne, and mesne profits, brought in the first district court by Mary E. Boughton, the plaintiff below, against Charles Hecht, the defendant below. The defense was made by the plea of the general issue; the case was tried by the court without a jury, and judgment rendered for the plaintiff below for the possession and for mesne profits. After argument and careful consideration, we concur in the rulings below upon the admission and exclusion of testimony; and for the reasons stated in the opinion of that court whi\\u00e9h'is embraced in our record, and is adopted as our opinion; we concur in its ruling on the motion for a non-suit, and in its conclusions of fact and law, and in its judgment rendered thereon. As no error has been well assigned, that judgment must be affirmed, and with costs.\\nOpinion delivered in the District Court by Peck, J.\\n1 was entirely satisfied, on the conclusion of the evidence, as to the judgment that should be rendered. The case was well argued; but the argument did not change my mind.. In view however, of the voluminousness of the testimony, I deemed it prudent to wait and examine the stenographer's transcript; it has since been made. I have examined'it, and have found no reason for altering my view; I therefore proceed to deliver an opinion in accordance with my original conviction.\\nThis is an action of ejectment for lots one and two in block three hundred and fifty-three in the city of Cheyenne, and for mesne profits. The plea is the general issue.\\nThe plaintiff's evidence tends to show, and, unimpeached, does show, that Martin Y. Boughton occupied the premises in question continuously in his own right for several years prior and down to the execution by him to her of a deed in fee of the premises, dated February 16, 1871; that she then took, and continued in possession under the deed and in her own right, first through her grantor, and next through one Smith, until she was ousted by the defendant in April, 1877; and that the United States by a patent dated April 17th, and recorded in the county clerk's office of the county of Laramie, on the 19th of May, 1874, conveyed the same premises at the date of the deed to the Union Pacific Railroad Company. Upon this state of the evidence the defendant claims that the plaintiff has shown title out of her grantor, and out of herself, as his successor in interest, and therefore that she has nothing to recover upon. Now, allow, i'ng that the proof of the patent does show title out of her grantor, and so far as she relies upon his title, out of herself, the proof of the patent only cuts down her title to the date of the patent, leaving' her to stand upon an adverse title in herself by possession, which has been continuous from that date to the ouster. This gives to her title enough to recover upon, unless .the defendant has shown a better; it cuts off his claim of superior title under the sheriff's deed to him of April 21,1877, on a sale under an execution against Martin Y. Boughton, which sale was made of the premises as belonging to the latter; and it cuts off the defendant's claim of superior title under the tax-deed from the county treasurer, executed to him on the 30th day of December 1878, upon a sale of the premises upon a delinquent tax assessed and levied against M. V. Boughton, as the owner of the premises, \\u2014 it cuts off the tax title, provided that the tax can bind the premises only as belonging to M. Y. Bough-ton when they were assessed and the tax laid upon them, or during the conduct of the tax proceeding, and as otherwise duly laid and enforced: for these two alleged titles, the one by execution, the other by tax, are the defendant's entire grounds of claim; and. unless tbe tax title can bold, as binding the land, though not belonging to M. Y. Boughton during the tax proceedings, and as otherwise duly laid and enforced upon it, insomuch as he is the defendant's only source of title, the effect of the patent in cutting off the Martin Y. Boughton title, and with it the defendant's lease, as the controlling title, that which the plaintiff acquired by an adverse possession subsequent to the patent.\\nIt does not, however, follow that the effect of proving the patent is to cut the Boughton title off, down to the date of the patent. Under section 485 of the Union Pacific land grant the United States conveyed to the company the equitable title to the lands, specified in those sections, to be confirmed upon the accomplishment of given conditions, which are also therein specified by a patent from the United States conveying the legal estate in fee. The execution of the patent is conclusive that the conditions were satisfied, and that at its execution the company had acquired as against the government, a full equitable title. The Boughton title was founded on an adversory possession, which if uninterrupted, would have ultimately overcome and extinguished the title of the company.\\nBut it is an uniform principle of ejectment that if both parties claim title from the same source, it is treated for ail the purposes of the case that title resided in that source; each party is estopped from denying it; and so far as respects that source, the controversy is reduced to the inquiry, which party, plaintiff or defendant, if either, has got title from that source. That is the next question in this case,\\nBefore passing to that question, it is proper to notice another position of the defense, \\u2014 namely\\u2014that the plaintiff could not declare upon a seisin-in-fee, as she has done, and seek to recover upon an ineojnplete. possessory title, as she does seek to recover. But such q seisin is founded equally upon possession as upon .grant,, and- is' proved as well by the former as bjr the latter: though inchoate, because the possession has not reached the full period,' it is still a seisin and- is as effectual against a stranger, as if matured by possession. The petition alleges in terms a seisin-in-fee in the plaintiff and a corresponding right of possession, without alleging how the seisin arose; she was therefore at liberty to prove it by whatever sufficed for the purpose; and under the issue the defendant cannot have been surprised by the proof that she introduced. The petition is more precise and technical, as a petition suitable, to setting forth her title, than section 557 of the Civil Code requires.\\nThe defense claims that the Martin Y. Boughton deed was executed to his wife, whose name is Mary Boughton, for a valuable consideration paid to him by her; that she was intended by the name, - \\\"Mary E. Boughton,\\\" contained in the deed as the name of the grantee, the initial \\\" E.\\\" having been inserted by mistake, and that the Martin Y. Boughton interest was not conveyed to the plaintiff, because she is a stranger to the deed; nor to Mary Boughton, because she was the grantor's wife, and the execution of the deed was thus inoperative, leaving the interest in him. If the real grantee in this deed was the wife, the plaintiff's title is junior and inferior to that of Martin Y. Boughton ; the execution sale, if valid as against the latter, transferred his title to the defendant; the latter's entry in April 1877 was under superior title; and his ouster lawful. Thus the execution deed is let into operation. But, if the real grantee in the Boughton deed is the plaintiff, Martin V. Boughton's title vested in her, the execution deed could have passed nothing to the defendant; and so far as respects it his entry was without title and his ouster illegal. Who then is the grantee in the Boughton deed? The defense also claims that, if the plaintiff is the grantee, the deed was not delivered until after the execution deed had been delivered ; and if this position is correct, his deed is superior to hers. When therefore was her deed delivered ? The virtue of the execution deed hinges on these inquiries. The inquiries involve a consideration of the plaintiff's evidence. She lias been repeatedly upon the stand, and under much cross- examination. She has throughout impressed me as an honest witness. It remains to be determined whether she has also.'been an accurate one. In weighing her evidence, also in estimating her conduct as a claimant to the title, I must consider that she is a woman unskilled in business; confiding; had an unreliable husband; and naturally and habitually came to lean upon his brother, Martin V. Boughton, as her protector and adviser. Late in 1870 or early in 1871 she was at Bryon with her husband; Martin V. came there and borrowed from him $2,000; she became anxious on account of the loan, and remonstrated against it, and the result was an agreement between the three that Martin V. should deed to her in fee for the $2,000, the lots in controversy; he soon returned to Cheyenne, where he then resided, and employed Thomas J. Street to draft the deed, and see to its execution; Street was a practicing lawyer at Cheyenne, and the evidence of professional experts show that, when sober, he was a careful and precise draftsman of law-papers; the structure of the deed is conclusive that he was sober when he prepared it, and saw .to its execution; he must have derived from Martin V. Bough-ton his knowledge of what the deed was to contain, the name of the grantee included; in asking for the information, his habit of care and precision would govern him.\\nMartin V. Boughton then furnished to him the name of the grantee, and therefore, as such, the name \\\"Mary E. Boughton,\\\" being at the time as familiar with the name of the plaintiff as he was with that of his wife, and knowing that the only distinction between their names was by the plaintiff's middle initial \\\" E.; \\\" the deed having been prepared, he signed and acknowledged it; the deed has been put in evidence, speaks for itself, and is proved to be in Street's hand; the instrument does not mention the name, \\\"Mary Boughton,\\\" it does contain the name, \\\"Mary E. Boughton,\\\" and three times, and just where it should contain the grantee's name \\u2014 once in the granting part, next in the habendum, and' finally in the covenant; the deed was duly filed for record on the 18fch day of February, 1871, two days after its date and acknowledgment ;\\u2022 was not so filed bv the plaintiff, and must have been filed by Martin V. Bough-ton or his conveyancer; it has an endorsed title in these words, and in the following order:\\nDEED.\\nMaetest Y. BOUGHTON to Maey E. BoughtoN.\\n\\u2014and the endorsement is in a-large, bold, clear hand, such that it would be impossible for any one, handling the document, to fail seeing at a glance the entire title: the plaintiff visited Cheyenne in June, 1871, immediately called upon Martin V. Boughton, at his office, asked for the deed, which he had so agreed to execute to her, and he then produced, and handed, and thus delivered to her the deed, which he had so prepared for delivery to her, and had acknowledged, accompanying the delivery with the remark that he deeded the property to her, as he had previously agreed at Bryon to do: having so delivered the deed, and on the same occasion, he suggested to her that she had better, for greater safety, leave it with him to keep for her; yielding to the force of an habitual confidence, she then handed it back, he receiving it as her custodian, and subject to her call; it was precisely such a deed as he was bound to execute to her; he must have known that it ran to her, and not to his wife as grantee: under that obligation and with that knowledge he delivered it to the plaintiff as her grantor, and received it back as her agent, and in the last mentioned capacity retained it until the latter part of 1877. At Bryon the plaintiff's confidence in Martin V. Boughton was shaken by his obtaining the $2,000 : it was restored by his agreeing to deed, and soon after, and promptly upon her arrival at Cheyenne performing the agreement. He coupled with the delivery of the deed a delivery of possession, and she received and held possession under the deed until the ouster: and according to his own testimony he did not intimate to her that she was not, and that his wife was the grantee, until on or immediately before December 10, 1875, nearly five years after the preparation, and four and a half after the delivery of the deed. Upon her cross-examination the plaintiff said that she was at -Deadwood in the latter part of 1877, and Martin V. Boughton sent it to her: she was then asked how she knew that he sent it back, and answered that she knew it by knowing that she sent to him for it, and it came: she was next and on cross-examination asked, if she did not know that Mrs. M. Y. Boughton gave her, the plaintiff's messenger, the deed, and answered, \\\"No! I do not think she did; \\\" later in her evidence the plaintiff stated that, when she got the deed back at Deadwood, Martin Y. Boughton and his wife were keeping house together there. To meet this evidence as to the return of the deed, the defense introduced William W. Collett as a witness, who testified that the plaintiff told him that at Deadwood she sent a party to Martin V. Boughton for the deed, and the messenger brought it back to her representing that Mrs. Boughton gave it to him, the messenger. I accept this testimony of the witness Corlett, as true, and believe that the plaintiff explained to him the return of the deed to her at Deadwood, just as he states that she did. If this evidence of the last mentioned witness was introduced to impeach the plaintiff it fail's of that effect: she does not deny either directly or impliedly that the deed was sent back to her by Mrs. Martin Y. Boughton; the question whether she did not know that Martin V. Boughton's wife gave the deed to her messenger, was evidently put on the assumption by the interrogator that the messenger did represent to the plaintiff that Mrs. Martin Y. Boughton gave it to him to take to her, and in the belief by the interrogator that Mrs. Martin V. Boughton did hand the deed to him, but the answer does not deny that the messenger made the representation, only expresses the plaintiff's belief that Mrs. Martin V. Bough-ton did not hand the deed to him ; moreover, while it does not follow, as a matter of course, that Martin Y. Boughton participated in the return of the deed, his wife's sending it is consistent with the idea that she did it at his request: but (farther) whoever sent it, the deed came back to its owner, who had a right to its possession on call, and to take it whenever and wherever she could find it. But this testimony of the witness, Corlett, more than fails to impeach, it confirms and sustains the plaintiff: proving the statement made by her to that witness, the defendant claims that it was true; if true, the representations of the messenger, accompanying his handing the instrument to the plaintiff, was a part of the act, and explains it; and, as an explanation, shows that the paper came back to the plaintiff through Mrs. Martin Y. Broughton \\u2014 a fact, which conclusively repels the idea that she had any interest in it (for, if she had, she must, according to Martin Y. Boughton's testimony, have known it), and which the defense has proved. I am compelled by these considerations to the conclusion that the plaintiff -was the intended, and is the grantee in this deed; and I must abide in this conclusion, unless it is controlled by two features of the defense, which .I next proceed to notice.\\nThe defense has introduced in evidence an instrument, which is dated December 10, 1875, purports to have the signature of the plaintiff, and declares that she never purchased the premises, that the deed was not delivered to her, and that she had not, and had never had any interest or claim in the premises or deed. She admits the signature. Though there is some discrepancy as to the place where, and the persons who were present when she -signed, I readily find that it was done at her residence in Cheyenne, and that the only parties present were Martin Y. Bough-ton, Levrett C. Stevens, Celia Bryant, and the plaintiff. Whether she signed, understanding the instrument, or ignorantly, and was misled in respect to it, is disputed: Martin Y. Boughton and Stevens, the only witnesses for the defense upon tbe subject, asserting that she signed understanding^, the former further stating that the instrument was fully explained to her upon that occasion; Mary E. Boughton and Celia Bryant, the only witnesses for the prosecution upon the subject, testifying in effect that she signed in ignorance, and under deception. Between these contradictions where is the truth? Martin V. Boughton swears that it was three years after the deed was executed \\u2014that is, as late as February, 1874, before he discovered the alleged error in it; and that it was about a year and a half later \\u2014 that is, about December 10, 1875, before he took the step requisite to its correction; and that the plaintiff (to quote his words), \\\" was glad to correct the mistake, and disclaim all right, title and interest in the property.\\\" If the alleged error was an error, it is impossible that he should have remained ignorant of it so long; and utterly improbable that, having discovered it, he would not have made haste to obtain a correction \\u2014 especially from a party whom he describes as eager to correct: the extravagance of this statement is conclusive that it is perjured: it condemns the rest of his evidence, so far as that residue relates to disputed matters, unless corroboration can be found for it in other parts of the case. I can find no corroboration, and therefore lay his testimony altogether aside, as failing to furnish any support for the defense. The statement of the plaintiff, on the other hand, is in entire accord with, and therefore is fully supported by the prior history of the deed, not only as found in her evidence, but as written in the conduct of Martin Y. Boughton: to believe that she signed understandingly is to introduce such antagonism of fact, such contradiction and confusion into the case, as would successfully frustrate all rational effort to eliminate the truth, the existence of the paper points directly to,.,the idea that she was deceived into signing it: she explains that she was called upon by Martin V. Boughton and Stevens to witness it, as a paper relating to some business, which was between themselves, and in which she had no interest; that, believing them, she consented; it was then put upon the table for her to sign, and Boughton, holding his hand over and upon it, as if to steady it for her hand, but so as to cover its contents from her, she signed where they told her to; that the paper was neither read by, or to her, nor stated to her; she adds that no one wrote upon it on the occasion but herself, that they, having obtained her 'signature, went away with the paper, and that the. interview lasted about ten minutes; according to this, she did sign in ignorance of the contents of the paper, and under deception, and the attestation by Stevens, which is upon the instrument, must have been put there after he and Martin Y. Boughton had left \\u2014 a circumstance that tallies with, the idea of deception, for, had it been affixed in her presence, and in the usual way of regular and bona ficle attestations, it would probably, at least might have attracted her attention, and put her upon her guard. Her explanation is plausible in itself; her credulous confidence as a woman, and her habitual trust in Martin V. Boughton, made it easy to deceive her; suspicious conduct, which might well escape her observation at the time, would readily occur to her afterwards, on discovering what the paper was; her explanation is corroborated by Celia Bryant, and is thus doubly fortified by the evidence of an eye-witness, and the antecedents and surroundings of the case. I cannot accept the deposition of Stevens a's overcoming this volume of proof; letting alone the further fact that his evidence shows in several places the foot prints of a swift and more than willing witness. I have no doubt that Martin V. Boughton, when he delivered the deed to the plaintiff in 1871, intended to defraud her of it. Were it necessary to decide the matter, I should not hesitate to hold that his consent at Bryon to execute it was given with the mental reservation of this purpose; I have no doubt that in pursuance of the design he induced her, .on the occasion of the delivery, to entrust the instrument to him for keeping; that he shrewdly calculated that she did not .observe on that occasion the record filing, which is obscurely endorsed upon it, and might; easily have escaped her attention \\u2014 and would never learn that there was any record evidence of the instrument; and that he intended to let time run upon the transaction, and hence the dead silence between them, upon the subject, between the delivery and the return, for the evidence does not hint that anything passed between them on it daring that period; I can readily understand, and I fully believe, that the wife returned the document without his knowledge, and in this connection the fact that the husband and wife' were inharmonious, is insignificant; I am clear that the scheme of the instrument of December 10, 1875, was formed to accomplish the fraudulent purpose, that he and Stevens conspired to obtain and did obtain it from the plaintiff by delusion, that Stevens was Boughton's professional hireling in the matter, and that they shaped their whole evidence in the case to conceal and to consummate their iniquity.\\nE. W. Mann testifies for the defense that in-an interview in 1878, the plaintiff told him that the deed had not been delivered to her. This witness had conducted a suit to judgment for the defendant against Martin Y. Boughton, based upon an attachment of the premises as his, \\u2014 Bough-ton's \\u2014 property; having obtained the judgment, caused an execution issued upon it to be levied on, and an execution-sale made of the property, as Boughton's; and under his the witness' advice the defendant purchased the premises at that sale, and took the deed, which constitutes one ground of his claim to title; and on the trial of the present issue, the witness, also counsel in this case for the defendant, as such counsel, for the edification of the court and the benefit of his client explained that the theory on which the claim in that suit was attempted to be enforced against the premises as Martin Y. Boughton's property, was that the deed, Boughton to Boughton, had been made to his wife, leaving the title in himself. In estimating the evidence of Mr Mann I must see the attitude which he occupied towards the plaintiff during that interview, and by which he would be likely to interpret it; I must see that be listened to her honestly, believing the deed had not been delivered to her, and that the paper of Dec. 10, 1875, of which he was then aware, had been nnderstandingly signed by, and properly obtained from her. It does not follow from this, that he misapprehended her: it does not follow that he might easily have misapprehended her, and that misapprehension might reasonably be accounted for by a very slight difference of language. He states that he does not' recollect all the conversation of the interview, and this circumstance deteriorates from the force of his evidence. To accept his testimony as controlling, I must accept it as controlling what otherwise is a continuous and consistent current of fact, flowing the other way; not as harmonizing conflicts, but as giving conflict to harmonj-. To accept his evidence then, would be to violate the established rule analyzing contradictory testimony. I do not doubt the sincerity of the witness: I am not satisfied of his accuracy.\\nThe plaintiff being the grantee in the Boughton-Bough-ton deed, and the Martin Y. Boughton title being by it vested in her, was it divested by the tax-sale ? Is she bound by a tax put upon her property against a stranger, the tax proceedings being otherwise valid? Tax proceedings, being in invitum, are to be construed strictly; and whatever is essential to their validity must be affirmatively shown by the party who claims under them; a fortiori if it affirmatively appears that a requisite has been omitted from the proceedings; that will vitiate the alleged title. So' far as\\\" the Boughton title was concerned, the tax authorities in the matter of the present title were notified by the record that Mary E. Boughton was, and that Martin Y. Boughton was not the owner of the premises. In 1876 they were sold for delinquent taxes. From the listing to the sale, both inclusive, he was, and she was not described as the owner of the property taxed; it was taxed to him alone, and all the proceedings were against the property as his. The taxes were laid upon the right property, but to the wrong party \\u2014 against a stranger not tbe owner. He was not interested in protecting tbe property, and was notified; she was interested in the property, but was not notified; and thus the property was sacrificed by sale, though no delinquency had been committed. A sale of the realty for non-payment of taxes must be based upon a delinquency \\u2014 a default. There can be no delinquency or default without prior notice to the owner, so as to enable him to pay and prevent sale: hence all the proceedings prior to sale must involve such notice, and connect the tax with the owner, so as to bind property and ownership. The statute, under which the present proceedings were conducted, embodies this principle; if the proceedings violate the principle, they are void. The act is ch. 109 of the Compilation; sections 1-4, both inclusive, declare what taxes shall be raised, and what classes of property shall be taxed. Sections 5-21, both inclusive, are provisions for listing the property as the basis of assessment; each goes to the same purpose, and all are therefore to be taken in connection; they proceed wholly upon the idea that property shall be listed to the owner, and can operate only according to that idea; section 22 provides that the assessment-roll, which is the list and the assessment affixed to it, shall specify the names of the party to whom any property shall be taxable, \\u2014 which means of the owner; and in separate columns his personal and real property, which means the property of the owner; section 24, that a party refusing to furnish the assessor with a list of his real and personal property, or with a list of that which he represents as agent, guardian or otherwise, or to take the oath or affirmation prescribed in section 25, and to be administered by the assessor, shall be subject to a penalty; and section 25, that the oath or affirmation shall declare that the party has given in a full and correct inventory of all taxable property owned by him, and of all held by him in such representative capacity; section 26 requires of the assessor an oath, which shows among other things, that he has listed according to ownership: sections 23 and 29, that the assessor shall return the roll to the clerk of the board of county commissioners by the first Monday of July: that the commissioners shall be a board for the equalization of the assessment of the several persons in the county, substantially in the same manner as is required of the Territorial Board of Equalization to equalize among the several counties of the Territory, as nearly as may be; for that purpose shall sit at time and place specified in the sections; shall add to the roll any taxable property in the county, not included in the roll as so returned, and assess its value \\u2014 and may increase, diminish or otherwise alter and correct the assessment; \\\" and shall hear and determine the complaint of all persons feeling aggrieved by the assessment of their property, as returned by the assessor;\\\" and the clerk shall notify each party (or his agent,) whose assessment has been so increased, of the fact and amount of the increase, and that party may appear before the board at its next, meeting for the purpose of obtaining a correction of the increase, and that any person feeling aggrieved by' anything in the assessment of his property, may appear before the board within said time for the correction of the assessment \\u2014 and that the assessor, when assessing, shall give each person a printed notice of the time and place of the meeting of the board; sections 33, 34, 35 and 38, that a tax-list and warrant shall be prepared, specifying the property taxed, the tax and tax-payer, and direction to collect accordingly; that the collector should demand payment of the tax-payer, before enforcing 'collection, and only in case of non-payment after a given date may enforce payment, \\u2014 and that out of the personal property of the tax-payer; and finally, sections 41, 42 and 44, provide that all unpaid taxes shall become delinquent on the first day of November, and shall thereafter be payable to the county treasurer, who shall collect them by sale of the real estate; that, for the purpose of such collection, and as preliminary to sale, he shall give notice by advertisement and posting, specifying the land, and name of owner to whom taxed.\\nClearly the provisions for listing and assessing to the owner, and securing to him a hearing before the board of equalization, which is a board of correction, who condition the validity of the tax, as a tax-binding lien, upon the property being taxed to him by name; and the provisions requiring the tax-list and warrant to be made out against the taxpayer, the collector to demand of him before distraining, and the notice of sale to run against him, must be treated as based upon, and as being in continuation of the prior expressed intent; and as assuming that under those prior provisions the owner's name shall be furnished, and shall pass from the roll into the tax-list, warrant and notice. Hence no delinquency or default can be committed by the owner, unless demand shall have been made upon him, and his personal property exhausted by the collector in accordance with the warrant. It is only through such delinquency or default that the land can be reached by sale. It is true that section 48 declares that \\\"no irregularity or informality in the advertisement shall affect in any manner the legality of the sale, or the title of any part of the property conveyed by the treasurer's dteed under the act, but in all cases the provisions of the act shall be deemed sufficient notice to the owner of the sale of their property; \\\" but, though under this section the omission from the advertisement of the owner's name might not prejudice the sale, all the proceedings prior to the advertisement must conform to the statute, and to the principle which it proceeds upon, in order that its provisions may work such notice; in law, notice is protec-' tion against the defect of the advertisement, unless the efficacy of the sale was made to depend upon the validity of the proceedings which precede advertisement. Two considerations illustrate the necessity of taxing real estate to the owner, as a condition of validity; section 41 provides that the personal taxes shall be a lien upon the real estate, and according to the prescribed and necessary method of the roll and tax-list, the taxing \\u00f3f real estate to a stranger would fasten upon it his personal taxes; and constitutional law forbids the levying of a tax, before the owner has had an opportunity to object to the assessment. The tax title is otherwise defective. The assessment, as returned by the county assessor, is inchoate. According to section 28 it must next be revised by the county board of equalization; and from that board, so revised, it must go under sections 30, 31 and 32 before the territorial board of equalization, whose duty it is to sit on the 4th Monday of July in the same year, and, with reference to -the territorial tax, shall equalize'county assessment between the counties and towns as to the valuation of real estate, by adding to the aggregate valuation of that property in each county where valued below its proper valuation, a pereentum that will raise it to its proper valuation ; and by deducting from the aggregate valuation of such property in each county, when valued above its proper valuation, such pereentum as will, reduce it to its proper valuation.\\nFrom this board so revised, it must be certified under section 32 to the county clerk, and the county commissioners are then, and not till then, and under section 33,:to levy' upon it the requisite taxes. The evidence contains proof of the making and return of the roll by the county assessor to the clerk, and that subsequently and in August of the same year (1876), the commissioners made this order, \\\" that the following levy of taxes be made upon the assessed valuation of taxable property of Laramie county, for the various purposes and in proportion set forth below, as follows,\\\" and next follows in the order a schedule of rates for territorial and county purposes. The evidence contains no proof that the roll, as so returned by the assessor, was revised by either of the boards, or was put before either for revision. It is true that the clerk's certificate, attached to the tax-list, states that it was based upon the original assessment list, as revised by the county board; but though it may be proper for the clerk to certify the part for the assistance of the collector and tax-payer, the court must learn it, not by adopting the clerk's statement, but by the evidence appropriate to establish'it, \\u2014 and. that is the record proof, for each board is required to make a record of its revisions. Consequently it does not show that his assessment was perfected, and a basis existed for the levy of the 5th of August: for aught that appears, the levy was made upon the roll, or returned by the assessor, with nothing done to complete it, and as the proceeding next in order after the return. Further, section 33 forbids the commissioners from levying before the fourth Monday in August, unless the statement of revision has been earlier furnished from the territorial board \\u2014 thus allowing till' that date for the furnishing of the statement, as a basis of levy; the present levy was made on August 5th; hence, there being no evidence to justify the making of it before the fourth Monday, it was premature, powerless and void. This constitutes a radical error. Again, section one provides that two mills on the dollar shall be annually -levied for territorial revenue, when no rate is directed by the territorial board of equalization; and that the tax for this revenue shall in no case exceed three mills on the dollar; so that the two-mills rate is the ordinary, and that directed by the board the extraordinary rate \\u2022; the first to be presumed, the last to be specially proved. Sections 32 and 33 'provide that the auditor, who is a member of that board, shall by the last Monday in August notify the clerk of the county commissioners of the rate of territorial tax that has been determined upon, and that, the clerk having received from the auditor a statement of the equalization and notice of the tax determined on by that board, the county board shall proceed to levy the requisite taxes accordingly; but that, if by that date, the clerk shall not have received notice of a rate as determined upon by the board, the two-mills rate shall govern. The evidence contained no proof that the territorial board had determined upon an extraordinary rate for the territorial revenues: and therefore no authority to the county board to levy the three-mill tax for the Territory. This constitutes a radical defect.\\nAgain, the tax-list' and warrant are to be founded upon the assessor's roll so revised, and the rates so applied to it, as above explained. The evidence contains proof that a tax-list and warrant were prepared, but no proof that before the sale any distraint was attempted, or demand made for the payment of the taxes levied against the premises; nor even that the list and warrant were delivered to the collector. This constitutes a radical defect.\\nIt is unnecessary to consider other objections that may exist in the tax proceedings; it is apparent from what I have considered, that, as the evidence stands, the proceedings that preceded the sale, 'were void; consequently that sale was unauthorized and void, and the tax deed conveyed nothing.\\nI hold, therefore, that the plaintiff was, at the time of the ouster, legally entitled to the possession of the premises in controversy; that the ouster was illegal; and that she may recover the possession and the mesne profits. An order for such judgment will be appended at the foot of the findings.\\nI regret to deprive the defendant of the benefit of purchases, which he has made in good faith. I should more regret to deprive the plaintiff of property to which she is justly entitled.\\nJudgment affirmed.\"}"
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+"{\"id\": \"8901696\", \"name\": \"Cleveland HOLLOWAY, Appellant (Petitioner), v. WYOMING GAME AND FISH COMMISSION, Appellee (Respondent)\", \"name_abbreviation\": \"Holloway v. Wyoming Game & Fish Commission\", \"decision_date\": \"2005-11-18\", \"docket_number\": \"No. 05-52\", \"first_page\": \"959\", \"last_page\": \"964\", \"citations\": \"122 P.3d 959\", \"volume\": \"122\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T23:46:57.072925+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.\", \"parties\": \"Cleveland HOLLOWAY, Appellant (Petitioner), v. WYOMING GAME AND FISH COMMISSION, Appellee (Respondent).\", \"head_matter\": \"2005 WY 144\\nCleveland HOLLOWAY, Appellant (Petitioner), v. WYOMING GAME AND FISH COMMISSION, Appellee (Respondent).\\nNo. 05-52.\\nSupreme Court of Wyoming.\\nNov. 18, 2005.\\nRepresenting Appellant: Cleveland Holloway, pro se.\\nRepresenting Appellee: Patrick J. Crank, Attorney General; Jay Jerde, Deputy Attorney General; Thomas W. Rumpke, Senior Assistant Attorney General; and Eric K. Nelson, Senior Assistant Attorney General.\\nBefore HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.\", \"word_count\": \"2843\", \"char_count\": \"16934\", \"text\": \"KITE, Justice.\\n[\\u00b6 1] Cleveland Holloway was awarded a permit in 2003 to hunt bighorn sheep in area 23 east of the Green River Lakes in the Bridger Wilderness area of western Wyoming. After the season ended, Mr. Holloway requested a refund of his license fee and restoration of his preference points, claiming he was unable to hunt due to a forest fire in the area and a reduction in the bighorn sheep population. The License Review Board (Board) denied his request. Mr. Holloway appealed the Board's decision to the Game and Fish Commission (Commission), which upheld the denial. Mr. Holloway then sought review of the agency action in district court. The district court also affirmed. He now appeals to this Court, and we also affirm.\\nISSUES\\n[\\u00b62] Mr. Holloway, who has appeared pro se throughout these proceedings, presents the following issues:\\nA. Did the District Court err when it decided that I did not file my request for reimbursement or refund of my preference points on time?\\nB. Did the District Court err when it decided that I actually hunted Area 23 during the 2003 season?\\nThe Commission presents the following issue:\\nWas the decision of the Wyoming Game and Fish Commission to deny Cleveland Holloway's request for a refund of his bighorn sheep license fee and to restore his preference points arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law?\\nFACTS\\n[\\u00b6 3] Mr. Holloway applied for and was awarded a license to hunt bighorn sheep in area 23 from September 1 to October 15, 2003. In early August, prior to the opening date for hunting, a fire broke out at the base of Slide Lake and in the Clear Creek drainage in area 23, causing the United States Forest Service (U.S.F.S.) to close the Slide Lake and Clear Creek trails and impose a perimeter preventing public access to that portion of area 23.\\n[\\u00b6 4] On November 6 and 7, 2003, Mr. Holloway attended a Commission meeting in Rock Springs. He spoke to a department representative about obtaining a refund of his license fee and reinstatement of his preference points because he had not been able to adequately hunt area 23. The representative advised him to send a letter to the Board. By letter dated November 8, 2003, and received November 12, 2003, Mr. Holloway made a written request for reinstatement of his preference points. Citing Chapter 44 \\u00a7 22(e) of the Commission's rules and regulations, Mr. Holloway claimed he was entitled to reinstatement because he was unable to hunt in area 23 due to the fire closure and \\\"the die off of a large number of Whisky Mountain Bighorn Sheep.\\\"\\n[\\u00b6 5] On December 1, 2003, the department informed Mr. Holloway that the Board had reviewed his request and was denying it for two reasons. First, the Board concluded Chapter 44 \\u00a7 22(e) allowed a partial refund where the majority of the public access to public lands was lost due to natural disaster such as fire. Based upon information received from the U.S.F.S., the Board concluded a majority of area 23 was open for hunting despite the fire. Because a majority of the area was open for hunting, the Board concluded a refund was not authorized under the rules. Additionally, the Board determined Mr. Holloway's request for a refund was not timely under Chapter 44 \\u00a7 22(e) because it was not received by 5:00 p.m. on the fifth business day following the opening date for hunting in area 23. The department informed Mr. Holloway of his right to appeal the decision within ten days of receipt of the letter.\\n[\\u00b6 6] Mr. Holloway appealed the Board's decision to the Commission. As grounds for restoration of his preference points, Mr. Holloway stated game and fish personnel had told him before the fire that bighorn sheep were located only in the northern one-third of area 23, not the southern two-thirds. Because after the fire broke out the U.S.F.S. prohibited public access to the portion of area 23 where the sheep were located, Mr. Holloway argued the majority of public access to public lands was lost due to the fire within the meaning of the Commission's rules and regulations and he was entitled to restoration of his preference points.\\n[\\u00b6 7] The Commission heard Mr. Holloway's claim on February 13, 2004. Both Mr. Holloway and the department presented evidence before the Commission. At the conclusion of the hearing, the majority of the commissioners voted to uphold the Board's decision denying Mr. Holloway's request.\\n[\\u00b6 8] Mr. Holloway filed a complaint for review of agency action in district court on March 12, 2004. He alleged he was unable to adequately use his bighorn sheep hunting license because: 1) a significant amount of land within area 23 had been burned by fire just prior to and during the hunting season, and 2) he was informed by a forest service ranger that the remaining lands in area 23 had a very low hunter success rate. Mr. Holloway filed his brief on July 8, 2004, stating his reasons for believing the Commission and Board erred in denying his request. In his brief to the district court, Mr. Holloway alleged for the first time that he was unable to adequately use his license due to injury and illness. The Commission filed its responsive brief and, on January 5, 2005, the district court issued a decision letter in which it affirmed the Commission's rulings. In the final paragraph, the district court stated:\\nThe Commission's decision denying Holloway's request for a refund and reinstatement of preference points is supported by substantial evidence and is neither arbitrary nor capricious. Holloway hunted on his bighorn sheep license in area 23 and failed to timely file his refund request.\\nSTANDARD OF REVIEW\\n[\\u00b6 9] Both Mr. Holloway and the department presented evidence before the Commission. In administrative appeals where both parties submitted evidence, our review is limited to application of the substantial evidence test. Kunkle v. State ex rel. Wyo. Workers' Safety and Comp. Div., 2005 WY 49, \\u00b6 8, 109 P.3d 887, 889 (Wyo.2005). We have stated the substantial evidence test as follows:\\n\\\"In reviewing findings of fact, we examine the entire record to determine whether there is substantial evidence to support an agency's findings. If the agency's decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the agency and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclu sions. It is more than a scintilla of evidence.\\\"\\nId.\\n[\\u00b6 10] When the factual findings are found to be sufficient under the substantial evidence test, we may be required to apply the arbitrary and capricious standard to catch other agency action that prejudiced a party's substantial right or was contrary to other W.A.P.A. review standards. Id.\\nDISCUSSION\\n[\\u00b6 11] In his pro se brief, Mr. Holloway sets forth a variety of reasons why this case should be remanded to the district court for entry of an order requiring the Commission to reimburse his license fee and reinstate his preference points. Stated succinctly, he claims that for various reasons he was not able to hunt bighorn sheep in 2003 and the Commission ought to refund the money and preference points he expended for the unused hunting license. The reasons Mr. Holloway gives in his brief to this Court for being unable to hunt are: 1) the area within area 23 where bighorn sheep could be found was closed due to the fire; 2) the outfitter he hired to go into area 23 from the south refused to go into the closed area and the trip was aborted because of a winter storm; and, 3) torn cartilage in his knee and an enlarged and infected prostate limited his ability to hunt.\\n[\\u00b6 12] From our review of the record, it appears only one of these reasons was presented before the Commission. Although Mr. Holloway raised the issue of his medical problems in his appeal to the district court, he did not raise it before the Commission. It is well-established that claims raised for the first time on appeal will not be considered. Davis v. City of Cheyenne, 2004 WY 43, \\u00b6 26, 88 P.3d 481, 490 (Wyo.2004). Therefore, we limit our review to Mr. Holloway's claim that he was unable to hunt because the U.S.F.S. would not allow entry into the portion of area 23 where bighorn sheep were located.\\n[\\u00b6 13] Chapter 44, \\u00a7 22(e) of the Commission's rules and regulations sets out the procedure and requirements for obtaining a license fee refund and restoration of preference points. The provision in effect at all times relevant to Mr. Holloway's claim stated as follows:\\n(e) When the Department has determined a majority of the hunting opportunity has been lost in [a] . bighorn sheep . limited quota hunt area due to the administrative actions of the state or federal government in closing the majority, but not all, of the public access to public lands due to a natural disaster, including but not necessarily limited to, wildland fires, the holder of a limited quota . bighorn sheep . license for said limited quota hunt area may request a fifty percent (50%) refund of the license fee from the Department. In the event the Department determines one-hundred percent (100%) of the hunting opportunity and access to the hunt area has been closed due to a natural disaster, the holder of a limited quota . bighorn sheep . license may request a one-hundred percent (100%) license fee refund.... If the holder of a bighorn sheep . license requests a refund, the Department shall restore the individual's preference point(s), including any preference point earned for the current year. To qualify for consideration of a license fee refund, the license holder shall submit the request for refund in writing to Headquarters, Fiscal Administration. The request, along with the unused intact license, must be received by the Department headquarters by 5:00 p.m. on the fifth (5th) business day following the opening date for the regular hunting season . Refunds shall be denied in any circumstance where the license holder hunted on the license after the earliest regular hunting season date as listed in the current Commission regulation for the species for which the license is valid.\\nWyoming Game and Fish Commission Rules and Regulations, Chapter 44, \\u00a7 22(e) (July 29, 2003).\\n[\\u00b6 14] On the basis of this regulatory provision, the Board denied Mr. Holloway's request because it concluded the majority of the hunt area was open for hunting during the season and his request was not received on the fifth day following the opening date of the season in his area. The minutes of the Commission meeting do not include any discussion of the Commission's reasoning but reflect only that a majority of the commissioners voted to support the Board's determination. The district court's decision letter concluded that the Commission's decision was supported by substantial evidence and was not arbitrary or capricious because the undisputed evidence showed that Mr. Holloway hunted on his license during the September 1 through October 15, 2003, season and failed to timely file his refund request.\\n[\\u00b6 15] We conclude substantial evidence supported the determination that Mr. Holloway failed to timely file his request as provided in Chapter 44, \\u00a7 22(e). That failure alone provided an adequate basis for denying his request. As reflected in the quotation above, the regulation in effect at the time required requests for refunds to be received by department headquarters by 5:00 p.m. on the fifth business day following the opening date for the regular hunting season. The evidence was undisputed that the regular hunting season for area 23 in- the year 2003 began on September 1 and ended October 15. The fifth business day following September 1, 2003, was September 8, 2003. The department received Mr. Holloway's written request on November 12, 2003, over two months after the date the regulation required it to be received. Substantial evidence supported the Board's determination that Mr. Holloway's request was untimely. Pursuant to Chapter 44, \\u00a7 22(e), his request did not qualify for consideration of a license refund.\\n[\\u00b6 16] In his brief to this Court, Mr. Holloway asserts he had no notice of the time limitation for making the request. He contends there were two sets of rules, one made public and one kept internally. He makes a perfunctory claim that this constitutes fraud and misrepresentation. He makes this claim for the first time on appeal, without citation to authority or presentation of cogent argument. Therefore, we decline to address his assertion.\\n[\\u00b6 17] Mr. Holloway also makes the argument that what happened was simply unfair. He asserts that he waited years to get a bighorn sheep license, finally got one in a year that his efforts to hunt were thwarted and it will likely be many more years before he will have earned sufficient preference points to receive another license. He argues that he paid good money for the license and did not get the benefit of his bargain. He asserts there ought to be some provision for a rain check or a special thirty day pass under circumstances like his. Again, he cites no authority and presents no cogent argument in support of these assertions.\\n[\\u00b6 18] We are not unsympathetic to Mr. Holloway's claim. The record suggests he researched the area prior to the fire and, on the basis of what he learned, planned to hunt in the area that later was closed due to the fire. His efforts to hunt in another part of area 23 apparently were thwarted by weather. However, there is evidence in the record suggesting that even before the fire, after hearing the bighorn sheep population was down in the area, Mr. Holloway considered returning his license and requesting a refund. It is also undisputed that Mr. Holloway knew about the fire and its location almost immediately after it started in early August, nearly a month before opening day of the season. His claim that he was not aware of the time requirements contained in Chapter 44 \\u00a7 22(e) is undermined by the fact that he cited the provision in his initial letter to the Board, basing his argument that he was entitled to reinstatement of his preference points on the very provision he now contends was not available to him. The provision required Mr. Holloway's request for a refund to be received by the department by September 8. Mr. Holloway had several opportunities to request a refund prior to that date and chose not to do so. The Commission's determination was supported by substantial evidence and we find no basis for reversal.\\n[\\u00b6 19] Affirmed.\\n. The preference point system, provided for in Wyo. Stat. Ann. \\u00a7 23-l-703(b) (LexisNexis 2003) and Chapter 44 \\u00a7 18 of the Commission's rules and regulations, is a procedure whereby the department assigns points to each license applicant based upon the number of years the applicant has unsuccessfully applied for a license. At least seventy-five percent of the big game and trophy licenses issued for a particular hunt area are randomly selected through a preference point drawing from among tire group of applicants with the largest number of points. Upon drawing a bighorn sheep license, an applicant's preference points are deleted and he is prohibited from applying for or receiving another license for bighorn sheep for another five years.\\n. The Commission minutes reflect that Commissioner Fleming voted no because \\\"Mr. Holloway was only asking for preference points back, and she felt there was still some question about the extent of the fire in the hunt area.\\\"\\n. Pursuant to W.R.A.P. 12.03, an appeal to district court from an agency determination is properly captioned a petition for review. Although Mr. Holloway's pleading was entitled \\\"Complaint for Review\\\", we treat it as a petition for review.\\n. Chapter 44, \\u00a7 22, of the Commission's rules and regulations was modified on August 27, 2004 and September 22, 2005. Among other changes, the current regulation requires requests for a refund to be submitted during the calendar year for which the license is valid accompanied by a sworn statement that the licensee did not exercise any hunting privileges granted by the license. The current regulation allows for refunds in the case of natural disasters only where 100% of the hunting opportunity or access is closed to the public. Section 22(e) provides that there is no right of appeal to the Commission from decisions by the department under Section 22.\"}"
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+"{\"id\": \"8975888\", \"name\": \"STEWART TITLE GUARANTY COMPANY, a Texas corporation, Appellant (Defendant), v. Samuel J. TILDEN, a Wyoming resident, Appellee (Plaintiff)\", \"name_abbreviation\": \"Stewart Title Guaranty Co. v. Tilden\", \"decision_date\": \"2005-04-27\", \"docket_number\": \"No. 04-147\", \"first_page\": \"865\", \"last_page\": \"874\", \"citations\": \"110 P.3d 865\", \"volume\": \"110\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T18:27:13.756137+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before HILL, C.J., and GOLDEN, KITE, and VOIGT, JJ., and STEBNER, D.J., Retired.\", \"parties\": \"STEWART TITLE GUARANTY COMPANY, a Texas corporation, Appellant (Defendant), v. Samuel J. TILDEN, a Wyoming resident, Appellee (Plaintiff).\", \"head_matter\": \"2005 WY 53\\nSTEWART TITLE GUARANTY COMPANY, a Texas corporation, Appellant (Defendant), v. Samuel J. TILDEN, a Wyoming resident, Appellee (Plaintiff).\\nNo. 04-147.\\nSupreme Court of Wyoming.\\nApril 27, 2005.\\nRepresenting Appellant: Andrea L. Richard, P.C., of Jackson, Wyoming, and John A. Coppede of Rothgerber Johnson & Lyons LLP, Cheyenne, Wyoming.\\nRepresenting Appellee: Jessica Rutzick, Jackson, Wyoming.\\nBefore HILL, C.J., and GOLDEN, KITE, and VOIGT, JJ., and STEBNER, D.J., Retired.\\n. We present only these elements since this is not a \\\"case where an insurer is obligated by a liability insurance policy to defend any suit or claim or pay any judgment on behalf of a named insured.\\\"\", \"word_count\": \"5217\", \"char_count\": \"31231\", \"text\": \"GOLDEN, Justice.\\n[\\u00b6 1] Stewart Title Guaranty Company (Stewart Title) issued a policy of title insurance to Samuel Tilden. When a defect in the insured title appeared and the parties could not resolve the issue otherwise, the parties entered into arbitration as required by the contract of insurance. The dispute was eventually resolved. During the course of the arbitration proceedings the arbitrator made a specific finding that Stewart Title failed to cure the defect in a reasonably diligent manner but Tilden suffered no actual damages. Tilden requested attorney's fees but the arbitrator determined that he had no authority to grant attorney's fees as part of the arbitration. Tilden brought this current action for the sole purpose of recovering attorney's fees pursuant to Wyo. Stat. Ann. \\u00a7 26~15-124(c) (LexisNexis 2003). Stewart Title argues that \\u00a7 26-15-124(c) does not create a private cause of action for attorney's fees and thus the district court should dismiss the action. Finding that an action for the recovery of attorney's fees pursuant to \\u00a7 26-15-124(c) has been properly brought under these specific circumstances, we affirm the grant of summary judgment.\\nISSUES\\n[\\u00b6 2] Stewart Title presents the following issues:\\nI. What is the plain and ordinary meaning of \\\"judgment\\\" as used in Wyo. Stat. \\u00a7 26-15-124(c)?\\nII. Was Appellee entitled to judgment as a matter of law on his claim for attorney's fees under Wyo. Stat. \\u00a7 26-15-124(c) without a judgment determining that Stewart Title refused, unreasonably or without cause, to pay the full amount of a covered loss[?]\\nIII. Can Appellee maintain a stand-alone claim for attorney's fees under Wyo. Stat. \\u00a7 26-15-124(c) without a judgment determining that Stewart Title refused, unreasonably or without cause, to pay the full amount of a loss covered by the insurance policyt?]\\nIV. Did the district court err in ruling that Stewart Title was collaterally es-topped from litigating the reasonableness of its claim denial where the arbitrator's decision on that issue did not result in a judgment on the merits, the decision was contrary to law, Stewart Title did not have a full and fair opportunity to litigate the present issue(s) in the arbitration, and where the issue decided by the arbitrator was not identical to the issue before the district court?\\nTilden generally agrees with this presentation of the issues.\\nFACTS\\n[\\u00b6 3] This is the second time the underlying facts have given rise to an appeal before this Court. See Stewart Title Guar. Co. v. Tilden, 2003 WY 31, 64 P.3d 739 (Wyo.2003) (Stewart Title I). The underlying facts are the same. Tilden purchased a policy of title insurance from Stewart Title. Tilden discovered a title defect and presented a claim to Stewart Title, which Stewart Title initially denied. The issue went to arbitration as required under the contract of insurance. Two years later the arbitrator determined that the policy of insurance did cover Tilden's claim, Stewart Title had failed to cure the defect in a reasonably diligent manner, but that Tilden had suffered no actual damages. On the question of the reasonableness of Stewart Title's actions, the arbitrator, in his Final Award, expressly held that \\\"Stewart Title did not cure the title defect in a reasonably diligent manner\\\" and that the \\\"delay [in taking action to cure the title] was unreasonable.\\\" The arbitrator denied Tilden's request for attorney's fees in the arbitration, concluding that he had no authority under the contract or the terms of arbitration to award attorney's fees.\\n[\\u00b6 4] Tilden, still seeking attorney's fees, filed an action in district court for the confirmation of the arbitration award pursuant to Wyo. Stat. Ann. \\u00a7 1-36-113 (LexisNexis 2003). It is that action that gave rise to Stewart Title I. The Stewart Title I court held that the district court could not confirm the arbitration award. \\\"Stewart's satisfaction of the award effectively rendered the issue moot, and the district court should have dismissed the confirmation motion unless it determined that live issues remained to be litigated.\\\" Stewart Title I, \\u00b6 9. Tilden argued that the issue of attorney's fees remained to be litigated. In response, the Stewart Title I court stated \\\"we cannot see that a judgment on the award is necessary to receive a further additional judgment permitted by law.\\\" Id. at \\u00b6 10. The court remanded the case with directions to dismiss the underlying action.\\n[\\u00b6 5] Tilden next filed the instant action. Tilden's complaint traced the underlying course of events and the different proceedings to date. The only claim for relief presented by Tilden in his complaint was the award of attorney's fees pursuant to \\u00a7 26-15 \\u2014 124(c).' Tilden filed a motion for partial summary judgment on the issue of the unreasonableness of the denial of his claim and the delay in curing the title defect by Stewart Title.' Tilden argued that the finding of unreasonableness by the arbitrator constituted res judicata or collateral estoppel against Stewart Title and therefore the finding was binding and precluded Stewart Title from relitigating the issue. The district court granted the motion for partial summary judgment and directed Tilden to \\\"submit an application for attorney's fees under Wyo. Stat. \\u00a7 26-15-124(c).\\\" Stewart Title appealed.\\nDISCUSSION\\n[\\u00b6 6] Although not raised by either party in their respective briefs, we must first determine whether this Court has jurisdiction to hear this appeal. The motion was one for partial summary judgment. The order granting that motion is a nonappealable interlocutory order. This Court would only have jurisdiction to hear an appeal of the order if the district court certified the order as an appealable judgment pursuant to W.R.C.P. 54(b). Hayes v. Nielson, 568 P.2d 905, 906 (Wyo.1977) (\\\"No appeal will lie from an order granting a partial summary judgment because such an order is not a final order under Rule 54(b), W.R.C.P.\\\"); see also Ambariantz v. Cunningham, 460 P.2d 216, 217 (Wyo.1969). The instant order contains no express certification that there is no just reason for delay or an express direction for the entry of such a judgment. Barker Bros., Inc. v. Barker-Taylor, 823 P.2d 1204, 1207 (Wyo.1992). The order, therefore, is not ap-pealable.\\n[\\u00b6 7] One option available to this Court, however, is to convert the appeal into a writ of review. See generally In re General Adjudication of All Rights to Use Water in Big Horn River System, 803 P.2d 61, 68 (Wyo.1990) (\\\"There is no inhibition in our court rules, the state constitution, or any legislative mandate that precludes this court from, on its own motion, considering a notice of appeal as a petition for writ of certiorari and proceeding with review on that basis.\\\") As this Court has previously explained:\\n[Appellant] should have filed a petition for writ of review in this Court; instead, she filed a notice of appeal. Upon initial consideration of that notice of appeal the Court had two options: (1) dismiss the appeal, explaining that a petition for writ of review was the proper vehicle for bringing the district court's order before this Court; or, (2) treat the notice of appeal as a petition for writ of review. In this particular case, the Court opted to treat the notice of appeal as a petition for writ of review. We caution practitioners that in many, if not most instances, this Court will dismiss appeals filed under these circumstances.\\nKittles v. Rocky Mountain Recovery, Inc., 1 P.3d 1220, 1222 (Wyo.2000). With that caution still in mind, this Court will, albeit with reluctance, convert this appeal into a writ of review. We do so only because Stewart Title presents only questions of law relating to jurisdiction and Tilden's ability to state a claim upon which relief may be granted. Since these issues are fundamental to the action, an immediate review by this Court is in the best interest of judicial economy. We will continue our review as if the issues were properly before us on a writ of review.\\n[\\u00b68] The first issue that must be resolved is whether \\u00a7 26 \\u2014 15\\u2014124(c) creates a private right of action. If it does not, then the complaint should be dismissed for lack of jurisdiction. The issue, however, is not as complex as it might first appear and already has been decided. In Herrig v. Herrig, 844 P.2d 487, 494-95 (Wyo.1992), the court determined that \\u00a7 26-15-124(c) does create a private right of action. At issue was whether third parties could bring an independent claim for attorney's fees pursuant to \\u00a7 26-15-124(e). Thus, the Herrig court was directly presented with the issue of whether \\u00a7 26-15-124(c) creates a private right of action. That court determined that \\u00a7 26-15-124(c) did create a private right of action, although, under the particular circumstances of that case, the third parties could not state a claim upon which relief could be granted under the statute. Specifically, in discussing the statute, the Herrig court stated:\\nThe plain language of subsections (a) and (b) imposes a statutory duty on insurers to accept and pay, or reject, claims for insurance benefits within forty-five days of receiving adequate proof of a loss. In the event that the insurer rejected a claim or failed to timely act upon a claim, subsection (c) contemplates that the insured or his beneficiary would bring a contractual action against its insurer for claimed benefits. Subsection (c) provides that a court may, in addition to entering a judgment for the insured or its beneficiaries on the contractual action, award attorney's fees and interest if it is determined that the insurer's refusal to accept and pay the claim within forty-five days of receiving proof of the loss was unreasonable or without cause. An underlying action for contractual benefits, however, is not a jurisdictional prerequisite. An insured or his beneficiary may maintain an independent action to recover attorney's fees and interest for an unreasonable refusal to pay within forty-five days despite the insurer's ultimate payment of the claim prior to trial. Smith v. Equitable Life Assurance Society, 614 F.2d 720 (10th Cir.1980).\\nHerrig, at 494-95.\\n[\\u00b6 9] Stewart Title fails to mention Her-rig in its opening brief and even in its reply brief does not dispute that Herrig establishes that an independent action for attorney's fees can be maintained pursuant to \\u00a7 26-15-124(c). Stewart Title only argues that the circumstances of the instant action do not support a claim under the statute. Given no argument that Herrig should be overruled, we will not discuss the issue further. As previously determined by the Herrig court, \\u00a7 26-15-124(c) does create a private right of action. The district court has jurisdiction.\\n[\\u00b6 10] The remaining issues raised by Stewart Title concern whether the facts and circumstances of this case support a claim under \\u00a7 26-15-124(c). Most, if not all, of the issues raised by Stewart Title require this Court to construe the language of \\u00a7 26-15-124(c). A brief review of the rules of statutory construction reminds us that:\\nStatutory interpretation is a question of law which we review de novo. Chevron U.S.A., Inc. v. State, 918 P.2d 980, 983 (Wyo.1996). We first decide whether the statute is clear or ambiguous. This Court makes that determination as a matter of law. Id. A \\\"statute is unambiguous if its wording is such that reasonable persons are able to agree as to its meaning with consistency and predictability.\\\" Allied-Signal, Inc. v. Wyoming State Bd. of Equalization, 813 P.2d 214, 220 (Wyo.1991). A \\\"statute is ambiguous only if it is found to be vague or uncertain and subject to varying interpretations.\\\" Id. at 219-20.\\nIf we determine that a statute is clear and unambiguous, we give effect to the plain language of the statute. We begin by making an \\\" 'inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection.' \\\" Parker Land & Cattle Co. v. Wyoming Game & Fish Comm'n, 845 P.2d 1040, 1042 (Wyo.1993) (quoting Rasmussen v. Baker, 7 Wyo. 117, 133, 50 P. 819, 823 (1897)). We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe together all parts of the statute in pari materia. State Dep't of Revenue and Taxation v. Pacificorp, 872 P.2d 1163, 1166 (Wyo.1994). If we determine that the statute is ambiguous, we resort to general principles of statutory construction to determine the legislature's intent. State v. Bannon Energy Corp., 999 P.2d 1306, 1309 (Wyo.2000).\\nCabot Oil & Gas Corp. v. Followill, 2004 WY 80, \\u00b6 6-7, 93 P.3d 238, \\u00b6 6-7 (Wyo.2004).\\n[\\u00b6 11] The primary contention raised by Stewart Title is that an action pursuant to \\u00a7 26-15-124(c) can only be brought after a court judgment has been entered determining that an insurance company has unreasonably or without cause failed to pay a covered loss. Stewart Title breaks this argument down into several components. Initially, ' Stewart Title focuses on the word \\\"judgment.\\\" It claims that a complete court judgment is a condition precedent to filing a complaint pursuant to \\u00a7 26-15-124(e). In this case there is only an arbitration award, and an arbitration award, especially an unconfirmed arbitration award, is not a judgment. Stewart Title continues by arguing that, with no prior court judgment entered against Stewart Title, an action under \\u00a7 26-15-124(c) cannot be maintained.\\n[\\u00b6 12] This contention fails for two reasons: first, it ignores the prior holding of the court in Herrig that \\\"[a]n underlying action for contractual benefits . is not a jurisdictional prerequisite. An insured or his beneficiary may maintain an independent action to recover attorney's fees and interest,\\\" 844 P.2d at 495, and second, it is not supported by the plain language of the statute. While we agree with Stewart Title that the plain meaning of the word \\\"judgment\\\" does not include an arbitration award, it does not advance Stewart Title's position. The critical aspect of the term \\\"judgment\\\" under the present circumstances is the temporal aspect of the term \\\"judgment\\\" as used in the statute. Stewart Title argues a \\\"judgment\\\" must come first, as a condition precedent. We find no support in the language of the statute for this contention.\\n[\\u00b6 13] We begin with a reminder that this Court is charged with giving effect to every word, clause and sentence used by the legislature. Section 26-15-124(c) is comprised of one sentence. We look then, to give effect to every clause and every word within that sentence. The current focus is on the word \\\"judgment\\\" as used in the statute:\\nIn any actions or proceedings commenced against any insurance company on any insurance policy or certificate of any type or kind of insurance, or in any case where an insurer is obligated by a liability insurance policy to defend any suit or claim or pay any judgment on behalf of a named insured, if it is determined that the company refuses to pay the full amount of a loss covered by the policy and that the refusal is unreasonable or without cause, any court in which judgment is rendered for a claimant may also award a reasonable sum as an attorney's fee and interest at ten percent (10%) per year.\\n\\u00a7 :26-15-124(c) (emphasis added). We have agreed that \\\"judgment\\\" means a judicially imposed judgment. The problem with the construction Stewart Title advances, that a judgment is a condition precedent to bringing an action pursuant to \\u00a7 26 \\u2014 15\\u2014124(c), is that it eliminates the phrase \\\"any actions or proceedings.\\\"\\n[\\u00b6 14] The statute specifically allows for a finding regarding unreasonableness or without cause to be made in any \\\"actions or proceedings.\\\" The two words are listed in the disjunctive and each must be given its distinct meaning. The word \\\"action\\\" in its usual legal sense means \\\"a civil or criminal judicial proceeding.\\\" Black's Law Dictionary 31 (8th ed.2004). The term \\\"proceeding\\\" is broader. A \\\"proceeding\\\" includes \\\"any procedural means for seeking redress from a tribunal or agency.\\\" Id. at 1241. Therefore, by the terms of the statute (as already determined in Herrig) a court action is not required as a condition precedent to the award of attorney's fees pursuant to the statute. Rather, a determination regarding reasonableness can come from any prior action or proceeding.\\n[\\u00b6 15] This construction is far more consistent with the language of the statute. The \\\"judgment\\\" referred to in the statute is a judicial judgment entered at any time, either as part of an initial court \\\"action,\\\" or after any \\\"actions\\\" or \\\"proceedings\\\" have been completed. The \\\"judgment\\\" after a proceeding has been completed could be a judgment in an action brought independently under \\u00a7 26-15-124(c), as has occurred in this case. In short, a judgment is not a condition precedent to the bringing of an independent claim under \\u00a7 26-15-124(c).\\n[\\u00b6 16] Another component of the statute that Stewart Title argues is not met under the circumstances is the required finding that \\\"the company refuses to pay the full amount of a loss covered by the policy.\\\" Stewart Title argues that the statute does not apply because Stewart Title cured the defect in title, it never refused to \\\"pay\\\" the full amount of a covered \\\"loss.\\\" In fact, Stewart Title argues, the arbitrator determined that Tilden suffered no actual damages so there is no loss. Thus, Stewart Title reasons, Tilden cannot meet the requirements of the statute.\\n[\\u00b6 17] This reading of the statute, while literally correct, is too narrow. We acknowledge that \\\"[a] basic tenet of statutory construction- is that omission of words from a statute is considered to be an intentional act by the legislature, and this court will not read words into a statute when the legislature has chosen not to include them,\\\" Merrill v. Jansma, 2004 WY 26, \\u00b6 29, 86 P.3d 270, \\u00b6 29 (Wyo.2004), but such a reading would limit the previous language of the statute that a claim under the statute may be based upon \\\"any action or proceeding\\\" brought \\\"against any insurance company on any insurance policy or certificate of any type or kind of insurance.\\\" As further guidance, the title of the section refers to acceptance or rejection of a claim generally. The language in general would seem to encompass the claim handling practices on all insurance policies and all insurance claims, yet the one phrase emphasized by Stewart Title seems to limit the scope of the statute to only those policies and circumstances where an insured has suffered a covered loss for which a monetary payment was due. Since not all types of insurance coverage are limited to the payment of a loss (as the present case aptly illustrates), when reading the statute as a whole, an ambiguity is created.\\n[\\u00b6 18] There are various issues the Court may review when construing an ambiguous statute. \\\"When the language is not clear or is ambiguous, the court must look to the mischief the statute was intended to cure, the historical setting surrounding its enactment, the public policy of the state, the conclusions of law, and other prior and contemporaneous facts and circumstances, making use of the accepted rules of construction to ascertain a legislative intent that is reasonable and consistent.\\\" State ex rel. Motor Vehicle Div. v. Holtz, 674 P.2d 732, 736 (Wyo.1983). The ultimate goal is to determine the intent of the legislature. \\\"If the statute is ambiguous, which means that its meaning is uncertain and it is susceptible to more than one interpretation, we may construe it. Our primary goal-is to determine legislative intent. Statutes are to be given a reasonable interpretation with reference to their pur pose.\\\" Keats v. State, 2003 WY 19, \\u00b6 26, 64 P.3d 104, \\u00b6 26 (Wyo.2003).\\n[\\u00b6 19] In this instance, legislative intent is clear. The majority of the language in the statute reveals that the legislature did not intend to limit the type of insurance or claim falling within the ambit of the statute. As the court stated in Herrig:\\nThe purpose of this statute, as it relates to claims for insurance benefits, is to encourage the prompt settlement of justifiable claims by providing redress for an insurer's wrongful refusal to pay. Id. at 723. The statute complements and enforces the duty of good faith and fair dealing that an insurer owes to its insured.\\nHerrig, 844 P.2d at 495. We do not believe the legislature intended for the conduct of an insurance company that constitutes an unreasonable delay in claim settlement to be removed from the ambit of the statute simply because the insurance company can settle the claim by means other than payment of an amount for a monetary loss suffered by the insured. To use the present example, the fact that a title company can cure a title defect and thereby prevent its insured from sustaining actual damages does not excuse the company from liability under the statute for its unreasonable claim settlement practices prior to curing the title defect. Hence, it is appropriate under these circumstances to interpret the phrase \\\"the company refuses to pay the full amount of a loss covered by the policy\\\" broadly to mean \\\"the company refuses to fulfill its contractual obligations with regard to settling a loss covered by the policy.\\\"\\n[\\u00b620] In sum, the construction of \\u00a7 26-15-124(c) as determined by this Court is that \\u00a7 26-15-124(e) creates a private right of action. Under the present circumstances, the claim brought under the statute requires the following elements be proven: 1) an action or proceeding was commenced (which could include the present action); 2) against the insurance company; 3) on any insurance policy or any type or kind of insurance; 4) that in that action or proceeding it was determined that the company refused to pay the full amount of loss covered by the policy or otherwise fulfill its obligations to the insured under the policy; 5) and that a determination was made in that action or proceeding that the refusal was unreasonable or without cause. A court that renders a judgment finding these elements have been satisfied may award a reasonable sum as an attorney's fee and interest at 10% per year as damages. Any other reading would render various words or clauses of the statute meaningless.\\n[\\u00b6 21] This construction also settles the issue of the use of collateral estop-pel by the district court. By the language of the statute, collateral estoppel plays no role in a proceeding pursuant to \\u00a7 26-15-124(e) under these circumstances. An element of the claim is that a finding of unreasonableness was made in a prior proceeding or action (if not, then in the current action). Here, a finding \\u00f3f unreasonableness was made in a prior proceeding, the arbitration. That is the element of the claim that needs to be proven. Stewart Title does not argue that such a finding was not made in the arbitration proceeding.\\n[\\u00b6 22] The prior finding, in this case the finding of the arbitrator, is not subject to challenge in an action brought pursuant to \\u00a7 26-15-124(e). If Stewart Title had a problem with any finding of the arbitrator, it had adequate recourse. Stewart Title could have requested judicial review of the arbitration award pursuant to Wyo. Stat. Ann. \\u00a7 1-36 114 or 115 (LexisNexis 2003). Stewart Title instead allowed the findings by the arbitrator to stand uncontested. The prior finding by the arbitrator was properly allowed in the instant action. It is the finding itself that is an element of the claim. It is not necessary or applicable to apply collateral estoppel to the finding before the finding can be accepted.\\n[\\u00b6 23] Stewart Title finally complains that a finding of unreasonableness or without cause must be made in the statutory proceeding to ensure it has a proper chance to litigate the issue. Stewart Title presents this argument by asserting that the elements of collateral estoppel have not been met. Stewart Title claims that the findings of the arbitrator, that \\\"Stewart Title did not cure the title defect in a reasonably diligent manner,\\\" and that the \\\"delay [in taking action to cure the title] was unreasonable,\\\" are not tantamount to the finding necessary for a claim to succeed under \\u00a7 26 \\u2014 15\\u2014124(c). Stewart Title argues that the arbitrator never made a finding that it unreasonably refused to pay the full amount of a covered loss. Stewart Title also argues that the decision on reasonableness only related to actual damages under the contract, not to statutory attorney's fees, thus it is a different issue.\\n[\\u00b6 24] As our discussion above indicates, however, the statute is not to be so narrowly construed. The statute provides for the award of attorney's fees as damages if a finding of unreasonableness or without cause was made in any action or proceeding. There is no restriction as to the claim under which such a finding is made. Thus, if the finding came in a prior action or proceeding, that action or proceeding could involve a claim either in tort or contract. The finding of the arbitrator was made under the language of the contract, and thus qualifies as the necessary finding to satisfy the requirements of the statute.\\n[\\u00b6 25] Essentially, yet again Stewart Title is attempting to read out of the statute the acceptance of the trial court of prior decisions made in \\\"any action or proceeding\\\" and instead require the district court to always make the reasonableness determination independently. This suggestion goes against the clear language of the statute. The finding of the arbitrator fits the statutory requirement of a finding that Stewart Title unreasonably refused to fulfill its contractual obligations with regards to settling a loss covered by the policy. The fact that the finding had collateral consequences beyond the arbitration does not make the finding inappropriate for the purposes of \\u00a7 26 \\u2014 15\\u2014124(c).\\nCONCLUSION\\n[\\u00b6 26] The construction of the language of \\u00a7 26-15-124(c) provides the foundation for the answers to all issues presented by Stewart Title. Section 26 \\u2014 15\\u2014124(c) creates a private right of action. Under the facts and circumstances of this case, in order to prevail on a claim under \\u00a7 26-15-124(c), Tilden must plead and prove that the arbitrator determined, as part of an arbitration proceeding brought under the policy of title insurance issued by Stewart Title, that Stewart Title unreasonably, or without cause, refused to cure a covered title defect upon a claim presented by Tilden. The final award of the arbitrator, as well as other documents, was entered into evidence in support of Tilden's motion for partial summary judgment, effectively supporting all these elements. Stewart Title does not argue that the grant of summary judgment is not factually supported.\\n[\\u00b6 27] There is no genuine issue of any material fact. While we do not necessarily agree with the legal reasoning of the district court, we agree with the ultimate outcome. Summary judgment on the issue of the unreasonableness of the delay by Stewart Title in curing the defect in title presented by Tilden is affirmed. The issue of the proper amount of damages remains to be determined. This case is remanded for further proceedings consistent with this opinion.\\n. Section 26-15-124(c) states:\\n(c) In any actions or proceedings commenced against any insurance company on any insurance policy or certificate of any type or kind of insurance, or in any case where an insurer is obligated by a liability insurance policy to defend any suit or claim or pay any judgment on behalf of a named insured, if it is determined that the company refuses to pay the full amount of a loss covered by the policy and that the refusal is unreasonable or without cause, any court in which judgment is rendered for a claimant may also award a reasonable sum as an attorney's fee and interest at ten percent (10%) per year.\\n. Section 1-36-113, entitled \\\"Confirmation of award by court,\\\" states:\\nUpon application of a party the court shall confirm the award unless within the time limits allowed grounds are urged for vacating or modifying the award.\\n. W.R.C.P. 54(b) states:\\n(b) Judgment upon multiple claims or involving multiple parties. \\u2014 When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.\\n. This action should have been brought as a writ of review pursuant to W.R.A.P. 13.02:\\nA writ of review may be granted by the reviewing court to review an interlocutory order of a trial court in a civil or criminal action, or from an interlocutory order of an administrative agency, which is not otherwise appeal-able under these rules, but which involves a controlling question of law as to which there are substantial bases for difference of opinion and in which an immediate appeal from the order may materially advance resolution of the litigation.\\n. Stewart Title complains that a construction of the statute preventing the issue of reasonableness from being litigated within the action brought pursuant to \\u00a7 26-15~124(c) will allow insured's to bring a claim against an insurance company pursuant to \\u00a7 26-15-124(c) even if there was a positive determination of reasonableness in a pri- or proceeding or action. Although this is not the circumstance directly before the Court, we note that the doctrines of collateral estoppel and res judicata remain available to defeat a claim under the appropriate circumstances.\\n. Technically, the reasoning of the district court applying collateral estoppel was incorrect, but this Court can affirm a decision on any grounds appearing in the record. Hutchins v. Payless Auto Sales, Inc., 2004 WY 22, \\u00b6 12, 85 P.3d 1010, \\u00b6 12 (Wyo.2004) (\\\"Furthermore, even if we do not agree with the district court's reasoning, we will affirm the district court's summary judgment decision if there is any legal basis in the record to support it.\\\").\"}"
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+"{\"id\": \"9123343\", \"name\": \"Mike HUFF, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff)\", \"name_abbreviation\": \"Huff v. State\", \"decision_date\": \"2003-05-22\", \"docket_number\": \"No. 02-157\", \"first_page\": \"400\", \"last_page\": \"403\", \"citations\": \"69 P.3d 400\", \"volume\": \"69\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T00:46:43.184043+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.\", \"parties\": \"Mike HUFF, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"2003 WY 63\\nMike HUFF, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\\nNo. 02-157.\\nSupreme Court of Wyoming.\\nMay 22, 2003.\\nRepresenting Appellant: Kenneth M. Ko-ski, State Public Defender; and Donna D. Domonkos, Appellate Counsel.\\nRepresenting Appellee: Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Kerry Gaines, Student Intern.\\nBefore HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.\", \"word_count\": \"1679\", \"char_count\": \"10052\", \"text\": \"LEHMAN, Justice.\\n[T1] This is an appeal from the order of the district court revoking and then reinstating, with modified conditions, the probation of appellant Mike Huff. We affirm.\\nISSUE\\nHuff sets forth the issue on appeal as:\\nWhether the district court abused its discretion when it revoked Mr. Huff's probation for violating a condition of probation when Mr. Huff could not physically comply with the condition because of his paralysis?\\nFACTS\\nOn November 16, 2001, Rush Locke, a probation and parole agent in Johnson County, sent Huff a letter requesting that Huff, as an individual on probation, come in for an office visit. Huff complied, appearing in Locke's office on November 26, 2001, at 10:00 a.m. During this visit, Locke requested that Huff submit to a urine analysis. Huff informed Locke that he was unable to comply because he was unable to urinate on demand due to his physical condition, paralysis. Specifically, Huff stated that \\\"he goes without urinating anywhere from three days to two weeks.\\\" Locke then requested, as specified under Wyoming Department of Corrections policy, that Huff return to the office. in two hours to produce the sample and indicated that if Huff had difficulty in urinating he should provide a note from his doctor. Huff told Locke that he had not seen a doctor for thirty years and expressed his unhappiness with being asked to return, saying that it cost him $8.00 for gas and oil to make the visit and that he was going to bill the State for that sum.\\n[T4] At 11:55 a.m. that same day, Huff telephoned Locke to inform him that he would not be able to produce a sample at 12:30 p.m. He also told Locke that he should \\\"proceed with the court papers and stated he would request a trial and bring in a doctor's testimony.\\\" Accordingly, Locke requested that Huff come in the next morning at 9:00 a.m. to produce a urine sample.\\nHuff did return the following day at 9:00 a.m. Nevertheless, he advised Locke that he had just previously urinated at Har-dee's Restaurant before the visit. Huff indicated that he therefore could not then give a sample and requested that Locke provide him with a sample bottle to take with him so he could provide a sample within the next few weeks. Locke advised Huff that the Department of Corrections did not allow for this manner of urinary collection because proper monitoring procedures could not be followed. Further, Locke told Huff that Department of Corrections policy stated that failure to submit to a chemical analysis of one's person within two hours of the request is considered a refusal.\\n[T6] A petition for probation revocation was then filed by the State. At the probation revocation hearing, Locke testified that he was not aware of alternative testing procedures other than urinalysis for drug use screening and that blood tests were not administered to persons on probation. Huff testified that he did not submit to urinalysis because he was paralyzed on his left side due to a stroke he suffered at age fourteen and could not, therefore, urinate on demand. Huff also testified that he had seen Dr. Holst, a urologist, who confirmed that he had a voiding dysfunction. Huff further testified that he would submit to a blood test, if asked, and had done so in the past. A memorandum was further submitted from Dr. Holst that stated that Huff had a voiding dysfunction which was most likely related to his neurologic condition. In addition, this memorandum indicated that Huff stated that he urinates two times per day.\\nUltimately, the district court found that Huff had violated his probation conditions. The district court, therefore, entered an order revoking Huff's probation and reinstating his probation with the condition that chemical testing analysis allow for submission of a blood sample. The term of Huff's probation remained unchanged. This appeal followed.\\nSTANDARD OF REVIEW\\n[T8] \\\"The imposition as well as the revocation of probation Hes within the sound discretion of the district court, and we will not reverse the actions of the district court unless that discretion is abused.\\\" Trujillo v. State, 2002 WY 56, \\u00b6 6, 44 P.3d 943, \\u00b6 6 (Wyo.2002). We have a well-established standard for analyzing claims for abuse of discretion:\\nJudicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the cireumstances and without doing so arbitrarily or capriciously. [Griswold v. State, 2001 WY 14, \\u00b6 7, 17 P.3d 728, \\u00b6 7 (Wyo.2001)]. \\\"In the absence of an abuse of discretion, we will not disturb the trial court's determination.\\\" Id. The burden is on the defendant to establish such abuse. Trujillo [v. State ], 2 P.3d [567] at 571 [(Wyo.2000)].\\nSkinner v. State, 2001 WY 102, \\u00b6 25, 33 P.3d 758 \\u00b6 25 (Wyo.2001); see also Gleason v. State, 2002 WY 161, \\u00b6 29, 57 P.3d 332, \\u00b6 29 (Wyo.2002).\\nDISCUSSION\\n[\\u00b69] Huff asserts that the district court abused its discretion when it revoked his probation and then immediately reinstated his probation with additional conditions because the record indicated that Huff did not violate the terms of his probation. Huff argues that the record only showed that he was physically unable to urinate, making it impossible for him to comply with chemical testing as a specified condition of his probation. We strongly disagree.\\n[\\u00b610] Our review of the record indicates that evidence was presented to allow the district court to conclude Huff violated the terms of his probation. Specifically, Huff testified that he did urinate at Hardee's just prior to his appointment with Locke. Further, Huff's statements to Locke that he did not urinate \\\"from three days to two weeks\\\" is refuted by those statements recorded by Dr. Holst that Huff told him that he urinated two times a day. Further, the transcript of the revocation hearing indicates that after the district court had already made its decision, Huff stated:\\nI am paralyzed totally, my left side. That includes the urinary tract part of my body. I have no mechanism to turn it off and turn it on. When it runs, it runs; I dive into Hardee's. I do it on a run on the way to Rush Locke's office. I have no choice.\\n[T 11] Moreover, the record is patently clear that Huff was evasive, uncooperative, and hostile regarding Locke's efforts to secure a urine sample from him. Initially, when Huff was asked to confirm his condition, he told Locke that he had not seen a doctor for thirty years. In addition, when advised that he would need to return in two hours, Huff expressed his unhappiness with being asked to return, saying that it had cost him $8.00 for gas and oil to make the visit and threatening that he was going to bill the State for that amount. Thereafter, before even attempting to give a urine sample two hours later, Huff telephoned to say that he would not be able to produce a sample at 12:30 p.m. and advised Locke to simply proceed with the court papers. Huff further indicated that when Locke filed these pleadings with the court that he would request a trial and bring in doctor's testimony. Unarguably, Huff knew at that time that this approach was transparently elusive, would cause Locke additional time and effort, and would unnece-essarily involve the court system.\\n[\\u00b612] In order to give Huff the benefit of the doubt, Locke, with an abundance of patience, asked Huff to return the next day to give a urine sample. This favorable offer by Locke was met by Huff indicating that he had just minutes earlier urinated at Hardee's making it impossible for him to comply with Locke's request. Huff followed up this statement by making the request that Locke provide him with a sample bottle to take with him so he could provide a sample within the next few weeks which did not allow for proper monitoring procedures to be followed.\\n[\\u00b613] Finally, although Huff indicated at the hearing that he would be willing to give a blood sample, he did not volunteer this information to Locke. Indeed, Huff testified at hearing that when these same issues arose with his previous probation officer, Huff had submitted a blood sample for testing. Nevertheless, Huff did not advise Locke of these facts. Hence, we hold that the district court did not abuse its discretion in revoking and then reinstating, with modified conditions, Huff's probation. To the contrary, the decision of the district court was based on sufficient evidence.\\n[\\u00b614] The additional conditions do not prejudice Huff since he admitted that he would voluntarily submit to blood testing, and Huff had the implicit obligation to cooperate with probationary officials as a part of his probationary term in any event. In addition, submission to drug testing was always a condition imposed as a part of Huff's probation. Therefore, the district court merely changed the method of drug testing resulting in no prejudice or harm to Huff.\\n[T15] Probation officers are required to ensure that the terms of probation are followed by those placed on probation by the court. Similarly, those placed on probation are required to strictly comply with the terms of probation specified by the court or risk the sure consequence that such probationary terms will be modified or that probation will be revoked outright.\\nCONCLUSION\\n[\\u00b616] For the foregoing reasons, the order of the district court revoking and then reinstating Huff's probation, with modifications, is affirmed.\"}"
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+"{\"id\": \"9153300\", \"name\": \"MAM, Appellant (Defendant/Petitioner), v. STATE of Wyoming, DEPARTMENT OF FAMILY SERVICES; and State of Wyoming ex rel., NTE, minor child, Appellees (Plaintiffs/Respondents)\", \"name_abbreviation\": \"MAM v. State, Department of Family Services\", \"decision_date\": \"2004-10-29\", \"docket_number\": \"No. C-03-13\", \"first_page\": \"982\", \"last_page\": \"987\", \"citations\": \"99 P.3d 982\", \"volume\": \"99\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T20:23:41.757198+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.\", \"parties\": \"MAM, Appellant (Defendant/Petitioner), v. STATE of Wyoming, DEPARTMENT OF FAMILY SERVICES; and State of Wyoming ex rel., NTE, minor child, Appellees (Plaintiffs/Respondents).\", \"head_matter\": \"2004 WY 127\\nMAM, Appellant (Defendant/Petitioner), v. STATE of Wyoming, DEPARTMENT OF FAMILY SERVICES; and State of Wyoming ex rel., NTE, minor child, Appellees (Plaintiffs/Respondents).\\nNo. C-03-13.\\nSupreme Court of Wyoming.\\nOct. 29, 2004.\\nRepresenting Appellant: Barbara A. Baker, Sheridan, Wyoming.\\nRepresenting Appellees: Patrick J. Crank, Attorney General; Robin Sessions Cooley, Deputy Attorney General; and Dan S. Wilde, Senior Assistant Attorney General, Cheyenne, Wyoming.\\nGuardian Ad Litem: Ellen Rutledge, Sheridan, Wyoming.\\nBefore HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.\", \"word_count\": \"2728\", \"char_count\": \"16790\", \"text\": \"VOIGT, Justice.\\n[11] This is an appeal from an order and judgment on the pleadings in which the district court denied a petition to declare the non-existence of a father-child relationship and denied a motion to set aside a stipulated paternity order. Finding an abuse of discretion under the particular facts of this case, we reverse.\\nISSUES\\n[12] The appellant states the issues as follows:\\n1. Did the district court err by applying the wrong statute?\\n2. Was Appellant entitled to relief from the Stipulated Order for paternity?\\n3. Is it a violation of public policy to promote the legal fiction that Appellant is the biological father in light of evidence to the contrary?\\n[13] The appellee presents a single issue: Whether the district court erred in denying appellant's request for relief from the stipulated order of paternity?\\n[14] Finally, the guardian-ad-litem identifies two issues:\\nI. Did the District Court [err] as a matter of law when it applied statutes enacted after the action was commenced, and if so, can the Appellant's claim proceed pursuant to the former statutory scheme?\\nII. Does public policy support actions for disestablishment of paternity?\\n[15] We will restate the determinative issue as follows:\\nWas it an abuse of discretion for the district court to deny relief from judgment under W.R.C.P. 60(b)(6)?\\nFACTS\\n[T6] A child was born on November 16, 1999. Because the child's mother applied for child support services or public assistance, the State of Wyoming filed in the district court on May 18, 2000, a Petition to Establish Paternity and Support. That petition contained the following allegations of fact:\\n9. The putative father [the appellant] had sexual access to the mother . at the time of conception of the minor child and there are no other known persons who could be presumed or alleged to be the father of the minor child.\\n10. [The appellant] is the natural and biological father of the minor child.\\n[17] Six days after being served with a copy of the petition, and without obtaining counsel, the appellant signed a Stipulated Order Waiving Informal Hearing and Order Waiving Genetic Testing. The record does not contain, nor does it make reference to a separate waiver having been signed by the appellant, and there is no indication that the appellant waived the informal hearing or genetic testing in open court after having been advised of the existence and nature of those rights. Neither the petition nor the summons and order to appear served with it mention any right to genetic testing. The stipulated order reads in full as follows:\\nTHE PARTIES having so stipulated, as appears from their signatures below, personally or through their respective attorneys, waive the informal hearing scheduled for June 28, 2000, at 4:00 p.m. being authorized by W.S. \\u00a7 14-2-108;\\nIT IS HEREBY ORDERED that no informal hearing shall be had in this matter.\\nIT IS FURTHER ORDERED that genetic testing is waived in this matter as the Respondent's [sic ] [mother and the appellant], have signed the Affidavit Acknowledging Paternity stating [the appellant] is the natural and biological father of [the child].\\nThe State concedes that this order is in error inasmuch as the appellant has never signed an affidavit acknowledging paternity.\\n[18] Some time after the birth of the child, the mother began to question whether the appellant was the child's father. When the child was approximately two years old, voluntary genetic testing established with certainty that the appellant was not the child's father, and further identified with certainty another man to be the father. The mother requested that the State Child Support Enforcement Office assist her in correcting the error, but was told nothing could be done. The appellant then filed his petition and motion.\\nSTANDARD OF REVIEW\\n[19] W.R.C.P. 60(b) provides, in pertinent part:\\nOn motion, and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: . (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time[.]\\n[110] \\\"The granting of relief pursuant to that rule is a matter of the exercise of discretion by the trial court, and appellate review is limited to the question of whether the trial court abused its discretion.\\\" State, Dept. of Family Services v. PAJ6, 934 P.2d 1257, 1259-60 (Wyo.1997). We will not disturb the exercise of that discretion unless shown by an appellant that the trial court \\\"was clearly wrong.\\\" Claassen v. Nord, 756 P.2d 189, 198 (Wyo.1988).\\n\\\"We recently clarified the definition of abuse of discretion when we said the core of our inquiry must reach 'the question of reasonableness of the choice made by the trial court.! Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998). 'Judicial discretion is 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.' Id. (quoting Byerty v. Madsen, 41 Wash.App. 495, 704 P.2d 1286, 1288 (Wash.App.1985)); Basolo [v. Basolo ], 907 P.2d [348] at 353 [ (Wyo.1995) ]. We must ask ourselves whether the district court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious.\\\"\\nCobb v. Cobb, 2 P.3d 578, 579 (Wyo.2000) (quoting Thomas v. Thomas, 983 P.2d 717, 719 (Wyo.1999)).\\n[111] The purpose of the rule \\\"is to provide courts with the power to vacate judgments whenever such action is appropriate to accomplish justice.\\\" U.S. Aviation, Inc. v. Wyoming Avionics, Inc., 664 P.2d 121, 127 (Wyo.1988). Nevertheless, the \\\"rule is applicable only to special situations justifying extraordinary relief, and a showing of exceptional cireumstances must be made.\\\" Paul v. Paul, 631 P.2d 1060, 1066 (Wyo.1981).\\nDISCUSSION\\n[T12] The State's petition to establish paternity was filed in May 2000, at which time Wyoming's paternity determination statutes were located at Wyo. Stat. Ann. \\u00a7 14-2-101 et seq. (LexisNexis 1999). Those statutes were repealed in 2008, however, and were replaced with the Wyoming Parentage Act now found at Wyo. Stat. Ann. \\u00a7 14-2401 et seq. (LexisNexis 2008). In ruling on the appellant's motion and petition, the district court relied on the latter statutes, even though proceedings commenced prior to July 1, 20083, \\\"shall be governed by the law in effect at the time the proceeding was commenced.\\\" Wyo. Sess. Laws, ch. 98, \\u00a7 4 (2003). See also In re State, Div. of Child Support Enforcement, ex rel. NDB, 2001 WY 118, 1 17, 35 P.3d 1224, 1229 n. 8 (Wyo.2001). The State and the guardian-ad-litem concede this error by the district court, but contend that it was harmless because the same result would have attended application of the prior statutes. We need not address these contentions inasmuch as our resolution of the case is based upon the appellant's W.R.C.P. 60(b) motion for relief from judgment rather than upon his petition to declare the non-existence of paternity.\\n[113] The same can be said of the argument of the State and the guardian-ad-litem that the appellant's attempt to establish his non-paternity violates various statutory time limits and violates the doctrines of res judicata, collateral estoppel, and judicial es-toppel. They contend that, although the appellant's petition was brought in the same civil action as the earlier proceedings, it is, in effect, a new action, because the stipulated judgment had become final as a matter of law. While that may be true as to the petition, the doctrines of res judicata, collateral estoppel, and judicial estoppel do not bar a motion for relief from judgment under W.R.C.P. 60(b). PAJ, 934 P.2d at 1260.\\n[114] In evaluating the district court's exercise of discretion under W.R.C.P. 60(b)(6), we must determine whether the facts of this case are a special situation justifying extraordinary relief. We believe they are. Consider: (1) the State's petition contained two false allegations of material fact-that the appellant is the biological father of the child and that no other person could be alleged to be the father; (2) the record does not indicate whether or how the appellant's rights to an informal hearing and to genetic testing were ever explained to him; (8) the stipulated order that purports to act as a waiver of the appellant's rights specifies that \\\"genetic testing is waived\\\" due to the appellant having signed an affidavit acknowledging paternity, when in fact the appellant signed no such affidavit; (4) the appellant has a meritorious defense in that voluntary genetic testing established beyond any doubt that he is not the biological father of the child; (5) no disruption in the child's family life would result from granting the appellant's motion for relief from judgment because the appellant does not reside in the child's home and no father-child relationship has ever been established; and (6) the State's interest in obtaining support for the child will not be reduced inasmuch as the true biological father is known and subject to the district court's jurisdiction.\\n[115] We find the facts of this case to be similar to those in PAJ, 934 P.2d at 1258-59, where we affirmed the district court's granting of a W.R.CP. 60(b) motion. In both cases, the State's petition alleging paternity was based on false information supplied by the mother, in both cases the petition was not initially contested by the appellant, and in both cases the appellant filed his motion within a reasonable time of becoming aware of the factual inaccuracies contained in the petition. An alleged father's reliance on a mother's misrepresentations and his initial decision not to demand paternity testing do not necessarily demonstrate a lack of due diligence. Smith v. Department of Human Resources, 226 Ga.App. 491, 487 S.E.2d 94, 96 (1997).\\n[116] In her report to the district court, the guardian-ad-litem argued against the appellant's motion on the ground that \\\"the child's best interest will be served by ongoing financial support and by ending litigation.\\\" In turn, the district court cited the guardian-ad-litem's report in its findings of fact and went on to state that \\\"[the child's interests and public policy interests override equitable concerns forwarded by [the appellant]. .\\\" A similar theme is espoused by the State in its appellate brief, where it relies on Whitt v. State ex rel. Wright, 2001 WY 128, \\u00b6 23, 36 P.3d 617, 624 (Wyo.2001), for the proposition that there is \\\"a strong public policy in favor of the recoupment of public assistance benefits.\\\"\\n[117] We do not disagree that these public policies exist and are important. But we disagree that, under the particular facts of this case, these policy concerns can best be addressed by disregarding the truth and by disregarding fairness. In fact, given the ready availability of the child's biological father, it is difficult to imagine any justification for denying the appellant's motion. The child's best interests are certainly better served by tying his future to his father rather than to a stranger. Furthermore, there is an unsaid implication in these public policies that child support payments and public assistance recoupment should be from the parent of the child.\\n[118] In suggesting that the \\\"child can know who his biological father is even if that is not the man financially supporting him,\\\" the guardian-ad-litem opines that \\\"[this does appear absurd, but in today's society these kinds of situations occur daily.\\\" While it is certainly true that modern American society produces some non-traditional paternity determination situations that must be Randled by the judicial system, we do not believe that such anomalies should be created by the judicial system where such a result can easily be avoided. Similarly, although the \\\"[clourts simply are not always capable of resolving the sorts of profound human dilemmas that are brought to their doorsteps,\\\" NDB, 2001 WY 118, \\u00b6 14, 35 P.3d at 1228, that does not mean the courts should sidestep such dilemmas where a ready solution is available, under existing rules of law, and where that solution is clearly in the best interests of the child.\\n[119] As a final comment, we emphasize that this case should not be construed to represent this Court's willingness willy-nilly to grant relief from paternity judgments whenever genetic testing proves that an error has occurred. Rather, the particular combination of facts in this case, especially the absence of evidence that the appellant knowingly waived his right to genetic testing, and the lack of any prejudice to the child in granting relief from the judgment, have dictated the result.\\nCONCLUSION\\n[120] The State's petition to establish paternity contained material misstatements of fact and the appellant filed his motion for relief from judgment within a reasonable time after learning the truth. The record does not reveal that the appellant made a knowing waiver of his right to an informal hearing and to genetic testing, and the stipulated order confirming his alleged waiver was erroneous on its face. Furthermore, both justice and the best interests of the child will be fostered if the motion to set aside the paternity order is granted. Under the particular facts of this case, it was an abuse of discretion for the district court to deny the motion.\\n[121] Reversed and remanded to the district court for further proceedings consistent herewith.\\n. Wyo. Stat. Ann. \\u00a7 14-2-102(c) (Lexis 1999), in effect at the time, provided as follows:\\n. [A] man is presumed to be the natural father of a child born in Wyoming if, with the consent of the mother, he has acknowledged his paternity by signing an affidavit of paternity including his social security number and an acknowledgment of the privileges and obligations associated with parentage and filed these documents with the state office of vital records services. The consent of the mother shall include an affidavit with her social security number, stating that she was not married at the time of conception or at the time of birth of the child. The father's acknowledgment shall include a statement of the right to withdraw the affidavit of paternity as provided by subsection (d) of this section on or before sixty (60) days of the signing of the affidavit of paternity, or by the date of a judicial proceeding relating to the child in which the signatory of the affidavit is a party, whichever occurs earlier. A minor's affidavit of paternity and acknowledgement shall also be signed by the legal guardian of the minor and include the social security number of the minor.\\n. The district court's findings and conclusions included: (1) the appellant was an \\\"adjudicated father\\\" under Wyo. Stat. Ann. \\u00a7 14-2-402(a)@), 14-2-815, and 14-2-822; (2) the appellant failed to file his petition within the two-year time limit found in Wyo. Stat. Ann. \\u00a7 14-2-608 or 14-2-809; and (3) the appellant lacked standing under Wyo. Stat. Ann. \\u00a7 14-2-802; the adjudication of paternity is binding upon the appellant under Wyo. Stat. Ann. \\u00a7 14-2-823.\\n. aFor a waiver to be valid, there must be \\\" 'an intentional relinquishment or abandonment of a known right or privilege,\\\" \\\" and the waiver must be knowingly and intelligently made. Nelson v. State, 934 P.2d 1238, 1241 (Wyo.1997) (quoting Van Riper v. State, 882 P.2d 230, 234 (Wyo.1994)). A defendant need not, however, know and understand every possible consequence of this waiver for it to be valid. Solis v. State, 851 P.2d 1296, 1299 (Wyo.1993). Whether a waiver was made voluntarily, knowingly, and intelligently depends upon the surrounding facts and circumstances. Id.; Mapp v. State, 953 P.2d 140, 144 (Wyo.1998).\\nDaugherty v. State, 2002 WY 52, \\u00b6 38, 44 P.3d 28, 40 (Wyo.2002).\\n. We recently recognized the increasing need in paternity actions to give effect to the \\\" 'weightier considerations of policy and logic... .'\\\" GDK v. State, Dept. of Family Services, 2004 WY 78, \\u00b6 9-19, 92 P.3d 834, 836-39 (Wyo.2004) (quoting Wyo. Stat. Ann. \\u00a7 14-2-102 (LexisNexis 2001)).\"}"
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+"{\"id\": \"9230360\", \"name\": \"JRS, Appellant (Plaintiff/Petitioner), v. GMS, Appellee (Defendant/Respondent)\", \"name_abbreviation\": \"JRS v. GMS\", \"decision_date\": \"2004-05-26\", \"docket_number\": \"No. 03-111\", \"first_page\": \"718\", \"last_page\": \"724\", \"citations\": \"90 P.3d 718\", \"volume\": \"90\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T00:35:06.840630+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.\", \"parties\": \"JRS, Appellant (Plaintiff/Petitioner), v. GMS, Appellee (Defendant/Respondent).\", \"head_matter\": \"2004 WY 60\\nJRS, Appellant (Plaintiff/Petitioner), v. GMS, Appellee (Defendant/Respondent).\\nNo. 03-111.\\nSupreme Court of Wyoming.\\nMay 26, 2004.\\nRepresenting Appellant: Christopher M. Wages of Goddard, Wages & Vogel, Buffalo, WY.\\nRepresenting Appellee: GMS, Pro se.\\nBefore HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.\", \"word_count\": \"3824\", \"char_count\": \"23264\", \"text\": \"HILL, Chief Justice.\\n[\\u00b6 1] Appellant, JRS (Father), seeks review of an order of the district court denying his petition to modify a divorce decree so as to grant him primary custody of all four of his minor children. Appellee, GMS (Mother), did not file a brief in this appeal. In the district court proceedings she also filed a petition seeking custody of all four children. The district court found that neither party had demonstrated a material change of circumstances and maintained the status quo, continuing the parties' original stipulation that Father would have custody of the two older children, and Mother would have custody of the two younger children. We will reverse and remand for additional proceedings.\\nISSUE\\n[\\u00b6 2] Father poses this issue for our consideration:\\nWhether the district court erred when it found that there was no substantial and material change of circumstances as required by law to modify the Stipulated Decree of Divorce and denied [Father's] Petition for Modification of Decree of Divorce.\\nFACTS AND PROCEEDINGS\\n[\\u00b6 3] The district court entered its stipulated decree of divorce on October 5, 2000. Custody of the parties'. four children was established in the stipulation. Father was awarded custody of the parties' two older children, born May 9,1990, and February 15, 1992. Mother was awarded custody of the parties' two younger children, born January 9, 1995, and May 1, 1997. Visitation rights were detailed in the decree. The decree included a section devoted to \\\"PARENTAL COOPERATION PROVISIONS:\\\"\\nEach parent shall:\\na. Exercise discretion and cooperate with each other in exercising custodial and visitation rights so the best interest of the children is served.\\nb. Make every reasonable effort to insure that the children have free access to and unhampered contact with both parents.\\nc. Encourage the free and natural development of the children's love and respect for both parents and do nothing which may estrange the children from the other p\\u00e1rent, or injure the opinion of the' children as to the other parent.\\nd. Keep each other informed as to the location and phone number of the children at all times.\\ne. Promptly notify the other of any illness, accident or other circumstance seriously affecting the health or welfare of the children. Both parents shall have unlimited visitation privileges, consistent with the circumstances, for so long as the emergency situation continues.\\nf. Be entitled to complete information from any physician, dentist, psychologist or other specialist attending to the children for any reason whatsoever and shall be entitled to copies of any reports rendered by any such specialist. Neither parent shall do anything to frustrate the other parent's access to any health care records relating to the children.\\ng. Be entitled to complete detailed information from any teacher, school or college and shall be entitled to copies of all reports or records with respect to the children's education.\\nh. Consult with each other with respect to all matters of major importance affecting the welfare of the children.\\n[\\u00b6 4] Initially, there were no difficulties with visitation because both parents continued to reside in Crook County. Not long after the divorce, Mother moved from Crook County to Belle Fourche, South Dakota. Father testified that Mother became uncooperative in allowing visitation. In addition, after the divorce, Father was convicted of battery on his former wife, and traveling to South Dakota was difficult for him because he had to get permission from his probation officer to leave Wyoming and go into another state. Mother would not agree to bring the children to, and pick them up from, the border. Mother denied parts of these assertions. The record reflects that neither parent had a very good specific memory, nor any meaningful records, so as to clarify what visitation had or had not occurred.\\n[\\u00b6 5] On July 8, 2002, Father filed a petition to modify the divorce decree so as to give him primary custody of all four children. He asserted that there had been a material change of circumstances and that it was in the best interests of the children to be in his primary custody. Wyo. Stat. Ann \\u00a7 20-2-204(c) (LexisNexis 2003) provides:\\n(c) A court having jurisdiction may modify an order concerning the care, custody and visitation of the children if there is a showing by either parent of a material change in circumstances since the entry of the order in question and that the modification would be in the best interests of the children pursuant to W.S. 20-2-201(a). In any proceeding in which a parent seeks to modify an order concerning child custody or visitation, proof of repeated, unreasonable failure by the custodial parent to allow visitation to the other parent in violation of an order may be considered as evidence of a material change of circumstances.\\nOn that same date, Father also filed a motion for a temporary restraining order, seeking protection for the children in Mother's custody. That motion was premised on allegations that the parties' youngest daughter had been sexually molested by both Mother's fi-anc\\u00e9 and her brother. The district court issued a temporary restraining order on July 10, 2002. From that date forward, Mother did not have custody of any of the children, and her visits with the children have been supervised. On September 24, 2002, the district court continued the temporary restraining order pending further information being provided to the court.\\n[\\u00b6 6] On December 27, 2002, Mother filed an answer to Father's amended petition for modification of the custody arrangements, and in that document also asked that custody be modified to award her custody of all four children.\\n[\\u00b6 7] In January of 2003, all four children were removed from Father's home when substantiated allegations of child abuse were leveled against Father's new wife (Stepmother). Although Father was not accused of inflicting any abuse on his children, he was found to have failed to protect his children from Stepmother. Father complied with the case plan put into effect by DFS and eventually he regained custody of all four children. Stepmother is not permitted to have any contact with the children, but Father continues to be married to her and has maintained a relationship with her. In light of all these circumstances, a DFS professional who managed the child abuse case testified that placing the children in Mother's full-time care and control would not be in the best interests of the children and that the children expressed a preference to be with Father. Her observations were that the relationship between Mother and the children was strained, and that the children preferred to live with Father. It is a condition of the DFS case plan that Stepmother not be allowed near the children,- and Father testified that he would honor that condition.\\n[\\u00b68] A guardian ad litem (GAL) was appointed to represent the children. In a report received by the district court the day before trial on these matters began, the GAL summarized his investigation and offered some concrete suggestions to the district court:\\nImpressions\\nWhile all information received was dutifully weighed in preparing my report, I found the comments of and observations of Pam Andrews at CASA, the thoughts and observations of [RS \\u2014 Father's brother] and the more candid comments of [Father] to be of particular importance in forming my impressions in this matter. If this were a case of first impression with neither party having significant others in their lives complicating their current situations, I would be inclined to say that [Father] is the better parent: But even then, I share [RS's] concern that given the number of children, their age's and [Father's] work schedule, for him to have primary custody of all the children could present problems. More importantly, this is not a case of first impression. The parties both have significant others, who to one extent or another continue to be a part of their lives, which cause me great concern.\\nI have no problem in- concluding that [Stepmother] should be no where near .the parties' children now or in the foreseeable future. Unfortunately, this is easier said than done as [stepmother] appears to continue to be lurking in the shadows of [Father's] life and as I do not feel comfortable that [Father] is anywhere close to choosing his children's welfare over the presence and opinions of [stepmother]. While less is known about [BB \\u2014 Mother's fianc\\u00e9] and his interactions with the parties' children, I likewise feel, despite [Mother's] claims to the contrary, [BB] continues to be a significant part of [Mother's] life. Though the allegations of sexual impropriety initially leveled against [BB] may be inconclusive enough to prevent the filing of criminal charges, nevertheless I cannot completely ignore this concern. Further, I- find [RS's] observations of [BB] as having .a quick temper and the admitted use of a cheese board to spank the parties' youngest child as indications that [BB] is not a positive aspect of the children's lives.\\nI find no easy or good solution to this case. Neither parent before or since their divorce presents a picture of the other that does not raise with me concerns regarding the safety and well being of their children. The parties originally chose, whatever the circumstances may have been, to enter into a split custody arrangement regarding. their children. With the notable exception of the problems involving weekend visitation, until the appearance of the parties' respective significant others this arrangement seemed to be working relatively well. Again, in stating this impression I rely on the comments and observations of [RS] as well as the comments of the parties themselves. [Father] has expressed \\u00e1 concern regarding [Mother's] drinking both predating and since the parties' divorce, though he admits that he only has random comments of the parties' children since their divorce to support these concerns. [Mother] has denied drinking is a problem in her life or that she drinks around the children. As [Mother] has volunteered she has no need to have alcohol in her home, and as there should be n\\u00f3 circumstance where she would feel compelled to drink in the presence of the children, erring a little on the safe side, I would recommend that there be no alcohol in the home of [Mother] at any time and that she not consume or have alcohol still present in her system at any time that the children are with her.\\nMy final impression as a matter of fact and law is that if we were able to consider the parties to this case without consideration of their significant others the change of circumstances in their lives would be insufficient to support a change one way or the other 'concerning primary custody of the parties' children.\\nConclusion\\nIn conclusion, I would recommend the following:\\n1. That the split custody of the parties' children as set forth in the parties' Divorce Decree remain in place.\\n2. That the exchange of the' children for all visitation take place at a neutral location in Moorcroft, which is approximately half way between the parties' present locations. Any party refusing to cooperate or otherwise put their best efforts forward in insuring that visitation exchanges take place as order[ed] should be held in contempt of court and held responsible for the other party\\u00ed's] cost, including reasonable attorney fees, in bringing any action to enforce such visitation exchanges. Feeble excuses as to why an exchange did not take place should not be, tolerated given the history of the problem regarding exchanges and the desire of the children to spend as much time as possible in each others company.\\n3. [Stepmother] shall have no contact direct or indirect at any time with the children of the parties.\\n4. [BB] should have no contact direct or indirect at any time with the parties' children.\\n5. [TB \\u2014 Mother's brother] should have no contact direct or indirect at any time with the parties' children.\\n6. That [Mother] shall not use or consume alcohol at any time any of her children are in her presence. Further, that [Mother] shall at no time have alcohol in her residence.\\n7. Each party shall be responsible for their own attorney fees in this matter and for paying their share of the Guardian Ad Litem fees as may be approved and directed by the court.\\n8. That any order coming, out of the Sheridan County Juvenile Court pending juvenile action directed towards the parties should constitute additional conditions to this court's order while the Sheridan County matter remains open.\\n9. The parties should continue with and complete the parenting classes they are enrolled in, including any follow up recommendations that may come from this program.\\n1 [\\u00b6 9] The district court made oral findings to the effect that neither party had met the burden of demonstrating a material change of circumstances that justified altering the district court's original decree. In addition, the district court found that neither party had abused the children, but that both had been blind to what had been done by others. The district court declined to adopt many of the recommendations made by the GAL, indicating that it would not, and could not, micro-manage this case. The order denying the petitions to modify the divorce decree provided this guidance:\\n4. Since their divorce, both parties have moved increasing the distance between their homes.\\n5. Since their divorce, both parties have brought new caretakers into the children's lives who have abused the children. There is no evidence that either parent has abused the children, but that they have turned a blind eye to the abuse and excessive discipline dispersed by [Stepmother] and [Mother's] fianc\\u00e9. The parents now minimize or attempt to rationalize such behavior and are less than committed to making changes necessary to remove the abusers from the children's lives.\\n6. These changes are not substantial and material as required by law for purposes of granting either party the relief they seek.\\n7. The recommendations of the Guardian ad Litem, which also finds there is no change of circumstance should be adopted. However, the recommendations of the GAL regarding contacts with third parties and limitations on alcohol use would require the Court to micro-manage this case and the Court will not do so.\\n9. The terms and conditions of the Stipulated Decree of Divorce should not be modified.\\n10. The Temporary Restraining Order entered in this matter on July 8, 2002 should be rescinded.\\n11. Legal and physical custody of the two youngest children should be returned to [Mother] subject to final adjudication of Sheridan County Juvenile Case No. J-l-1-03. Any supervision by the Department of Family Services in the on-going juvenile action in Sheridan County, Wyoming should focus on reunification of both families, not just [Father's] home.\\nSTANDARD OF REVIEW\\n[\\u00b6 10] In custody matters, the welfare and needs of the children must be given paramount consideration. That which is in the best interests of the child is a question for the trier of fact, and we will not overturn the decision of a trial court unless we are persuaded that an abuse of discretion is present or that there has been a violation of some legal principle. Reams v. Reavis, 955 P.2d 428, 431 (Wyo.1998). When we are asked to review the action of a district court, in the context of the abuse of discretion standard, the core of the inquiry we must make is the question of the reasonableness of the choice made by the trial court. Judicial discretion is a composite of many things. Among these 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. We must ask whether or not the district court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious. Cobb v. Cobb, 2 P.3d 578, 579 (Wyo.2000) (quoting Thomas v. Thomas, 983 P.2d 717, 719 (Wyo.1999)). The party seeking to modify established child custody provisions of a divorce decree has the burden of showing that a material change in circumstances that affects the child's welfare occurred subsequent to the entry of the initial decree, that the change warrants modification of the decree, and that the modification will be in the best interests of the affected child. Cobb, 2 P.3d at 579-80 (quoting Sorensen v. May, 944 P.2d 429, 432 (Wyo.1997)).\\n[\\u00b6 11] A child's preference as to custody may be considered by the trial court:\\nIn determining the weight to be given a child's preference several factors should be considered: the age of the child; the reason for the preference; the relative fitness of the preferred and non-preferred parent; the hostility, if any, of the child to the non-preferred parent; the preference of other siblings; and whether the child's prefer-enee has been tainted or influenced by one parent against the other.\\nAlthough custodial preference is not conclusive, the court here was entitled to give more consideration to a fifteen-year old girl's preference than say, the preference of a six-year old child.\\nYates v. Yates, 702 P.2d 1252, 1256 (Wyo.1985).\\nDISCUSSION\\n[\\u00b6 12] We are unable to agree with the district court that there was not a material change in circumstances in this case. Mother's relocation to South Dakota might well have been viewed as a material change. The testimony the district court heard was that the unusual custody arrangements to which these parents agreed (it was not fashioned by the district court), worked only so long as the parents both resided in Crook County and were close enough to each other to make it functional. It did not work once Mother was in South Dakota, sometimes without a car to transport- the children, and Father was not free, nor was he always able, to travel to South Dakota to facilitate visitation. That Mother's fianc\\u00e9, and her brother, were accused of sexually assaulting the parties' youngest daughter also might well have been viewed as. a material change of circumstances. There was another potential material change when the youngest children were uprooted from Mother's home, and sent to live in Sheridan County with Father's new wife, the parties' two other children, and Stepmother's three children. There was likely a material change of circumstance when all four children were taken from their home and placed in DFS custody (in a group home) as a result of Stepmother's abusive acts against the children. There were potential material changes of circumstance when the children were placed in the custody of Father's mother and stepfather, and when Father was finally accorded full custody again, with his mother and stepfather providing a backup for Father. This list of changes in circumstances is not meant to be exhaustive. While any one of them might well have served to require the district court to reconsider a more suitable custodial arrangement for the children, the totality of these circumstances requires a remand for the district court to fully address the needs of these children with respect to custody. For a more complete discussion, see George A. Locke, Change in Circumstances Justifying Modification of Child Custody Order, 6 POF 2d 499 (1975 and Supp.2001).\\n[\\u00b6 13] However, a material change of circumstance does not automatically equate with a change in custody. Custody must be arranged so as to be in the best interests of the children) on an individualized basis. Given all that has occurred since the divorce, the district court needs to reassess the wisdom of the divided custody arrangement in light of the material changes in circumstances that have occurred. Although the parties agreed to that arrangement, they did so under circumstances that no longer exist. Moreover, the record does not reflect that the district court assessed the advisability of the arrangement at the outset. We agree that the district court should not have to \\\"micro-manage\\\" the custody arrangement. The district court adopted a \\\"PARENTAL COOPERATION\\\" standard in the initial decree and, in light of the rather serious problems faced by this family, some additional management, as suggested by the GAL, may well be in order. It is evident from the record that the juvenile proceedings in Sheridan County had not yet ended when the district court entered the order now before us. One gap in that process appeared to be an assessment of Mother's home. It is evident that the children have expressed a preference as to where they want to live, and the district court should take that into consideration as well. It also appears that by now the juvenile matter in Sheridan may have developed additional information that is pertinent to the most desirable custody arrangement for the children and it is important for the district court to have all that information available to it.\\nCONCLUSION\\n[\\u00b6 14] We reverse the order of the district court because we conclude it erred in finding that no material change in circumstances had been demonstrated. The matter is remanded to the district court for further proceedings consistent with this opinion.\\n. The district court later allowed Father to amend his petition.\\n. Wyo. Stat. Ann. \\u00a7 20-2-201(a) provides:\\n(a) In granting a divorce, separation or annulment of a marriage or upon the establishment of paternity pursuant to W.S. 14-4-401 through 14-2-907, the court may make by decree or order any disposition of the children that appears most expedient and in the best interests of the children. In determining the best interests of the child, the court shall consider, but is not limited to, the following factors:\\n(i) The quality of the relationship each child has with each parent;\\n(ii) The ability of each parent to provide adequate care for each child throughout each period of responsibility, including arranging for each child's care by others as needed;\\n(iii) The relative competency and fitness of each parent;\\n(iv) Each parent's willingness to accept all responsibilities of parenting, including a willingness to accept care for each child at specified times and to relinquish care to the other parent at specified times;\\n(v) How the parents and each child can best maintain and strengthen a relationship with each other;\\n(vi) How the parents and each child interact and communicate with each other and how such interaction and communication may be improved;\\n(vii) The ability and willingness of each parent to allow the other to provide care without intrusion, respect the other parent's rights and responsibilities, including the right to privacy;\\n(viii) Geographic distance between the parents' residences;\\n(ix) The current physical and mental ability of each parent to care for each child;\\n(x) Any other factors the court deems neces-saiy and relevant.\\n. The GAL is not a participant in this appeal-.\"}"
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+"{\"id\": \"9238351\", \"name\": \"Telesforo Ray PADILLA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff)\", \"name_abbreviation\": \"Padilla v. State\", \"decision_date\": \"2004-06-15\", \"docket_number\": \"No. 03-102\", \"first_page\": \"920\", \"last_page\": \"922\", \"citations\": \"91 P.3d 920\", \"volume\": \"91\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T00:38:22.123194+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before HILL, C. J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.\", \"parties\": \"Telesforo Ray PADILLA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"2004 WY 66\\nTelesforo Ray PADILLA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\\nNo. 03-102.\\nSupreme Court of Wyoming.\\nJune 15, 2004.\\nRepresenting Appellant: Telesforo Ray Padilla, pro se.\\nRepresenting Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehu-rek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Daniel M. Fetsco, Assistant Attorney General.\\nBefore HILL, C. J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.\", \"word_count\": \"1255\", \"char_count\": \"7779\", \"text\": \"GOLDEN, Justice.\\n[\\u00b6 1] Appellant Telesforo Ray Padilla appeals from a district court's denial' of reconsideration of a motion for sentence reduction. We dismiss the appeal for lack of jurisdiction.\\nISSUES\\n[\\u00b6 2] Padilla presents this statement of the issues:\\n1. Whether the judge committed reversible error when he denied appellant's sentence reduction by mistake in thinking-case was dismissed.\\n2. Whether counsel, Mr. Rose, was ineffective when he did not read the April 9, 2002, order until May 23, 2002, and noticed the error 45 days after the fact.\\nThe State presents the following issues:\\nI. Should appellant's untimely filed appeal be dismissed for lack of jurisdiction in this Court to hear and decide his issues?\\nII. Did the district court abuse its discretion by denying appellant's motion for sentence reduction?\\nIII. Did appellant have a constitutional right to counsel, and did he in any event receive effective assistance of counsel?\\nFACTS\\n[\\u00b6 3] After being charged with nineteen counts of obtaining property by false pretenses, Padilla pled nolo contendere to eight counts and was sentenced on March 23, 2001. On March 22, 2002, Padilla filed a motion for sentence reduction for docket numbers 26-345 and 349. By an order entered April 9, 2002, the district court denied the motion stating that it had reviewed the Judgment and Sentence of the Court entered on March 28, 2001, and found the sentence appropriate.\\n[\\u00b6 4] The docket number for the judgment and sentence was also 26-345 and 349. At some point, a handwritten docket number of 26-146 was superimposed over these typed docket numbers throughout the record although 26-146 was a dismissed case. No appeal was taken from that order denying the motion for sentence reduction. On December 11, 2002, Padilla, filed a pro se motion requesting reconsideration .of . that order, claiming that the original motion for sentence reduction and its denial were filed for a dismissed case and no decision was made on the merits. According to the State, the incorrect docket number was employed; however, the orders were properly filed under 26-349. On December 16, 2002, the district court denied that motion for reconsideration, and Padilla appealed that denial on January 2, 2003.\\nDISCUSSION\\nStandard of Review\\n[\\u00b6 5] The State contends that Padilla's failure to timely appeal the order denying the motion for sentence reduction, entered on April 9, 2002,-has deprived this Court of jurisdiction to hear his appeal and it must be dismissed. The denial of a motion for sentence reduction is a final appealable order that must be appealed within thirty days to obtain the court's jurisdiction. Hopkinson v. State, 704 P.2d 1323, 1326 (Wyo.1985); W.R.A.P. 1.05; W.R.A.P. 2.01. If an appeal is untimely, the court lacks jurisdiction, and the appeal must be dismissed. This Court reviews jurisdictional matters de novo. Tomlin v. State, 2001 WY 121, \\u00b6 5, 35 P.3d 1255, \\u00b6 5 (Wyo.2001). After reviewing the merits of Padilla's motion for sentence reduction, the district court entered an order of denial on April 9, 2002. No timely appeal was taken from that order. Padilla's motion for reconsideration alleged that the district court had mistakenly ruled on .a case that had been dismissed and had not reached the merits of his original motion for sentence reduction.\\nJurisdiction\\n[\\u00b6 6] Because jurisdiction is at issue, we will review whether this Court can obtain jurisdiction by considering whether Padilla had timely requested relief from judgment as permitted by W.R.C.P. 60(b). The Wyo ming Rules of Criminal Procedure do permit the rules of civil procedure to apply to questions not governed by criminal procedure rules. W.R.Cr.P. 1(a). Further, we have indicated that under limited circumstances this Court will consider an appeal from a motion for reconsideration. See Sherman v. Rose, 943 P.2d 719, 720-21 (Wyo.1997) (reconsideration motion must be the functional equivalent of a motion to amend or alter judgment); see also Simon v. Teton Bd. of Realtors, 4 P.3d 197, 202 (Wyo.2000) (arbitration procedural review request did not alter statutory filing time).\\n[\\u00b6 7] Here, Padilla must comply with the timing requirements of W.R.Cr.P. 35(b):\\n(b) Reduction. \\u2014 A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within one year after the sentence is imposed or probation is revoked, or within one year after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within one year after entry of any order or judgment of the Wyoming Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation.\\nHis original motion was filed within one year and his motion for reconsideration filed on December 11, 2002, must provide grounds for relief under the applicable rule of civil procedure and must also comply with that rule's timing requirements.\\n[\\u00b6 8] Our review shows that Padilla's motion for reconsideration was not based upon any ground that affords him relief from the order denying sentence reduction. See W.R.C.P. 60. The contents of his original motion requested a review on the merits and the district court's denial made clear that it had reviewed the judgment and sentence for which Padilla requested reduction. Padilla's motion for reconsideration contended the district court had mistakenly considered a dismissed case; however, the record does not support that contention. Therefore, Padilla's motion for reconsideration cannot be considered a proper motion under Rule 60, and the district court and this Court are without jurisdiction to consider the motion.\\n[\\u00b6 9] This appeal is dismissed for failure to invoke the jurisdiction of this Court.\\n. Rule 60 in relevant part provides:\\n(b) Other reasons. \\u2014 On motion, and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or ex cusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation.\\n. (a) Scope. \\u2014 Except as provided in Rule 54, these rules govern the procedures to be followed in all criminal proceedings in all Wyoming courts. When not inconsistent with the Juvenile Court Act, these rules shall also apply in delinquency proceedings. In the event that a procedure is not established by these rules, the Wyoming Rules of Civil Procedure shall govern.\"}"
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+"{\"id\": \"9239578\", \"name\": \"Jeff EASUM and Lyon Easum, Appellants (Plaintiffs), v. Clay MILLER, d/b/a Prime Power & Communications, LLC, Appellee (Defendant)\", \"name_abbreviation\": \"Easum v. Miller\", \"decision_date\": \"2004-06-24\", \"docket_number\": \"No. 02-242\", \"first_page\": \"794\", \"last_page\": \"804\", \"citations\": \"92 P.3d 794\", \"volume\": \"92\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-11T00:44:53.506237+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.\", \"parties\": \"Jeff EASUM and Lyon Easum, Appellants (Plaintiffs), v. Clay MILLER, d/b/a Prime Power & Communications, LLC, Appellee (Defendant).\", \"head_matter\": \"2004 WY 73\\nJeff EASUM and Lyon Easum, Appellants (Plaintiffs), v. Clay MILLER, d/b/a Prime Power & Communications, LLC, Appellee (Defendant).\\nNo. 02-242.\\nSupreme Court of Wyoming.\\nJune 24, 2004.\\nRepresenting Appellant: John R. Hursh of Central Wyoming Law Associates, P.C., Riv-erton, Wyoming.\\nRepresenting Appellee: Judith Studer of Schwartz, Bon, Walker & Studer, LLC, Cas-per, Wyoming.\\nBefore HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.\", \"word_count\": \"5724\", \"char_count\": \"37117\", \"text\": \"GOLDEN, Justice.\\n[T1] The primary issue in this appeal is the reliability of the differential diagnosis technique for determining general and specific causation in a general negligence action. Differential diagnosis determined that the severe illness suffered by Appellant Jeff Ea-sum (Easum) was caused by numerous electrical shocks that he received while working on his family-owned dairy. In a summary judgment ruling, the trial court determined that this particular differential diagnosis was inadmissible because it was unreliable.\\n[12] Easum began suffering severe illness shortly after Appellee Clay Miller's company, Prime Power and Communications, LLC, (Prime Power) replaced a transformer near Easum's family-owned dairy. An unconnected neutral line was determined to be the cause of stray voltage found throughout the dairy that was administering shocks to Ea-sum as he worked at the dairy. After the neutral line was properly connected, the stray voltage and shocks ceased; however, Easum continued to suffer from his symptoms and was ultimately diagnosed with reflex sympathetic dystrophy (RSD) caused by electrical injury. Easum and his wife (Ea-sums) brought suit against Prime Power for personal injury and property damages.\\n[13] Prime Power settled with Easums for property damages; however, it moved for summary judgment on other damages. Ea-sums' suit was dismissed by grant of summary judgment based upon a determination that their expert's testimony regarding specific causation was inadmissible as unreliable. The trial court ruled that the expert's differential diagnosis technique insufficiently satisfied reliability standards because the scientific methodology used to determine that low level electric current could cause RSD was inadequate. We reverse and remand for trial.\\nISSUES\\n[T4] Easums present the following statement of the issues:\\n1. Did the trial court err in rejecting the Appellants' treating physician's opinions relating to medical causation resulting from their properly performed differential diagnosis as insufficient to satisfy the reliable scientific methodology requirements of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1998) (hereinafter Daubert) and Bunting v. Jamieson, 984 P.2d 467 (Wy.1999) (hereinafter Bunting ).\\n2. Did the trial court err by redefining medical causation to require general causation based peer reviewed medical literature in addition to the medical causation derived from a differential diagnosis before treating physician testimony will be allowed?\\n3. In a case when the Appellants' treating physicians' opinions on causation were challenged by the Appellee's forensic experts on their credibility and upon the degree or level of electrical exposures required to cause neurological injury, was it proper for the Trial Court to find that there were no disputed material facts for jury determination and enter a Summary Judgment in this matter?\\nAppelices Miller and Prime Power state the issues as:\\n1. Did the district court properly grant summary judgment to the defendant on the basis that plaintiffs could not prove that defendant's conduct was the proximate cause of Plaintiff Jeff Easum's injuries?\\n(a) Did the district court properly find that plaintiffs' expert opinion that exposure to low levels of electricity causes reflex sympathetic dystrophy (\\\"RSD\\\"), to be based on speculation and contrary to well accepted science?\\n(b) Is a medical doctor allowed to testify as to causation based on exposure to electricity when he lacks a basic understanding of the physiological effect of electricity on the human body and such conclusion is not based on sound methodology or good science?\\n(c) Is a causation opinion by a medical doctor exempted from the basic requirements of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786 (1993) and Bunting v. Jamieson, 984 P.2d 467 (Wyo.1999) when there exists no sound scientific or medical basis as to the cause of his differential diagnosis?\\nFACTS\\n[T5] As required by our standard of review for summary judgment, we view the record, and the reasonable factual inferences drawn from it, in the light most favorable to the Easums as the non-moving party. Roussalis v. Wyoming Medical Center, Inc., 4 P.3d 209, 216 (Wyo.2000).\\n[16] Easum works and lives at his family-owned dairy. After the dairy decided to upgrade its electrical service, the utility company contracted with Prime Power, a local electrical contractor, to upgrade the transformer that serviced the dairy. On February 26, 1999, Prime Power performed electrical work and hung a transformer on an electrical pole near the ranch. Prime Power admits failing to connect the neutral line to the transformer. Before that failure was discovered, however, the dairy cattle were observed reacting in a manner consistent with animals receiving electrical shocks, such as not eating, not wanting to return to the barn, and not cooperating. Easum also experienced numerous shocks. On March 16, 1999, another electrical contracting firm began investigating the problem and discovered the failure to connect the neutral wire. Prime Power returned to the ranch and, after that connection was made, no further electrical shocks were experienced by Ea-sum or observed to be affecting cattle.\\n[17] Easum first experienced shocks in the dairy on or about March 1, 1999. Between that date and March 17, 1999, Easum experienced numerous shocks while in the dairy milking stalls, the sinks and the tanks. He received the worst shocks when his hands were in water. On March 12, 1999, Easum developed symptoms of nausea, tremors, headache, and extreme fatigue. His illness caused him to stay home the next day, and his symptoms subsided. He returned to the dairy on March 15, 1999, and was again shocked causing his symptoms to reappear immediately. After the electricians connected the neutral wire, the electric shocks were no longer experienced; however, Easum's symptoms continued and worsened.\\n[T8] Before receiving the shocks, thirty-year-old Easum's only known health problem was slightly elevated blood pressure. When his symptoms did not subside, his wife called their family physician, Dr. Wurzel, on March 26, 1999, to discuss whether the effects of electrical shock might be long-term or even permanent. Easum saw Dr. Wurzel on May 21, 1999, and the doctor noted numerous symptoms including fatigue, lack of ambition, tremors, difficulties with fine motor skills, vision blurring, lack of libido, weakness, and increased blood pressure. Later, Easum returned with these symptoms and headaches and swollen, painful hands. Laboratory tests were conducted which indicated some abnormalities. Dr. Wurzel referred Easum to Dr. Norris, a board certified rehabilitative medicine physician and psychiatrist.\\n[19] Dr. Norris noted that these many symptoms occurred after repeated low voltage electrical shocking over a twenty-day period and prepared an extensive medical report. He ordered an EMG and MRI. The EMG returned abnormal, and the MRI indicated a brain cyst. Easum was referred to another specialist who determined that the brain cyst was not causing his symptoms. This specialist also noted that the onset of symptoms occurred soon after exposure to low level electric shocks.\\n[110] Easum was then referred to a rheumatologist, who again did extensive diagnostic testing and was able to rule out rheumatoid arthritis, which had been suspected as the cause of the laboratory test abnormalities. After the extensive reports of these specialists were discussed with the Ea-sums by Dr. Norris and Dr. Wurzel, Easum was referred to Dr. Hooshmand, a neurologist in Florida, specializing in electrical injury type cases. Dr. Hooshmand has identified electrical injury in thirteen other dairy farmers from different parts of the country suffering similar symptoms as Easum and concluded in all that \\\"stray voltage\\\" was the cause of their medical condition.\\n[111] Under the direction of Dr. Hoosh-mand, Easum underwent fourteen days of extensive diagnostic testing, including qualitative sensory testing, infrared thermogra-phy imaging on two occasions, electroenceph-lography tests, visual evolved response tests, brain mapping tests, brain stem evoke response tests and neuropsychometric testing. The electroencephlogram test was abnormal, and another specialist, Dr. Weise, reported it to be consistent with electrical injury. The thermography test was also abnormal and determined consistent with tissue responses to electrical injury. From the use of differential diagnosis technique, Dr. Hooshmand concluded that Easum was suffering from Reflex Sympathetic Dystrophy (RSD) and an immune system dysfunction. Doctors Norris and Wurzel concurred in that diagnosis. Ea-sum was prescribed treatment that is administered and monitored by the latter two doe-tors and, while he has shown improvement, continues to be afflicted by many of his symptoms.\\n[112] Dr. Hooshmand concluded that the cause of Easum's RSD was his exposure to low levels of electrical current; however, RSD has no known etiology other than heredity and repetitive strain injury. Easum, nevertheless, filed suit against Appellees and presented Dr. Hooshmand as his expert on causation. Appellees moved for summary judgment on the basis that the technique of differential diagnosis is unreliable for determining general causation and contended that this technique was too unreliable to admit regarding the specific causation because it has not been scientifically proved that RSD can result from low levels of electrical current.\\n[T13] The trial court determined that the technique of differential diagnosis is reliable only if the remaining cause is one that is scientifically established and then concluded that the basic research had not been conducted in this case. The trial court stated:\\nThe scientific method consists of 4 steps: gathering information, classifying those data, forming a theory or prediction of behavior, and testing that theory. Dr. Hooshmand skipped the first two steps and arrived at a conclusion based upon the common fallacy in reasoning known as \\\"after this, therefore, because of this.\\\"\\nDr. Hooshmand has treated 13 dairy farmers with similar symptoms. Even with this limited sample, there has been no rigorous collection of data. We are not told the medical histories of the patients, the durations and intensities of electrical exposure, the reactions of others who were exposed, and the incidence of this condition among the general population compared to the incidence among dairy farmers or some other group exposed to low levels of electricity.\\n[114] The trial court dismissed Easums' case authority supporting the differential diagnosis as distinguishable either because causation was not an issue in those cases or because the causation diagnosis was supported by medical literature, peer-reviewed articles, clinical trials, and product studies. The trial court concluded that the claim of injury from exposure to low levels of electrical current was not based upon science but was only a matter of speculation. Summary judgment was granted for Appellees, and this appeal followed.\\nDISCUSSION\\nStandard of Review\\n[115] Summary judgment is appropriate when \\\"the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\\\" Roussalis ,4 P.3d at 228. In reviewing a summary judgment, we do not accord any deference to the district court's decisions on issues of law, and we examine de novo the entire record -the parties' submissions of evidence-in the light most favorable to the parties who opposed the motion. Id. at 229. We give the Easums \\\"the benefit of every reasonable inference and every doubt,\\\" which may be drawn from the materials either supporting or opposing the motion. Id. (quoting Fiscus v. Atlantic Richfield, 773 P.2d 158, 161 (Wyo.1989)).\\nStandard for Admission of Expert Opinion\\n[116] A qualified expert witness may testify about scientific, technical, or specialized knowledge if such testimony will help the jury understand the case. W.R.E. 702. When determining the admissibility of expert testimony, the district court's gatekeeping function requires it to determine whether the methodology or technique used by the expert to reach his conclusions is reliable and, if so, the court must then determine whether the proposed testimony \\\"fits\\\" the facts of the particular case. Bunting v. Jamieson, 984 P.2d 467, 471-72 (Wyo.1999) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591-93, 113 S.Ct. 2786, 2796, 125 L.Ed.2d 469 (19983)).\\n[M17] Daubert provided a non-exclusive list of four criteria to be used to guide the trial court's assessment of reliability:\\n1) whether the theory or technique in question can be and has been tested;\\n2) whether it has been subjected to peer review and publication;\\n38) its known or potential rate of error along with the existence and maintenance of standards controlling the technique's operation; and\\n4) the degree of acceptance within the relevant scientific community.\\nBunting, 984 P.2d at 472. Because these criteria cannot be applied in every case, \\\"[t]he initial step in reviewing the admissibility of expert testimony is the determination whether the Daubert factors apply to the specific testimony at issue. Where they are reasonable measures of reliability, these factors should be considered.\\\" Id. at 475.\\n[118] It cannot be overemphasized that methodology should be distinguished from the conclusion of the expert. A trial judge need not and should not determine the scientific validity of the conclusions offered by an expert witness. Rather, to decide admissibility, the trial judge should only consider the soundness of the general scientific principles or reasoning on which the expert relies and the propriety of the methodology applying those principles to the specific facts of the case. * Id. at 472-78.\\n[119] -In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 LEd.2d 238 (1999), the United States Supreme Court further clarified the seope of Daubert and discussed additional factors that may be used by a trial court in fulfilling its gatekeeping function. Bunting, 984 P.2d at 471. Bunting then considered specific factors, including:\\n1) The experience and specialized expertise of the proffered expert;\\n2) Whether or not that expert is testifying about matters occurring \\\"naturally and directly\\\" out of research conducted independent of litigation; and\\n3) Any \\\"non-judicial\\\" utilization of the expert methodology in question.\\nId. at 472 (citing Ambrosini v. Labarragque, 101 F.3d 129, 140 (D.C.Cir.1996); Daubert, 43 F.3d 1311, 1317 (9 Cir.) (on remand), cert. denied, 516 U.S. 869, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995); and In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 742 n. 8 (3d Cir.1994)).\\n[120] The United States Supreme Court favored admission of evidence on the borderline. \\\"Vigorous eross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional, and appropriate means of attacking shaky but admissible evidence.\\\" 'Daubert, 509 U.S. at 596, 113 S.Ct. at 2798. At the same time, the Court recognized the significant difference between \\\"the quest for truth in the courtroom and the quest for truth in the laboratory.\\\" Id. at 596-97, 118 S.Ct. at 2798. Scientific inquiry must necessarily be broad and far-reaching, with the reliability of theories under continuous study and revision. Resolution of a legal dispute, on the other hand, involves binding, final judgments that cannot be based on conjecture. Consequently, there may well be \\\"authentic insights and innovations\\\" of science that are nonetheless inadmissible in a court of law. Id. at 597, 118 S.Ct. at 2798-99.\\n[T21]l We review de novo the question whether the district court performed its gatekeeper role and applied the proper legal standard in admitting or exelud-ing an expert's testimony. We then review for an abuse of discretion a district court's decision to admit or reject expert testimony. Seivewright v. State, 7 P.3d 24, 29 (Wyo.2000); Springfield v. State, 860 P.2d 435, 438-39 (Wyo.1993); Betzle v. State, 847 P.2d 1010, 1022 (Wyo.1998). We agree with Kumho Tire Co. that the trial court's broad dis-eretion applies both in deciding how to assess an expert's reliability, including what procedures to use in making that assessment, as well as in making the ultimate determination of reliability. Kumho Tire Co., 526 U.S. at 152, 119 S.Ct. at 1176. Accordingly, we will not disturb the district court's ruling unless it has failed to exercise sound judgment with regard to what is right under the circumstances or has acted arbitrarily or capriciously. Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998).\\nElectrical Current\\n[122] Creating an electric cireuit is a function of force which is measured in voltage, current which is measured in amperes, and resistance which is measured in ohms. Simply stated, electricity involves the flow of energy (electrons) along the path of least resistance toward a natural ground. See Schlader v. Interstate Power Co., 591 N.W.2d 10, 12 (Iowa 1999); see also W.B. Saunders, Nave & Nave Physics For the Health Sciences, Electric Shock Hazards ch. 14 (8d ed.1985). All objects are either resistors or conductors. The electric current is the most important physiological variable for determining the severity of an electric shock. However, this current is in turn determined by the driving voltage and the resistance of the path that the current follows through the body. A voltage that produces only a mild tingling sensation under one circumstance can be a lethal shock hazard under other conditions. This uncertainty is caused because although the skin acts as a natural resistor to flow, i.e., normal skin has a resistance of 25,000 ohms and calloused skin has a resistance of 2,000,000 ohms, wet skin has a resistance of only 1,500 ohms. One hundred and twenty volts delivered to a calloused finger would probably cause a tingling sensation, that voltage delivered to dry skin would cause a painful shock, but that same voltage to wet skin could prove to be a lethal shock. Id.\\n[123] The reeord shows that when electricians measured voltage in the areas where Easum was working, their readings were consistently between thirty and fifty volts, with the highest reading at sixty-seven volts. The resistance is unknown as is the level of current; however, Easum stood in water and placed his hands in water so presumably resistance was low. As we have already seen, the margin between a minor shock with no effect and electrocution is very narrow. The issue of stray voltage ih connection with dairies and the effect on dairy herds is not new to courts and is explained as follows:\\nAll electricity leaving an electrical substation must return to that substation in order to complete a cireuit. Unless that cireuit is completed, electricity will not flow. The current leaves the substation on a high voltage line which eventually connects to some electrical 'appliance.' After exiting the 'appliance' that current must return to the substation. The neutral-grounded network provides the returning current two choices. Either it can return via the neutral line, which accounts for the second wire on our electrical poles, or it can return through the ground. These two pathways comprise the grounded-neutral network. Electricity flows through the path of lowest resistance. If there exists more resistance in the neutral line than in the ground, the current will flow through the ground to return to the substation. Neutral-to-earth voltage or stray voltage will occur when current moves from either the neutral line to the ground or from the ground to the neutral line. It uses a cow as a pathway if that animal happens to bridge the gap between the two. A cow's hooves provide an excellent contact to the earth while standing on wet concrete or mud, while at the same time the cow is contacting the grounded-neutral system consisting of items such as metal stanchions, stalls, feeders, milkers, and wa-terers. The current simply uses the cow as a pathway in its eventual return to the substation. - Apparently very slight voltages can affect cattle. Evidence [has] suggested anything greater than one volt can be catastrophic to a dairy farm.\\nKaech v. Lewis County Public Util. Dist., 106 Wash.App. 260, 23 P.3d 529, 533 n. 3 (2001).\\nReflex Sympathetic Dystrophy\\n[124] Reflex sympathetic dystrophy was first described by medical authorities in 1864 and, until recently, was considered a disorder of the sympathetic nervous system. This network of nerves, located alongside the spinal cord, controls certain functions in our bodies, such as the opening and closing of blood vessels and sweat glands. The disorder is difficult to diagnose because it has many variations, often follows minor injury, and evolves and spreads over time. The disorder is unique in that it simultaneously affects the nerves, skin, muscles, blood vessels, and bones and is characterized by a devastating amount of pain, swelling, discoloration, and stiffness. Robert J. Schwartz man, M.D., New Treatments for Reflex Sympathetic Dystrophy, New Eng. J. Med., Vol. 348, No. 9 (Aug. 31, 2000).\\n[125] A new name, the complex regional pain syndrome, is gaining recognition because the role of the sympathetic nervous system in many aspects of the illness is not clear, and dystrophy may not occur in all patients. The two types of complex regional pain syndrome are distinguished by whether a definable nerve injury is present. In the early stages of reflex sympathetic dystrophy, the pain is more severe than would be expected for the degree of tissue damage, and the pain spreads progressively from a nerve to a regional distribution. The cause of RSD is unknown. As the illness evolves, pain becomes intense and chronic; nails, hair, skin and bone change; and weakness, swelling, tremors, sleep disruptions, anxiety and depression may be experienced. Id.\\nDifferenti\\u00e9l Diagnosis\\n[126] Dr. Hooshmand presented a medical opinion that Easum's condition was caused by receiving a significant number of electrical shocks over a sustained period of time. Dr. Hooshmand's research in this case was not \\\"conducted independent of the litigation,\\\" and was developed \\\"expressly for purposes of testifying.\\\" Also, his research was not \\\"subjected to normal scientific scrutiny through peer review and publication.\\\" Ordinarily, these Dawbert factors would indicate unreliability unless good reason existed to explain the absence of independence, peer review and publication. Clausen v. M/V New Carissa, 339 F.3d 1049, 1056 (9th Cir.2003). In the case of Dr. Hooshmand, the trial court found it significant that his causation diagnosis was unsupported by medical literature, peer-reviewed articles, clinical trials, and product studies.\\n[127] Here, medical ethical rules do not permit conducting clinical testing that administers low levels of sustained electrical current to humans to see if RSD results. Dr. Hooshmand examined and treated a patient complaining of symptoms consistent with RSD following sustained exposure to electric shock and, later, that patient filed suit. Similarly, there may exist good reason why an expert's research may not have been publish ed. Id. In this case, the apparent reason is that Dr. Hooshmand's research involving the phenomenon of electrical injury to dairy farmers is both recent and singular.\\n[T28] In the absence of these reliability factors, an expert may use an objective source to show that the scientific evidence method has been followed by at least a recognized minority of experts in their field. Id. Objective sources may include \\\"a learned treatise, the policy statement of a professional association, a published article in a reputable scientific journal or the like.\\\" Id. Here, Dr. Hooshmand followed a differential diagnosis method to determine the cause of Ea-sum's condition.\\n[129] \\\" 'Differential diagnosis' refers to the process by which a physician 'rules in' all scientifically plausible causes of the plaintiff's injury. The physician then 'rules out' the least plausible causes of injury until the most likely cause remains. The remaining cause is the expert's conclusion.\\\" Hollander v. Sandoz Pharmaceuticals, 289 F.3d 1193, 1209 (10th Cir.2002) (citation omitted). The Fourth Cireuit describes it this way:\\nDifferential diagnosis, or differential etiology, is a standard scientific technique of identifying the cause of a medical problem by eliminating the likely causes until the most probable one is isolated. A reliable differential diagnosis typically, though not invariably, is performed after physical examinations, the taking of medical histories, and the review of clinical tests, including laboratory tests, and generally is accomplished by determining the possible causes for the patient's symptoms and then eliminating each of these potential causes until reaching one that cannot be ruled out or determining which of those that cannot be excluded is the most likely.\\nWestberry v. Gislaved Gummi AB, 178 F.3d 257, 262 (4th Cir.1999) (internal quotation marks omitted). Most physicians use the term differential diagnosis to describe the process of determining which of several diseases is causing a patient's symptoms while courts use the term more generally to describe the process by which causes of the patient's condition are identified. Clausen, 339 F.3d at 1057 n. 4; see, e.g., Westberry, 178 F.3d at 262.\\n[130] In general terms, the reliability of differential diagnoses is easily resolved. \\\"Most cireuits have held that a reliable differential diagnosis satisfies Daubert and provides a valid foundation for admitting an expert opinion. The circuits reason that a differential diagnosis is a tested methodology, has been subjected to peer review/publication, does not frequently lead to incorrect results, and is generally accepted in the medical community.\\\" Turner v. Towa Fire Equip. Co., 229 F.3d 1202, 1208 (8th Cir.2000); see Westberry, 178 F.8d at 262-63. Physicians routinely determine medical causation by this technique, and we have previously determined that the technique of differential diagnosis for establishing causation can be reliable under Daubert. See Reichert v. Phipps, 2004 WY 7, \\u00b6 18, 84 P.3d 353, \\u00b6 18 (Wyo.2004).\\n[T381] Although courts have reached contrasting conclusions about reliability under Daubert, the Daubert reliability inquiry is case-specific, and, in general terms, the reliability of a proper differential diagnoses need not be addressed. Hollander, 289 F.3d at 1210 (citing Kumho Tire Co., 526 U.S. at 150, 119 S.Ct. at 1175); see also Carlson v. Okerstrom, 267 Neb. 397, 675 N.W.2d 89, 105 (2004). Our task is only to decide whether the trial court abused its discretion by characterizing the specific diagnosis at issue here as unreliable. Hollander, 289 F.3d at 1210. \\\"A fundamental assumption underlying this method is that the final, suspected 'cause' remaining after this process [differential diagnosis] of elimination must actually be capable of causing injury. That is, the expert must 'rule in' the other suspected cause as well as 'rule out' other possible causes. And, of course, expert opinion on this issue of general causation must be derived from scientifically valid methodolo gy.\\\" Id. at 1211 (quoting Siharath v. Sandoz Pharmaceuticals, 131 F.Supp.2d 1347, 1362-63 (N.D.Ga.2001)).\\n[1382] Reliable differential diagnosis alone may provide a valid foundation for a causation opinion, even when no epidemiological studies, peer-reviewed published studies, animal studies, or laboratory data are offered in support of the opinion. Hollander, 289 F.3d at 1212 (citing Westberry, 178 F.3d at 262). As the Eighth Cireuit has written:\\nWe do not believe that a medical expert must always cite published studies on general causation in order to reliably conclude that a particular object caused a particular illness. The first several victims of a new toxic tort should not be barred from having their day in court simply because the medical literature, which will eventually show the connection between the victims' condition and the toxic substance, has not yet been completed. If a properly qualified medical expert performs a reliable differential diagnosis through which to a reasonable degree of medical certainty, all other possible causes of the victims' condition can be eliminated, leaving only the toxic substance as the cause, a causation opinion based on that differential diagnosis should be admitted.\\nHollander, 289 F.3d at 1212 (quoting Turner, 229 F.3d at 1209).\\n[T83] \\\"Even with all the advances of medical science, the practice of medicine remains an art. A properly conducted and explained differential diagnosis is not \\\"junk science. If a differential diagnosis provides a sufficient basis on which to prescribe medical treatment with potential life- or-death consequences, it should be considered reliable enough to assist a fact finder in understanding certain evidence or determining certain fact issues.\\\" Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 604-05 (Tex.App.2002). Courts that accept the differential diagnosis as reliable will permit it to establish legal causation when applied to an illness with some unknown causes. \\\"Such a bright-line rule would be unduly restrictive in a world in which many things are not or cannot be known with absolute certainty.\\\" Id. at 605 n. 25; see Westberry, 178 F.3d at 265; cf., Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 202 (4th Cir.2001) (outside toxic-tort context, relying on Westberry for same). \\\"A differential diagnosis that fails to take serious account of other potential causes may be so lacking that it cannot provide a reliable basis for an opinion on causation. However, a medical expert's causation conclusion [based on a differential diagnosis] should not be excluded because he or she has failed to rule out every possible alternative cause of a plaintiff's illness. The alternative causes suggested by a defendant affect the weight that the jury should give the expert's testimony and not the admissibility of that testimony.\\\" - Westberry, 178 F.3d at 265 (citation and internal quotation marks omitted); see also Cooper, 259 F.3d at 202.\\n[134] Depending on how the injury occurred, a tort action involves either general negligence, product liability or a toxic tort. Most of the law that we have recited above involved either product liability or toxic tort actions prosecuted in federal courts where federal courts require that proof of causation be produced for two components, general and specifics. AA. White, The Admissibility of Differential Diagnosis Testimony to Prove Causation in Toxic Tort Cases: The Interplay of Adjective and Substantive Law, 64 Law & Contemp. Probs. 107, 110 (2001). We have previously held that electricity is not a product and plainly this case does not involve toxic tort allegations. Wyrulec Co. v. Schutt, 866 P.2d 756, 760 (Wyo.1993). Ea-sum's injuries present a general tort claim; however, we believe that this case requires that we determine both general and specific causation.\\nReliability of Dr. Hooshmand's Differential Diagnosis\\n[185] Dr. Hooshmand's conclusions established both general and specific causa tion. He established general causation with evidence that electrical shock can cause harm to humans receiving them and established specific causation by evidence that the electrical shocks received by Easum did in fact cause the onset of his RSD. As our previous discussion indicates, the harm produced on dairy farms by stray voltage is well-established. For many years, Dr. Hooshmand has studied the effects of electrical injury on human patients and concluded that electrical injury can produce disease or disorders in patients. Among his patients were a number of dairy farmers, all of whom received electrical shocks of varying degrees and later suffered illnesses. Dr. Hooshmand believed that the shocks caused the illnesses in those particular patients. Studies show that elec-trie shock can cause trauma to nerve and tissue, and animal studies, usually involving dairy herds, show that very low voltages can have devastating physical effects upon cattle. Dr. Hooshmand properly relied upon studies finding that electrical voltage can seriously harm dairy herds and his own studies as support for the general proposition that electricity, even at low levels, can harm humans. Whether his conclusion is sound presents a jury question; however, reliance upon these studies is not an improper methodology.\\n[136] Dr. Hooshmand determined that Easum had suffered illness as the result of harm caused by sustained incidences of electric shock and further concluded that Ea-sum suffered from RSD. From this conclusion, the district court determined that no reliable scientific methodology established that low levels of electric current will cause RSD. These last two conclusions, however shaky, present jury questions. The district court's proper focus should have been the reliability of Dr. Hooshmand's opinion that Easum's condition was caused by sustained incidences of electric shock. To make that determination, the focus must be on whether Dr. Hooshmand properly used the technique of differential diagnosis to decide that sustained electric shocks produced illness in Ka-sum.\\n[137] A differential diagnosis is properly performed when objective tests are used to rule out as many causes as possible. Ea-sum's medical history indicated that he had no symptoms before experiencing shocks and began experiencing symptoms while receiving shocks over a sustained period. Several doctors and Dr. Hooshmand performed numerous objective tests that ruled out other causes of injury and confirmed physical injury consistent with electrical shock. Dr. Hooshmand reviewed Easum's medical history, conducted days of physical examination and testing, relied upon this testing and that of other specialists to eliminate other possible diagnoses, and reviewed electrical injury information and medical studies. Dr. Hoosh-mand properly evaluated and diagnosed Ea-sum using standard medical procedure and his methodology was based upon valid scientific method. Although the district court believed that the timing between Easum's electrical shocks and the onset of his symptoms discredited Dr. Hooshmand's diagnosis, a temporal relationship remains a factor that can support Dr. Hooshmand's conclusion.\\n[138] Even though science remains unsure how RSD develops, Dr. Hooshmand has personally conducted research in this area and has had numerous patients with this condition. Dr. Hooshmand does not believe that Easum's condition is unique to dairy farmers and has researched this particular injury to this particular group of patients. Dr. Hooshmand's conclusions may indeed be wrong; however, his methodology is reliable and the accuracy of his conclusions presents a jury question that must be presented at trial.\\n[139] The district court's order is reversed, and this case is remanded for trial.\\n. \\\"The word 'amp' is a household word. A French physicist named Andre Ampere (1775-1836) is credited with describing.-the flow of electrical current; his name became attached to the description of electrical flow and the word 'ampere' is the standard measure of electric current everywhere. An ampere is equivalent to a flow of one coulomb per second or to the steady current produced by one volt applied across a resistance of one ohm (Webster's 7th New Collegiate Dictionary, 1967).\\\" Amp, Inc. v. Foy, 379 F.Supp. 105, 108 (W.D.N.C.1974) (emphasis added).\\n. This definition was provided in the context of a product liability claim. The federal courts appear to be in dispute whether the \\\"rule in before rule out\\\" method applies in all types of claims and some apply the rule differently depending on whether the claim is products liability, toxic torts, or general negligence. Hollander, 289 F.3d at 1210.\\n. General causation deals with whether the substance at issue, eg., silicone, can cause diseases or disorders in people in general. Specific causation focuses upon whether the substance, eg., silicone, was in fact the cause of the ailments or symptoras in the particular patient. Claims must provide admissible evidence of both general and specific causation for these two types of claims. White, supra, at 110.\"}"
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+"{\"id\": \"9315709\", \"name\": \"Steven JOYNER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff)\", \"name_abbreviation\": \"Joyner v. State\", \"decision_date\": \"2002-11-27\", \"docket_number\": \"No. 01-87\", \"first_page\": \"331\", \"last_page\": \"338\", \"citations\": \"58 P.3d 331\", \"volume\": \"58\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T23:18:10.917900+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.\", \"parties\": \"Steven JOYNER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\", \"head_matter\": \"2002 WY 174\\nSteven JOYNER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).\\nNo. 01-87.\\nSupreme Court of Wyoming.\\nNov. 27, 2002.\\nKenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Assistant Appellate Counsel; and Ryan R. Roden, Assistant Public Defender, Representing Appellant. Argument by Mr. Roden.\\nHoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Faculty Director, Prosecution Assistance Program; and Tari L. Elam, Student Intern., Representing Appellee. Argument by Ms. Elam.\\nBefore HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.\\nChief Justice at time of oral argument.\", \"word_count\": \"3355\", \"char_count\": \"20198\", \"text\": \"LEHMAN, Justice.\\n[\\u00b6 1] Steven Joyner (Joyner) appeals from a conviction of felony stalking in viola tion of Wyo. Stat. Ann. \\u00a7 6-2-506 (LexisNex-is 2001). Joyner pled guilty, but utilized W.R.Cr.P. 11(a)(2) to reserve his right to appeal the district court's denial of his Motion to Dismiss. Joyner contends that the criminal case should have been dismissed because the order of protection he was accused of violating was entered without affording him an adequate opportunity to appear and be heard. We reverse and remand.\\nISSUES\\n[\\u00b6 2] Joyner advances three issues on appeal:\\nI. Did the trial court err in denying appellant's motion to dismiss?\\nII. Was appellant denied his right to be present at a critical stage of the proceedings?\\nIII. Did the prosecutor commit prosecu-torial misconduct when he knowingly prosecuted appellant for violation of an invalid order?\\nFACTS\\n[\\u00b6 3] On March 30, 2000, Joyner went to the United Medical Center (UMC) in Cheyenne seeking adjustment to his epilepsy medication. For reasons not explained in the record, UMC detained Joyner, and proceedings were commenced for his involuntary hospitalization under Wyo. Stat. Ann. \\u00a7 25-10-101 through 25-10-305 (LexisNexis 2001). UMC detained Joyner for five days, during which time he was not allowed to leave and had no access to mail or a telephone. UMC released Joyner on April 4, 2000, after a district court commissioner found that he was not mentally ill.\\n[\\u00b6 4] Joyner is divorced from Vickie Hitt (Hitt). On March 31, 2000, Hitt obtained from the Circuit Court of the Eighth Judicial District, Goshen County, in Torrington an Ex Parte Order of Protection against Joyner. This temporary order and a summons were served on Joyner, \\\"personally and in person,\\\" at UMC on the same date. At the time of service, Joyner was in a room with a nurse and a guard. The deputy sheriff laid the papers on the table and told Joyner it was a summons for him to appear in court. Joyner read the first paragraph of the summons, which indicated the date, time, and location of a court hearing. The nurse then escorted Joyner from the room and told him not to worry, that the matter would be taken care of. Joyner did not know the papers contained an order of protection, and he was never given an opportunity to read the papers, but he did observe that the court hearing was set in Torrington.\\n[\\u00b6 5] On April 3, 2000, while Joyner was still at UMC, the Goshen County Circuit Court held the hearing noticed in the summons. Joyner, of course, was unable to attend. That same evening, while still at UMC, Joyner was served \\\"personally and in person\\\" with a copy of the Order of Protection issued as a result of that hearing. The nurse took the papers without giving Joyner a chance to read them.\\n[\\u00b6 6] After he was released from UMC, Joyner made no attempt to contact the Gosh-en County Circuit Court about the papers with which he had been served. Between May 1 and May 5, 2000, nearly a month after Joyner's release from UMC, Joyner engaged in a course of conduct that resulted in his being charged with stalking his ex-wife.\\nSTANDARD OF REVIEW\\n[\\u00b6 7] Joyner's claims of error in this case contain both issues of fact and of law. As we have stated numerous times, the district court's factual findings are reviewed under a clearly erroneous standard. However, constitutional issues are questions of law that we review de novo. Taylor v. State, 7 P.3d 15, 19 (Wyo.2000); see also Pope v. State, 2002 WY 9, \\u00b6 14, 38 P.3d 1069, \\u00b6 14 (Wyo.2002).\\nDISCUSSION\\nDenial of the Motion to Dismiss\\n[\\u00b6 8] Joyner based his motion to dismiss on a challenge to the validity of the Order of Protection given his inability to attend and be heard on the matter. Due process requires the State to \\\"prove every element of a criminal offense beyond a reasonable doubt.\\\" Krucheck v. State, 671 P.2d 1222, 1224 (Wyo.1983) (citing Sandstrom v. Montana, 442 U.S. 510, 512, 99 S.Ct. 2450, 2453, 61 L.Ed.2d 39, 43 (1979)). The criminal offense charged here is stalking under Wyo. Stat. Ann. \\u00a7 6-2-506 (LexisNexis 2001). Generally, stalking is a misdemeanor. If, however, the offense is committed in violation of an order of protection, the offense becomes a felony punishable by up to ten years in prison. Implicit in this version of felony stalking is the requirement that the order of protection be valid at the time of the alleged stalking. It is clear, following-hearing, that the State cannot prove the order of protection was valid.\\n[\\u00b6 9] Both the United States and Wyoming constitutions provide that no person may be deprived of life, liberty, or property without due process of law. U.S. Const, amend. XIV, \\u00a7 1; Wyo. Const, art. 1, \\u00a7 6. To be constitutionally valid, the court issuing the order must have acted in a manner consistent with due process. Due process requires that the litigants be afforded both notice and a meaningful opportunity to be heard. Murray v. Murray, 894 P.2d 607, 608 (Wyo.1995) (citing Sandstrom v. Sandstrom, 880 P.2d 103, 106 (Wyo.1994)).\\n[\\u00b6 10] As stated in the facts, Joyner was involuntarily detained in a psychiatric ward at UMC, apparently pursuant to Wyo. Stat. Ann. \\u00a7 25-10-109 (LexisNexis 2001). UMC placed Joyner in a \\\"lock down\\\" facility from which he could not leave. UMC deprived Joyner access to a telephone and the mails. Importantly, at hearing, the prosecutor conceded that UMC acted as an arm of the State in detaining-Joyner. While UMC detained Joyner, Joyner's ex-wife .filed a petition in Goshen County Circuit Court requesting a Stalking Order of Protection, and the circuit court issued an Ex Parte Order of Protection. That same day, a Laramie. County sheriffs officer served Joyner at UMC with the petition, the Ex parte Order of Protection, and a summons to appear for a hearing. Joyner was never given an opportunity to read the papers. On April 3, 2000, while Joyner was still in \\\"lock down,\\\" the order of protection was entered. UMC discharged Joyner on April 4, 2000, pursuant to an order from a Laramie County District Court Commissioner.\\n[\\u00b6 11] Although the circuit court, by virtue of service, had personal jurisdiction over Joyner at the time it entered the order of protection, that fact, by itself, does not resolve the question of whether Joyner was afforded due process of law. The evidence recited above establishes that the order of protection was entered without affording Joyner a meaningful opportunity to be heard thus depriving Joyner due process of law.\\n[\\u00b6 12] We find persuasive the four cases trial counsel for Joyner cited to support his contention that he was not afforded a meaningful opportunity to be heard. A review of those cases reveals, generally, that incarcerated parties are not afforded due process when they are not permitted to participate in hearings. RPM v. State, Dep't of Family Servs., Div. of Public Assistance & Social Sens., 917 P.2d 169, 170-71 (Wyo.1996); Tageant v. Pageant, 909 P.2d 322, 323 (Wyo.1996); Wolfe v. Wolfe, 899 P.2d 46, 47-48 (Wyo.1995); and Murray v. Murray, 894 P.2d at 608. In those cases, the incarcerated party at least had an opportunity to make a request to participate. Here, Joyner did not have the opportunity to make such a request. The holdings in those cases apply with even greater force where it is clear that Joyner, as a result of state action, had no opportunity to even make a request to participate. On these facts, we conclude Joyner was deprived of due process of law, and the protection order was thus not valid at the time of the alleged stalking.\\n[\\u00b6 13] In an argument made for the first time on appeal, the State contends that Joyner's attack on the validity of the order of protection issued by the Goshen County Circuit Court is a collateral attack upon the order. This court has consistently held that it \\\"will not consider issues which are raised for the first time on appeal unless they are jurisdictional issues or issues of such a fundamental nature that they must be considered.\\\" Robinson v. Pacificorp, 10 P.3d 1133, 1136 (Wyo.2000); WW Enterprises, Inc. v. City of Cheyenne, 956 P.2d 353, 356 (Wyo.1998). The collateral attack issue is not one concerning jurisdiction, and it cannot be considered by this court based on that exception to the general rule. Whether the collateral attack issue is \\\"fundamental\\\" we do not decide today. However, it is appropriate for us to address issues that are bound to emerge again if left unresolved. Rocky Mountain Oil & Gas Ass'n v. State, 645 P.2d 1163, 1167 (Wyo.1982); McGuire v. McGuire, 608 P.2d 1278, 1286 (Wyo.1980). Because we believe the collateral attack principles are misplaced and misapplied in this instance, we will comment on them.\\n[\\u00b6 14] Collateral attack principles apply where a party is seeking to attack or \\\"undo\\\" a prior court order. Here, Joyner did not seek to undo the order of protection; he sought to preclude the order from being used in a later prosecution. A similar collateral attack argument was swiftly rejected in the Washington case of State v. Marking, 100 Wash.App. 506, 997 P.2d 461, 463 (2000) review denied 141 Wash.2d 1026, 11 P.3d 825 (2000), where the court wrote:\\nBecause Marking did not challenge the no-eontact order when the district court issued it, the State argues that his objection to it now is an improper collateral attack. We disagree.\\nThe validity of a protective order is an implicit element of the crime of violation of such order. See City of Seattle v. Edwards, 87 Wash.App. 305, 308, 941 P.2d 697 (1997) (discussing protective order issued pursuant to RCW 26.50.060(2)). Notwithstanding Marking's failure to challenge the order in district court, the State bore the burden at trial of proving the validity of the order beyond a reasonable doubt. Edwards, 87 Wash.App. at 308, 941 P.2d 697.\\nThus, the determinative issue here is not the validity of the order per se, but rather whether the State proved beyond a reasonable doubt that the order was valid. Edwards, 87 Wash.App. at 307-309, 941 P.2d 697.\\nSee also State v. Schultz, 106 Wash.App. 328, 25 P.3d 436, 438 (2001).\\n[\\u00b6 15] In addition to the well-reasoned discussion above, we emphasize that Joyner did not seek to challenge or undo the protective order itself. Instead, he simply sought to prevent the use of the protection order in support of the felony prosecution. This he can do. In different circumstances, several Wyoming cases exemplify that a defendant can challenge the use of a prior order or conviction in later proceedings. See Brisson v. State, 955 P.2d 888, 892 (Wyo.1998) (\\\"We hold that Brisson should have been provided counsel for his first conviction and that his uncounseled conviction cannot be used to enhance his current charge to a felony.\\\"); Gunderson v. State, 925 P.2d 1300, 1304 (Wyo.1996) (\\\"Appellant argues that, although the Nebraska and South Dakota convictions were classified as felonies in those states, they would have been punished as misdemeanors in Wyoming. He contends, therefore, that the convictions should not have been used to enhance his punishment under the habitual criminal statute.\\\"); Johnston v. State, 829 P.2d 1179, 1180 (Wyo.1992) (\\\"Appellant attacks collaterally his prior convictions used for enhancement. He does not deny having been convicted of the crimes. He asserts, however, that two of the prior convictions were defective and should not have been used against him in this enhancement proceeding.\\\").\\n[\\u00b6 16] Even if Joyner's attack on the order of protection can be considered a collateral attack, those principles are misapplied in this case. As a general rule, collateral attacks on judgments are not allowed. This general rule, and an exception to it, are well stated in 50 C.J.S. Judgment \\u00a7 499 (1997):\\nGenerally, a judgment rendered by a court having jurisdiction of the parties and the subject matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment, in respect of its validity, verity, or binding effect, by parties or privies, in any collateral action or proceeding. Even if the judgment is voidable, that is, so irregular or defective that it would be set aside or annulled on a proper direct application for that purpose, it is well settled as a general rule that it is not subject to collateral impeachment as long as it stands unre-versed and in force.\\nHowever, under an exception to the general rule, a judgment is subject to collateral attack if it is void. Thus, a judgment which is absolutely, void is entitled to no authority or respect, and therefore may be impeached at any time, in any proceeding-in which it is sought to be enforced or in which its validity is questioned, by anyone with whose rights or interests it conflicts.\\n(Footnotes omitted.) A judgment obtained in violation of due process is void. Matter of Adoption of MSVW, 965 P.2d 1158, 1163 (Wyo.1998); Interest of WM, 778 P.2d 1106, 1110 (Wyo.1989). Thus, such a judgment may be collaterally attacked.\\n[\\u00b6 17] To avoid confusion, we seek to clarify the extent of this opinion. Respect for the law and the finality of judgments are valued principles of this court. Nothing in this opinion should be construed as disregard for that principle. The presumption of validity still attaches to prior orders. Accordingly, the State does not have the initial burden of proof related to the validity of the protection order. This initial burden of production is placed on the defendant.\\n[\\u00b6 18] Our previous discussions of the \\\"burden of proof' have shown that the phrase \\\"burden of proof' encompasses two distinct legal doctrines: the burden of persuasion and the burden of production. Bando v. Clure Bros. Furniture, 980 P.2d 323, 330 (Wyo.1999) (citing Casper Iron & Metal, Inc. v. Unemployment Ins. Comm'n of Dep't of Employment, 845 P.2d 387, 393 (Wyo.1993)). In Bando we further explained the two legal doctrines as follows:\\nThe burden of persuasion, which normally becomes operative only after all the evidence is submitted, attaches to the party that runs the risk of nonpersuasion. This means if the party with the burden of persuasion has not sustained his burden, that party must fail. The related term, burden of production, is also known as the burden of producing evidence or going forward with the evidence. The burden involves the obligation of a party to present, at the appropriate time, evidence of sufficient substance on the issue involved to permit the fact finder to act upon it. Unlike the burden of persuasion, the burden of production shifts during the presentation of evidence.\\nId. (citation omitted).\\n[\\u00b6 19] With these principles in mind, we hold that the following procedure should apply when a defendant attacks the validity of the protection order. The defendant has the burden of production for making a prima facie showing that the order of protection was entered in violation of his constitutional rights. Should the defendant meet this burden of production, then the burden shifts and the prosecution must establish, beyond a reasonable doubt, that the order was constitutionally obtained. The trial court should determine such questions of law at a pretrial hearing.\\n[\\u00b620] The procedure outlined above is similar to the procedure for prior criminal convictions that become the basis for later habitual criminal status under Wyo. Stat. Ann \\u00a7 6-10-201 (LexisNexis 2001). In those proceedings the following rules apply to the burden of production:\\nIn Evans [v. State, 655 P.2d 1214 (Wyo.1982)], we indicated that a defendant has the burden of proof when asserting an affirmative defense (such as invalidity of an underlying conviction) in an habitual criminal proceeding. Evans, at 1222. Since then, we have refined our burden of proof standard in the context of a conviction of an habitual traffic offender. In City of Laramie v. Cowden, 777 P.2d 1089, 1091 (Wyo.1989), we stated that the defendant mounting a constitutional challenge to an underlying conviction in an habitual traffic offender proceeding must make a prima facie showing that one or more of his underlying convictions was not obtained in accordance with his constitutional rights. Once the defendant makes this showing, the prosecution has the burden of establishing, by a preponderance of the evidence, that the conviction was constitutionally obtained. We now hold this same standard applies to proceedings under the habitual criminal statute.\\nJohnston v. State, 829 P.2d 1179, 1180-81 (Wyo.1992).\\n[\\u00b6 21] Upon an examination of the facts, we see that the above-mentioned process is essentially what happened in this case. Joyner mounted a constitutional ch\\u00e1llenge to the underlying protection order, and the State was unable to prove the validity of that order beyond a reasonable doubt. Therefore, the trial court erred in denying Joyner's motion to dismiss.\\n[\\u00b6 22] Given this resolution, there is no need to address Joyner's remaining issues.\\nCONCLUSION\\n[\\u00b6 23] We conclude that the district court erred in denying Joyner's motion to dismiss. We, therefore, reverse and remand this matter to the district court with instruction to (1) allow Joyner to withdraw his conditional guilty plea; (2) dismiss the felony information; and (3) remand the matter to the circuit court for further proceedings on the misdemeanor stalking charge.\\n. The purpose of the hearing was to determine whether the ex parte order should be extended for the three months allowed by statute and to establish the terms of any order so extended. See Wyo. Stat. Ann. \\u00a7 7-3-508 through 7-3-510 (LexisNexis 2001).\\n. The parties stipulated at the hearing on the Motion to Dismiss that the Goshen County Circuit Court Judge was aware during the April 3 hearing that Joyner was being involuntarily detained at UMC in Cheyenne.\\n. Wyo. Stat. Ann. \\u00a7 6-2-506(b) states:\\nUnless otherwise provided by law, a person commits the crime of stalking if, with intent to harass another person, the person engages in a course of conduct reasonably likely to harass that person, including but not limited to any combination of the following....\\n. Wyo. Stat. Ann. \\u00a7 6-2-506(e) states:\\nA person convicted of stalking under subsection (b) of this section is guilty of felony stalking punishable by imprisonment for not more than ten (10) years, if:\\n(iv) The defendant committed' the offense of stalking in violation of a temporary or permanent order of protection issued pursuant to W.S. 7-3-508 or 509, or pursuant to a substantially similar law of another jurisdiction. '\\n. As applied to Wyo. Stat. Ann. \\u00a7 6-2-506(e)(iv), this court has never decided whether the violation of such order is a sentencing enhancement provision or an element of the offense. It looks to be an element of the offense. However, even if it is merely a sentencing enhancement provision, the State still bore the burden to prove that fact beyond a reasonable doubt. Besides the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As a protection order is not a prior conviction, we impose a reasonable doubt standard rather than the preponderance of the evidence standard applicable to prior criminal convictions that become the basis for later habitual criminal status.\\n. Lest there be any confusion, as noted above, the State must establish, beyond a reasonable doubt, that the order of protection is valid.\"}"
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+"{\"id\": \"9438794\", \"name\": \"In the Matter of the Appeal of Shelley DEROMEDI, Hot Springs County Assessor. Shelley Deromedi, Hot Springs County Assessor, Appellant (Petitioner), v. Town of Thermopolis, Appellee (Respondent)\", \"name_abbreviation\": \"Deromedi v. Town of Thermopolis\", \"decision_date\": \"2002-05-07\", \"docket_number\": \"No. 01-5\", \"first_page\": \"1150\", \"last_page\": \"1155\", \"citations\": \"45 P.3d 1150\", \"volume\": \"45\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T22:44:34.294316+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before LEHMAN, C.J., and GOLDEN, HILL, KITE, JJ., and SPANGLER, D.J., Retired.\", \"parties\": \"In the Matter of the Appeal of Shelley DEROMEDI, Hot Springs County Assessor. Shelley Deromedi, Hot Springs County Assessor, Appellant (Petitioner), v. Town of Thermopolis, Appellee (Respondent).\", \"head_matter\": \"2002 WY 69\\nIn the Matter of the Appeal of Shelley DEROMEDI, Hot Springs County Assessor. Shelley Deromedi, Hot Springs County Assessor, Appellant (Petitioner), v. Town of Thermopolis, Appellee (Respondent).\\nNo. 01-5.\\nSupreme Court of Wyoming.\\nMay 7, 2002.\\nDan O. Caldwell III, Hot Springs County and Prosecuting Attorney, and Daniel L. Forgey, Special Deputy Hot Springs County and Prosecuting Attorney, Thermopolis, Wyoming, Representing Appellant. Argument by Mr. Caldwell.\\nMichael S. Messenger of Messenger & Ju-rovich, Thermopolis, Wyoming, Representing Appellee.\\nBefore LEHMAN, C.J., and GOLDEN, HILL, KITE, JJ., and SPANGLER, D.J., Retired.\", \"word_count\": \"2729\", \"char_count\": \"17139\", \"text\": \"GOLDEN, Justice.\\n[T1] Appellee Town of Thermopolis (Town) established a public museum to house donated western wax figures and provide other scientific, educational, and cultural activities and displays. The Town entered into an agreement with a for-profit corporation to operate the museum and charge an admission fee to patrons. The Appellant Hot Springs County Assessor (Assessor) denied the Town a property tax exemption, the Hot Springs County Board of Equalization (CBOE) reversed that decision, and was in turn reversed by Wyoming's State Board of Equalization (SBOE). On appeal, the district court reversed the SBOE and reinstated the CBOE's order granting an exemption.\\n[12] We affirm the district court's decision to reverse the SBOE's decision to deny the exemption. The CBOE decision to grant the exemption is reinstated.\\nISSUES\\n[138] The parties agree that the following statement of the issues is presented for our review:\\n1. Was the Hot Springs County Board of Equalization's July 20, 1999, Findings of Fact, Conclusions of Law and Order arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, or unsupported by substantial evidence?\\n2. In the context of the first issue, is the Town of Thermopolis' wax museum used primarily for a governmental purpose or as a commercial, proprietary venture?\\nFACTS\\n[T4] In 1997, the executor of the Smith Family Trust of Jackson, Wyoming, offered to donate the contents of the former \\\"Wax Museum of Old Wyoming\\\" to a community that could provide a suitable location. Responding to public interest in the opportunity, the Town of Thermopolis (Town) purchased a vacant building in Thermopolis to house the museum. The Town applied for a Community Development Block Grant offered by the Wyoming Department of Com merce, Division of Eeonomic and Community Development, and was awarded $120,000. The application process required the Town to evaluate and project economic benefits to the community. With the grant in hand, the Town used the funds to establish a museum that not only housed the donated wax figures but included other scientific, cultural, and educational displays and activities.\\n[15] The Town contracted with a for-profit firm to operate the museum in exchange for $1,000 per year. The for-profit firm planned to charge admission to the museum. Before operations began, the museum appeared on the county assessor's rolls, and the Town applied for a tax exemption, which was denied by the Hot Springs County Assessor in March of 1999. The Town objected, claiming that its museum property was exempt under the state constitution and state statute, and requested a hearing before the County Board of Equalization (CBOE).\\n[16] The CBOE held a contested case hearing and issued Findings of Fact, Conclusions of Law and Order on July 20, 1999. It granted the exemption, and the assessor appealed to the State Board of Equalization (SBOE), which reversed the CBOE. The Town then appealed to the district court, which reversed the SBOE. This appeal followed.\\nDISCUSSION\\nStatutory Framework\\n[17] By statute, a town may establish, maintain and, in a manner the governing body determines, provide for a public museum. Wyo. Stat. Ann. \\u00a7 15-1-108(a)(xxxii) (LexisNexis 2001). By constitutional and statutory provision, property owned by a town and used primarily for a governmental purpose is exempt from property taxes. Agency regulations have developed a list of considerations to assist with defining the term \\\"used primarily for a governmental purpose,\\\" and approving exemptions. The precise issue before the CBOE and the SBOE was whether this museum is used primarily for a governmental purpose. Each agency interpreted and applied these regulations, and each reached a different conclusion.\\nStandard of Review\\n[\\u00a58] Our standard of review for cases arising from a county board contested case proceeding, appealed to a state agency, and finally arriving in this Court on appeal is as follows:\\nSince in this case the county board was the finder of the fact and the state board heard no additional testimony, we will treat the state board as an intermediate level of review and accord deference only to the county board's findings of fact. Thus, the primary focus of our review will be whether the county board's decision was lawful and supported by substantial evidence.\\nLaramie County Bd. of Equalization v. Wyo. State Bd. of Equalization, 915 P.2d 1184, 1188 (Wyo.1996) (quoting Union Pacific Railroad Co. v. Wyo. State Bd. of Equalization, 802 P.2d 856, 859 (Wyo.1990)).\\nThe party challenging the sufficiency of the evidence has the burden of demonstrating the agency's decision is not supported by substantial evidence. If the agency action is supported by substantial evidence, its decision should be reversed only for errors of law. If the agency did. not apply the correct rule of law, or applied it incorrectly, this Court does not defer to the agency's conclusion. The agency's errors of law are corrected by this Court.\\nId. (quoting Butts v. Wyo. State Bd. of Architects, 911 P.2d 1062, 1065 (Wyo.1996)).\\n[\\u00a59] The seope of appellate review of agency decisions is provided by statute:\\n(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions\\nof 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 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.\\nWyo. Stat. Ann. \\u00a7 16-8-114(c) (LexisNexis 2001).\\nWe examine the entire record to determine if there is substantial evidence to support an agency's findings. If the agency's decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the ageney, and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the conclusions of the agency. It is more than a seintilla of evidence.\\nLaramie Cty. Bd. of Equalization, 915 P.2d at 1189.\\n[110] Although under Title 39, taxation of property is generally the rule, the exemptions provided for by \\u00a7 89-11-105(a)(v) require that we apply the rule that where the established policy of the state is to exempt publicly owned property, the burden is placed on the taxing authority to establish taxability. City of Cheyenne v. Bd. of County Comm'rs of the County of Laramie, 484 P.2d 706, 708-09 (Wyo.1971). The mere ownership of property by a town does not exempt the property; it must also be used primarily for governmental purposes. Id. at 709. When a town uses the property in a proprietary manner,, the property is not exempt from taxation. Town of Pine Bluffs v. State Board of Equalization, 79 Wyo. 262, 288, 333 P.2d 700, 710 (Wyo.1958). The taxable status of property owned by a governmental entity must be determined as a question of fact by the use made of the property. City of Cheyenne v. Sims, 521 P.2d 1847, 1349 (Wyo.1974).\\n[111] We have recognized that the term \\\"used primarily for a governmental purpose\\\" is difficult to define but have found that it applied to buildings leased to profit-making corporations although located upon a municipally owned and operated airport. City of Cheyenne v. Bd. of Cty. Comm'rs of Laramie Cty., 484 P.2d at 709. There, we said that the mere fact that the city accomplishes such use through a lessee or receives rent in return for such use is not controlling. Id. We later decided that \\\"[where the primary and principal use to which property is put is public, the mere fact that income is incidentally derived from it does not affect its character as property devoted to a public use, so as to prevent its being exempt from taxation.\\\" State Bd. of Equalization v. City of Lander, 882 P.2d 844, 850 (Wyo.1994).\\n[T12] The CBOE found that the museum would be used by the Town in many ways. Primarily, the museum would house the donated western wax figures, but the museum was expanded to include a Folk Center, textile studio, a conference room, and historical and educational displays. The CBOE found that the more scientific aspect of the facility would be run by Big Horn Prospecting, Inc. (BHP) and the other aspects would be operated by the Big Horn Basin Foundation. The CBOE also found that no firm agreement existed as to how any income generated would be spent, and \\\"[tlaking into consideration the annual lease payment and the allocation between BHP and the Town as to the payment of certain costs of operating and maintaining the facility, in connection with the numerous scientific, educational and cultural activities intended to occur at the facility, it cannot be said that the primary purpose of the Museum is to directly enhance the Town of Thermopo-lis' income. The primary purpose of the facility is to encourage economic development and diversity and to better the quality of life for the local citizenry.\\\" The CBOE concluded that the primary purpose of the museum was not commercial or of a proprietary nature but served a governmental purpose for the educational and recreational benefit of the citizenry and to economically benefit the local economy in general. The tax exemption was granted.\\n[T183] The statutory exemptions provided for in \\u00a7 39-11-105(a)(v) are not limited to those explicitly stated. By the statutory use of the term \\\"including\\\" the legislature intends to include other purposes even though not specifically enumerated. See City of Cheyenne v. Bd. of Cty. Comm'rs of Loramie Cty., 484 P.2d at 708. A museum is defined as \\\"an institution devoted to the procurement, care, study, and display of objects of lasting interest or value.\\\" Merriam Webster's Collegiate Dictionary 765 (10th ed.2000). The Town points to many state statutes providing for the establishment and maintenance of public museums, and we agree that the legislature has recognized that museums serve a governmental purpose. The CBOE found that this particular museum would provide numerous scientific, educational, and cultural activities that would better the quality of life for the local citizenry. In this capacity, a public museum serves a governmental purpose similar to that served by a library, park, golf course, art gallery or other public recreational facility, and we hold that the CBOE's finding that the museum had a governmental purpose is supported by substantial evidence.\\n[114] According to the Assessor, the Town articulated its nongovernmental, pro- prictary purposes of enhancing tourism and promoting growth and economic development in its grant application, The Assessor contends that the SBOE's determination that the economic development purpose served by this museum precludes an exemption is the correct conclusion. Specifically, the SBOE stated that \\\"[wJhile economic development may be a worthwhile objective, we do not believe that it rises to a governmental function.\\\" The Assessor further contends that the SBOE properly applied a tort lability test and concluded that the purpose is pro-prictary because the town is charging a fee to view the museum figures.\\n[115] We disagree that establishing a public museum that will provide scientific, educational and cultural activities to local citizenry precludes an exemption because that museum will also enhance tourism and promote growth and economic development. The Assessor and SBOE assume that because the museum will generate income, the Town is competing against private enterprise and the museum's purpose must be deemed proprietary. However, as the Town argues, it is authorized to establish and maintain a public museum by \\u00a7 15-1-108(xxxii), and any economic benefits derived from so doing do not change its purpose from a governmental purpose to a proprietary undertaking. As we have already stated, the general rule is that where the primary and principal use is public, the property is exempt and income received from its use does not preclude the exemption. City of Lander, 882 P.2d at 850. In City of Cheyenne v. Bd. of Cty. Comm'rs of Laramie Cty., we noted that many authorities do apply a tort liability test and find a purpose proprietary if income is generated; however, we decided that generating income is not controlling, and merely renting a building to a lessee engaged in a profit-making venture is not a use for a nongovernmental purpose. 484 P.2d at 709. There, we decided that because the buildings were necessary or essential facilities to the efficient operation and maintenance of the airport, the improvements were not subject to taxation. Id. Here, the property's use is primarily for the governmental purpose of providing scientific, educational, and cultural activities in a museum, and any fees charged or profits generated by its lessee do not alter its tax exempt status.\\n[ 16] The order of the district court reversing the SBOE is affirmed, and the order of the CBOE is reinstated.\\n. \\\"The property of the United States, the state, counties, cities, towns, school districts and municipal corporations, when used primarily for a governmental purpose, and public libraries, lots with the buildings thereon used exclusively for religious worship, church parsonages, church schools and public cemeteries, shall be exempt from taxation, and such other property as the legislature may by general law provide.\\\" Wyo. Const. Art. 15, \\u00a7 12.\\n. Wyo. Stat. Ann. \\u00a7 39-11-105 (LexisNexis 2001) governs exemptions and provides:\\n(a) The following property is exempt from property taxation:\\n(v) Property of Wyoming cities and towns owned and used primarily for a governmental purpose including:\\n(A) Streets and alleys and property used for the construction, reconstruction, maintenance and repair of streets and alleys;\\n(B) Property used to furnish sewer and water services;\\n(C) City or town halls, police stations and equipment, traffic control equipment, garbage collection and disposal equipment and lands and buildings used to service and repair the halls, stations or equipment;\\n(D) Parks, airports, auditoriums, cemeteries, golf courses, playgrounds and recreational facilities. Any charges for the use of the facilities shall not exceed the cost of operation and maintenance to qualify for the exemption;\\n(E) Personal property used exclusively for the care, preservation and administration of city or town property;\\n(F) Parking lots operated on a nonprofit basis.\\n. Section 4. Publicly owned property-W.S. 39-11-105(a)\\u00ae)-(vi).\\n(a) Publicly owned property is not, per se, exempt from taxation. The property is exempt only \\\"when used primarily for a governmental purpose.\\\"\\n(b) The phrase \\\"governmental purpose\\\" cannot be precisely defined. The following considerations should be evaluated:\\n(i) If a service or function is obligatory (one the governmental entity must perform as a legal duty imposed by statute), the function is governmental and the associated property is exempt.\\n(ii) If a service is rendered gratuitously, supported by taxes, and for the public welfare or enjoyment generally, the property associated with providing such service is exempt.\\n(ii) W.S. 39-11-105(a)(v) specifically identifies certain municipal property which is exempt (used primarily for a governmental purpose).\\n(iv) W.S. 39-11-105(a)(i)(A)(E) and (fi)(A)-(D) identify specific uses of federal and state property which are not exempt (not used for governmental purposes).\\n(v) Property owned by a governmental entity acting in its proprietary capacity is not exempt, (e.g. where a city enters the field of private competitive business for profit or into activities which may be and frequently are carried on through private enterprises).\\nWyoming Department of Revenue, Ad Valorem Tax Exemption Standards, Ch. 14, \\u00a7 4 (filed Feb. 11, 1999).\\n. W.S.1957 \\u00a7 39-7, subd. 1(E).\"}"
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+"{\"id\": \"9447857\", \"name\": \"In the Matter of the Worker's Compensation Claim of Ivan L. SWEETS, Appellant (Employee-Claimant), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Objector-Defendant)\", \"name_abbreviation\": \"Sweets v. State ex rel. Wyoming Workers' Safety & Compensation Division\", \"decision_date\": \"2002-03-12\", \"docket_number\": \"No. 01-75\", \"first_page\": \"461\", \"last_page\": \"466\", \"citations\": \"42 P.3d 461\", \"volume\": \"42\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Supreme Court of Wyoming\", \"jurisdiction\": \"Wyoming\", \"last_updated\": \"2021-08-10T23:36:31.489948+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before LEHMAN, C.J., and GOLDEN, HILL, and VOIGT, JJ., and Keith G. Kautz, D.J.\", \"parties\": \"In the Matter of the Worker's Compensation Claim of Ivan L. SWEETS, Appellant (Employee-Claimant), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Objector-Defendant).\", \"head_matter\": \"2002 WY 37\\nIn the Matter of the Worker's Compensation Claim of Ivan L. SWEETS, Appellant (Employee-Claimant), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Objector-Defendant).\\nNo. 01-75.\\nSupreme Court of Wyoming.\\nMarch 12, 2002.\\nJody L. James of James and Scott, P.C., Rock Springs, WYO, Representing Appellant.\\nHoke MacMillan, Attorney General; John W. Renneisen, Deputy Attorney General; Gerald L. Laska, Senior Assistant Attorney General; and David L. Delicath, Assistant Attorney General, Representing Appellee.\\nBefore LEHMAN, C.J., and GOLDEN, HILL, and VOIGT, JJ., and Keith G. Kautz, D.J.\", \"word_count\": \"3261\", \"char_count\": \"19552\", \"text\": \"HILL, Justice.\\n[11] : On April 9, 1997, Appellant, Ivan L. Sweets (Sweets), was injured while at work in the laundry at the Wyoming State Penitentiary (WSP) It is his claim that the 1997 injury eventually necessitated a knee surgery and other medical care for which he sought worker's compensation benefits. The Appellee, Division of Wyoming Workers' Safety and Compensation Division (Division), contends that Sweets's medical problem was the result of a 1985 injury he suffered while playing basketball at the WSP and, thus, the medical expenses submitted to the Division for compensation benefits were properly denied. Sweets sought review in the district court under W.R.A.P. 12. The district court certified the matter here for our review. We will reverse and remand with directions.\\nISSUES\\n[12] Sweets poses these issues:\\n1. Was the Hearing Examiner's finding that [Sweets] did not suffer a 1997 left knee anterior cruciate ligament injury supported by substantial evidence?\\n2. Was the Hearing Examiner's finding that the most complete and in depth medical review was performed by Dr. Rheim Jones an abuse of discretion?\\n3. Was the Hearing Examiner's finding that [Sweets] suffered an April 9, 1997 left knee sprain/strain injury that resolved itself by no later than July 28, 1998 arbitrary and capricious?\\nThe Division rephrases those issues thus:\\nL. Does substantial evidence support the Hearing Examiner's finding that [Sweets] failed to prove that he injured his anterior cruciate ligament on April 9, 1997?\\nII. Does substantial evidence support the Hearing Examiner's finding that the most complete and in depth review of [Sweets's] condition was the one performed by Dr. Rheim Jones?\\nIII. Does substantial evidence support the Hearing Examiner's finding that [Sweets] sprained or strained his left knee on April 9, 1997 and that injury resolved itself by July 28, 1998?\\nFACTS\\n[18] This case began when Sweets filed a report of an occupational injury on April 9, 1997. In that document, Sweets reported that he was cleaning a drain in the laundry room at the WSP and his \\\"knee went out while bending.\\\" The report indicated that Sweets injured his left knee.s At the time of the injury, Sweets was seen in the infirmary at the WSP, and these notations appear in his medical file:\\nMr. Sweets comes to the clinic this morning. He miss stepped [sic], his left knee popped. There may be a slight affusion; this happened just a short time ago. I have seen him in the past for his knee. Examination reveals the joint to be stable. Range of motion is normal. I am going to put a neoprine [sic] sleeve on. He is to wear it during the day for a couple of weeks. He believes he can continue with his job as a laundry supervisor. Mr. Sweets is to return to see me in two weeks. I have prescribed IBU 800 mg tid.\\n[T4] It is apparent from the record that the Division asked Sweets to send it a more detailed description of the cireumstances surrounding his injury. Sweets wrote to the Division on April 29, 1997, and his explanation in that letter adds nothing to what has been recited above, although Sweets did provide the Division more information about the injury which occurred in 1984. It is in this letter that Sweets stated that the previous injury was in 1985, and from that point forward most persons involved in treating or evaluating Sweets continued to use 1985 as the relevant date.\\n[15] Sweets testified that his left knee has continued to give him problems since the time of the 1997 injury, though he received no treatment for it until 1998-99, after he was released from the WSP. On July 28, 1998, Sweets paid a visit to a physician in Kemmerer, and that physician noted no instability in his left knee but suggested that an MRI be done and that Sweets return for a recheck in three weeks. Sweets did not return to Kemmerer for a recheck, but an MRI was performed on August 7, 1998, at the hospital in Rock Springs and that MRI revealed: \\\"Complete disruption of the anterior cruciate - ligament, - probably - chronic.\\\" Sweets asserted that he was unable to afford to go back to Kemmerer to pursue treatment, and his next treatment began with Joseph Oliver, M.D., an orthopedic surgeon from Rock Springs, on October 5, 1999. Dr. Oliver's final conclusion was that Sweets suffered a new injury on April 9, 1997, but an additional factor was a material aggravation of a 1984 injury wherein Sweets suffered a medial meniscal tear in his left knee. Dr. Oliver recommended surgery to correct the anterior cruciate ligament problem, and that surgery was performed. The costs of that surgery and its associated hospitalization make up the lion's share of the claims submitted by Sweets to the Division, which the Division declined to pay on the basis that the treatment was not related to, nor necessitated by, the April 9, 1997 injury. At this juncture, we also take note that on May 15, 1997, the Division sent Sweets a letter containing the following information:\\nThe Workers' Compensation Division has reviewed your accident report(s) and all other documents in our file We have determined that the injury to your right [sic] knee is covered by the Wyoming Workers' Compensation Act and claims for medical and/or disability benefits will be reviewed and paid if compensa-ble.\\nThe evidence, including both your own statements in a letter as well as the medical records from the prison infirmary, indicate this condition is a preexisting one. As there has never been a workers' compensation claim filed on this injury, we must assume the preexisting injury and it is not work related. Our compensability on this case is therefore limited to an acute exacerbation of the pre-existing condition. We will not accept any previous primary injury as compensable and if you do have any previous injury such as a torn medial meniscus, we would not pay for the surgical repair of this condition.\\n(Emphasis in original.)\\n. [\\u00b66] On June 8, 1997, the Division sent Sweets a letter correcting its reference to his right knee and changing it to his left knee. The Division said the error came about because the report of injury did not specify which knee was involved, although that too is not correct. The letter went on to say:\\nAs the records do indicate your left knee injury is an aggravation of a pre-existing condition, and there was never a workers' compensation [sic] filed on your left knee the Division's compensability is limited to an acute exacerbation of the pre-existing condition. We will not accept any previous injuries as compensable and if you have any previous injury such as a torn medial meniseus, we would not pay for the surgical repair of these conditions. If the records, however, clearly indicate a condition attributable to the injury of April 9th, 1997, we will consider payment for repair of the condition.\\n(Emphasis in original.)\\n[17] A disclosure statement filed by the Division with the Office of Administrative Hearings on March 22, 2000, indicated that the Division took the position that the problems with Sweets's left knee were pre-exist-ing, that the problems with his left knee did not occur in the course and seope of his employment, and that Sweets had the burden of proving each and every element of his claims for medical and temporary total disability benefits by a preponderance of the evidence.\\n[18] At the request of the Division, Sweets was sent to Rheim B. Jones, M.D., an orthopedic surgeon in Idaho Falls, Idaho, for the purpose of undergoing an independent medical examination. We will discuss that evaluation more fully later, but for the time being, we note that Dr. Jones determined that:\\nMr. Sweets sustained a basketball injury to his left knee in 1985, while incarcerated in the Wyoming State Penitentiary. Dr. Kirsch diagnosed a medial meniscal tear. It is my opinion, based on the medical record, Mr. Sweet's [sic ] testimony [ste ], chronology of his symptoms, and x-ray findings, that Mr. Sweets sustained an anterior cruciate ligament injury in 1985. It went undiagnosed. The unstable knee and torn medial meniscus caused the degenerative arthritis.\\nThe injury of 04/09/97 did not cause the anterior cruciate ligament tear and the resulting arthritis. The incident of 04/09/97 represented an episode of instability from the pre-existing torn anterior cruciate ligament and medial meniscal tear.\\n[19] Dr. Jones also indicated: \\\"Since 1985, Mr. Sweets has been unable to play basketball, football, fish, and do his climbing activities.\\\" This conclusion is at odds with Sweets's testimony as well as the reports filed by all other health care providers. According to Sweets, and there is no other evidence to contradict it, he was able to do all of his activities, including work, until after the April 9, 1997 injury.\\n[110] The Division also sent Sweets to Michael Kaplan, M.D., at Gem City Bone & Joint in Laramie for an independent medical evaluation. - Dr. Kaplan specifically challenged Dr. Jones's statement that Sweets was unable to play sports, etc., and indicates the opposite was true. In addition, Dr. Kap-lan opined:\\nDr. Jones's opinion in the IME is that 100% of the patient's problems should be apportioned to the accident in 1985. However, with a severe anterior cruciate deficiency, I would have expected the patient to have had problems with instability and with all of the activity that he claims he participated in. Additionally, it seems that he may have been denied appropriate serial assessments and diagnostics following the Workers' Compensation injury in 1997, delayed care until 1999.\\n[111] Dr. Oliver, Sweets's treating physician, also commented on Dr. Jones's evaluation:\\nI have read Dr. Jones' evaluation and I feel that the injury that Mr. Sweets sustained in 1985 was a probable meniscal tear. He gave no history of problems up until his injury in 1997. After that injury he had significant problems with his knee with instability and giving out. It is my feeling that he did have injury in 1985, which was probably a meniscal tear, but he was able to function up until 1997 with this, which is not unusual to have people function with a torn meniscus for some period of time without being symptomatic. I have a number of patients in my practice that this has happened to. As far as him having significant problems after his injury of 1997, I feel that his cruciate deficiency developing from that injury and his instability after that time was a result of that second injury of 1997.\\nI do not agree that 100 per cent of Mr. Sweets['s] problems are related to his injury of 1985. Again as related to me by Mr. Sweets, he had minimal problems with his knee up until his injury of 1997 when his knee got progressively worse. I feel that the tearing of his anterior cruciate ligament at the time of this injury caused his symptoms to get worse and progress, as far as instability. His knee became unstable to the point that he was more sympto matic after the anterior cruciate ligament injury in 1997.\\nAs stated above, I feel to have a meniscal tear does not necessarily mean that your knee is going to be unstable and the function can be relatively normal, which I feel Mr. Sweets was from his injury in 1985 to his injury in 1997 when he got progressively worse.\\n[112] A hearing was held on November 17, 2000. The only evidence taken at that hearing was Sweets's testimony. The remainder of the record is made up of a deposition from Dr. Oliver, the various medical reports described above, and documents of an administrative nature. The Hearing Examiner generally denied Sweets's claim for worker's compensation benefits.\\nSTANDARD OF REVIEW\\n[118] Our standard of review in a case such as this is well established:\\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 \\\"[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 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 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). _ Demonstrating evidentiary contradictions in the record does not establish the irrationality of the ruling, but we do examine conflicting evidence to determine if the agency reasonably could have made its finding and order based upon all of the evidence before it. Matter of Corman, 909 P2d 966, 971 (Wyo.1996); Knight, 805 P.2d at 274; Ward v. Board of Trustees of Goshen County School Dist. No. 1, 865 P.2d 618, 623 (Wyo.1993); State ex rel. Wyoming Workers' Compensation Div. v. Ramsey, 839 P.2d 936, 941 (Wyo.1992).\\nIkenberry v. State ex rel. Wyoming Workers' Compensation Division, 5 P.3d 799, 802 (Wyo.2000) (citing Claim of Pederson, 939 P.2d 740, 742 (Wyo.1997)).\\nDISCUSSION\\n{T14] Based upon the evidence in the record, the Hearing Examiner made the following determinations, which are of particular importance to the resolution of this matter. We agree with Sweets that his findings are incorrect and/or inaccurate as asserted in Sweets's statement of the issues:\\n[T15] 1. The Hearing Examiner found that Sweets injured his knee in 1985 while playing basketball, and that the injury which occurred was a torn medial meniscus, but that problem was not treated until surgery in October of 1999. Viewing the same materials, which were available to the Hearing Examiner, we conclude that the injury occurred in 1984, and it was diagnosed as a medial meniscus tear. However, that tear was not treated during the 1999 surgery, or at least no claim was made for repair of the medial meniscus. The claim was for surgery to correct the anterior cruciate ligament defi-cleney.\\n[116] 2. The Hearing Examiner determined that great weight should be given to Dr. Jones's findings because they were the most complete and in-depth review done. Again, based on our review of the record we note that, indeed, Dr. Jones's report is some 34 pages long, but unless we are to use the phrase, \\\"weight of the evidence,\\\" literally, it should carry no more weight than any of the other medical evidence. Only a few of the 34 pages pertain to the issue at hand. Of special note is that Dr. Jones is the only health care provider to conclude that Sweets was unable to play sports or work after the 1985 injury. The vast weight of the evidence compels a conclusion that that is patently incorrect and seriously detracts from Dr. Jones's overall conclusions.\\n3. The Hearing Examiner concludes that Sweets did suffer a work-related injury on April 9, 1997, but that injury resolved itself no later than July 28, 1998. Our review of the record reveals that there is no medical evidence to support this conclusion. This is apparently based upon the fact that on July 28, 1998, a physician in Kemmerer saw Sweets, and she found no instability in the knee. That same physician wanted to see an MRI. An MRI was done about ten days later, and it revealed a complete anterior cruciate ligament deficiency. If the Hearing Examiner's reasoning were to be followed, then it also would have to be concluded that the deficiency occurred during that ten-day time span, and there is no evidence in the record to support such a conclusion. Moreover, because such a conclusion requires medical expertise, we view the Hearing Examiner's findings in this regard to be beyond the seope of his role in this process.\\nCONCLUSION\\n[T 18] The errors in the Hearing Examiner's findings so undermine the credibility and, hence validity, of the result reached in this case that the Order Finding and Limiting Compensable Injury cannot be affirmed. Therefore, we reverse that Order and remand to the district court with directions that the district court further remand to the Office of Administrative Hearings. At a minimum, the Hearing Examiner shall amend his findings so as to conform them to the evidence in the record and issue a new order. The Hearing Examiner may also choose to remand the matter back to the Division for a hearing de novo before the Medical Commission, or to enter an order awarding benefits as claimed by Sweets, as there is substantial evidence in the record to support such an award of benefits.\\n. - Inmates working in the Correctional Industries Program, which includes the prison laundry, are covered by worker's compensation. Wyo. Stat. Ann. \\u00a7 25-13-106(a) and 27-14-401(h) (Lexis-Nexis 2001).\\n. Sweets testified that the injury occurred in 1984, and the documentation related to that injury indicates that Sweets was treated at the hospital in Rawlins on April 9, 1984. A left knee arthrogram revealed that: \\\"There was a horizontal linear defect noted in the posterior horn of the medial meniscus on the medial aspect consistent with a tear.\\\" - Sweets did indicate that injury occurred in 1985, when he wrote to the Division in April of 1997. In his findings, the Hearing Examiner describes this occurrence as the 1985 injury, and we will adopt that convention to avoid confusion. In quoted material, any reference to a 1984 injury should be construed to refer to the so-called \\\"1985 injury.\\\"\\n. This fact is of importance only because the Division originally identified the injury as being to Sweets's right knee, though the report of injury clearly indicated the left knee. Other than the obvious \\\"credibility\\\" issues that arise when such a mistake is made, this fact is of no particular importance, as the Division promptly corrected the error when Sweets called it to the Division's attention.\\n. - Although the Division calls itself the \\\"Wyoming Workers' Compensation Division,\\\" the Act is actually entitled the \\\"Wyoming Worker's Compensation Act.\\\"\\n. Idaho Falls is approximately 350 miles from Rock Springs.\\n. Sweets's testimony was not given until November 17, 2000. We must assume that Dr. Jones means Sweets's report to him during the examination.\"}"
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