Court Summaries

• Publication year: 2015
• Pages: 38
• Citation: Vol. 38 No. 6 Pg. 38

Court Summaries Vol. 38 No. 6 Pg. 38 Wyoming Bar Journal December, 2015

P. Craig Silva, Williams, Porter, Day & Neville P.C.

Mountain Vista Retirement Residence v. Fremont County Assessor

2015 WY 117

S-14-0282

September 2, 2015

Mountain Vista Retirement Residence (Mountain Vista Retirement) is a non-proft corporation that owns real property in Fremont County, Wyoming. The property is utilized to allow independent living for elderly residents. In 2012, the Fremont County Assessor issued a notice to Mountain Vista Retirement assessing its commercial land and improvements at $1,327,908 and its personal property tax at $8,246. Mountain Vista Retirement claimed it was exempt from property tax as it is a charitable or benevolent association that uses its property for primarily non-commercial use. The applicable statute allows for exemption for “[p]roperty used by a secret, benevolent and charitable society or association. . .” The Wyoming Supreme Court concurred with all the lower tribunals holding that Mountain Vista Retirement was not exempt. The property is used for housing of the elderly who pay for the housing with no subsidization in any respect. The Court held Mountain Vista Retirement is neither a benevolent nor charitable society or an association.

Barry Scott v. Board of Trustees of Fremont County School District Number One

2015 WY 128

S-15-0060

September 18, 2015

Barry Scott was employed as the Activities Director of the Fremont County School District Number One (District). In 2011, Mr. Scott was charged with driving under the infuence, which was ultimately dismissed for a Fourth Amendment violation. In 2013, Mr. Scott was again charged with driving under the infuence. As a result of this second charge, the Superintendent recommended the Board of Trustees terminate Mr. Scott’s employment with the District. Mr. Scott requested a hearing on this determination. The hearing examiner recommended termination.

Under the District rules, the Board of Trustees had 20 days to adopt the recommendation of the hearing examiner. The Board did not adopt the recommendation until the 21^st day. As such, Mr. Scott moved to dismiss the decision for lack of jurisdiction arguing the 20-day period had run. The Court held, however, the one day delay did not strip the Board of jurisdiction.

The Court relied upon two cases to reach this conclusion: JA v. State (In re DSB), 2008 WY 15, 176 P.3d 633 (Wyo. 2008) and Kemira Fibres Oy v. United States, 61 F.3d 866, 871 (Fed. Cir. 1995). JA involved a neglect petition that pursuant to statute needed to be heard within 90 days. The statute did not indicate what should occur at the end of the time limit. Lacking that language, the Wyoming Supreme Court was unwilling to hold that jurisdiction was lost. Kemira, held “even in the face of a statutory timing directive, when a statute does not specify the consequences of non-compliance, courts should not assume that Congress intended that the agency lose its power to act.”

Robert L. Kroenlein Trust et al., v. Gary Bruce Kirchhefer et al.

2015 WY 127

S-14-0296

September 17, 2015

This case involves the theft of beer/funds ($337,326.00) from J&B Package Liquor (J&B) from approximately 2002 through 2007, although it is stated the theft may have gone as far back as 1997.

J&B is a package liquor store in Torrington, Wyoming. In 2005, the owners of J&B noticed inconsistencies on beer sales in that the amount expended by J&B on beer purchases were exceeding the actual revenue received for the sale of the beer. Tese discrepancies continued in 2005 through 2006. Numerous steps were taken to try to fgure out how and why the losses were occurring. In 2007, it was found that Gary Bruce Kirchhefer of Orrison Distributing was the source of the loss.

In 2011, a lawsuit was brought in federal court against Orrison Distributing and Kirchhefer. The case, at least the federal claims, were dismissed on summary judgment because suit was...