A Wyoming Law Firm

HAPPENINGS

2024

September 4, 2024

Amanda H. Newton Joins SPKM as Special Counsel

Sundahl, Powers, Kapp & Martin is pleased to announce that Amanda H. Newton has joined the firm as special counsel. Amanda was born and raised in Wheatland and obtained both her undergraduate and law degrees from the University of Wyoming. Prior to attending law school, Amanda served on the staff of two Governors of Wyoming. Amanda has been involved in a wide array of litigation matters over the course of her career including both bench trials and jury trials in medical malpractice litigation and other complex commercial litigation as well as matters tried to administrative hearing tribunals. Amanda’s current law practice focuses on professional liability defense representing nurses, physicians, hospitals, dentists and other healthcare professionals in medical malpractice litigation and licensure matters. Learn more about Amanda and other attorneys at SPKM by visiting our “Attorneys” page.

July 10, 2024

District Court Assesses Penalties and Damages for Violation of the Wyoming Public Records Act, WS §§ 16-4-201 et seq.

Two former attorneys, George Powers (a former partner of Sundahl, Powers, Kapp & Martin) and Rodger McDaniel, acting pro se recently received an order assessing penalties and damages against the Wyoming Department of Education (WDE), Brian Schroeder (former Superintendent of Public Instruction) and Linda Finnerty (WDE Chief Communications Officer) for violation of the Wyoming Public Records Act (WPRA), W.S. §§ 16-4-201 et seq. The District Court concluded that the defendants “knowingly or intentionally” violated the WPRA, when they attempted to withhold public records in a futile effort to avoid disclosing an expenditure of public money to support a political event. 

The case began in 2022, when Superintendent Schroeder announced plans to stage a rally to promote claims that school libraries contained offensive materials just weeks before elections that included seats on local boards of trustees in school districts across Wyoming. Efforts by McDaniel and Powers to obtain information about the funding that had been used to pay the expenses of out-of-town speakers and other costs were met initially with evasive and incomplete responses. Further investigation demonstrated that the defendants had actually misrepresented facts, lied about the existence of relevant documents and unlawfully withheld public records. The district court held that the defendants had acted in bad faith and violated the public’s right to know what the government was doing. After multiple hearings the district court issued a final judgment with the following conclusion:

As John Adams once famously stated in a closing argument: “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, the cannot alter the state of the facts and evidence.” The “stubborn facts” in this case plainly show that the WDE spent public money on the October 25 Event (at Superintendent Schroeder’s urging), and then engaged in efforts to conceal and avoid revealing those facts when they responded to Plaintiff McDaniel’s requests for public records. 

McDaniel and Powers v Wyoming Department of Education, Finnerty and Schroeder, Civil Action No. 2023-CV-0201262, Order of July 10, 2024 at 26-27.

To our knowledge this is the first time a court in Wyoming has assessed penalties and awarded damages under the WPRA. Although the case involved numerous issues of first impression and would have been an excellent test case to take to the Wyoming Supreme Court, the defendants did not appeal any of the district court’s finding of fact or conclusions of law. 

July 3, 2024

Plaintiff's Lawsuit Dismissed with Prejudice

The Plaintiff in White v Estate of Thornburg promptly filed suit on August 29, 2022 for alleged injuries caused by a February 16, 2022, automobile accident. A pretrial Scheduling Order establishing discovery deadlines, a final pretrial date and trial date soon followed. Initially, discovery was delayed by Plaintiff’s failure to provide timely discovery responses, but defense counsel persisted and ultimately the case was slated for mediation on March 21, 2024, less than three months before trial. However, at that point the case went off the rails because of a string of events triggered by Plaintiff’s refusal to comply with the Court’s orders. Strike one was when the Plaintiff failed to appear for the mediation. Strike two was when the Plaintiff failed to appear at a hearing on plaintiff counsel’s motion to withdraw despite a specific court order requiring him to appear in person. Strike three was when the Plaintiff failed to file any pretrial memorandum, witness list or exhibit list before the final pretrial hearing. Although Plaintiff did appear in person for the hearing, he was unable to participate in any meaningful way and was otherwise unprepared for trial. 

After defense counsel filed their motion to dismiss based on this record, Plaintiff compounded his difficulties, when he failed to appear for a noticed hearing on the motion and required the Court to reschedule the matter for another hearing on July 3, 2024. Plaintiff finally appeared at the rescheduled hearing, but he was unable to offer any colorable excuse for his well-documented inability to comply with the Court’s orders or any assurance that he would be able to comply in the future. In contrast, Defense counsel presented a detailed and persuasive argument that Plaintiff’s pattern of non-cooperation and defiance of the Court’s orders had resulted in material prejudice to the defense, which justified immediate dismissal with prejudice. The Court agreed and entered its order of dismissal the same day. 

Defendant was represented by Kay Lynn Bestol and Jane M. France. Wyoming courts are understandably reluctant to deny a party their right to a day in court, but the facts and authorities marshalled by defense counsel led the Court to conclude that dismissal was both appropriate and necessary under these circumstances.

2023

July 26, 2023

Powers and France win 10th Circuit Appeal

On July 26, 2023, the Tenth Circuit Court of Appeals affirmed the 2021 defense judgment in Moreno v Zimmerman, case no. 21-8066. Vincent and Jeannie Moreno had filed suit against Dr. Ed Zimmerman, an emergency room physician employed by Memorial Hospital of Carbon County. Vincent Moreno alleged that Dr. Zimmerman failed to diagnose a stroke during a brief out-patient visit to the emergency room. Several days later, Moreno was seen at a hospital in California, where he was diagnosed with an acute posterior stroke. However, the Morenos failed to serve a timely notice of claim under the Wyoming Governmental Claims Act (“WGCA”), so Zimmerman filed a motion for summary judgment. The district court denied the motion ruling that the Morenos had raised issues of fact relating to whether Zimmerman was an employee of the hospital and whether the Morenos could establish that they had failed to discover any employment relationship despite the exercise of reasonable diligence. The district court also bifurcated the trial, setting an initial separate trial to address any employment and notice issues first with a subsequent separate trial of any medical liability issues to follow, if necessary. The jury returned a verdict for the defense, finding that Zimmerman was an employee of the hospital acting within the scope of his duties and that the Morenos had not exercised reasonable diligence to discover the employment relationship. Based on these findings, the district court then dismissed the case based on the Morenos’ failure to provide timely notice of claim.

On appeal, the Morenos did not dispute any procedural aspect of the trial, the instructions of the court or the factual determinations of the jury. The only issue presented was a claim that under W.S. § 1-39-113 there was no notice of claim required in an action solely against an employee of a governmental entity and not against the entity itself. The Morenos argued that there was no such requirement for notice, when the only defendant was the employee and that this issue had not been addressed in any prior decisions of the Wyoming Supreme Court. The Court of Appeals rejected this argument in its entirety. “[T]he Wyoming Supreme Court has spoken with sufficient clarity regarding the coverage of the WGCA’s notice-of-claim requirement and demonstrated that it applies even when a claim is brought solely against a public employee.”

Jane France and George Powers represented Dr. Zimmerman at trial and on appeal. This decision is a welcome conclusion to the last jury trial that George Powers tried before his retirement.

2022

September 20, 2022

Sundahl, Powers, Kapp & Martin, LLC is a member of ALFA International (ALFAI), a premier global legal network with more than 140 independent law firm members worldwide. Similar in size and experience, ALFAI member firms meet high standards to be part of the network and their attorneys are well respected by peers in both the legal and business community. ALFAI member attorneys establish broad, deep relationships with each other and are committed to providing cost-effective, high-quality legal services. As a result, membership in ALFAI enables Sundahl, Powers, Kapp & Martin, LLC to use its local experience to deliver highly effective legal solutions while drawing upon the collective wisdom and experience of a comprehensive worldwide network of accomplished trial and business counsel. Sundahl, Powers, Kapp & Martin, LLC’s clients will also benefit from a wide range of unsurpassed educational programming, including seminars, webinars, and legal compendia. More information on ALFAI is available at www.ALFAInternational.com.

September 7, 2022

Longtime member George Powers of Sundahl, Powers, Kapp & Martin, LLC received DLAW’s §1-1-109 award at the 2022 Annual DLAW Convention. The award is named after Wyoming’s comparative fault statute, which DLAW was instrumental in passing. The award is not given every year, but only when it is truly deserved. In a heartfelt presentation, John Sundahl presented the award to George in recognition of his career-long and significant contributions toward the betterment of the civil justice system, the goals of the defense bar, and his ethical, personal, and professional conduct consistent with the ideals of DLAW.

July 26, 2022

SPKM is pleased to announce that 6 attorneys have been named to the 2022 Mountain States Super Lawyers and Rising Stars lists.

Kay Lynn Bestol has ranked in the top 50 Women in 2022 and selected to Super Lawyers from 2013-2022 in the area of Civil Litigation Defense.

Raymond Martin has been selected to Super Lawyers from 2008- 2022 in the area of Construction Litigation.

George Powers has been selected to Super Lawyers from 2007-2022 in the area of Personal Injury General: Defense.

Andrew Sears has been selected to Super Lawyers in 2022 in the area of Personal Injury General: Defense.

John Sundahl was selected to Super Lawyers from 2000-2022 in the area of Personal Injury.

Jane M. France was named to the Rising Star List from 2020-2022 in the area of Personal Injury General: Defense.

Super Lawyers is a rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a rigorous multi-phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer review by practice area. Rising Stars follows a similar process to recognize up-and-coming attorneys who are age 40 or younger, or who have been in practice for 10 years or less.

2021

October 21, 2021

Jane M. France and Patrick Brady both presented at the Legal Assistants of Wyoming fall seminar. Ms. France gave a one hour presentation on “Liens and Garnishments” and Mr. Brady presented for an hour on “Out of State Discovery.”

2020

July 16, 2020

SPKM is pleased to announce that 6 attorneys have been named to the 2020 Mountain States Super Lawyers and Rising Stars lists. 

John Sundahl has been selected to Super Lawyers from 2007-2020 in the area of Personal Injury. 

George Powers has been selected to Super Lawyers from 2007-2020 in the area of Personal Injury. 

Paul Kapp has been selected to Super Lawyers from 2012-2020 in the area of Personal Injury. 

Raymond Martin has been selected to Super Lawyers from 2008-2020 in the area of Construction Litigation. 

Kay Lynn Bestol has been selected to Super Lawyers from 2013-2020 in the area of Civil Litigation. 

Jane M. France was named to the Rising Star list for 2020 in the area of Personal Injury General: Defense.

Super Lawyers is a rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a rigorous multi-phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer review by practice area. Rising Stars follows a similar process to recognize up-and-coming attorneys who are age 40 or younger, or who have been in practice for 10 years or less.

February 14, 2020

Congratulations to Raymond Martin for being selected as a Fellow in the Construction Lawyers Society of America, which is limited to 1200 active practicing lawyers worldwide. This selection is based upon excellence and accomplishment in construction law and closely related specialties, from the transactional level to trial and appellate levels, and superior ethical reputation.

January 30, 2020

John Sundahl and George Powers successfully defended a wrongful death claim that had been filed against an interventional radiologist. The patient was an elderly woman, who had come to the emergency room with an abdominal bleed following a colonoscopy. The defendant was called to perform an emergent visceral embolization of the ileocolic artery. Although the procedure was complicated by a variety of factors, the defendant successfully stopped the bleed and saved the life of the patient, who was then admitted to the hospital for follow up care. Approximately twenty-four hours later her condition deteriorated and a surgeon was called in to perform a laparotomy. The surgery revealed that the entire small bowel and all of the large colon with the exception of the sigmoid colon had infarcted. The patient died shortly thereafter.



Plaintiff alleged the defendant had caused the bowel infarct by over-embolizing the ileocolic artery and disrupting the blood supply of the entire superior mesenteric artery (SMA). However, the defense successfully showed that this theory did not fit the facts of the case. The patient’s post-procedure course in the hospital did not fit the pattern that would be expected of an acute ischemic insult caused by loss of the SMA. The “footprint” of the injury did not fit the alleged disruption of the SMA blood supply, because it included portions of the bowel served by other arteries. Careful review of the radiographic studies obtained during the procedure demonstrated that the SMA was patent or open following the procedure. Following a six-day trial, the jury returned a complete defense verdict.