author: THORNE, Judge:

text:
    2004 UT App 163
    STATE of Utah, Plaintiff and Appellee, v. Joshua EARL, Defendant and Appellant.
    No. 20020821-CA.
    Court of Appeals of Utah.
    May 13, 2004.
    Rehearing Denied July 27, 2004.

      Catherine E. Lilly, Lori J. Seppi, and Ralph W. Dellapians, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, Jeffrey S. Gray, and Colleen K. Coebergh, Assistant Attorneys General, Salt Lake City, for Appellee.
    Before BILLINGS, P.J., and BENCH, Associate P.J., and THORNE, J.
   OPINION

THORNE, Judge:

11 Defendant Joshua Earl appeals from his conviction of one count of possession of clandestine laboratory precursors and/or equipment, a second degree felony, in violation of Utah Code Annotated section 58-87d-4(1) (1998).

BACKGROUND

[2 On November 4, 2001, Earl was sitting in the rented home of his stepbrother, Jeremy Allen. Allen's tenancy in the home began in May 2001, when he entered into an oral contract with Sheila Gledhill, his mother. His contract required him to pay a monthly rental fee of $350 and to properly maintain the interior and exterior of the home. By November, however, Allen had fallen behind in his payments and Gledhill decided that his efforts at maintaining the interior were insufficient. Consequently, Gledhill decided that her only recourse was to evict her son from the property. However, prior to November 4, 2001, Gledhill did not inform her son of her decision to eviet him. Instead, on the morning of November 4, 2002, she drove to the home intent on telling him in person.

13 Prior to talking to her son, however, Gledhill twice contacted the South Salt Lake Police Department. Although the department declined to assist her with the first matter, removal of a vehicle from her husband's neighboring business, following her second call, the department dispatched an officer. During the second call, Gledhill apparently explained that she desired to evict her son from the home and that the home might be housing a methamphetamine lab, as well as operators of the lab. Consequently, South Salt Lake Police Officer Dean Brimley was dispatched to investigate. When Brim-ley arrived, CHledhill explained her concerns more fully. In sum, Gledhill explained to Brimley that a clerk at a local convenience store had told her that she had heard that the house was being used as a methamphetamine laboratory and that the lab was being run by "a skinhead named Marvin." Gled-hill also informed Brimley that her son had a drug problem involving both marijuana and methamphetamine. Gledhill asked Brimley to "stand by [and] keep the peace, while she evicted her son from the residence."

T4 Brimley agreed to "keep the peace" and accompanied (Gledhill to the door. Using a key she had in her possession, and without knocking or gaining Allen's permission, Gled-hill opened the door and entered the home. Brimley followed closely on her heels. To his right, approximately fifteen feet away, Brimley saw four men sitting around a table in the kitchen. At least one of the men was playing a computer game. Directly in front of Brimley, in the living room area, he saw drug paraphernalia, a "bong," and, sitting on the floor near a backpack, material that suggested possible methamphetamine production. This material included a row of glass bottles, later determined to be iodine bottles, and several boxes of pseudoephedrine.

15 Because each of the men was larger than he, and believing that the kitchen created a dangerous environment, Brimley asked each man to identify himself, and then to walk over to Brimley. With the exception of Earl, cach man produced picture identification and calmly walked over to Brimley where he frisked them for weapons, discovering nothing. In contrast, after he claimed that he did not have identification, Earl told Brimley that his name was "Justin Gannon" and provided Brimley with a birth date. He then approached Brimley and, when asked, admitted that he was carrying two knives. Brimley patted Earl down and found both a pocket knife and a knife with a ten-inch fixed blade strapped to the small of Earl's back. Brimley also located something that felt like a wallet in Earl's pocket, which he then asked Earl to retrieve. Earl complied. In the wallet, Brimley found Earl's identification, which clearly indicated that Earl had lied to Brimley. Consequently, Brimley arrested Earl for providing false information. Earl was then handcuffed and placed on a couch located some ten feet from the contraband Brimley had seen upon entry, and some twenty feet from Earl's location prior to being ordered to approach Brimley.

T6 Soon thereafter, Brimley escorted everyone outside where he asked Allen to sign a consent to search form. Allen complied. Although there is some confusion as to the timing, it is clear that after Earl was arrested Brimley searched the backpack that he had seen upon entering the home. In the backpack, Brimley discovered documents linking the backpack to Earl, several rubber stoppers, additional glass iodine bottles, plastic scales, a plastic bag filled with a "red substance," a two ounce container filled with "red sludge," a one ounce container filled with "red sludge," and a book detailing the manufacturing process for methamphetamine. The "red sludge" and "red substance" were later determined to be phosphorus, a key ingredient in methamphetamine production. Brimley then called in the South Salt Lake City methamphetamine investigation team to search the residence. The team arrived and searched the house, but no additional evidence of criminal activity was found.

7 Following the search, Earl was charged with possession of clandestine drug lab precursors and/or equipment, with enhancements, a first degree felony; possession of a dangerous weapon by a restricted person, a third degree felony; and unlawful possession of drug paraphernalia, a class B misdemean-or. Earl, however, moved to suppress the evidence that supported the charges arguing that Brimley's entry into Allen's home violated Earl's Fourth Amendment rights and that everything discovered after entry was "fruit of the poisonous tree." After fully considering the issues presented, the trial court denied Earl's motion, prompting Earl to accept the State's proffered plea bargain. Earl pleaded guilty to felony possession of clandestine laboratory precursors and/or equipment as a second degree felony, and the State dismissed all remaining charges and enhancements. Earl's plea was conditioned on the outcome of the instant appeal, pursuant to State v. Sery, 758 P.2d 935 (Utah Ct.App.1988).

ISSUE AND STANDARD OF REVIEW

T8 Earl argues that the trial court erred in denying his motion to suppress. When reviewing a trial court's suppression order, we review its factual findings for clear error, and its legal conclusions for correctness. See State v. Rynhart, 2003 UT App 410, ¶ 9, 81 P.3d 814.

ANALYSIS

I. Reasonable Expectation of Privacy

T 9 As a threshold matter, the State argues that Earl is in no position to argue for the suppression of the evidence because he had no legitimate expectation of privacy in Allen's home. We disagree.

{10 "'[Rlights such as those conferred by the Fourth Amendment are personal in nature, and cannot bestow vicarious protection on those who do not have a reasonable expectation of privacy in the place to be searched" Minnesota v. Carter, 525 U.S. 83, 101, 119 S.Ct. 469, 479, 142 L.Ed.2d 373 (1998) (Kennedy, J., concurring) (quoting Steagald v. United States, 451 U.S. 204, 219, 101 S.Ct. 1642, 1651, 68 L.Ed.2d 38 (1981)). Consequently, Earl must demonstrate that he possessed a subjective expectation of privacy "'in the premises searched and that society is prepared to recognize that expectation as reasonable."" United States v. Rhiger, 315 F.3d 1283, 1285 (10th Cir.2003) (quoting United States v. Higgins, 282 F.3d 1261, 1270 (10th Cir.2002)), cert. denied, — U.S. —, 124 S.Ct. 90, 157 L.Ed.2d 65 (2003); see also State v. Loya, 2001 UT App 3, ¶ 10, 18 P.3d 1116. "An expectation of privacy is reasonable if it arises from a source 'outside the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society'" United States v. Gordon, 168 F.3d 1222, 1225-26 (10th Cir.1999) (quoting Rakas v. Illinois, 439 U.S. 128, 144 n. 12, 99 S.Ct. 421, 431 n. 12, 58 L.Ed.2d 387 (1978)). A failure to so demonstrate will result in a conclusion that no legitimate expectation exists. See Carter, 525 U.S. at 101, 119 S.Ct. at 479 (Kennedy J., concurring).

T11 Earl's principal argument is that his status as a resident of Allen's home vested him with a legitimate expectation of privacy. The trial court was unwilling to accord Earl status as a resident. "A trial court's factual findings will not be overturned unless they are clearly erroneous." State v. Lafferty, 2001 UT 19, ¶ 45, 20 P.3d 342. We defer to the trial court's judgment in large part because it is in a far superior position to assess the credibility of the witnesses. See id. Accordingly, to succeed in challenging a trial court's ruling, Earl must " 'marshal the evidence in a light most favorable to the findings of the trial court and show that evidence to be insufficient'" to support the finding. Id. Here, the trial court specifically found that Earl was not a resident of the home. Earl, however, does not marshal the evidence that supports this finding, choosing instead to reiterate his own testimony. Although it is true that Earl testified that he resided in the home, the landlord testified that he did not, and that she was in a position to know. The trial court, apparently believing the landlord over Earl, thus made a credibility determination. Earl makes no showing that the trial court's reliance on the landlord's testimony was clearly erroneous; consequently, we affirm the trial court's finding as to Earl's status as a visitor to the house. See, eg., State v. Hurst, 821 P.2d 467, 471 (Utah App.1991) (stating "[blecause she failed to marshal the evidence, we accept the challenged finding").

{12 Pursuant to Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998), Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990), and State v. Rowe, 806 P.2d 730 (Utah Ct.App.1991), rev'd on other grounds, 850 P.2d 427 (Utah 1992), however, Earl also argues, albeit somewhat obliquely, that as Allen's guest he was vested with a legitimate expectation of privacy in the home.

13 In Olson, the United States Supreme Court conclusively determined that "status as an overnight guest is alone enough to show that [a person] hals] an expectation of privacy in the home that society is prepared to recognize as reasonable." 495 U.S. at 96-97, 110 S.Ct. at 1688. The Court founded this decision on its understanding that "[s]taying overnight in another's home is a longstanding social custom that serves functions recognized as valuable by society.... [We think that society recognizes that a houseguest has a legitimate expectation of privacy in his host's home." Id. at 98, 110 S.Ct. at 1689. The Court further stated that "[fJrom the overnight guest's perspective, he seeks shelter in another's home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside." Id. at 99, 110 S.Ct. at 1689. Finally, the Court concluded

that hosts will more likely than not respect the privacy interests of their guests, who are entitled to a legitimate expectation of privacy despite the fact that they have no legal interest in the premises and do not have the legal authority to determine who may or may not enter the household.

Id.

[ 14 In Carter, the Court refined its Olson analysis. - Effectively, the Court distinguished the protections afforded an overnight houseguest present in a host's home by invitation from the absence of protections afforded "one who is merely present with the consent of the householder." 525 U.S. at 90, 119 S.Ct. at 478. In making this distinction, however, the Court noted that the range of possibilities is not fully encompassed by reference to the invited overnight guest and the person present with consent. See id. at 91, 119 S.Ct. at 474. Instead, the range is broad, and in any cireumstance, the determination of whether a person is vested with a legitimate expectation of privacy will depend on the facts presented. See id. For instance, the Court determined that the Carter defendants were not vested with a legitimate expectation of privacy because (1) the defendants were in the home for only a short period of time; (2) there was a "lack of any previous connection between [the defendants] and the householder"; and (8) the defendants were engaged in a purely commercial transaction while in the home. Id. From these facts, the Court concluded that the defendants did not qualify either as overnight guests, or as persons merely "legitimately on the premises." Id. Instead, the Court concluded that the defendants fell "somewhere in between" the ends of the spectrum. Id. But, the middle ground afforded the defendants no shelter, because, after examining the specific facts of the case, the Court ultimately concluded that the defendants' situation was "closer to that of one simply permitted on the premises" and denied them the protection of the Fourth Amendment. Id.

T15 Finally, in State v. Rowe, relying on Olson, this court examined, inter alia, whether the Fourth Amendment extends its protection to all invited social guests in a host's home when police officers enter. See Rowe, 806 P.2d at 735. After examining the specific language of Olson, we concluded that "there is no talismanic significance ... to the length of time a social guest is in the home." Id. Instead, we determined that a person's status as an "invited guest" is sufficient to vest the individual with an expectation of privacy that society is prepared to recognize. Id. at 736. Therefore, under the combined holdings of Olson, Carter, and Rowe, if, as Earl argues, he was present in Allen's home as an invited social guest, we must then conclude that he has a vested legitimate expectation of privacy that he can raise to dispute the propriety of the search.

116 We next address whether Earl was a social guest, with the accompanying expectations of privacy, or.simply a business invitee, as urged by the State. It is undisputed that Earl is related to Allen, having been identified by Gledhill as Allen's stepbrother. Moreover, Earl's own testimony suggests that he has an ongoing relationship with Allen and that they were friends. Thus, the nature of the relationship suggests he was accepted by Allen as a part of his family and that his presence in the home was not unusual. Cf. United States v. Heath, 259 F.3d 522, 532 (6th Cir.2001) (noting that "when determining whether a defendant is entitled to the protections afforded by Olson, reviewing courts should consider whether there was a 'previous relationship' with the [host] or if there is any indicia 'of acceptance into the household'" (citation omitted)). It is also undisputed that at the time Brimley entered the home Earl was seated next to Allen at the kitchen table and that the two were engaged in playing, or watching another person play, a computer game. Moreover, aside from the contraband that was lying on the living room floor, some distance from the men in the house, there was no evidence that Earl, or any of the occupants of the home, were actively engaged in any illegal activity at that time. Nor was there was any evidence that anyone, including Earl, was using the residence to produce, package, or sell methamphetamine. Finally, similar to the defendant in Rowe, Earl felt comfortable enough to leave his belongings in another room while he spent time in the kitchen where computer games were being played. See Rowe, 806 P.2d at 736 (stating that the "defendant felt secure enough in the home to remove her shoes, leave her purse beyond her view, and roam to rooms other than where her fellow guests were playing cards").

117 We conclude that although Earl was not an overnight guest, his situation more closely resembled an overnight guest's position. Thus, we conclude that Earl had a legitimate expectation of privacy in Allen's home. See also State v. Suco, 1987 Fla.App. LEXIS 11995, *6 (Fla.Dist.Ct.App. March 3, 1987) ("[AJn invited guest has a reasonable expectation of privacy in the home while physically on the premises at the invitation of the home dweller."). Consequently, we turn our attention to Earl's substantive claims.

II. Validity of and Reliance Upon Landlord Consent

%18 Earl argues that Brimley's entry into the house violated Earl's right to be free from unreasonable searches and seizures. - "It is axiomatic that 'the right to be free from unreasonable searches and seizures embodied in the Utah and United States Constitutions is one of the most fundamental and cherished rights we possess." State v. Trane, 2002 UT 97, ¶ 21, 57 P.3d 1052 (citation omitted). Thus, it has long been established that in the absence of a valid search warrant, "[the State must demonstrate 'that the cireumstances of the [search or] seizure constitute an exception to the warrant requirement.'" State v. Wells, 928 P.2d 386, 389 (Utah Ct.App.1996) (citations omitted). In the absence of either a warrant or facts that establish the existence of an exception to the warrant requirement, any evidence discovered as a result of the search must be suppressed. See, eg., id., at 389-91 (determining that the state's evidence must be suppressed after the state failed to demonstrate the applicability of an exception to the warrant requirement).

1 19 Brimley entered Allen's home without a warrant and the State does not argue that any exception to the warrant requirement exists that would sufficiently justify Brim-ley's conduct. Although the trial court found that the initial entry was justified because Gledhill consented to it, to a large extent, the State abandons this position on appeal. Having reviewed the trial court's findings, we conclude that the trial court erred in determining that Gledhill's consent was sufficient to authorize Brimley's entry into the home and that Brimley was reasonable in relying on her consent.

120 In Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961), the United States Supreme Court determined that a landlord does not have the right to enter and search premises he has rented to another during the occupant's tenancy. See id. at 616-18, 81 S.Ct. at 779-80. Nor does the landlord have the authority to grant such access to the authorities, because

to uphold such an entry, search and seizure without a warrant would reduce the Fourth Amendment to a nullity and leave tenants' homes secure only in the discretion of landlords. Moreover, it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. We ought not to bow to them in the fair administration of the criminal law.

Id. at 616-17, 81 S.Ct. at 780 (quotations, alterations, and citations omitted). Consequently, although a landlord possesses the bundle of property rights associated with property ownership, he does not possess the authority to grant police officers access to property leased to a tenant.

121 However, it is equally true that status as a landlord does not act as a per se ban on the authority to grant access to search. If the landlord has "joint access or control for most purposes" the landlord is then considered to possess "common authority" over the property, and he will then have the authority to allow the authorities in to search. United States v. Matlock, 415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 993 n. 7, 39 L.Ed.2d 242 (1974). Moreover, even in the absence of actual "common authority," if it would be reasonable for an officer to believe that the landlord had "common authority," pursuant to Matlock, when a landlord consents to the warrantless entry, the entry and search will be deemed valid. Cf. Illinois v. Rodriguez, 497 U.S. 177, 188-89, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148 (1990). In other words, if the facts available to the officer when the landlord consents to the entry would lead a reasonable officer in that position to believe that the landlord had common authority over the property, then the consent will be deemed valid. See id. However, "[elven when the invitation is accompanied by an explicit assertion that the person lives there, the surrounding cireumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry." Id. at 188, 110 S.Ct. at 2801.

122 Here, Gledhill is unquestionably the landlord of the property. The property is rented by her son, and he is the only person that Gledhill authorized to live in the house. Moreover, the record is clear; (Hled-hill did not live in the home with her son during his tenancy. Thus, Gledhill, as the landlord of the property, did not have "common authority" over the property for Fourth Amendment purposes. - Moreover, when Gledhill contacted the police, it is clear that she did so seeking assistance in evicting her son from the property. She informed the South Salt Lake Police Department, and Officer Brimley, that she did not live in the house and that, since renting it to her son, she had been inside only on occasion. She also told Brimley that she was concerned because a local convenience store clerk had told her that a "skinhead named Marvin" was living in the home, and that he was "running a meth lab" at the house. Consequently, Brimley could not reasonably believe that (Gledhill had common authority over the home sufficient to vest her with authority to consent to his entry into the home. Accordingly, because Brimley entered the home without a warrant and without the safe-harbor of an exception to the warrant requirement, his entry violated the Fourth Amendment to the United States Constitution.

III. Earl's Intervening HMegal Act

123 Under other circumstances, Brimley's violation would be dispositive. However, the State argues that Earl's intervening illegal act, committed after Brimley entered the home, dramatically changes the outcome. We agree. "An illegal entry or prior illegality by officers does not affect the subsequent arrest of a defendant where there is an intervening illegal act by the suspect." State v. Griego, 933 P.2d 1003, 1008 (Utah Ct.App.1997). Moreover, if the arrest was lawful, evidence discovered in a search incident to the arrest, "including all evidence discovered by serendipity of crimes other than that for which the suspect is arrested, is admissible in a criminal trial." State v. Trane, 2002 UT 97, ¶ 23, 57 P.3d 1052. Finally, although illegal entry by police can result in the suppression of any evidence discovered through the illegal entry, "Isluppression is not justified unless 'the challenged evidence is in some sense the product of illegal government activity'" Segura v. United States, 468 U.S. 796, 815, 104 S.Ct. 3380, 3391, 82 L.Ed.2d 599 (1984) (citation omitted). Stated differently, challenged evidence is admissible, "notwithstanding a prior illegality, when the link between the illegality and [the challenged] evidence was sufficiently attenuated to dissipate the taint" of the prior illegality. Id. When the defendant commits an intervening illegal act, the taint of the prior illegality is considered dissipated, and any evidence discovered pursuant to a search incident to arrest is admissible. See Clark v. United States, 755 AZ2d 1026, 1029-30 (D.C.2000) (noting that, in the context of an intervening illegal act "[the vast majority of appellate courts have [refused] to suppress either evidence of the distinct crime itself or evidence seized incident to arrest for the distinct erime").

T24 Here, the State argues, and Earl concedes, that in an attempt to mislead Brimley, Earl gave Brimley a false name and birth date when Brimley asked him for identification. See Utah Code Ann. § 76-8-507 (2003) ("A person commits a class C misdemeanor if, with intent of misleading a peace officer as to the person's identity ... the person knowingly gives a false name ... to a peace officer[]"). Earl further concedes that having committed the illegal act in Brimley's presence, Earl was subject to arrest. See id. § T7-7-2(1) (2008). Moreover, Earl concedes that the subsequent search incident to his arrest was valid under United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (19783) (reaffirming the reasonability of the search incident to arrest), and its progeny. Consequently, the evidence discovered during the search incident to Earl's arrest was admissible against Earl, and the trial court did not err in denying Earl's motion to suppress.

CONCLUSION

125 As an invited social guest, Earl had a legitimate expectation of privacy in Allen's home while he was there. Earl's right was not diminished or extinguished by Allen's landlord's illegitimate consent to Brim-ley's entry into the house. Consequently, Brimley's warrantless entry into the home violated the Fourth Amendment. However, because Earl committed a subsequent intervening illegal act in Brimley's presence, Brimley was justified in arresting him. Therefore, all evidence seized in Brimley's search incident to Earl's arrest is admissible.

T26 Accordingly, we affirm the trial court's denial of Earl's motion to suppress.

1 27 I CONCUR: JUDITH M. BILLINGS, Presiding Judge.

28 I CONCUR IN THE RESULT: RUSSELL W. BENCH, Associate Presiding Judge.

      . 'The facts are recited in a light most favorable to the trial court's findings from the suppression hearing." State v. Moreno, 910 P.2d 1245, 1246 (Utah Ct.App.1996).

      . According to Brimley's testimony, he was the only officer initially dispatched, but after he entered the house other officers arrived.

      . - Gledhill later provided the police with a written statement to this effect.

      . Although Earl was arrested for providing false information to the police, and the evidence used to convict him was discovered through a search incident to that arrest, Earl was not charged with that crime.

      . The State argues that our legitimate expectation of privacy discussion in State v. Rowe, 806 P.2d 730 (Utah rev'd on other grounds by, 850 P.2d 427 (Utah 1992), is undermined by both the Uiah Supreme Court's reversal of the decision and Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). We disagree. The Utah Supreme Court did not disturb our reasonable expectation of privacy reasoning or conclusion in Rowe, and a close reading of Carter suggests that Rowe was correctly decided. See Carter, 525 U.S. at 99, 119 S.Ct. at 478 (Kennedy, J., concurring) ("I join the Court's opinion, for its reasoning is consistent with my view that almost all social guests have a legitimate expectation of privacy, and hence protection against unreasonable searches, in their host's home.").

      . On appeal, the State asserts only two substantive arguments-(1) that the search was justified incident to Earl's arrest, and (2) that Earl did not have a reasonable expectation of privacy in Allen's home-and makes only passing reference to issues of consent.

      . A review of case law from around the nation suggests that any illegal act is sufficient to remove the taint of the prior illegality. However, the majority of cases involve some affirmative physical act, most violent, on the part of the defendant. See Clark v. United States, 755 A.2d 1026, 1029-30 (D.C.2000) (discussing cases involving intervening illegalities); see also United States v. Crump, 62 F.Supp.2d 560, 568 (D.Conn.1999) (same). Few cases involve nonviolent behavior, see, eg., United States v. Pryor, 32 F.3d 1192, 1195-96 (7th Cir.1994) (involving a defendant's misrepresentation of identity to a police officer), and no Utah cases involve circumstances analogous to the instant case. In any event, Earl concedes that his arrest was legal. Thus, in the absence of guidance from either the United States Supreme Court or our own Utah Supreme Court on this issue, we are compelled to apply the principle that any illegal act, regardless of its nature, is sufficient to break the nexus of police illegality. See State v. Griego, 933 P.2d 1003, 1008 (Utah App.1997) (stating "extending the fruits doctrine to immunize a defendant from arrest for new crimes gives a defendant an intolerable carte blanche to commit further criminal acts so long as they are sufficiently connected to the chain of causation started by the police misconduct").

      . In addition to finding that Earl had committed an illegal act in the presence of Brimley, the trial court found that Allen had voluntarily consented to a search of the house. While we see no reason to disturb this finding,
      [when evidence is obtained pursuant to a consent to search which follows on the heels of a[FJourth [Almendment violation, we consider not only whether the consent itself was voluntarily given, but also whether it was independent of the violation to such a degree as to cause a "break in the chain of events sufficient to refute the inference that the evidence was a product of the constitutional violation." This analysis applies even when, as here, the person who gave consent was not the person whose constitutional rights were violated.
      United States v. Vega, 221 F.3d 789, 801 (5th Cir.2000) (citations and footnotes omitted). Although we accept that Allen's consent was voluntary, the State wisely abandons any attempt to justify the evidence as discovered incident to Allen's consent. The trial court made no findings directed toward attenuation and the record does not support a conclusion that Allen's "voluntary" consent was sufficiently "independent of the violation to such a degree as to cause a 'break in the chain of events sufficient to refute the inference that the evidence was a product of the constitutional violation.'" Id. (citation and footnote omitted). Consequently, even though Allen's consent was voluntary, we cannot say that it was gained independent of Brimley's prior illegality.

      . - Interestingly, Earl does not argue here, and did not argue below, that Brimley's Terry frisk was unreasonable, nor that Brimley's request to remove Earl's wallet exceeded the scope of what is permitted under Terry. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Earl further chose not to challenge Brimley's orchestration of the search, moving Earl's location from the kitchen to the area where Brimley had already seen evidence of criminal activity. Consequently, we review only the narrow question of whether the search incident to arrest was valid under the circumstances.

      . Although Earl concedes that his arrest was lawful and that the subsequent search did not violate the dictates of United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 LEd.2d 427 (1973), he asserts that Robinson does not present the proper test. Instead, Earl argues that "an extra layer of analysis" is required to ensure that the arrest was not a pretext to allow Brimley to search. Although we are sympathetic to Earl's argument, we ultimately find it to be unconvine-ing. See Clark, 755 A.2d at 1029-30 (noting, in the context of an intervening illegal act that {tlhe vast majority of appellate courts have [refused] to suppress either evidence of the distinct crime itself or evidence seized incident to arrest for the distinct crime"). Rather than focusing on a pretext analysis, which would require a foray into an officer's subjective intent during an incident, our focus is on whether "the link between the illegality and [the challenged] evidence was sufficiently attenuated to dissipate the taint" of the prior illegality. Segura v. United States, 468 U.S. 796, 815, 104 S.Ct. 3380, 3391, 82 LEd.2d 599 (1984). More often than not, an arrest for an intervening illegality will dissipate the taint of the prior illegality, shifting the focus to the scope of the search incident to the arrest.
      As the Seventh Circuit stated,
      It would be startling to suggest that because the police illegally stopped an automobile, they cannot arrest an occupant who is found to be wanted on a warrant-in a sense requiring an official call of "Olly, Olly, Oxen Free." Because the arrest is lawful, a search incident to the arrest is also lawful. The lawful arrest of [the defendant] constituted an intervening circumstance sufficient to dissipate any taint caused by the illegal [seizure}.
      United States v. Green, 111 F.3d 515, 521 (7th Cir.1997). Consequently, we do not adopt the test urged by Earl and, even if adopting Earl's position were possible, we are loathe to return to a time where courts frequently were called upon to determine an officer's subjective intent during the course of prosecuting his or her responsibilities.


source: Caselaw Access Project

author: DAVIS, Judge:

license: Public Domain

text:
    2004 UT App 161
    Jamie MEDVED, Plaintiff and Appellant, v. C. Joseph GLENN, M.D.; and Estate of Blayne L. Hirsche, M.D., Defendants and Appellees.
    No. 20030338-CA.
    Court of Appeals of Utah.
    May 13, 2004.

      James W. Gilson and Michael F. Richman, Siegfried & Jensen, Murray, for Appellant.
    Curtis J. Drake, Anne D. Armstrong, Snell & Wilmer, and Dennis C. Ferguson, Williams & Hunt, Salt Lake City, for Appellees.
    Before BENCH, Associate P.J., DAVIS and JACKSON, JJ.
   OPINION

DAVIS, Judge:

T1 Plaintiff appeals the trial court's dismissal of her complaint, pursuant to rule 12(b)(6) of the Utah Rules of Civil Procedure. We affirm.

BACKGROUND

T2 From 1991 through early 1998, Dr. (ilenn served as Plaintiff's obstetrician/gyne-ecologist. In late 1997, Dr. Glenn diagnosed a lump on Plaintiffs breast as fibrocystic breast disease. On July 13, 1998, Plaintiff saw Dr. Hirsche about a breast augmentation. One week later, Dr. Hirsche ordered and performed a mammogram, which revealed dense fibroglandular tissue bilaterally, no significant abnormality, and no evidence of malignaney. The report from the mammogram indicated that the breast was heterogeneously dense and that this may lower the sensitivity of mammography. On August 12, 1998, Dr. Hirsche performed a bilateral breast augmentation and a needle aspiration of three suspected cysts on Plaintiffs right breast. After monitoring Plaintiff's progress and the suspected cysts on her right breast, Dr. Hirsche performed an excisional biopsy of three right breast nodules on December 16, 1998. A pathological examination of the excisional biopsy revealed the presence of differentiated infiltrating ductal carcinoma. To treat this particularly malevolent form of breast cancer, Plaintiff underwent a radical mastectomy of her right breast on December 28, 1998, and followed that procedure with chemotherapy, radiation therapy, and surgical reconstruction of her breast. To this date, Plaintiff has not suffered a recurrence of cancer.

[ 3 Plaintiff filed her complaint against Dr. Glenn and Dr. Hirsche (collectively, Defendants) on March 5, 2001, alleging that they acted negligently and delayed the breast cancer diagnosis. Plaintiff further alleged that this delay caused her to undergo more extensive treatment than necessary, and left her with an increased risk of cancer recurrence. Defendants, relying upon rule 12(b)(6) of the Utah Rules of Civil Procedure, filed a joint motion for dismissal without prejudice on August 2, 2002. The trial court, stating that "Utah law has not recognized claims of increased risk in the absence of a related injury [and that] Plaintiff ... has not claimed an injury clearly related to ... risk[ of cancer recurrence,]" granted Defendant's joint motion and dismissed Plaintiff's complaint without prejudice on March 19, 2008. Plaintiff now appeals.

ISSUE AND STANDARD OF REVIEW

14 Although Plaintiff purports to raise several issues on appeal, she essentially argues that the trial court erred by dismissing without prejudice her complaint for current, actual damages and speculative damages. Specifically, Plaintiff argues that the Utah Supreme Court's decision in Seale v. Gowans, 923 P.2d 1361 (Utah 1996), allows individuals to bring claims for both actual damages that have accrued, and prospective damages that may or may not occur. "Because a rule 12(b)(6) dismissal is a conclusion of law, we review for correctness, granting no deference to the trial court's decision." Whipple v. American Fork Irrigation Co., 910 P.2d 1218, 1220 (Utah 1996). "[The purpose of a rule 12(b)(6) motion is to challenge the formal sufficiency of the claim for relief, not to establish the facts or resolve the merits of a case.... [Dlismissal is justified only when the allegations of the complaint clearly demonstrate that the plaintiff does not have a claim." Id. "In determining whether a trial court properly dismissed an action under rule 12(b)(6), we assume that the factual allegations in the complaint are true and we draw all reasonable inferences in the light most favorable to the plaintiff." Id. at 1219.

ANALYSIS

15 "[MJost courts follow the general rule that onee some injury becomes actionable, a plaintiff must plead all damages, both present and future, and cannot thereafter bring another action once future harm occurs." Seale v. Gowans, 923 P.2d 1361, 1364 (Utah 1996) (alteration in original). "[TJhe law does not recognize an inchoate wrong, and therefore, until there is ' "actual loss or damage resulting to the interests of another," ' a claim for negligence is not actionable." Id. (citations omitted). "As a result, even though there exists a possibility, even a probability, -of future harm, it is not enough to sustain a claim, and a plaintiff must wait until some harm manifests itself." Id.

T6 In Seale, the Utah Supreme Court decided whether the statute of limitation for malpractice actions against health care providers barred the plaintiff's claim for negligent failure to diagnose her breast cancer. See id. at 1862-66. Plaintiff claimed that the defendants failed to detect a cancerous mass in her breast during an earlier mammogram. See id. at 1862. A few months later, a second mammogram showed a larger mass that was confirmed to be cancerous. See id. The plaintiff underwent a radical mastectomy, and although all known cancerous areas were removed, her doctors found that the cancer had spread to eight of her lymph nodes. See id. This spread increased the likelihood of recurrence of cancer. See id. Little more than three years after her mastectomy, a bone sean revealed that the cancer had recurred in her left hip. See id. The statute of limitation issue was tried before a jury, and the jury returned a verdict finding that the plaintiff should have discovered her injury when she was originally diagnosed with cancer, and therefore, the statute of limitation had run on her claim. See id. On appeal from the trial court's denial of the plaintiff's motion for judgment notwithstanding the verdict, the Utah Supreme Court reversed the trial court. See id. at 1863, 1366.

T7 The supreme court held that the statute of limitation did not begin to run on the plaintiff's claim until she discovered the recurrence of cancer because, under Utah law, claims cannot be split by plaintiffs. See id. at 1864 (noting parenthetically that " '[olnce injury results there is but a single tort and not a series of separate torts. ... [A] plaintiff may not split this cause of action by seeking damages for some of his injuries in one suit and for later-developing injuries in another. " (first and third alterations in original) (citation omitted)). Accordingly, the statute of limitation begins to run on all present and future claims onee a harm is discovered. See id. In Seale, the claimed harm was the recurrence of the cancer, and since it did not manifest itself until three years after the plaintiff's radical mastectomy, the statute of limitation began running when the plaintiff discovered the recurrence. See id. at 1865-66. To hold otherwise would allow statutes of limitation to run on negligence claims that had yet to occur. See id. at 1864 ("[T]he law does not recognize an inchoate wrong, and therefore, until there is ° "actual loss or damage resulting to the interests of another," ' a claim for negligence is not actionable." (citations omitted)).

T8 Plaintiff argues that Seale does not prevent her from bringing a negligence action against Defendants for their failure to diagnose her breast cancer earlier, nor does it prevent her from recovering damages for her actual harm as well as future damages if cancer recurs. Plaintiff points to language from Seale for the proposition that she may maintain a claim for the risk of cancer recurrence if she also presently claims actual damages. See id. at 1365 ("[Wle conclude that without proof of actual damages, an alleged claim for enhanced risk is not adequate to sustain a cause of action for negligence.").

T9 Plaintiffs reliance upon Seale for her position is misplaced. Seale clearly stands for the proposition that speculative claims are not allowed under Utah law. See id. at 1366 ("We believe that the better approach is to wait until the potential harm manifests itself, allowing for more certain proof and fewer speculative lawsuits.").

110 Then, relying on our prohibition against claim splitting, Plaintiff asserts that she should be allowed to pursue her claim for speculative damages so long as she simultaneously pursues her claim for actual damages. Seale does not stand for this proposition. - Rather, Seale preserves Plaintiffs claim for actual damages until speculative damages become actual damages. See id. While it may be true that Plaintiff has an increased risk of cancer, whether the cancer will recur is purely speculative. Since the radical mastectomy, chemotherapy, radiation therapy, and reconstruction, Plaintiff has not suffered a recurrence of cancer. While she is faced with a higher risk of breast cancer, this recurrence is not a foregone conclusion. As such, Plaintiffs claim for the increased risk of recurrence of cancer is "not actionable." Id. at 1364.

[11 We therefore conclude that the trial court correctly dismissed Plaintiffs action without prejudice. We do not reach the issue of whether Plaintiff may amend her pleadings to pursue her claim for actual damages, perhaps waiving her claim to speculative damages to avoid the proscription of Seale. Nor do we address the consequences of such an action, including the application of the statute of limitation to her claim for actual damages, unconnected to a claim for speculative damages.

CONCLUSION

T12 Under Utah law, an action for negligence cannot be pursued until a plaintiff suffers an injury. The risk of the recurrence of cancer does not constitute an injury. Because both actual and speculative claims arising from a single tort cannot be split, we conclude that the trial court correctly dismissed Plaintiff's action without prejudice.

1 13 WE CONCUR: RUSSELL W. BENCH, Associate Presiding Judge and NORMAN H. JACKSON, Judge.

      . Dr. Hirsche was killed in an airplane accident in November 2002, and on December 10, 2002, the estate of Dr. Hirsche was substituted as a party defendant.

      . Plaintiff also relies upon George v. LDS Hospital, 797 P.2d 1117 (Utah Ct.App.1990). George is inapposite to this case because (1) it was a wrongful death case where actual damages had already been sustained, and (2) the focus of the decision was on causation, not speculative damages. See id. at 1118-22.


author: VOIGT, Justice.

text:
    2004 WY 69
    SIMPSON PERFORMANCE PRODUCTS, INC., Appellant (Defendant), v. ROBERT W. HORN, P.C., Appellee (Plaintiff).
    No. 03-126.
    Supreme Court of Wyoming.
    June 18, 2004.

      Representing Appellant: David B. Hooper of Hooper Law Offices, P.C., Riverton, Wyoming.
    Representing Appellee: Robert W. Horn of Robert W. Horn, P.C., Jackson Hole, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[11] The appellant, Simpson Performance Products, Inc. (SPP), hired the appellee, Robert W. Horn (Horn), to conduct an investigation and to provide legal counsel regard"ing a possible lawsuit by SPP against the National Association of Stock Car Auto Racing (NASCAR). Upon completing his work, Horn submitted a bill to SPP for $40,388.29 for legal fees and costs. SPP paid Horn $20,000.00, but refused to pay the balance. Horn sued SPP to collect the outstanding amount. The district court found in favor of Horn. SPP now appeals, claiming that Horn is not entitled to the entire fee because his representation of E.J. "Bill" Simpson (Simpson), individually, violated Rule 1.9 of the Wyoming Rules of Professional Conduct for Attorneys at Law (Rule 1.9). Finding no violation of Rule 1.9, we affirm.

ISSUE

[12] Horn represented SPP in investigating a possible lawsuit against NASCAR. He then represented Simpson, who had recently resigned as the CEO of SPP, in a lawsuit against NASCAR involving the same facts and cause of action. The issue presented by this case is whether Horn's representation of Simpson, his new client, was "materially adverse" to SPP, his former client, and therefore a violation of Rule 1.9.

FACTS

[T3] - SPP manufactures and sells automobile racing safety equipment such as fire-resistant driver suits, helmets, shoes, seat-belts and other products. In 1998, Simpson, the company's founder, sold a two-thirds interest in the company to Carousel Capital. Simpson retained his one-third share and remained involved with the company, acting as the Chairman of the Board of Directors and Chief Executive Officer.

[14] On February 18, 2001, Dale Earnhardt died in a racing accident at the Dayto-na 500. Five days later, NASCAR held a press conference where a NASCAR representative displayed an SPP brand seatbelt and stated that it had broken in the crash. Further, the NASCAR representative asserted that had the seatbelt not failed, Earnhardt would have survived the accident.

[T5] The negative publicity resulting from the NASCAR press conference threatened SPP's reputation and financial well-being. SPP hired Epley and Associates, a public relations group, to assess the situation and to propose a plan to counter the negative publicity. - Additionally, SPP considered a slander/false-light lawsuit against NASCAR, and was concerned with a potential wrongful death suit by the Earnhardt family. Nelson Schwab (Schwab), Carousel Capital's managing partner, and Simpson agreed to hire two attorneys to "gather information and facts surrounding the accident in case there was a possible lawsuit." Robert Horn, a Jackson lawyer who had performed some prior work for Simpson, and Jim Voyles, a lawyer from Indianapolis, Indiana, were hired in March of 2001 to perform this task. No formal engagement letter was drafted; however, it was agreed that Horn would bill SPP "at 200 an hour for non-court time and 250 for court time, and that the cost of the case would be borne by Simpson Performance Products."

[16] From March 28, 2001, to September 9, 2001, Voyles and Horn provided legal services to SPP. They actively participated in an investigation conducted by NASCAR into the cause of Dale Earnhardt's death. During that time, Horn billed approximately 200 hours and incurred expenses relating to three trips: two to Indianapolis, Indiana, and one to Atlanta, Georgia. Another substantial expense involved documenting and catalogu-ing all of the articles and press releases concerning the highly publicized case.

[17] Simpson was saddened and distraught by the death of Earnhardt, who was a personal friend, and even more upset that SPP was being partly blamed for the tragedy. He was quite steadfast in his desire to sue NASCAR, and felt that a lawsuit was necessary to clear the company's name and protect its reputation. However, Schwab did not share Simpson's view. Schwab felt the only way to stabilize SPP and maintain its viability was to work with NASCAR and preserve that relationship. In August of 2001, Simpson resigned from SPP, reporting that his "relationship with them had become very strained." He stated, "I don't know if [the resignation] was in regard to us suing NASCAR. It was in regard to us protecting the name, the Simpson name, that I worked so hard to build a spotless reputation."

[18] Having completed its investigation into the Earnhardt crash, NASCAR held another press conference on August 21, 2001, to report its results. Schwab, Horn, Voyles, Simpson, and other SPP representatives attended the press conference. The results of NASCAR's investigation indicated a number of factors, including a failure of the seatbelt, contributed to Earnhardt's death. Simpson felt that NASCAR's statement was inadequate and that SPP was not exonerated. Following the press conference, the group from SPP "huddled briefly" and agreed to meet in the next few days to decide how to respond.

[19] On September 5, 2001, Horn and Voyles participated in a conference call with Schwab to discuss an appropriate course of action for SPP. The attorneys reported the conclusions they had reached as a result of their investigation, and offered their opinions about SPP's likelihood of success in a lawsuit against NASCAR. Schwab then indicated that SPP's relationship with NASCAR was improving and stated that he had discussed the possibility of the lawsuit with SPP corporate counsel and they predicted a remote chance of success. Schwab then told Voyles and Horn that SPP had no interest in pursuing a lawsuit against NASCAR.

[110] When Schwab decided that SPP would not sue NASCAR, the purpose for which Horn had been hired-to participate in the investigation and evaluate the possibility of a lawsuit by SPP against NASCAR-was complete. Although no formal termination letter was written, it appears that following the September 5th conference call, Horn's representation of SPP did, in fact, end. No further services were requested of Horn, Horn did not bill SPP for any work thereafter, and according to Schwab, "there was no communication one way or the other to Mr. Horn after that date." Horn prepared a final bill totaling $40,883.29, which he submitted to SPP in October of 2001.

[T11] Two months after SPP decided it would not pursue an action against NASCAR, Simpson decided to sue NASCAR on his own. He contacted Voyles and Horn to inform them that he planned to sue and to ask their opinion. Simpson told them that he was going to send them a "pile of information" to look over to determine if there was a basis for his individual lawsuit. Horn and Voyles sought the assistance of Dick Card-well, an Indianapolis lawyer with special expertise in libel issues, and the three attorneys began preparing the lawsuit for Simpson.

[112] Although Simpson had resigned from SPP, there was continued discussion between Simpson and SPP about the possibility of his returning to the company in some capacity. Simpson was adamant that he would only return if SPP agreed to go forward with the lawsuit against NASCAR. Because of the continued negotiations between Simpson and SPP, the first draft of the lawsuit against NASCAR included both Simpson individually and SPP as named plaintiffs. When SPP received a draft of the complaint in late January 2002, or early February 2002, Schwab immediately called Horn and Voyles to inform them that SPP had no interest in the lawsuit, and issued a press release announcing that SPP was not suing NASCAR. On February 18, 2002, Simpson, as the lone plaintiff, filed the suit against NASCAR.

[113] When SPP received Horn's bill, Chuck Davies (Davies), who was acting as the company's CEO following Simpson's resignation, was "uncomfortable" with the amount and told Horn that SPP would pay "$10,000 a month until it was either paid in full or I decide I had paid enough." Davies approved two $10,000 payments on Horn's bill: one in December of 2001 and the other in January of 2002. On February 28, 2002, Horn received an email from Davies informing him that SPP would make no further payments. The email stated, "I think that the [$120,000 we have paid you is the most we consider reasonable for the only bill you submitted in October representing work you said was for several earlier months." Davies later testified that he probably would have paid the entire amount had Horn not prepared the lawsuit for Simpson.

[114] On March 19, 2002, Horn filed a lawsuit to collect the unpaid balance of his bill. Following a two-day trial, the district court took the matter under consideration. Less than one month later, a decision letter finding in favor of Horn was sent to the parties; and on April 21, 2003, the district court entered a judgment in the amount of $20,883.29 in favor of Horn. SPP filed a notice of appeal on May 13, 2003.

STANDARD OF REVIEW

[115] " 'When a trial court in a bench trial makes express findings of fact and conclusions of law, we review the factual determinations under a clearly erroneous standard and the legal conclusions de nmovo.' " Schlesinger v. Woodcock, 2001 WY 120, ¶ 13, 35 P.3d 1232, 1237 (Wyo.2001) (quoting Rennmard v. Vollmar, 977 P.2d 1277, 1279 (Wyo.1999)). The parties do not dispute the findings of fact; rather, SPP argues that, as a matter of law, the district court erred in its application of Rule 1.9. We will review this legal conclusion de novo.

DISCUSSION

[¥16] SPP claims that Horn violated Rule 1.9 when he represented Simpson in the lawsuit against NASCAR, and therefore he should be required to forfeit his fee. Horn contends that his representation of Simpson was not in violation of the rule inasmuch as the lawsuit against NASCAR was not "materially adverse" to the interests of SPP. Rule 1.9(a) reads:

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation except that when the former client is a governmental entity, consent is not permitted.

A Rule 1.9 violation is established by proof of four elements:

First, there must have been a valid attorney-client relationship between the attorney and the former client.... Second, the interests of the present and former clients must be materially adverse.... Third, the former client must not have consented, in an informed manner, to the new representation.... Finally, the current matter and the former matter must be the same or substantially related.

Sullivan County Regional Refuse Disposal Dist. v. Town of Acworth, 141 N.H. 479, 686 A.2d 755, 757 (1996).

[117] When a lawyer violates Rule 1.9, a number of remedies are available to the aggrieved party: many seek disqualification of the attorney or his firm, others may pursue a malpractice action, and others file a grievance. John M. Burman, Conflicts of Interest in Wyoming, 35 Land & Water L.Rev. 79, 96 (2000). "Courts have also responded to inappropriate conflicts by ordering the forfeiture of attorney's fees...." Id. at 96 n. 74; see, for example, Cal Pak Delivery, Inc. v. United Parcel Service, Inc., 52 Cal.App4th 1, 14, 60 Cal.Rptr.2d 207, 215 (1997) and Jeffry v. Pounds, 67 Cal.App.3d 6, 9, 1.6 Cal.Rptr. 373, 375 (1977); see also Charles W. Wolfram, Modern Legal Ethics § 7.1.7.

[118] Before we can determine whether forfeiture of Horn's fee is appropriate, we must first determine whether each of the four elements necessary to establish that Horn violated Rule 1.9 is present. The first element, which requires a valid attorney-client relationship with the former client, is not contested by SPP. The second element, which requires that the interests of the present and former clients be materially adverse, is the issue on which this case turns. If the interests of Horn's present client Simpson, and his former client SPP, are not materially adverse, then Horn did not violate Rule 1.9; and if he did not violate Rule 1.9, then SPP is obligated to pay the entire amount of Horn's attorney's fees.

[119] We must first ascertain what is meant by "materially adverse." "There is a paucity of authority interpreting the adversity requirement of ABA Rule 1.9." Selby v. Revlon - Consumer - Products Corp., 6 F.Supp.2d 577, 580 (N.D.Tex.1997). Rule 1.9, emt. 1 says, "[tlhe principles in Rule 1.7 determine whether the interests of the present and former client are adverse." Rule 1.7(a) provides:

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.

Rule 1.7, emt. 2 provides:

[A] lawyer ordinarily may not act as ad-voeate against a person the lawyer represents in some other matter, even if it is wholly unrelated. On the other hand, simultaneous representation in unrelated matters of clients whose interest[s] are only generally adverse, such as competing economic enterprises, does not require consent of the respective clients. Paragraph (a) applies only when the representation of one (1) client would be directly adverse to the other.

Rule 1.7, emt. 6 further states that "[plara-graph (a) prohibits representation of opposing parties in litigation."

[120] As the comments to Rule 1.7 indicate, most alleged conflicts of interest relating to former clients arise when a lawyer is representing a new client who is suing a former client. ABA/BNA Lawyers' Manual on Professional Conduct § 51:220 (2002).

In that scenario, the alignment of the current and former clients as foes in the litigation makes it obvious that their interests are adverse.... For this reason, much of the case law involving efforts to disqualify a lawyer on the ground of a former-client conflict simply recites the adversity requirement and, with little discussion, finds it to be satisfied.

Id. However, the question of whether representation is "materially adverse" to a former client becomes less clear in situations like the present, where the former client, although not directly involved in the litigation, may be affected by it in some manner. Id. Under these cireumstances, we must make a case-specific inquiry to determine the degree to which the current representation may actually be harmful to the former client. Id.; State ex rel. McClanahan v. Hamilton, 189 W.Va. 290, 430 S.E.2d 569, 573 (1993). This fact-intensive analysis focuses on whether the current representation may cause legal, financial, or other identifiable detriment to the former client. ABA/BNA Lawyers' Manual on Professional Conduct, supra, at § 51:220. Additionally, we must determine "whether the attorney's exercise of individual loyalty to one client might harm the other client or whether his zealous representation will induce him to use confidential information that could adversely affect the former client." Hamilton, 430 S.E.2d at 573; see also Briggs v. Wyoming Nat. Bank of Casper, 836 P.2d 263, 272 (Wyo.1992) (Urbigkit, C.J., dissenting) and Carlson v. Langdon, 751 P.2d 344, 348 (Wy0.1988).

[121] SPP claims that Horn's representation of Simpson was materially adverse to it because Schwab had advised Horn that SPP did not want to pursue the lawsuit against NASCAR, and because it jeopardized SPP's relationship with NASCAR, its major customer. These two statements are the extent of SPP's argument on this issue, as the bulk of its appellate briefs focuses on the question of whether Horn should be required to forfeit his fee. SPP fails to expound on this argument or point to any facts contained in the record demonstrating any harm the company has suffered, or will suffer, as a result of Horn's representation of Simpson. Contrary to SPP's assertion, the record indicates that the company's relationship with NASCAR has not been adversely affected. Davies, SPP's CEO, testified at the time of the trial that "the company is doing fine. The company has a good relationship with NASCAR. NASCAR is still our bill board."

[122] Also, we find nothing in the record indicating that Horn's representation of Simpson compromised his continuing duty of loyalty and confidentiality to his former client, SPP. "The concerns underlying Rule 1.9 are 'the potential for violation of the lawyer's duty of loyalty, as well as the risk that confidential information gained in a pri- or representation will be used to the disadvantage of the former client!" " Briggs, 836 P.2d at 272 (Urbigkit, C.J., dissenting) (guot-ing ABA/BNA Lowyers' Manual on Professional Conduct § 51:202 (1987)). We have held that an irrebuttable presumption of disclosure arises when the interests of a former client are adverse to a client whom the attorney presently represents. Carlson, 751 P.2d at 348. Thus, a movant claiming a violation of Rule 1.9 is not required to prove disclosure of confidential information where he can demonstrate that the two matters are substantially related and that his interests are materially adverse to those of the new client. Id. SPP fails to point to any disclosure of confidential information or breach of Horn's duty of loyalty, and the irrebuttable presumption of disclosure does not arise in this case, as SPP has failed to demonstrate that its interests are materially adverse to Horn's representation of Simpson.

[T23] We refuse to speculate as to the possible effects, adverse or otherwise, that Horn's representation of Simpson may have had, or could have, on SPP. Based on the facts, as they exist in the record, we hold that Horn's representation of Simpson was not "materially" or "directly" adverse to SPP in violation of Rule 1.9. Because Horn's representation of Simpson was not materially adverse to SPP, the second element of the four-part test is not present. Therefore, we need not address the third factor, whether SPP consented to Horn's representation of Simpson, or the fourth factor, whether the matters were substantially related.

[124] Finding no violation of Rule 1.9, we affirm the decision of the district court.

      . - Professor John Burman has made the following observation regarding engagement and termination letters:
      The use of an engagement letter, always a good idea, is even more important when a lawyer represents multiple parties in a transaction and/or an entity. The letter can, and should, identify the client(s), the payer, and the scope of representation. Identifying the client is particularly important when an entity, or nascent entity, is involved. The letter should specify whether the lawyer represents the entity, [individuals] within the entity, or both, Normally, a lawyer represents the organization, and not the individuals within the organization. See Wyoming Rules of Professional Conduct 1.13(a) (LEXIS 1999). If the entity is a client, the letter should identify the person or persons with whom the attorney should interact and upon whom he or she may rely for direction in the representation.
      John M. Burman, Conflicts of Interest in Wyoming, 35 Land & Water L.Rev. 79, 88 n. 32 (2000).

      . Although Simpson had resigned from SPP, he continued to speak for the company. The NASCAR press conference was his final appearance on behalf of SPP.

      . We note that while SPP suggested to the district court that Horn's fee was excessive and that the fee did not reflect the value the company received from his services, this is not the position SPP has taken on appeal. On appeal, SPP's refusal to pay is founded solely on the alleged violation of Rule 1.9.

      . SPP's appellate brief points to a statement from the district court's decision letter where it wrote, "{hlowever, in sorting this all out, the real issue is, assuming a violation of Rule 1.9 has occurred, does that prohibit a recovery of attorney fees." (Emphasis added.) SPP apparently took this statement as conclusively establishing a Rule 1.9 violation and did not examine the issue further.


author: GOLDEN, Justice.

text:
    2004 WY 70
    Edward MANES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-160.
    Supreme Court of Wyoming.
    June 22, 2004.
    Rehearing Denied July 13, 2004.

      Representing Appellant: Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Marion Yoder, Senior Assistant Public Defender. Argument by Ms. Yo-der.
    Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehu-rek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Director, and M. Rick Erickson, Student Intern, and Brandon De-Lozier, Student Intern, of the Prosecution Assistance Program. Argument by Mr. De-Lozier.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[T1] Appellant Edward Manes entered two guilty pleas to drug-related charges without benefit of a plea agreement and received what he contends are harsh, consecutive sentences. At the sentencing hearing, the prosecutor presented evidence that Manes contends was unreliable and violated his due process right to a fair sentencing hearing. He requests remand for a new sentencing hearing.

[12] We affirm.

ISSUE

[13] Manes sole issue for our review is:

Whether Appellant's right to a fair sentencing hearing was violated?

FACTS

[14] Without a plea agreement, Manes pled guilty to one count of violating Wyo. Stat. Ann. § 85-7-1081(a)(G), delivery of methamphetamine, and Wyo. Stat. Ann. § 85-7-103l(a)@Gi), delivery of marijuana. At his change of plea hearing, he admitted to delivering 1.6 grams of methamphetamine and about two ounces of marijuana to a confidential informant for which he received $275.00. After accepting the pleas, the district court ordered a presentence investigation report.

[T5] At his sentencing hearing, the prosecutor played a tape made by law enforcement recording Manes' confession to police. Defense counsel did not object to the tape being played and the sentencing court heard Manes' statement that he was a substantial supplier of drugs in the Wheatland area. Defense counsel responded to it by telling the court that Manes had exaggerated his role as a drug dealer in the hopes of becoming a narcotics informant for police and receiving a plea agreement. The sentencing court also received the presentence investigation report, and the defense counsel stated it had no objections to it. The report contained information relating to Manes' juvenile offenses, prior eriminal convictions for burglary, assault, and possession of marijuana. The report also stated that Manes had pending charges for solicitation of murder and felon in possession of explosives. The report contained Manes' statements that when he would buy marijuana in Denver for himself he would also buy for friends who had requested he do so. The report included a recommendation that Manes be sentenced to prison rather than probation.

[16] After this evidence was received, the prosecutor argued that Manes was a substantial supplier of marijuana in the community; a leader in the drug trade who had caused his wife, children and friends to become involved in the drug trade; and was "preying upon [the] weak" for financial gain. The prosecutor urged the court to sentence Manes to seven to ten years. Manes spoke on his own behalf and stated that he never dealt drugs in front of his children, never used drugs in front of his children, and had sold marijuana but was not out actively trying to sell drugs around town. Defense counsel argued for the sentencing court to ignore the prosecutor's hyperbole and impose a four to ten month sentence with a suspended term of years to run consecutively.

[T7] The sentencing court made this statement at the conclusion of argument:

Mr. Manes, the Court reviews the seriousness of the offense, the need to protect society, the potential of rehabilitation, and the possibility of restitution, in trying to fashion a correct sentence.
These are both very serious offenses. One, because of the quantity of marijuana involved, and the extensive use of it, delivery of it in this community, it's serious.
Count II, methamphetamine is a huge problem and an extremely serious drug; so the Court finds that those are very serious offenses.
The Court finds there is some degree of need to protect society, and that may be connected with rehabilitation; but, Mr. Manes, you have a record. You have done time in prison already for assault with a deadly weapon and for burglary. You have had prior conviction for possession of a controlled substance; and the court doesn't have any confidence that anything less than a sentence in prison will keep you from selling drugs again. Rehabilitation, rehabilitation and treatment is possible. Perhaps for you the best rehabilitation and treatment is going to be age.
I note a significant involvement of the criminal system ....

[T8] The sentencing court pronounced a sentence of six to ten years on the marijuana charge and a term of three to ten years on the methamphetamine charge with the terms to be served consecutively. Manes alleges that although he was entitled to credit for time served, the court improperly determined that any time served was for pending charges. Manes tells us that he was aequit-ted on the solicitation of murder charges but found guilty of the felon in possession of explosives charge. Manes v. State, 2004 WY 33, 86 P.8d 1274 (Wyo.2004). Manes provides this information regarding time for credit served; however, he does not provide argument on that issue, and we do not further consider it. His appeal on the sole issue of a fair sentencing hearing followed.

DISCUSSION

Standard of Review

[19] When imposing sentence, the trial court is given broad discretion to consider a wide variety of factors about the defendant and his crimes. Mehring v. State, 860 P.2d 1101, 1115 (Wyo.1998); Griebel v. State, 763 P.2d 475, 477 (Wyo.1988). We will not disturb a sentencing decision absent a clear abuse of discretion. Jones v. State, 771 P.2d 363, 371 (Wyo.1989). In sentencing, due process provides a right to be sentenced only on accurate information. Mehring, 860 P.2d at 1117; Clouse v. State, 766 P.2d 1011, 1014 (Wyo.1989). On appeal, the defendant must demonstrate that the trial court relied upon the statements in sentencing to prevail. Mehring, at 1115. "However, when no objection is made concerning the consideration of a particular factor, review is necessarily confined to a search for plain error. Plain error, as we have often stated, occurs when the record clearly shows an error that transgressed a clear and unequivocal rule of law which adversely affected a substantial right." Hornecker v. State, 971 P2d 1289, 1291 (Wyo.1999); see also Craver v. State, 942 P.2d 1110, 1115 (Wyo.1997). Victim impact information about other crimes or convictions unrelated to the particular crime for which sentence is about to be imposed is permissible. - Mehring, 860 P.2d at 1116-17. "W.R.Cr.P. 32(a) specifically permits information about the prior criminal record of the defendant and his characteristics to be considered by the trial court before imposing sentence. In evaluating character, the trial court, in exercising its discretion, may consider a broad range of reports and information." Id.; see also Christy v. State, 731 P.2d 1204, 1207-08 (Wyo.1987). Evidence of 'prior criminal activity is "highly relevant to the sentencing decision" and may be considered by the sentencing court despite the fact that no prosecution or conviction may have resulted. Mehring, at 1117.

Due Process at Sentencing Hearing

[110] Manes objects to the prosecutor's offering "highly inflammatory and unproved allegations about the magnitude of Appellant's 'real' drug sales involvement, and Appellant's status as a bad influence and the prime cause of the vaguely described erimi-nal behavior of everyone from his wife to his son to his daughter's boyfriend," allegations which he notes did not appear in the PSI. He argues that the prosecutor was not permitted to indulge in such aspersions under the American Bar Association (ABA) standards and W.R.Cr.P. 82(a); that it was prosecutorial misconduct to offer unreliable accusations against alleged victims other than those impacted by the particular crime; prosecutorial misconduct to offer a community outrage argument; and contends that the disproportionate sentence meted out by the court for such a small amount of narcotics proves he was prejudiced at an unfair sentencing hearing. The State contends that Manes has not proved that any of the allegations were false and his failure to object at the sentencing hearing requires that we apply the plain error standard of review.

[T11] The ABA standards advocate sentencing for the "offense of conviction," which limits the sentencing court to information pertaining strictly to the offense for which the defendant is sentenced plus narrowly defined mitigating and aggravating factors. A.B.A. Standards for Criminal Justice Sentencing 18-8.6 (8d ed.1994). A "real-offense" sentencing jurisdiction allows the sentencing court to properly consider as much information about the defendant as the court finds is relevant to the determination of the sentence. Id. Manes contends that Rule 32 requires Wyoming follow the ABA standards but contends that whichever the category into which Wyoming falls, due process prohibits unreliable information from tainting the sentencing hearing proceedings. He also contends that a defendant who is prejudiced by unproved allegations is entitled to a new sentencing hearing. The State asserts precedent makes clear that Wyoming is a real-offense jurisdiction; however, resolution of this case does not require a determination on the matter, and we decline to consider it.

[112] The State denies that it had a duty to prove that the information provided was accurate if the sentencing court reasonably believed it was. The State contends that unless the defendant or the sentencing court challenges the accuracy of the allegations the sentencing court is entitled to consider that fact at sentencing. Upon a challenge, the sentencing court is then required to resolve the issue as to the accuracy of that alleged fact. The State claims that a formal objection as to accuracy must be made to obtain an accuracy resolution, relying upon Swingholm v. State, 910 P.2d 1334, 1339 (Wyo.1996). Swinghoim's failure to find a due process failure was based upon the fact that the sentencing court had acted to resolve the factual dispute in question and did not require an objection. Id. The record shows that both Manes himself and his defense counsel argued that the prosecutor's accusations regarding wife, children, and community were untrue. Additionally, the presen-tencing investigation report contained none of these allegations although the preparer of that report had spoken to Manes and his family. Although the argument disputed the accuracy, the sentencing court did not resolve that dispute, and we will consider whether that failure resulted in an unfair sentencing hearing for Manes.

[T13] Wyoming does not permit a sentencing decision based upon unreliable information, undocumented information, or inaccurate information. Mehring, 860 P.2d at 1117; DeLoge v. State, 2002 WY 155, ¶ 13, 55 P.3d 1233, ¶ 13 (Wyo.2002). We have previously held that a prosecutor's act of bringing an undocumented allegation to the district court's attention so that the court would consider that allegation in sentencing is prosecutorial misconduct. DeLoge, "13. We agree that such conduct at Manes' hearing was improper and constituted prosecuto-rial misconduct. The sentencing court, however, stated that its sentencing decision was based on the seriousness of the narcotic delivery convictions and Manes' prior eriminal history. The sentencing court did not refer to any of the improper prosecutorial argument as a basis for its decision. Its stated basis for its decision was supported by the presentence investigation report and Manes' own taped statements to police. In light of Manes' failure to object to the presentence investigation report which contained that pri- or criminal history and in light of Manes' taped statements to police claiming to be a significant drug dealer in the area, we can see no reliance by the trial court on the prosecutorial misconduct to formulate its sentencing decision. We therefore must follow our precedent and conclude that the misconduct did not result in denying Manes a fair sentencing hearing, nor did it prejudice Manes in terms of the sentence imposed. Id. Without a showing of prejudice, Manes is not entitled to a new sentencing hearing despite the failure of the sentencing court to resolve the disputed accuracy of the prosecutor's information.

Disproportionate Sentence

[114] Manes contends that the prosecutor's inflamed rhetoric regarding unreliable information influenced the sentencing court to impose a draconian sentence upon Manes although the narcotic amounts involved were very small. Manes contends that due process should not allow a community outrage argument to a sentencing court just as it does not permit one to a jury. See (Gayler v. State, 957 P.2d 855, 861 (Wyo.1998). No authority indicates that the same concerns presented when a community outrage argument is made to a jury are presented when that argument is made to a sentencing judge. As the State asserts, our rule is that where a court is pronouncing sentence, a presumption exists that the court will not be misled or confused by what is irrelevant and will not consider what is immaterial. Coletti v. State, 769 P.2d 361, 362-63 (Wyo.1989). As Manes concedes, his sentence did not exceed the maximum sentence, no other basis supports the argument, and we will not further consider the issue.

[T15] The judgment and sentence of the district court is affirmed.

      . (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:
      (i) Methamphetamine or a controlled substance classified in Schedule I or II which is a narcotic drug, is guilty of a crime and upon conviction may be imprisoned for not more than twenty (20) years, or fined not more than twenty-five thousand dollars ($25,000.00), or both;
      (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[.]

      . W.R.Cr.P. 32(a)(2) provides:
      (2) Report. The report of the presentence investigation shall contain:
      (A) Information about the history and characteristics of the defendant, including prior criminal record, if any, financial condition, and any circumstances affecting the defendant's behavior that may be helpful in imposing sentence or in the correctional treatment of the defendant;
      (B) Verified information stated in a nonargu-mentative style containing an assessment of the financial, social, psychological, and medical impact upon, and cost to, any individual against whom the offense has been committed and attaching a victim impact statement as provided in W.S. 7-21-103 if the victim chooses to make one in writing. In any event the report shall state that the victim was advised of the right to make such a statement orally at the defendant's sentencing or in writing. If the victim could not be contacted, the report shall describe the efforts made to contact the victim;
      (C) Unless the court orders otherwise, information concerning the nature and extent of non-prison programs and resources available for the defendant; and
      (D) Such other information as may be required by the court.


text:
    2004 WY 71
    STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellant (Petitioner), v. Anthony N. SAVICKI, Appellee (Respondent).
    No. 03-129.
    Supreme Court of Wyoming.
    June 22, 2004.
    Representing Appellant: Patrick J. Crank, Wyoming Attorney General; Steve Czosch-ke, Senior Assistant Attorney General; J.C. Demers, Special Assistant Attorney General, Cheyenne, Wyoming.

      Representing Appellee: Terry J. Harris, Cheyenne, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[11] Appellant Wyoming Workers' Safety and Compensation Division (Division) appeals the award of benefits to Appellant Anthony N. Savicki, contending that error occurred in the interpretation and application of Wyo. Stat. Ann. § 27-14-405(h) which governs permanent partial disability benefits.

[12] We affirm.

ISSUES

[T3] The parties present the following issues for our review:

Did the Hearing Examiner fail to properly apply W.S. 27-14-405(h) to the facts in this case in determining that the Employee was entitled to permanent partial disability benefits?
Was it an error of law to award permanent partial disability benefits for a clearly temporary diminution of earnings?

FACTS

[14] In May of 1999, Savicki began working for Holmes & Narver, Inc., as a journeyman drywaller in Cheyenne. Savicki injured his lower back on January 31, 2000, and, in July of 2000, was given a 5% impairment rating for his back injury. At the time of injury, he earned $17.00 per hour.

[T5] After being released to work after his injury, Savicki was hired in September 2000 to begin working at the Hitching Post in Cheyenne as a van driver for $5.75 an hour. Before he started that position, Savicki saw a classified ad for a job with Blazer Water Proofing Systems (Blazer) and applied for the job. Savicki was hired by Blazer and went to work for them on September 16, 2000, out of their Aurora, Colorado, office.

[16] Savicki's starting salary was $14.00 per hour. On August 30, 2001, when Savicki submitted his application for permanent partial disability (PPD) benefits, he stated that he was being paid $15.00 per hour. After the end of August 2001, Savicki received wage increases at various times during the course of his employment with Blazer until June 2002 when he traveled or acted as a supervisor. At various times, when he returned to regular duties, his wages dropped back to $15.00 per hour but varied to as high as $17.50 per hour. In March of 2002, he received a merit raise to $16.50 per hour.

[17] At the time of injury, Wyo. Stat. Ann. § 27-14-405(h)(i) (Lexis 1999) permitted PPD benefits if the injured employee was unable to return to work at a comparable or higher wage than the wage the employee was earning at the time of the injury. In 2000, the legislature amended the statute to provide that benefits are available if the employee does not return to work for at least 95% of his pre-injury wage. 2000 Wyo. Sess. Laws ch. 98, § 1. The parties agreed that this figure should apply to this case. By dividing Savieki's total wages received and dividing by the number of hours worked, the Division determined that Savicki earned over $17 per hour at Holmes and over $19 per hour at Blazer and was therefore not entitled to benefits.

[18] Following a hearing, the hearing examiner determined that the Division did not have the authority to average wages over a period of time to calculate PPD benefits and was required to use the actual hourly rate before the injury and the actual hourly rate after returning to work. Finding that Sav-icki had established he was entitled to benefits, his award was granted, and that order was upheld by the district court. This appeal followed.

DISCUSSION

Standard of Review

[T9] The Division has limited its challenge to the interpretation and application of § That issue presents a question of law which we review de novo. When reviewing an administrative order, we are not compelled to accept any of the conclusions reached by the district court, and will review the case as if it had come directly to this Court from the agency. Appleby v. State ex rel. Wyoming Workers' Safety and Comp. Div., 2002 WY 84, ¶ 9, 47 P.3d 613, ¶ 9 (Wyo.2002); Bailey v. State ex rel. Wyoming Workers' Safety and Comp. Div., 2002 WY 145, ¶¶ 6, 10, 55 P.3d 23, ¶¶ 6, 10 (Wyo.2002).

[110] The interpretation and correct application of the provisions of the Wyoming Workers' Compensation Act are questions of law over which our review authority is plenary. Collicott v. State ex rel. Wyoming Workers' Safety and Comp. Div., 2001 WY 35, ¶ 4, 20 P.3d 1077, ¶ 4 (Wyo.2001). Conclusions of law made by an administrative agency are affirmed only if they are in accord with the law, Id. We do not afford any deference to the agency's determination, and we will correct any error made by the agency in either interpreting or applying the law. Id.

[T11] At the time of his injury, the statute provided:

(h) An injured employee awarded permanent partial impairment benefits may apply for a permanent disability award subject to the following terms and conditions:
(i) The injured employee is because of the injury, unable to return to employment at a comparable or higher wage than the wage the employee was earning at the time of injury;. ...

Wyo. Stat. Ann. § 27-14-405 (Lexis 1999). As mentioned before, according to a 2000 amendment to the statute, PPD benefits may be awarded when the injury prevents the employee from returning to employment at a wage at least 95% of his pre-injury wage. Wyo. Stat. Ann. § 27-14-405(h)(i) (LexisNex-is 2001). The parties stipulated this figure applied.

Statutory Interpretation

[T12] The statute required Savicki prove that because of the injury he was unable to return to work at Holmes or as a drywaller at his former wage and the Division has not contested that Savicki proved that subsequent lifting restrictions prevented his returning to work at Holmes. The Division does 'contend that the hearing examiner erred by comparing the wage at the time of injury with the wage paid immediately upon returning to work, arguing that PPD benefits were not intended to be paid on this basis alone, particularly when the lower wages prove to be a temporary circumstance. In its view, temporary lower wages do not allow a determination that Savicki was permanently and partially disabled. The Division contends that the temporary circumstances of Savicki's diminished salary for only a few months should be considered because the term "permanent partial disability" allows consideration of the reasonably permanent status of the employee. In its view, the hearing examiner may not limit itself to a snapshot of a temporary situation immediately upon the day Savicki returned to work.

[T183] Under our statutory interpretation rules, this Court applics the plain meaning of the statute unless found to be ambiguous. Adams v. State ex rel. Wyoming Workers' Safety and Comp. Div., 975 P.2d 17, 19 (Wyo.1999). Clearly, the hearing examiner has applied the plain meaning of the statute and in doing so has compared two wage rates at the particular points of time specified in the statute, resulting in looking at Savicki's wage rate immediately upon his return to work. This interpretation is not error. To uphold the Division's argument would require that we improperly add language to the statute, altering its plain meaning, and usurping the legislative function to amend the act. The Division refers us to our decision in In re Claim of Cochran, 993 P.2d 320 (Wyo.1999), where we reversed a denial of benefits. Id. at 828. In that case, the employee returned to work for the same employer and at the same pre-injury wage. Id. at 321. However, his employment was terminated six months later, and, because of limitations caused by his injury, he was unable to find work at a comparable or higher wage. Id. Looking just at the two points of time at issue in the case, benefits were denied by the hearing examiner. Id. at 822. However, this Court determined that the employee's injury had prevented him from returning to employment at a comparable wage and reversed that denial of benefits. Id. at 328.

[T14] The Division contends that Cock-ram is not distinguishable from the facts of the present case and consistency requires that we look at a broader time frame for Savicki. However, the cases are consistent. Under the statutory language, an employee is to be compensated if he is unable to return to employment at a comparable or higher wage because of his injury. After Cochran was terminated, his injury prevented him from returning to work at a comparable or higher wage. If the loss of earning capacity is caused by the injury, then intervening employment does not prevent an award of PPD benefits. Here, Savieki's injury caused his loss of earning capacity at the time that he was first hired by Blazer and he, too, is entitled to an award of benefits.

[1 15] We have previously entertained the Division's dissatisfaction with our failure to consider subsequent wage increases based upon merit and said this:

We find it appropriate to tarry a few minutes with the Division's assertion that the governing statute permits only one award for each wage loss. The Division characterizes successive awards for successive injuries as absurd and contrary to the purposes of the Workers' Compensation Act. This characterization is premised on the following sequence of events. Prior to the 1994 injury, Conner could use both of his shoulders in the construction industry, which demands of its workers considerable physical strength. Prior to the injury, Conner could carry as much as he could lift with his right shoulder, and, commensurately, he earned $9.00 an hour for his labor. After the 1994 injury, Conner could only carry 25 pounds on his right shoulder, and he was only able to earn about $7.00 an hour (though the precise amount is established through a study that may be commissioned by the Division). For that loss of earning capacity, he received a monetary benefit from worker's compensation. Between 1994 and 1998, Conner increased his earning capacity from $7.00 an hour to $9.00 an hour (No evidence was offered as to why this was so because the statute does not require such a showing. Some speculation might include an observation that there was a $.90 increase in the minimum wage during that period of time; that the record shows Conner to have been a pleasant and hard-working fellow, likely to receive increases in his rate of pay over a period of four years; and that there may have been an increase in demand for workers because of a robust economy that drove up wage rates in 1997-98.). In 1998 Conner suffered an injury to his left shoulder. Prior to the injury, he could carry as much as he could lift on that shoulder, and he earned $9.00 an hour at the time of that injury. After the injury, he was only able to earn $7.00 an hour doing lighter duty work (and eventually found that he could no longer do that). The conclusion the Division asks us to reach is that an employee cannot receive benefits for loss of earning capacity from $9.00 an hour to $7.00 an hour twice in a four-year period because that is a double recovery; indeed, the argument appears to go so far as to say that once an injured worker's earning capacity is pegged at, eg., $7.00 an hour, the worker can not be permitted to earn more than that unless the permanent partial disability benefit is returned to the Division. We see no sense in such an argument. More importantly, we can find nothing in the governing statutes which supports such a position.

State ex rel. Wyoming Workers' Safety and Comp. Div. v. Conner, 12 P.3d 707, 710-11 (Wyo.2000).

[116] Conner rejected the notion that an employee may be penalized by wage increases earned for merit at a later time. We reiterate that the pivotal question is whether the employee's injury has caused a loss of earning capacity and, if so, whether a comparison of the pre-injury wage to the post-injury wage offered is compensable under the applicable statute. In this case, Savicki's post-injury wage is compensable, and the order awarding benefits is affirmed.