Continental Ins. Co. v. First Wyoming Bank, N.A.-- Jackson Hole, 88-114

• Decision Date: 31 March 1989
• Docket Number: No. 88-114,88-114
• Parties: CONTINENTAL INSURANCE COMPANY, a foreign corporation, Petitioner, v. FIRST WYOMING BANK, N.A.--JACKSON HOLE, and First Wyoming Bancorporation, Respondents.
• Court: Wyoming Supreme Court

Page 374

771 P.2d 374

CONTINENTAL INSURANCE COMPANY, a foreign corporation, Petitioner, v. FIRST WYOMING BANK, N.A.--JACKSON HOLE, and First Wyoming Bancorporation, Respondents.

No. 88-114.

Supreme Court of Wyoming.

March 31, 1989.

Richard E. Day and Patrick J. Murphy, Williams, Porter, Day & Neville, P.C., Casper and Todd S. Welch, Bailey, Pickering, Stock & Welch, Cheyenne, for petitioner.

Peter K. Michael and William M. McKellar, Lathrop, Rutledge & Boley, P.C., Cheyenne, for respondents.

Before CARDINE, C.J., THOMAS, URBIGKIT and MACY, JJ., and RAPER, J., Retired.

ORDER VACATING JUDGMENT AND DIRECTING REASSIGNMENT OF CASE

This matter came on before this Court upon the Petition for Writ of Prohibition and/or Writ of Mandamus and/or Writ of Certiorari and/or Other Relief filed herein by the Petitioner, Continental Insurance Company, on April 28, 1988; the Brief of Continental in Support of Petition for Writ of Prohibition and/or Writ of Mandamus and/or Writ of Certiorari and/or Other Relief filed herein on behalf of Petitioner on April 28, 1988, together with an Affidavit in Support of Request for Disqualification and other documents; the Brief of Respondents in Opposition to Continental Insurance Company's Various Writs filed herein on behalf of Respondents, First Wyoming Bank, N.A.--Jackson Hole, and First Wyoming Bancorporation, on May 23, 1988; the Reply Brief of Petitioner Continental Insurance Company filed herein on June 10, 1988, and the arguments of counsel heard on October 11, 1988, and the Court, having examined the file and record of the Court and being fully advised in the premises, finds that:

This case first came before this Court sub nomine, Continental Insurance Company v. Robert B. Ranck, Honorable Judge of the District Court of the Ninth Judicial District of Teton County, No. 88-32, in which we reviewed an order of the District Court that dismissed the Petitioner's complaint and in which we issued an order dated February 24, 1988, reversing the District Court order and remanding the cause to the District Court with directions that the District Court conduct a hearing with respect to the issues raised by the Petitioner. This Court's order directed the District Court to consider the questions of privilege with respect to documents sought to be produced in discovery, to conduct an in camera inspection of documents which the Petitioner claimed to be privileged, if appropriate, and to consider such other matters as might appropriately be raised by the Petitioner at such a hearing.

In response to this Court's order of February 24, 1988, a hearing was conducted by the District Court on April 8, 1988. It was conducted pursuant to an Order for Hearing entered March 3, 1988 which directed "that each attorney having anything to do with this case shall personally appear and * * * that the president or chief executive officer of plaintiff company shall personally appear; the local president of the First Wyoming Bank shall appear, and the president or chief executive officer of First Wyoming Bancorporation shall appear; * * *." That Order for Hearing went on to state:

"IT IS FURTHER NOTED BY THIS COURT, that this Order is made notwithstanding this Court's opinion that the Supreme Court of the State of Wyoming has no authority to tell the District Courts how to run their business."

At the hearing conducted on April 8, 1988, the District Court prefaced the proceedings with these remarks:

Now, next, if you gentlemen are disappointed by being ordered here and have some grievance with the judicial system, I'm glad; and I invite you to write a letter to the Chief Justice of the Wyoming Supreme Court. * * * And inform Justice Brown that you would appreciate it if the Supreme Court would keep its nose out of district court business. You're here because the Supreme Court ordered me to do this. And I'm doing it. And I don't like it. And I don't like them sticking their nose in my business and I'm telling them so on this record right now, and I want them to keep their nose out of my business."

In the course of the hearing, the District Court considered those matters suggested in the order entered by this Court in Continental Insurance Company v Robert B. Ranck, Honorable Judge of the District Court of the Ninth Judicial District of Teton County, No. 88-32, as well as arguments of the parties relating to their respective motions for summary judgment which had been filed. The record does not demonstrate any in camera inspection of disputed discovery documents by the trial court although it does disclose a claim by the judge that he is completely familiar with the file. Pursuant to an Order Requesting Documents for In Camera Inspection, the documents were presented to this Court. Many of the documents are privileged or arguably privileged. Thomas v. Harrison, 634 P.2d 328 (Wyo.1981). Without being exhaustive, we note letters from counsel to the client encompassing legal advice; in-house correspondence of the client discussing advice furnished by the attorney; reports of summaries of deposition testimony; and evaluations of the client's position made by counsel. As we interpret Rule 26, W.R.C.P., no necessity exists to object to the furnishing of privileged material, and there is no waiver of the claim of privilege because of an untimely response to discovery. The Judgment, entered by the District Court on May 13, 1988, could not have been made in the absence of disregard of these precepts and, under the circumstances, the judgment constitutes a gross miscarriage of justice. Our conclusion as to the privileged nature of these documents is diametrically opposite to that apparently reached by the district court, and we are unable to justify the result reached by the district court within the purview of its discretion.

Our examination of the record persuades us that this case should be assigned to another judge for further proceedings. This conclusion is supported by the District Court's own comments at the conclusion of the hearing on April 8, 1988. Addressing Petitioner's representative and the chief executive officer of the respondent, First Wyoming Bancorporation, the District Court said:

"I would urge the two of you to get together with the lawyers while you're here and make an effort to take care of this case, because I can guarantee you much pain. Much pain. I'll leave that up to you.

"Now, I hope I've made myself understood. The next thing I want to make clear is I'm running this Court. The Supreme Court is not running this Court. No one else is running this Court. And I'm going to run it for 14 months and 22 days more, and I intend to take care of this case while I'm still on the bench. * * *

"Now, you can do what you want but you know my attitude, and if it hasn't been made clear I would be happy to answer any questions about it. But we're going to run cases according to the rules, we're going to do it on time, we're going to do it according to my docket, and when I set the hearings I think we'll just start having everybody here all the time. Now, that will now include the President of Continental Insurance Company. You're the plaintiff in this case and you want to have a case in my court I would like to see all of your people here."

The judgment entered by the District Court on May 13, 1988, granted Respondent's motion for sanctions against Petitioner, entered judgment in favor of Respondent on Petitioner's complaint, and entered judgment in favor of Respondent on Respondent's counterclaim against Petitioner. The court order provided that a hearing on damages would be held at some unidentified future date.

It is from that judgment that Petitioner sought extraordinary relief in this Court, and we granted a Petition for Writ of Certiorari to further review this matter on May 17, 1988.

We conclude that the District Court's judgment is erroneous and must be vacated. We find that the judgment entered by the District Court is a gross miscarriage of justice. Pursuant to the Writ of Certiorari granted in this case and pursuant to the general superintending control over courts vested in this Court by Wyo. Const. art. 5, § 2, it therefore is ORDERED that the judgment entered by the District Court of the Ninth Judicial District of the State of Wyoming in and for Teton County in Continental Insurance Company, Plaintiff, v. First Wyoming Bank, N.A.--Jackson Hole, a Wyoming banking association; and First Wyoming Bancorporation, a Wyoming corporation, Civil No. 6917, be, and it hereby is, vacated in its entirety; and it further is

ORDERED that the case is remanded to the District Court with direction that the case immediately be, and in no event, not later than ten (10) days after the date of this order, reassigned to another district judge for further proceedings consistent with this order, the order of the Court in Continental Insurance Company v. Robert B. Ranck, Honorable Judge of the District Court, Ninth Judicial District of Teton County, No. 88-32, and the governing rules of procedure and principles of procedure and principles of law; and it further is

ORDERED that counsel for First Wyoming Bank, N.A.--Jackson Hole, and First Wyoming Bancorporation, Mr. William M. McKellar, as a result of a mistake initiated by this Court, having perused improperly the documents submitted to this Court for in camera inspection, immediately shall deliver to this Court any notes, memoranda, or other instruments he may have prepared as a product of his examination of those documents submitted for in camera inspection; Mr. McKellar shall not disclose to anyone the contents of the documents he did peruse; he shall advise this Court in writing, within ten (10) days, of the names and addresses of any persons to whom he has disclosed any such information; he shall make no use whatsoever of any of the documents or information contained therein which ultimately are ruled to be privileged; he shall make no reference...