DOLLARHIDE v. BANCROFT

• Decision Date: 14 September 2010
• Docket Number: No. S-10-0023.,S-10-0023.
• Parties: Jack DOLLARHIDE, Appellant (Plaintiff), v. Scott BANCROFT, Murray Shattuck, and Michael Johnson, Appellees (Defendants).
• Court: Wyoming Supreme Court

239 P.3d 1168

2010 WY 126

Jack DOLLARHIDE, Appellant (Plaintiff),

v.Scott BANCROFT, Murray Shattuck, and Michael Johnson, Appellees (Defendants).

No. S-10-0023.

Supreme Court of Wyoming.

Sept. 14, 2010.

Representing Appellant: Weston W. Reeves and Anna M. Reeves Olson of Park Street Law Office, Casper, Wyoming. Argument by Ms. Reeves Olson and Mr. Reeves.

Representing Appellees: Richard A. Mincer of Hirst Applegate, LLP, Cheyenne, Wyoming; John A. Sundahl of Sundahl, Powers, Kapp & Martin, LLC, Cheyenne, Wyoming; L. Kathleen Chaney of Lambdin & Chaney, LLC, Denver, Colorado. Argument by Ms. Chaney and Messrs. Mincer and Sundahl.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

VOIGT, Justice.

[¶ 1] On August 3, 2001, while employed as a carpenter by Bancroft Construction, Inc., in Teton County, Wyoming, Jack Dollarhide (Dollarhide) was injured when the raised wooden platform upon which he was standing crashed to the ground. Dollarhide obtained benefits from the Wyoming Worker's Compensation fund, but also filed a co-employee liability action against Scott Bancroft (Bancroft), the owner of the company, and Murray Shattuck (Shattuck), the company's general construction superintendent. That action subsequently was consolidated with a similar action filed by Dollarhide against Michael Johnson (Johnson), the company's project superintendent. ¹

[¶ 2] After considerable delay, the first trial resulted in a mistrial due to certain comments made by Dollarhide's counsel during opening statements. The second trial resulted in a jury verdict in favor of Bancroft, Shattuck, and Johnson. In this appeal, Dollarhide challenges the granting of the mistrial and assessment of costs resulting therefrom, and the denial of his motion for entry of default based upon a pretrial change in Johnson's testimony. Finding no error, we affirm.

ISSUES

[¶ 3] 1. Did the district court abuse its discretion in granting Bancroft's motion for mistrial and assessing costs against Dollarhide?

2. Did the district court abuse its discretion in denying Dollarhide's motion for entry of default?

STANDARD OF REVIEW

[¶ 4] “The court's ruling on a motion for mistrial ... is reviewed for an abuse of discretion.” Espinoza v. State, 969 P.2d 542, 546 (Wyo.1998), cert. denied, 528 U.S. 818, 120 S.Ct. 59, 145 L.Ed.2d 52 (1999); see also Ross v. State, 930 P.2d 965, 968 (Wyo.1996). “ ‘Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.’ ” Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998) (quoting Martin v. State, 720 P.2d 894, 897 (Wyo.1986)); see also Stroup v. Oedekoven, 995 P.2d 125, 128 (Wyo.1999).

In determining whether there has been an abuse of discretion, we focus on the “reasonableness of the choice made by the trial court.” Vaughn, 962 P.2d 149, 151 (Wyo.1998). If the trial court could reasonably conclude as it did and the ruling is one based on sound judgment with regard to what is right under the circumstances, it will not be disturbed absent a showing that some facet of the ruling is arbitrary or capricious.

Jordan v. Brackin, 992 P.2d 1096, 1098 (Wyo.1999).

Hannifan v. Am. Nat'l Bank of Cheyenne, 2008 WY 65, ¶ 36, 185 P.3d 679, 693 (Wyo.2008) (quoting Terry v. Sweeney, 10 P.3d 554, 557 (Wyo.2000)). We also review the granting of costs as a sanction under the same standard. Goglio v. Star Valley Ranch Ass'n, 2002 WY 94, ¶ 38, 48 P.3d 1072, 1085 (Wyo.2002); Welch v. Hat Six Homes, 2002 WY 81, ¶ 10, 47 P.3d 199, 202 (Wyo.2002); Snyder v. Lovercheck, 2001 WY 64, ¶ 6, 27 P.3d 695, 697 (Wyo.2001). Where egregious discovery abuse, or similar misconduct, has occurred, the discretion to impose sanctions may include the power to strike pleadings and to enter a default. Stanley Shenker & Assocs. Inc. v. World Wrestling Fed'n Entm't, Inc., 48 Conn.Supp. 357, 844 A.2d 964, 973 (2003); Pope v. Fed. Express Corp., 974 F.2d 982, 984 (8th Cir.1992); Combs v. Rockwell Int'l Corp., 927 F.2d 486, 488 (9th Cir.1991).

FACTS

[¶ 5] On August 3, 2001, Dollarhide was working for the company building a residence in Teton County. At some point on that date, he and another employee got onto a wooden platform fitted with guardrails, which platform-sometimes called a “man-basket”-was then raised approximately twelve to fifteen feet in the air on the tines of a forklift so the men could attach two beams to the ceiling. The man-basket came apart, and both men fell to the ground, with Dollarhide receiving serious injuries. These basic facts are not in dispute.

[¶ 6] Dollarhide sued Bancroft, the company's owner, and Shattuck, the company's general construction superintendent. Later, that lawsuit was consolidated with his separate suit against Johnson, the project superintendent. The gist of the cause of action against all three men was that they acted intentionally or in willful and wanton disregard of the known and obvious risks presented by elevating workers off the ground on a flimsy wooden platform. This being the central issue of the case, the two focal questions became whether such was the company practice, and if so, what each man knew about the practice prior to the accident.

[¶ 7] In their Answers to Dollarhide's Complaints, Bancroft, Shattuck, and Johnson generally denied the allegations, and specifically denied that Dollarhide was directed to use the man-basket. More significantly, in support of a Motion for Summary Judgment, Bancroft and Shattuck relied upon their own affidavits, and Johnson's affidavit, to set forth, inter alia, the following “facts”:

1. Before work began on the day of the accident, Johnson instructed the workers to use scaffolding to install the beams, and the workers verbally acknowledged such instruction.

2. Scaffolding was present at the job site for such purpose.

3. During Johnson's temporary absence from the job site, the workers decided on their own to use the wooden man-basket.

4. Neither Bancroft nor Shattuck was physically present at the job site on the date Dollarhide was injured, and neither man had any knowledge prior to the accident that company employees would use the wooden platform in the manner it was used.

5. Neither Bancroft nor Shattuck were ever advised by any employee that a dangerous condition existed because employees were using the wooden platform in the manner it was used.

6. In addition to the above statements, Johnson also specifically swore in his affidavit that the wooden platform was never intended to be used as it was being used when Dollarhide was injured, but was constructed for the sole purpose of transporting tools at the job site.

[¶ 8] This version of events had one central theme: it was not company policy or practice to use the wooden platform as a “man-basket,” and Dollarhide was not authorized or instructed to use it in that manner. The defendants perpetuated this theme in affidavits, depositions, and other discovery responses. In support of his own Motion for Summary Judgment after he was brought in as a defendant, Johnson presented the same defense, and utilized many of the same discovery documents. In his deposition taken in 2008, he repeated the statements he made in his 2005 affidavit; that is, he claimed that not only had he not instructed Dollarhide to use the wooden platform as a man-lift, he had never seen any company employees elevated in a wooden platform.

[¶ 9] Without opining as to fault, we will simply say that the tortuous pretrial progress of this case is not a model to be followed. ² The incident occurred on August 3, 2001. The first Complaint was filed on August 29, 2003. The discovery process, dispositive motions, changes in legal representation, a dismissal for failure to prosecute, and an appeal to this court caused considerable delay in getting to trial. ³ See Dollarhide v. Bancroft, 2008 WY 113, 193 P.3d 223 (Wyo.2008) (reversal of the dismissal). Finally, the final pretrial conference was scheduled for April 20, 2009, and the trial was scheduled to begin on May 18, 2009.

[¶ 10] Just prior to the pretrial conference, the events that gave rise to the case in its present posture began to unfold. Citing “professional considerations” and Rule 1.16(a)(1) of the Wyoming Rules of Professional Conduct for Attorneys at Law, the defendants' attorneys moved on April 16, 2009, to be allowed to withdraw from the case. ⁴ That motion was granted, and several new lawyers appeared separately for the three defendants. The trial was reset for August 10, 2009. On May 26, 2009, Johnson's new counsel sent a “correction page” to all counsel and to the court reporter who had reported Johnson's deposition eleven months earlier. Set out below is Johnson's original deposition testimony, along with the change made to each pertinent answer:

Q. During the time that you worked for Bancroft Construction, did they-did you ever observe Bancroft use a wooden platform to raise workers up in the air to work?

A. No. [ Changed to: “Yes, workers used wooden platforms.”]

Q. Never?

A. Never. [ Changed to: “Bancroft Construction used wooden platforms on several occasions.”]

Q. Not on any of the jobs that you worked on?

A. While I was there, no. [ Changed to: “I did witness the usage [sic] of wooden platforms.”]

Q. Okay. Did you ever see or observe any Bancroft employees be raised up by a forklift in a steel or metal basket to work?

A. Yes.

Q. Okay. But never in a wooden or on a wooden platform or wooden pallet or anything like that?

A. No. [ Changed to: “Yes. Wooden platform.”]

....

Q. Sure. Would it be fair to say that you never observed any Bancroft employees working aboveground from a forklift, unless they were in a metal basket?

A. Correct. [ Changed to: “Not correct. Wooden platforms were used to work from.”]

[¶ 11] This dramatic change in Johnson's testimony concerning the primary issue of the case...