Terry v. Sweeney

• Decision Date: 06 September 2000
• Docket Number: No. 99-327.,99-327.
• Citation: 10 P.3d 554
• Parties: Christina L. TERRY, Appellant (Plaintiff), v. Todd E. SWEENEY, Appellee (Defendant).
• Court: Wyoming Supreme Court

10 P.3d 554

Christina L. TERRY, Appellant (Plaintiff), v. Todd E. SWEENEY, Appellee (Defendant).

No. 99-327.

Supreme Court of Wyoming.

September 6, 2000.

Representing Appellant: Stephen R. Winship of Winship & Winship, P.C., Casper, Wyoming.

Representing Appellee: John A. Sundahl and Brian J. Hanify of Sundahl, Powers, Kapp & Martin, Cheyenne, Wyoming.

Before LEHMAN, C.J., and THOMAS, GOLDEN, HILL & KITE, JJ. KITE, Justice.

This appeal is taken from several trial court orders issued during the course of Plaintiff-Appellant Christina L. Terry's (Terry) personal injury action including orders granting a mistrial, awarding Defendant-Appellee Todd E. Sweeney (Sweeney) costs attendant to mistrial to be paid by Terry, and dismissing the action due to failure to pay the assessed costs. Finding no error or abuse of discretion, we affirm.

ISSUES

This statement of the issues is found in Terry's brief:

1. When the district court conditions a litigant's access and ability to have her cause of action heard upon payment of costs in a sum that the district court is aware that the litigant cannot afford to pay, ha[ve] the litigant's state and federal constitutional rights of access to the courts, due process, and equal protection been improperly denied[?]

2. Whether the district court erred in declaring a mistrial because of the inadvertent reference by one of the Plaintiffs to the possibility that Defendant had liability insurance.

3. Whether the district court has any statutory or inherent power to assess attorney fees and costs resulting from a mistrial, and then to require payment of these fees and costs, prior to allowing the retrial of the matter.

4. If the assessment of fees and costs was proper, should it have been assessed only against the Plaintiff, Dale Sprague[?]

5. Whether the district court should have delayed assessing costs resulting from the mistrial by [not] requiring their payment until after the retrial of the matter.

6. When the district court made the payment of Defendant's fees and costs from the mistrial a precondition to a retrial of the matters, did the district court abuse its discretion by not allowing Plaintiffs' counsel to advance said costs[?]

7. Whether the district court erred by allowing Defendant to refer to the fact that Plaintiff had filed several worker[']s compensation claims for injuries not related to the subject injury in order to infer to the jury that she was "claims minded."

8. Whether the district court erred by denying Plaintiffs' request to present expert rebuttal testimony.

Sweeney restates the issues in his brief as follows:

1. Whether the trial court abused its discretion in granting a mistrial[.]

2. Whether sanctions directed to costs and attorney's fees associated with preparation for a particular jury trial may be properly imposed for a mistrial.

3. Whether, given the totality of the circumstances, it was appropriate to dismiss with prejudice for failure to prosecute and to comply with prior orders of the Court.

4. Whether imposition of sanctions denies access to the courts, procedural due process or equal protection.

5. Whether the trial court abused its discretion in holding that evidence relating to Worker's Compensation claims were admissible and in denying leave to present rebuttal testimony.

FACTS

On December 23, 1994, Terry and her then-husband, Dale E. Sprague (Sprague), filed suit for damages against Sweeney, alleging his negligence caused a motor vehicle accident on April 19, 1993. The trial court granted a motion in limine which precluded the plaintiffs from making any reference to Sweeney having insurance coverage pursuant to W.R.E. 411. The court qualified the preclusion to permit limited inquiry of jurors regarding their professional relationships with insurance companies and the threshold questions as allowed under Wardell v. McMillan, 844 P.2d 1052, 1063 (Wyo.1992). During jury selection, Sweeney moved for a mistrial, asserting a violation of the court's order with regard to insurance references. The motion was denied. Thereafter, Sprague, as the first witness, recounted a conversation between Terry and Sweeney just subsequent to the vehicle accident as follows:

Chris first asked him what—what the hell he thought he was doing. Todd was very apologetic, apologizing for hitting us. He kept saying that there was something wrong with the brakes.

And when asked, you know, for any information, all he would say is—would tell Chris was what his first name was, my name is Todd, but I don't know anything about the insurance; I can't give you that information, and that—that his father—

(Emphasis added.) Sweeney again moved for a mistrial on the basis of the reference to insurance coverage. This motion was granted and subsequently memorialized in a written order filed November 6, 1996. On November 19, 1996, Sweeney filed motions requesting costs¹ in the amount of $9,469.80 and sanctions be assessed against the plaintiffs because of the mistrial. A hearing was held December 2, 1996, and the Order Awarding Costs, filed December 3, 1996, reflected in relevant part as follows: "[T]he Court finding that the Defendant's Amended Motion for Costs and Sanctions should be granted based upon Plaintiffs['] violation of the Court's Order on Pending Motions in this case, which violation resulted in the mistrial of the jury trial in the action." (Emphasis added.) And further:

NOW, THEREFORE, IT IS ORDERED that the Defendant's Amended Motion for Costs and Sanctions is hereby granted, and that costs in the total sum of $2,756.70² are hereby awarded in favor of Defendant ... Sweeney, and against Plaintiffs... Terry and ... Sprague, for Plaintiffs['] violation of the Court's Order on Pending Motions resulting in the mistrial of the jury trial in this case on October 28, 1996; ...

(Emphasis added.)

On December 10, 1996, the plaintiffs filed a Motion to Alter or Amend Order Awarding Costs, asserting that Terry should not be held jointly and severally liable with Sprague for the award because she did not violate the trial court's order. Subsequent to a hearing held March 14, 1997, the court found in its Order on Pending Motions,³ filed March 18, 1997, as follows:

[T]he Plaintiffs' Motion to Alter or Amend Order Awarding Costs should be denied since the mistrial which resulted in the award of costs and attorney's fees against the Plaintiffs occurred in the presentation of the case in chief being presented (a) on behalf of both Plaintiffs, and (b) in support of the Amended Complaint seeking damages on behalf of both Plaintiffs; ...

Based on this reasoning, the trial court denied the plaintiffs' Motion to Alter or Amend Order Awarding Costs.

In the next two plus years, multiple motions were filed by the parties requesting respectively that the matter be set for trial or dismissed due to lack of payment of the sanction costs, all of which the trial court denied. At one point, the trial court set a payment deadline for the plaintiffs to pay the ordered costs which was not met. Thereafter, the trial court continued the trial indefinitely pending payment and subsequently set a second and final payment deadline. During these protracted proceedings, the trial court denied the plaintiffs' counsel's request to pay the costs himself. The court made it clear that the plaintiffs were personally responsible for payment of the costs as they were the parties responsible for the mistrial. The plaintiffs also filed a Petition for Writ of Review with this Court on July 7, 1997, which was denied on August 5, 1997. Terry v. District Court for Seventh Judicial District, No. 97-194. The last court ordered payment deadline of August 31, 1999, was not met, and Sweeney filed a Renewed Motion to Dismiss with Prejudice on September 1, 1999. On November 1, 1999, nearly three years after the original order setting out the sanction, the trial court entered an Order of Dismissal, dismissing the plaintiffs' claims with prejudice. Terry then appealed to this Court.

DISCUSSION

A. Declaration of Mistrial

"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).

An Order on Pending Motions, issued three days before the trial, specifically precluded evidence related to whether a person was or was not insured pursuant to W.R.E. 411.⁴ The purpose of W.R.E. 411 "is to prevent the deliberate introduction of evidence of liability insurance coverage in tort actions premised on negligence." Parker v. Artery, 889 P.2d 520, 526 (Wyo.1995).

During the testimony of the plaintiffs' first witness, Co-Plaintiff Sprague made a specific reference to insurance. Sweeney's counsel promptly moved for a mistrial, which the trial court granted. In reliance on Elite Cleaners and Tailors, Inc. v. Gentry, 510 P.2d 784 (Wyo.1973), Terry urges that the reference to insurance was inadvertent and the trial court could have taken a less onerous action...