Summary 2010 WY 126

Summary of Decision issued September 14, 2010

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Dollarhide v. Bancroft

Citation: 2010 WY 126

Docket Number: S-10-0023

Appeal from the District Court of Teton County, the Honorable Nancy J. Guthrie, Judge.

Representing Dollarhide: Weston W. Reeves and Anna M. Reeves Olson of Park Street Law Office, Casper, Wyoming.

Representing Bancroft, Shattuck and Johnson: 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.

Facts/Discussion: In 2001, while employed as a carpenter by Bancroft Construction, Inc., in Teton County, Wyoming, 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 Bancroft, the owner of the company, and Shattuck, the company’s general construction superintendent. That action subsequently was consolidated with a similar action by Dollarhide against Johnson, the company’s project superintendent.

Abuse of discretion in granting Bancroft’s motion for mistrial and assessing costs against Dollarhide: The gravamen of the mistrial motion, as well as the district court’s rationale for granting the motion, was that Dollarhide’s counsel had irrevocably tainted the jury by telling it, in effect, that Judge Guthrie had found Dollarhide to have a valid case against the defendants. It is the law that granting a mistrial is an extreme and drastic remedy and at the same time, it is the law that the trial court is in the best position to assess the prejudicial impact of such an error. Comments such as those made in the instant case can have a marked tendency to influence a jury in its analysis. Similar to the Court’s reasoning in State Farm Mutual Auto Ins. Co. v. Resnick, the Court found that the harm engendered by the comment was sufficiently pervasive and prejudicial to negate any curative value the judge’s subsequent instructions might have had.
The Court reviews the award or denial of costs and sanctions after a mistrial for an abuse of discretion. The district court ordered Dollarhide to pay for the jury costs attributable to the mistrial but denied the defendants’ requests for costs and attorney’s fees attributable to the mistrial. The decision as to costs is a matter for the trial court’s discretion. The Court saw no abuse of that discretion.
Abuse of discretion in denying Dollarhide’s motion for entry of default: A dramatic change to Johnson’s testimony occurred which caused his deposition to be re-opened. He admitted that he knew that wooden platforms were being used to work from by Bancroft employees. His previous testimony denied such activity as did those of the other defendants, Shattuck and Bancroft. Dollarhide argued that monetary sanctions were insufficient in the face of perjury, especially where that perjury lies at the heart of a “fraud on the court.” Whether a court chooses to impose a sanction as severe as dismissal or default is a matter left to that court’s discretion. The Court noted that Johnson recanted prior to trial and was re-deposed, cross-examined and impeached; the complicity of Bancroft and Shattuck was surmised by the district court but not found by the jury because the jury found in favor of the defendants. Additionally, the district court did not ignore the alleged misconduct imposing a sanction of $29,044.31.

Conclusion: The district court did not abuse its discretion in granting the motion for a mistrial, in denying the motion to enter a default, or in its costs and sanctions orders.

Affirmed.

J. Voigt delivered the decision.

Link: http://tinyurl.com/2eerowt .

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