*1 prohibitory regulatory interest and termine incorporate AND impermissible to LAWRENCE-ALLISON It is
reaction.
WEST, INC.,
to do individual
ASSOCIATES
engage
optometry
(Defendant),
directly. Buhl
to do
is forbidden
ly what
Co.,
subject
This
Optical
not be Supreme Wyoming. concerning optome the manner ments 13, 1989. designated or Jan. engaged, com trists are franchisor. The confi pensated relationship requires
dential health care
responsibili
undivided
professional’s
exploi
freedom from commercial
ty and
relationship
is essential.
tation.
jeopardized if a
public
would be
pecuniary profits
large corporation with
principal goal were allowed to do
as its
(Painless
Parker v.
field.
minate the
Exam,., supra, 216 Cal.
Board Dental
67.)
Pearle Vision can neither
Wyoming,
employ op-
nor
legally practice optometry
portion of
tometrists for the examination
sell.
eye care
that it seeks to
service
Neill,
summary judgment
disposition logically makes determining, a mat- govemmentally, in law, something factually ter actually hap- probably contrary to what pens. grant summary judg-
The trial court re- favoring should be Pearle Vision on the merits. versed
5.Are the past awards for wages, lost wages, future lost loss annuity on
supported by the evidence? Appellee frames the way: issues this Bondi, P.C., of Harry Harry Bondi G. G. 1. Did the Failing Trial Err in Court Casper, appellant. for aside set the against Default Entered Chapman Frank of Beech R. Street Law Appellant? Office, Casper, Dwight Hurich of F. Did 2. the Trial Erroneously Ap- Preuit, Hurich, Gillette, ap- & for Sowada ply Collateral Estoppel to the Employ-
pellee. Security ment Commission Administra- Hearing? tive BROWN, C.J.*, THOMAS, Before the Judgment Supported 3. Is by MACY, the CARBINE, JJ. URBIGKIT Competent Evidence? BROWN, Justice, Chief Retired. we seriously question While Appellant Lawrence-Allison Associ- & application estoppel court’s of collateral West, Inc., appeals ates award- this we' reverse on the issue of entry ing damages appellee and costs to Brian remand, case for the further Underlying dispute Lorensen. is a tort proceedings. action on the based termination employment appellant. lee’s contract with FACTS appeal propriety addresses the Appellant prime was the contractor with liability court’s default on the Department United States of Energy appellant for failure to at management of certain activities on the Appellant trial with counsel. also chal- United States Petroleum Reserve No. lenges partial summary judg- an order Casper, Wyoming. Appellant north of sub- collaterally estopping litigat- it from work projects contracted on the Reserve to ing April certain factual issues raised in an companies, oil field service including a sub- concerning ap- administrative decision contract under which appellee was em- pellee’s eligibility for unemployment com- ployed as pusher. a tool The subcontract
pensation Appellant benefits. frames the specified employees that all on the Reserve issues as: would use Government Service Administra- 1. Were the issues the decided at ad- (GSA) vehicles, tion and that the vehicles ministrative identical to the is- would used purposes. for business sues to be decided the trial court Hunting on prohibit- also Reserve was properly apply order for the trial court to ed. estoppel prevent Appellant collateral defending During allegations? antelope hunting the 1983 sea- son, appellee allegedly violated these terms 2. proof Did burden of two employment by shooting his contract an same; proceedings rеmain the or was the antelope transporting Reserve and proof upon burden at Casper pickup. a GSA After an inves- proceeding the administrative tigation matter, into appellee was ter- Plaintiff, Appellee, as a minated October 1983. so, civil If does shift in lawsuit? such prevent proof application burden of Appellee applied unemployment then principles estoppel? of collateral benefits, protested. After an permit 3. Was it error April hearing, Wyoming Em- Ap- hold withdrawal of and then ployment Security (ESC) Commission pellant in default? granted April benefits. decision refusing letter, Was it abuse discrеtion in the ESC support- found no evidence ing hunting set aside the default? violation further found *Retired June Upon arrival the office of Law- antelope carcass noon. transporting Associates, un- rence-Allison and pickup was not “misconduct”
the GSA
general
manager,
regulations
justify
greeted
Jim
ESC
sufficient
der
Watson,
Appel-
discussing
and after
the status
unemployment
denial of
benefits.
decision.
of the case with Watson he informed
appeal
did not
from the ESC
lant
representative
of the cor-
me that as
in district
Appellee
complaint
filed
*3
porate
speaking
defendant and
on behalf
26, 1985, naming appel-
court on December
my ser-
of the individual defendants that
and three individuals as defendants
lant
as the
for all of the de-
vices
wrongful
for
termination.
an action
longer
they
fendants were
desired and
Appel-
complaint
jury
included
demand.
repre-
to obtain other
to
wished
counsel
jury
and
lant answered
also demanded
sent them this matter.
summary
moved
Appellee
partial
for
trial.
general
liability
Appellant’s
manager,
on the issue
on the
Mr. James
of
Watson,
February
appeared
morning
for the
was held on
be-
contract.
ginning
replacement
March
court is-
of trial without
coun-
1987. On
the trial
finding
proceed.
began
parties
order
thе
to be
sel and unable to
The trial
sued an
estopped
litigating
following colloquy:
collaterally
from
issues with the
deny-
in the ESC decision and
determined
I
THE
As
it the
COURT:
understand
summary
ing appellee’s
partial
motion for
discharged
corporate defendant here has
judgment.
attorney.
youDo
at-
their
have another
represent
torney
company?
to
the
meet-
appellant
March
had a
On
No, sir,
not,
I
MR.
I do
WATSON:
ing
during
appellant
counsel
with its
which
like to make a statement about
would
complained
way its
apparently
the
about
discharging
Horn.
Mr.
This is the first
trial,
being prepared
which
case was
for
the
time I have seen
Motion here
is un-
begin
to
March
The record
was
Horn,
really
disagree
I
Mr.
have to
concerning the outcome of this meet-
clear
it, Your Honor.
however,
with
ing;
apparently
defense counsel
meeting
impression
with
initial
left the
disagreed, expressed
lack of
our
attorney-client relationship
that his
with
representing
in Mr. Horn in
confidence
had been terminated.
appellant
us,
changing
possibility
discussed
bringing in
attorneys,
possibility
belief,
Acting
this
counsel
defense
give
attorneys,
to
him additional
other
telephone
participated in a
conference with
said,
you
Mr. Horn
if
don’t
support.
court on the
plaintiffs counsel
attorney,
in me
I
your
сonfidence
have
to
of March
in which he moved
afternoon
represent you, got up, took
don’t want to
from the
The trial court
withdraw
case.
And he filed
his box
files
left.
questioned
counsel
apparently
defense
motion,
I say,
had not seen
this
we
motion,
although
his
no record of
about
morning.
So I had assumed
until this
made,
conference was
and then allowed
point his Motion to Withdraw
this
his
Defense counsel notified
withdrawal.
disagreement
upon the
and not
based
afternoon, leaving
telephone
client
him,
discharged
said
fact that
we
Sunday
evening to find new
not the
Sir.
which is
morning.
next
trial the
defense
his
expressed
I
concern for
sеrious
morning of
March
written
On
represent
listed
ability to
us and have
corresponding
to withdraw and a
motion
him,
to
reasons
were stated
several
court and
order were submitted to the
them to
may give
you,
if I
Sir.
gave
motion to
filed. The
withdraw
explained
impres-
his
After Mr. Watson
following explanation of
circumstances
1 meeting
March
with
sions of the
confer-
leading up
telephone
to the March 1
counsel,
gave the
the trial court
defense
ence:
following reply:
I
to Cas-
March
1987 came
On
you have
THE COURT: From what
per, Wyoming
prepare my
client[’]s
has told
from what
Horn
early after-
testimony and arrived in the
said
first,
me,
me,
appears
Sunday,
2. On
I visit-
opinion
corpo-
Watson,
difference
between the
ed
Jim
Manag-
General
handling
Horn as
ration Mr.
er, for the Defendant Lawrence-Allison
something
go-
the case is
that has been
West,
Inc.,
& Associates
hereinafter
time,
ing
quite
some
and should
present
Also
meeting,
“L.A.W.”.
at the
have been dealt with before the eve of
Kelly,
was Mr. Dave
employee L.A.
problem
got
trial.
we
question-
The tenor
tone
W.
jurors,
full of
courtroom
witnesses here
ing put
question-
to me Mr. Watson in
side,
other
and as far as know
ing
legal
my
properly repre-
abilities to
ready
go.
the other side is
This trial
cap-
sent all
Defendants
quite
has been scheduled for
some time.
great
tioned matter was
concern to me
think
differences between the cor-
very upsetting
Ime.
had the
poration and Mr. Horn should have been
distinct
that Mr. Watson
long
resolved
From
before now.
wanted
have additional or other coun-
*4
said,
you have said
has
and what he
represent
sel
the Defendants in the trial
appears
discharged,
to me he was either
scheduled for March
1987.
claims,
position
as he
else
or
his
meeting
3. As a result of the
with
untenable,
was made
and at the last
Watson,
Mr.
and
fact
he
and his
objections
minute
all the
and criti-
were
associates
uncomfortable with me
cisms of
I
him. So don’t think that thе
continuing
represent
to
them in
corporation
fact that the
is without an
ceeding, I advised Mr.
and
Watson
attorney at this time is
any-
the fault of
Kelly during
meeting
our
of March
corporation
one but the
itself.
1987, that I would
as their
withdraw
So, I
grant
won’t
a continuance to
if
counsel
their
and
desire
allow
obtain
this stage
further
represent
them to obtain other counsel to
the corporation
default,
then
is in
and
them.
also
Kelly
told Mr.
and Mr.
can
entered
it.
judge
Watson that I would talk
to
added.)
(Emphasis
withdrawing
about
from the case. I sub-
appellee
The trial court allowed
to amend
sequently spoke
Judge Spangler
with
complaint against
thе individual defend-
briefly
and
to him
of
related
some
ants,
granted
those defendants a con-
foregoing
orally
information and was
they
independent
tinuance so
could obtain
by Judge Spangler
advised
he
that would
adjourned
counsel. The
court
trial
then
permit my
withdrawal
counsel for the
proceedings
requiring appellee
without
to
Defendants.
prove his
case. A default
my
4. After
Judge
discussion with
$1,437,063.44
$3,224.06
plus
in costs was
Spangler,
telephoned
I then
Mr. Watson
day,
entered
next
March
based solely
him that
judge
advised
appellee’s
an affidavit of one of
witness-
granted my request for withdrawal.
es.
off in
went
search of a new
During my
discussion in the after-
attorney,
appellee
filed execution on
Judge
noon March
Span-
with
on March 10.
gler
Chapman,
and Frank
I was under
11, through
On March
new defense coun-
judge
that the
would al-
sel, appellant
court
moved
trial
to set
my
low
former clients
time
obtain
entry
aside
judg-
default and the default
other counsel especially
Judge
ment,
grant
new
trial and
alter or
Spangler
during
commented
our tele-
judgment.
amend
to this om-
Attached
phone
corporation
conversation that a
affidavits,
nibus motion
awere
series of
proceed
attorney.
could
without an
including
supplemental
affidavit from
13, appellant
On March
moved
trial
defense counsel. This affidavit
stay any
court to
gave
attempts
further
at exe-
a softened
of the events
version
impressions
judgment.
cution on the
that resulted from the
On March
meeting
appellant
between
its first
at-
conducted
torney:
lant’s
omnibus motion
set aside
denying appellant’s
trial court’s order
mo
judgment. Appellant
and default
default
argument
of default
three-pronged
fa-
tion to set aside
under
mounted
O’Neal,
60(b)(4).1
Dexter v.
entry of default and
setting
aside
W.R.C.P.
vor
(1)
asserting
that:
See also 11
judgment by
P.2d
C.
default
Miller,
default
Federal
Wright
court should not have entered
and A.
Practice and
doing Procedure,
(1973).
judg
and that
37 and
2871 at
under W.R.C.P.
§
(2)
law;
process
due
appellant
subject
denied
or order is void and
to attack
so
60(b)(4)
good cause shown under
if
there was
the court that ren
55(c)
set aside the
W.R.C.P.
it “acted in a manner inconsistent
dered
mistake,
default,
inad-
Aguchak
there was also
of law.”
with
Co., Inc.,
vertence,
neglect
justify
Montgomery
surprise and
Ward
60(b)(4)
(6); and,
(Alaska 1974);
relief under W.R.C.P.
see also
C.
(3)
Miller,
supra,
had never received writ- Wright and A.
2862 at 199-
§
application
notice of the
ten
200. Due
of law this context is
days
judgment at least
three
before its
guaranteed
legitimate
to a
with a
required by
to the court as
property
liberty
submission
interest at stake under
Const,
55(b)(2).
new attor-
Appellant’s
Wyо.
the U.S.
amends. IV
V and
Const,
ney
lengthy exchange
the court
v. Board
had a
White
art.
concerning
really transpired on
Wyoming
Trustees Western
Communi
District,
origi-
March 1 that led to the withdrawal of
ty College
exchange,
1107, 103
denied,
nal defense counsel. After this
(Wyo.1982),cert.
459 U.S.
judg-
the default
*5
the trial court set aside
S.Ct.
place on
trial
judgment or
al of a
for relief from a
motion
May
and entered an
decision letter on
55(a)
60(b)(1)-
an order under W.R.C.P.
2, awarding
damages
order on June
total
(5H6),
the movant must show that the
$254,005.18.
appeal
and costs of
of dis-
of the motion was an abuse
denial
appellant’s
motion to set aside
the denial
Inc.,
Agency,
cretion. Farrell v. Hursh
entry of default followed.
(Wyo.1986). The
P.2d
1180-81
then
that he could have
mоvant must
show
suggest
issues
Appellant’s first
two
the ac-
a meritorious defense to
asserted
strongly that
the trial court should not
Adel v.
granted.
tion had the motion been
applied
estoppel
collateral
to the “is-
Parkhurst,
(Wyo.1984);
in the ESC decision letter.
sues” addressed
Miller, supra,
A.
Wright
also 11
see
C.
issues, however,
those
We will not address
2862 at 197.
the trial court’s
of default
because
2, 1987, provides
independent
ba-
appeal
An
from the denial
a W.R.C.P.
sis for reversal.
hand,
60(b)(4)motion,
presents
on the other
validity
judg-
of the
a direct attack on the
OF REVIEW
STANDARD
itself, hence, pure question
or
a
order
by noting
judgment
“Once a
is determined
begin analysis of this case
law.
void,
of discretion
appeal
question
from the
there is no
it involves a direct
order,
judgment,
60(b)(4),
representative from a final
which is identical
to its
1. W.R.C.P.
provides:
following
counterpart,
proceeding
federal
reasons:
or
*
* * *
*
(4)
motion,
judgment
(b)
is void
*.
such terms as are
On
legal
just,
may
party
court
relieve a
or his
part
on the
the court
a motion is
ceed and/or does not
for trial.
60(b)(4).” 2-H
made under Rule
Ranch These cases are all rooted
the Fifth
Simmons,
Company, Inc. v.
Hoagland,
Circuit decision Bass v.
Eddy,
(5th Cir.),
denied,
Cf. Cates
669 F.2d
210-11
cert.
821 (Wyo.1983).
P.2d
50 A.L.R.4th
S.Ct.
U.S.
FEDERAL DUE PROCESS plaintiff any trial. When nei- 55(a) attornеy appeared identical F.R.C.P. ther Bass nor his at 55(a). point, trial, starting From that generated; no was default group directs us to a of federal and plaintiff state case was not confessed. involving have, cases might proceed, default under but he would 55(a). prove Rule These cases arise from fact If there his case. was errone- patterns ous where defendant’s has idea that absence counsel default, 55(b)(2) shortly withdrawn from the caused still re- before Rule trial, quired days defendant is unable to three notice to Bass or his
QOS
(5th
Cir.),
F.2d
judgment
Hoagland,
default
172
205
cert.
before
denied,
57,
359
70
Bass under the ad-
U.S.
S.Ct.
94 L.Ed.
could be considered.
default,
Cases,
noted in Recent
mitted facts knew he was not
withdrawn,
1400. In
plaintiff
Harv.L.Rev.
Bass the
his counsel had
did not know
to enforce a
sued
judgment by
ob
and had no notice that a
tained
another federal court.
In the
get
default was to be asked. To
such a
ap
defendant
judgment without evidence
with-
answered,
peared,
requested
jury
opinion
out notice is not in our
due
Defense
trial.
counsel then withdrew.
law.
day
On
trial defendant was not
Bass,
added).
(emphasis
quate, and [state] ** out of this. Michigan Long, 463 U.S. 3469, 3476, 77 L.Ed.2d THE The trouble with COURT: Bondi, Rocky Mountain Oil and affidavit, is it is not true. Mr. cited Equali- Board v. State Gas Association MR. BONDI: Which affidavit? zation, Revenue and Taxa- Department Horn’s, THE Mr. Mr. Horn COURT: tion, n. 15 had fired. told me that he holding in is rendered exclu- this case Honor, I MR. BONDI: Your don't of the State sively under the Constitution proceedings, if a record of those Wyoming, and references to federal opportunity I defendant had had comparison law are included if Mr. Horn was under oath don’t know explanation. speaking you Sunday with after- noon, opportunity for the defend- aspect of this The most troublesome express says Mr. Horn ant to his views. process, is the in terms state oath, I distinct had the determined that way the trial court me other Mr. Watson wanted to obtain actually on March lant fired counsel. could be entered so that default statement, I think Mr. Horn’s record, Viewing the entire on March supplements his first motion to this transcript March 27 motion and the of the given should be and treated with particular, it is clear that the deference the Court. entered default based Well, not when he told THE COURT: impressions it formed the March something me else earlier. telephone conference with defense Well, from Defendant’s MR. BONDI: The follow- plaintiffs counsel and counsel. view, point of Defendant should have an replacement defense ing colloquy between that, opportunity put to contest prob- about this counsel and the trial court issue, particularly ruling is before lem illustrative: * position— * * made. It is our The crux of the mo- [MR. BONDI] THE COURT: To contest what? discussing probably on Point tion or not he was Whether MR. BONDI: facts, and I Mr. Horn’s rendition of ap- point terminated. The is the Court supple- going to refer to Mr. Horn’s am that, that, argue parently may took I if affidavit, clearly I think it estab- mental parte the Court took Mr. Horn’s ex good things lishes cause. One Chapman Mr. communication with that Mr. Horn’s affidavit establishes at telephone Sunday afternoon, at clearly terminat- paragraph he was being put under value without face ed, paragraph 2 of Mr. Horn’s affidavit oath, mthout having— 9, 1987, quotes the tenor dated me, Mr. told Mr. Horn THE COURT: great questioning tone of was of Bondi. Those, Honor, concern to me. Your are MR. BONDI: I think understand termination, litigants not words of civil you saying. are This would be the litigants criminal sometimes ask Sunday telephone conversa- afternoon discerning ways their counsel in that are tion. uncomfortable, us to use to us make Right. THE COURT: expression,
Mr. don’t think that Horn’s gives grounds respect, me for withdrawal. MR. BONDI: With Mr. Horn *8 2, again paragraph “I talking Horn’s affidavit at you, not under oath when the distinct that Mr. Wat- had he is under oath in this affidavit. counsel, 2, or other son wanted to have additional Point he didn't inform excuse me, represent defendants.” didn’t inform the defendant what defendant, Now, saying or the what say he doesn’t that Mr. Watson he was Sunday, do on impression, clearly says, he was the defendant to the distinct know, 9 first crack the defendant had impression. have an You his im-
997 hours, hour, corporate fault a defendant under W.R.C.P. less than 24 he took o’clock 55(a), refusing But I understand exception appear with that. at trial with but, think, saying, is what the Court by an extreme action a trial counsel.3 Such statement, his un- is one affidavit court, however, recognized must be another, you is sim- sworn statement Entry what it is. of default under Rule give opportunity for the ply didn’t 55(a) strong injects possibility that the on he was defendant to be heard corporation litigate will never be able to its (Empha- you Sunday. representing to judgments Default are not favored case. added). sis law, possible, a and when that, property interest Westring It is basic should decided on its merits. before terminated, except emergency Bank, can be 119, Cheyenne National P.2d 393 situations, must be afforded to (Wyo.1964). 122 a mean notice litigants in the form of When the basis for of default In the ingful opportunity to be heard. corporation to.appear is failure GP, Matter (Wyo. 986-87 679 P.2d counsel, particularly when the White, 1984); P.2d at 535. 648 attorney corporation has no because the meaningful opportunity to be heard neces trial court allowed counsel’s withdrawal involving sarily requires hearing ele trial, only findings under- hours before formality procedure depend ments of lying of default should be ren- importance “the of the interests ent hearing.4 dered after a fair Due subsequent of the involved and the nature hearing demands at least an informal Connecticut, proceedings.” Boddie v. explanations presentation of evidence and L.Ed.2d U.S. counsel, defendant, op- its and the GP, cited in In the Matter of posing party. The trial court should allow (Wyo.1984). P.2d corporate parties, and the defendant’s both in this case was The of default counsel, explana- present evidence and dependent upon the court’s entirely trial a motion defense tions of the reason for had, finding ac- of its own trial, on the eve of counsel to withdraw cord, attorney day fired its less than findings making that will lead to a before and, result, to “oth- as a failed before 55(a) type Rule default. is under W.R.C.P. erwise defend” the case contemplated by Rule in this 55(a). language construe this fact situation.5 rule to mean that a defendant must show trial court denied We hold that the longer by his conduct that he no intends to Const, Wyo. process of lant due law case on the merits. We believe defend the it entered default based art. when circumstances could arise that unusual gained parte in the ex properly impressions de- on the it would a trial court to allow only possible corporation is entered based on because a his case and then 3.This Moore, through plead See J. W. in court a li- that evidence and the record. must Practice, Wicker, attorney. Shepard, Taggart & Moore’s Federal cеnsed Starrett v. J. (2d. 1988). (Wyo.1980). situations we n. 12 ed. 56.02[3] ¶ corporate have found where a defendant evi- 4. Withdrawal because an get "can’t defending a sufficient desire to cease denced rarely along” be allowed with a client should are those in which the case under here. When replacement not have been allowed corporation coun- should failed to obtain requested, court should ignoring eight of court a withdrawal is sel after months or more carefully Ltd. out in the orders to do so. See Dow Chemical consider the factors set Pacific Maritime, S.A., (2d Wyoming F.2d Conduct 1.16. v. Rascator Rules of Professional allowed, Cir.1986); Shaрiro, & Co. v. Continen- must be accom- Bernstein If withdrawal Co., (2d Cir.1967); plished tal Record 386 F.2d Uniform Rules for the court order. Ronair, Inc., Angola 102(c). Transportes Cf. Aereos De Courts District (D.Del.1985). 104 F.R.D. 504-509 factually 5. The situation here is different option, confronted Another trial court 37, discovery involving sanc- appears cases corporate who with- with a defendant Inc., See, Agency, counsel, e.g., Hursh go tions. Farrell v. forward with the trial as out is to put 1179-80 is allowed to scheduled. *9 court, prior cases from this conference. minimal Under telephone might justified necessary before have was going with trial because of the properly entered. forward hаve been default could holding perceived, that it which were that the Further, that this is limit- facts we stress discharged attorney on procedural defendant had specific factual and ed to the the eve of trial order to secure a continu- this case. circumstances had, If one ance. No trial was however. remanded for further Reversed held, clear had been it would have been opinion. this ceedings consistent with judge that the trial had abused discre- of the failure to take the tion because THOMAS, J., specially filed informed of the facts trouble become concurring opinion. parte Ex dia- prior to a detеrmination. Justice, THOMAS, specially court logue with the whom the concurring. discharged believed to have been does not purpose. count for that myself attempted persuade in this case are constitutional the issues agree they are.
dimensions. I cannot part of law on the simply I see errors prevented the district court judgment appellee. in favor of the by reversing correct this error We can justifying a conclusion that without judgment is void. Injury Denny In the Matter of the holds, majority opinion As the the district DESOTELL, deceased, Employee. signif- judge understand the limited did not phrase plead “failed to icance of DESOTELL, A. Gail found in Rule defend” otherwise (Claimant), This was not an instance corporate which the defendant had failed defend, plead and there was or otherwise Wyoming, ex rel. STATE WYOMING invoking justification Rule W.R. WORKER’S COMPENSATION DIVI- Certainly, any claim of the C.P. SION, Appellee (Objector-Defendant). judgment by default would have re- No. 88-105. 55(b)(2), quired the notice set forth and, W.R.C.P., procedure obviously, Supreme Wyoming. Consequently, the de- followed. fault must be set aside. Jan. trial court erred
The conclusion
in
entering
a default
stance is consistent with
rationale
(5th
Hoagland,
subject attack. In this in of a collateral
stance, appeal from the errone there is an judgment,
ous the error of law commit judge adequately disposes ted any concern about the abuse of discre tion.