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Terry v. Sweeney9/6/2000
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, 120 S. Ct. 59 (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. 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 than granting a mistrial. The determination of whether Sprague's statement was inadvertent or intentional is one best left to the trial court. Absent the opportunity to observe the witness' demeanor in the courtroom setting, a review of the transcript excerpt reveals only the bare words devoid of the context and true circumstance as existed in the courtroom on the day and hour it occurred. Whether or not the same sanction would be deemed warranted by this Court, the evaluation is for the trial court, and an appellate court cannot easily second-guess the conclusions of the decision maker who heard and observed the witnesses. Gresham v. State, 708 P.2d 49, 56 (Wyo. 1985). It seems apparent that, even if the initial decision was a knee-jerk reaction, the court had sufficient time in the intervening days between the original declaration of a mistrial and issuance of the written order to fully reconsider its ruling.
In Elite Cleaners and Tailors, Inc., the trial court denied the motion for mistrial under similar circumstances, and this Court presumed that the trial court found the term "insurance" was inadvertently and not deliberately injected into the record. The converse situation presents itself here. Based on the trial court's swift action at trial
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