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Northwest Building Company, LLC, A Wyoming Limited Liability Company v. Northwest Distributing Co.

August 29, 2012

NORTHWEST BUILDING COMPANY, LLC, A WYOMING LIMITED LIABILITY COMPANY, APPELLANT (PLAINTIFF),
v.
NORTHWEST DISTRIBUTING CO., INC., A WYOMING CORPORATION, APPELLEE (DEFENDANT).



Appeal from the District Court of Sheridan County The Honorable John G. Fenn, Judge

The opinion of the court was delivered by: Kite, Chief Justice.

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

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made before final publication in the permanent volume.

[¶1] Northwest Building Company, LLC (Contractor) performed construction services for Northwest Distributing Co., Inc. (Owner) on a Taco John's/Good Times facility in Gillette, Wyoming. Contractor brought an action against Owner seeking payment for its services, and Owner counterclaimed. After Contractor's attorney moved to withdraw, the district court ordered Contractor to find substitute counsel by the pretrial conference. When Contractor was unable to find substitute counsel by the deadline, the district court sanctioned it by dismissing its complaint and granting judgment in favor of Owner on its counterclaims. Contractor appealed, raising a number of procedural issues.

[¶2] We affirm.

ISSUES

[¶3] Contractor presents several issues for our review:

1. Whether the District Court abused its discretion when it allowed [Contractor's] counsel to withdraw when no new counsel had entered a written appearance on [Contractor's] behalf.

2. Whether the District Court abused its discretion when it dismissed all of [Contractor's] claims with prejudice and entered judgment against [Contractor] on all of [Owner's] counterclaims in its Order Granting Motion to Withdraw and Imposing Sanctions, and denied [Contractor's] motion to set aside those sanctions in its Order Denying Motion to Set Aside Sanctions.

3. Whether the District Court erred when it considered [Contractor's] Notice of Appeal, dated May 31, 2011, appealing the District Court's Order Granting Motion to Withdraw and Imposing Sanctions and Order Denying Motion to Set Aside Sanctions premature.

4. Whether the District Court erred when it maintained jurisdiction over the case, proceeded to a hearing on the damages owed [Owner] on [Owner's] counterclaims on July 29, 2011, and awarded [Owner] damages pursuant to its counterclaims in its Judgment, dated September 19, 2011.

5. Whether the District Court abused its discretion when it struck [Contractor's] Statement of the Evidence or Proceedings from the record on appeal in its entirety.

Owner's statement of the issues is similar.

FACTS

[¶4] The underlying facts are of little relevance to the issues on appeal, so we will simply provide some basic background of the controversy. In Spring 2006, Owner and Contractor entered into an oral agreement for construction services on a Taco John's/Good Times facility in Gillette. Disputes arose over the scope and quality of Contractor's work and its right to payment.

[¶5] On October 31, 2008, Contractor filed suit against Owner stating claims for payment of debt, unjust enrichment, lost business opportunity and breach of the implied covenant of good faith and fair dealing. Owner responded denying liability and counterclaiming for breach of contract and unjust enrichment. The case proceeded, and the district court granted Owner's motion to strike Contractor's expert witness and motion for partial summary judgment on Contractor's lost business opportunity claim.

[¶6] On March 22, 2011, Contractor's attorney filed a motion to withdraw, and the district court held a hearing on the motion on April 12, 2011. At that time, the district court indicated that it was going to allow Contractor's attorney to withdraw and ordered it to obtain substitute counsel by the pretrial conference on April 19, 2011. The court stated that substitute counsel would have to be ready for trial commencing May 24, 2011.

[¶7] Although it attempted to find substitute counsel by the April 19 deadline, Contractor was unable to finalize a representation agreement with its new counsel by that date. Pursuant to Owner's motion for sanctions, the district court dismissed Contractor's complaint, entered judgment against Contractor on Owner's counterclaims and stated that a hearing to determine Owner's damages would be convened at a later date. A few days later, Contractor finalized an agreement with new counsel who entered an appearance and filed a motion to set aside the sanctions. The district court denied the motion to set aside the sanctions.

[¶8] On May 31, 2011, Contractor filed a notice of appeal from the order granting the motion to withdraw and imposing sanctions and the order denying its motion to set aside the sanctions. Because the various court hearings had not been reported, Contractor also filed a "Statement of the Evidence or Proceedings" pursuant to W.R.A.P. 3.03, which Owner objected to as including improper argument and information that was not provided during the evidentiary hearings.

[¶9] The parties eventually stipulated to the amount of Owner's damages, and, on September 19, 2011, the district court entered judgment in accordance with the stipulation. It also ordered the parties to supplement their submissions regarding the statement of the evidence. Contractor filed a second notice of appeal from the judgment awarding Owner damages, but did not file a supplement to its statement of the evidence and the district court struck it from the record.

DISCUSSION

1. Motion to Withdraw

[¶10] Contractor claims the district court erred by allowing its attorney to withdraw without requiring substitute counsel to first enter an appearance. "[I]ssues concerning the withdrawal of counsel . . . are matters which are left to the sound discretion of the trial court and will not be upset on appeal absent a demonstrated abuse of discretion." Byrd v. Mahaffey, 2003 WY 137, ¶ 5, 78 P.3d 671, 673 (Wyo. 2003).

An abuse of discretion is found only when a court acts in a manner which exceeds the bounds of reason under the circumstances. The ultimate issue is whether the trial ...


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