Rammell v. Mountainaire Animal Clinic, P.C.

442 P.3d 41

Rex RAMMELL, individually, Appellant (Plaintiff),

v.MOUNTAINAIRE ANIMAL CLINIC, P.C.; Paul Zancanella, individually; and Vicky Zancanella, individually, Appellees (Defendants).

S-18-0239

Supreme Court of Wyoming.

May 21, 2019

Representing Appellant: Pro se

Representing Appellees: Richard H. Honaker, Honaker Law Offices, LC, Rock Springs, Wyoming

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

DAVIS, Chief Justice.

[¶1] Rex Rammell, D.V.M., filed a complaint against his former employer, Mountainaire Animal Clinic, P.C., its sole shareholder and president, Paul Zancanella, D.V.M., and its office manager, Vicky Zancanella, collectively Mountainaire, asserting multiple claims including breach of express contract and tortious interference with contract. The district court entered partial summary judgment against Dr. Rammell on all his claims except the breach of express contract claim. Shortly before trial, it dismissed that claim as a sanction for willful obstruction of discovery and fraud upon the court. Dr. Rammell appeals the summary judgment ruling on his tortious interference claim and the dismissal of his breach of express contract claim. We affirm.

ISSUES

[¶2] Dr. Rammell presents six issues on appeal, which we summarize and restate as two issues.¹

1. Did the district court err in entering summary judgment against Dr. Rammell on his tortious interference claim?

2. Did the district court abuse its discretion in dismissing Dr. Rammell’s remaining claims as a sanction for his discovery violations?

[¶3] Mountainaire addresses these two issues and offers two additional issues in response:

1. Does Appellant’s false certification concerning the transcript of trial court evidence, and failure to include the transcript in the record, render his notice of appeal jurisdictionally defective, requiring dismissal of this appeal?

2. Should the trial court’s decision be summarily affirmed because of Appellant’s failure to present a proper record, including a transcript, for this appeal?

FACTS

[¶4] Mountainaire is a veterinary clinic located in Sweetwater County. Dr. Rammell is a veterinarian, and he was hired by Mountainaire pursuant to an employment agreement dated November 14, 2016. The agreement was for a term of one year and provided as follows concerning termination:

This agreement shall terminate immediately upon the occurrence of any of the following events:

A. The denial, refusal, suspension, revocation or restriction of Employee’s license to practice veterinary medicine in the State of Wyoming.

B. The death of Employee.

C. The mutual agreement of Employer and Employee, in writing, to termination.

D. Disability of Employee which continues for a period of 30 consecutive days or more.

E. The failure or refusal of Employee to diligently perform the duties of his employment and provisions of this agreement.

F. The end of the term of this agreement.

G. Notwithstanding any of the foregoing, if Employer determines that continued employment of Employee is not desirable for any reason, such employment may be terminated, with or without cause, upon sixty (60) days prior written notice to Employee.

[¶5] On April 19, 2017, Dr. Zancanella, in his capacity as Mountainaire’s president, met with Dr. Rammell and terminated his employment. On July 5, 2017, Dr. Rammell filed a complaint against Mountainaire and against Dr. Zancanella and Vicky Zancanella in their individual capacities.² The complaint asserted claims for breach of express contract, breach of implied contract, tortious interference with contract, intentional infliction of emotional distress, and negligent infliction of emotional distress. Mountainaire answered and counterclaimed for breach of the employment agreement’s non-compete clause and for a $ 10,000 salary advance it had made to Dr. Rammell. It also applied for and was granted a preliminary injunction enjoining Dr. Rammell from directly or indirectly providing services that would compete with Mountainaire within a fifty-mile radius of the clinic.

[¶6] On June 8, 2018, Mountainaire filed two summary judgment motions, one on its $ 10,000 claim for a salary advance refund, and the other against all of Dr. Rammell’s claims. The district court granted Mountainaire summary judgment on all claims except a part of Dr. Rammell’s breach of implied contract and his breach of express contract claims. Shortly thereafter, it granted Mountainaire’s motion to reconsider the breach of implied contract ruling and entered summary judgment in its favor on that claim.³ That decision left only Dr. Rammell’s breach of express contract claim for trial.

[¶7] A few weeks before the August 27, 2018 trial, Mountainaire filed a motion for an order to show cause as to why Dr. Rammell’s remaining claim should not be dismissed. In support of its claim for dismissal, Mountainaire alleged that Dr. Rammell flagrantly violated the court’s preliminary injunction by offering veterinary services within a few miles of the Mountainaire clinic, that he provided false discovery answers regarding those services, and that he self-issued invalid trial subpoenas. Mountainaire subsequently supplemented the motion with allegations that Dr. Rammell gave false discovery answers concerning income he had earned since the termination of his employment with Mountainaire.

[¶8] On August 15, 2018, the district court held an evidentiary hearing on Mountainaire’s motion, and on August 20th, it issued its order ruling on the motion. The court found that Dr. Rammell had issued invalid subpoenas but that he had done so unintentionally, and it did not sanction him for that conduct. The court further found that Dr. Rammell had violated the preliminary injunction, but it concluded that the violation was not grounds for dismissal and otherwise ordered no sanction for it.

[¶9] With respect to discovery responses concerning income he had earned since his dismissal from Mountainaire, the court found the responses ranged from "evasive and misleading to outright false." For this discovery violation, the court dismissed Dr. Rammell’s only remaining claim of breach of express contract. The court reasoned (footnote and citations omitted):

Plaintiff’s intent to fraudulently conceal this information can be inferred from the circumstances. There is a broad pattern of deceit. And given his obvious self-interest to enlarge his potential damages by concealing mitigation, the inference of deliberate deceit is hard to escape. At the hearing Defendant argued "if he wanted to know if I personally was making money, he should have asked me that question. I mean, he could have easily put, are you – are you, Rex Rammell, receiving any money from veterinary income? And I would have said, yes. But that isn’t what he asked." That is what Defendant asked. There is no meaningful, logical difference between that question and Defendant’s discovery requests. In fact, Defendant asked the same thing five different ways so as to leave no room for exceptions, evasion or omission.

Plaintiff’s degree of culpability is high. Having seen Plaintiff testify and had an opportunity to evaluate his demeanor, the Court believes his true position is exemplified by his most confident and certain testimony that "they were Wyoming Veterinary Center checks. I know it’s a technicality, but it – LLCs are legal entities." His attempts to backpedal, such as his testimony that "this all could have come out in the trial, too. I mean, I wasn’t trying to hide anything"—not that ambushing the opposing party at trial would excuse withholding evidence—were not credible. And his closing argument, "And to be right honest with you, the Douglas thing, it was a little extra cash. I really didn’t think about it" was not supported by credible testimony. He had every opportunity to disclose this information. Instead he concocted a frivolous rationalization why disclosure was not required. Rather than assert his theory of non-discoverability, he deliberately concealed it, apparently confident he could justify himself if it were ever discovered. Since he concealed his withholding of this information, there was no opportunity to warn him that failure to comply with valid discovery requests would result in dismissal.

The degree of actual prejudice to Defendant is also high. On the eve of trial, Defendant fortuitously discovered Plaintiff has hidden evidence of mitigation of his damages, in violation of the Rules of Civil Procedure and three sets of discovery requests. Plaintiff’s conduct created a substantial risk that if the jury verdict was in his favor, he would fraudulently recover greater damages than he was entitled to, misusing and interfering with the judicial process.

Finally, no lesser sanction than dismissal will suffice. The judicial process depends on transparency. Compliance with discovery is an essential element of justice. Plaintiff willfully failed to comply with his obligations to produce the evidence of damages sought by Defendant’s discovery requests and in bad faith concealed his failure to comply. A less severe sanction would not sufficiently remedy Plaintiff’s abusive conduct, as there is no way to ascertain whether he has concealed other crucial evidence, casting doubt on the reliability of any verdict in his favor. And a less severe sanction will not sufficiently punish and deter Plaintiff’s dishonest conduct. The Court finds the complaint should be dismissed and judgment entered against Plaintiff under Rule 37 and/or under the inherent power of the Court to sanction fraud on the court.

[¶10] Dr. Rammell thereafter filed a timely notice of appeal to this Court. His notice of appeal contained a certification of transcript request, which stated that "[p]ursuant to W.R.A.P. 2.05(a) and 2.07(a)(4), Appellant, Rex Rammell[,] has ordered and made appropriate arrangements for payment of the transcript to be prepared in this matter." Handwritten next to that typed certification was the statement, "No transcript." In keeping with...