IN THE SUPREME COURT, STATE OF WYOMING
2014 WY 87
APRIL TERM, A.D. 2014
July 8, 2014
IN THE MATTER OF THE
GUARDIANSHIP AND
CONSERVATORSHIP OF WILLIAM
G. BRATTON, Ward,
ROBERT E. BRATTON,
Appellant S-13-0226
(Petitioner),
v.
JEANNE BLENKINSOP,
Appellee
Appeal from the District Court of Park County
The Honorable Steven R. Cranfill, Judge
Representing Appellant:
Robert E. Bratton, Pro se
Representing Appellee:
Mary Helen Reed of McCarty, Reed & Earhart, Attorneys at Law, L.C., Cody,
Wyoming
Before BURKE, C.J., and HILL, KITE*, DAVIS, and FOX, JJ.
* Chief Justice at time of expedited conference
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 any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
DAVIS, Justice.
[¶1] Appellant Robert Bratton (Bratton) petitioned for appointment as guardian of his
seventy-six-year-old brother William (William). Their sister, Appellee Jeanne
Blenkinsop (Blenkinsop), cross-petitioned and asked that she instead be appointed as
William’s guardian and conservator. When Bratton failed to appear at a pretrial
conference, the district court dismissed his petition and appointed Blenkinsop to
temporarily assume those duties. We affirm.
ISSUES
[¶2] We summarize the issues presented as follows:
1. Did the district court err in failing to address Bratton’s
motion for alternative dispute resolution and his motion to
quash the proposed order dismissing his petition?
2. Did a second judge err in denying Bratton’s motion to
disqualify the judge who was presiding over the
guardianship/conservatorship proceedings for cause?
FACTS
[¶3] William Bratton suffers from a lifelong mental disability. Although the record
contains no precise diagnosis of his affliction, the parties and the guardian ad litem
characterized it as akin to Asperger’s syndrome, a relatively mild form of autism
spectrum disorder.1 Prior to her death in 2004, William’s mother established a trust
designed in part to support William in his later years. It provided that he could live in the
family home in Cody as long as he was able to do so, and for payment of his living
expenses from a Wells Fargo money market account.
[¶4] Blenkinsop and Bratton were the sole trustees, and both had access to the Wells
Fargo account.2 Sometime prior to the filing of their competing petitions to serve as
1
Asperger’s is considered the mildest of such neurodevelopment disorders, in that those afflicted display
normal intellect and are highly functional. http://www.ninds.nih.gov/disorders/asperger/detail_asperger.
htm.
2
The record reveals little more about the provisions of the trust. Bratton claimed that William’s trust
contained more than $850,000 worth of stocks, but we cannot determine whether that was separate from
the money market account. We also cannot tell whether Blenkinsop and Bratton were able to access any
portion of the trust assets for their own use at the time of the litigation or whether they were residual
beneficiaries of the assets set aside for William.
1
guardian, they took steps to prevent William from accessing the account because he had
fallen prey to financial “scammers” who target the elderly and infirm.
[¶5] That particular vulnerability was the one point of agreement in Bratton’s petition
for guardianship filed on June 29, 2012, and the cross-petition for guardianship and
conservatorship filed by Blenkinsop on July 19. Bratton believed that William was
mentally incompetent to a degree that rendered him unable to handle his personal affairs,
his health needs, and his finances. 3 However, Blenkinsop, while conceding that William
was at times unable to care for himself and his property without assistance, asserted that
he was generally able to meet his own medical needs in a reasonable manner. She also
indicated that she assisted him in all of his financial affairs, and that she had prevented
him from having access to large amounts of funds that others could swindle from him.
Finally, Blenkinsop reported that she and William agreed that her appointment as his
guardian and conservator would be in his best interest. William confirmed this by filing a
signed and notarized document with the district court.4 Blenkinsop contemporaneously
moved for appointment of a guardian ad litem to independently meet with and report on
William’s condition, represent his interests, and make a written recommendation as to
whether she or Bratton should be appointed his permanent guardian and/or conservator.
[¶6] On August 2, 2012, two weeks after Blenkinsop filed her cross-petition, Bratton’s
attorney moved to withdraw from the case for reasons that cannot be ascertained from the
record transmitted to this Court. Thereafter, Bratton represented himself.
[¶7] On September 11, Blenkinsop filed a motion alleging that the Wells Fargo money
market savings account had been established solely for William’s benefit, that only she
and Bratton had access to those funds, and that on July 23, 2012, Bratton transferred
$10,000 of William’s money to a checking account that he controlled. Blenkinsop
moved for an order requiring Bratton to return the money. Bratton had named the
account in which the funds were deposited the “William Bratton Guardian Legal Fund.”
[¶8] The guardian ad litem appointed by the court on September 14 filed a report on
December 19, 2012. After reviewing William’s medical records and interviewing him
and his neighbors, friends, and family members, she concluded that he was bright and
independent, and that he had a desire to remain active that was perhaps more important to
him than the cleanliness of his home. To illustrate, she noted that he took a summer job
in 2012 washing dishes for a local Pizza Hut. Nevertheless, because of concerns that his
3
Bratton did not petition to be appointed Williams’ conservator under Wyo. Stat. Ann. § 3-3-101 et. seq.
This is perplexing in light of the fact that there were major concerns about Williams’ susceptibility to
fraud and inability to manage funds, and only a conservator could have managed his funds. Wyo. Stat.
Ann. §§ 3-3-601, -606, -607 (LexisNexis 2013).
4
That document was signed and notarized July 20, 2012, but was not filed with the court until September
10, 2012.
2
mental disability might worsen with age, she concluded that he needed assistance to
manage his finances and help to care for himself and his home. In regard to his medical
needs, she recommended that he have more regular health care screenings and
preventative care, and that he form a consistent patient relationship with a primary care
physician.
[¶9] Those interviewed by the guardian ad litem suggested that Blenkinsop was better
suited than Bratton to handle William’s affairs. They pointed out that Blenkinsop had
helped William for years, and that she included him in the life and activities of her
family. They noted her substantial investment of time and effort to remain actively
engaged and involved with him, and they felt that she genuinely cared for him.
[¶10] In contrast, those interviewed were suspicious of Bratton’s recent interest in
William. They portrayed him as rigid and controlling, with an approach to life that
would not mesh well with William’s. They generally considered him impatient and
selfish, and some attributed their views to the fact that he became totally estranged from
one of his daughters during her early teens, after which Blenkinsop took the girl in, raised
her, and put her through college. In addition, the guardian ad litem was informed that
Blenkinsop consistently spent eight to nine months a year in Cody, while Bratton was
there for only three to six months per year, and that Bratton had expressed a desire to
institutionalize William and sell the family home.
[¶11] Based on the information she gathered and William’s preference, the guardian ad
litem recommended that the court appoint Blenkinsop as his permanent guardian and
conservator. She also recommended that William be allowed to reside in the family
home until he could no longer live independently.
[¶12] On February 11, 2013, the district court ordered Bratton to deposit the $10,000 he
had transferred from the Wells Fargo money market savings account with the court. Four
days later, Bratton moved for an order requiring a psychological evaluation of William
and postponing all settings until that evaluation could be completed. On February 21, the
court issued a scheduling order which memorialized an agreement by the parties that any
efforts to mediate their differences would be completed by May 31, 2013, and which set a
final pretrial conference and trial for October 9 and October 23 of 2013 respectively. The
record before us does not demonstrate any attempt at mediation prior to the May 31
deadline.
[¶13] On June 6, 2013, the district court reset the pretrial conference and the trial for
August 7 and September 3. On July 8, 2013, it ordered William to undergo a
psychological evaluation prior to trial. On July 22, Bratton moved the court to assign the
case to a mediator and to appoint his nominee to that position. He did not request a
hearing on that motion.
3
[¶14] Blenkinsop filed her pretrial memo on July 31, seven days before the scheduled
conference, and the guardian ad litem filed hers on August 2. Blenkinsop noted that the
court would probably need to address Bratton’s motion for alternative dispute resolution
(ADR) at the pretrial conference, and the guardian ad litem advised the court that the
parties were trying to agree on a mediator to complete mediation.
[¶15] Bratton did not file a pretrial memo prior to the conference, move to continue the
conference, advise the court that he could not attend it for some reason, or show up at the
appointed date and time. Blenkinsop’s attorney told the court at the conference that she
had spoken to Bratton briefly about the mediation he had proposed, and that she had
emailed him about his failure to file a pretrial memo, but that he never responded to the
email. The guardian ad litem told the court that she had received an email from Bratton
acknowledging that he was aware of the pretrial conference, which was to take place the
same morning as the email. That email, which was read into the record, indicated that
Bratton thought mediation would have been completed by now, that he believed the case
would still go to trial because the mediation would be unsuccessful, and that it was
unrealistic to believe that mediation could be completed and the trial held in roughly four
weeks as then scheduled.
[¶16] The district court decided that it would sanction Bratton for his failure to attend
the pretrial conference and participate in the orderly resolution of the case by dismissing
his petition for guardianship. It asked Blenkinsop’s counsel to draft an order to that
effect.
[¶17] Counsel prepared the order and emailed a copy to Bratton for his approval as to
form on August 13, 2013. Bratton refused to approve the proposed order and instead
moved to quash it on August 23. As grounds for that relief, he claimed that he was
denied the opportunity to address the court regarding his motion to assign the case to a
mediator. On September 9, the district court entered the order drafted by Blenkinsop’s
attorney.
[¶18] Three weeks later, Bratton filed a petition to disqualify the presiding judge for
alleged bias, and that petition was assigned to a district judge in Cheyenne to determine
whether there were grounds for disqualification. On October 8, 2013, Bratton filed a
notice of appeal from the order dismissing his guardianship petition.
[¶19] Bratton’s petition for disqualification was denied on October 16, 2013. The
specially-assigned district judge found no evidence of bias in the petition for
disqualification and its attachments, even assuming Bratton’s factual allegations to be
true.
4
DISCUSSION
[¶20] Our resolution of Bratton’s claims turns on whether the district court properly
dismissed his guardianship petition because he failed to attend the pretrial conference.5
That ruling relates directly to the propriety of the conduct he challenges on appeal.
[¶21] We look first to Rule 16(f) of the Wyoming Rules of Civil Procedure, which
authorizes trial courts to impose sanctions upon a party for failing to appear at a
scheduled pretrial conference.
(f) Sanctions. – If a party or a party’s attorney fails to
obey a scheduling or pretrial order, or if no appearance is
made on behalf of a party at a scheduling or pretrial
conference, or if a party or party’s attorney is substantially
unprepared to participate in the conference, or if a party or
party’s attorney fails to participate in good faith, the judge,
upon motion or the judge’s own initiative, may make such
orders with regard thereto as are just, and among others any
of the orders provided in [W.R.C.P.] 37(b)(2)(B), (C) and
(D).
W.R.C.P. 16(f). In turn, Rule 37(b)(2)(C) authorizes the court to issue “[a]n order
striking out pleadings or parts thereof, or staying further proceedings until the order is
obeyed, or dismissing the action or proceeding or any part thereof, or rendering a
judgment by default against the disobedient party[.]” W.R.C.P. 37(b)(2)(C).
[¶22] Trial courts have broad discretion to impose the sanctions permitted by this rule,
including dismissal of an action or portion thereof. We review decisions imposing
sanctions for abuse of discretion. Mora v. Husky Oil Co., 611 P.2d 842, 846 (Wyo.
1980). A court does not abuse its discretion unless it acts unreasonably under the
circumstances. Parris v. Parris, 2009 WY 44, ¶ 15, 204 P.3d 298, 303 (Wyo. 2009).
[¶23] We applied that standard in Travelers Insurance Co. v. Palmer, 714 P.2d 765
(Wyo. 1986), which is procedurally similar to this appeal. In that case, the district court
dismissed a complaint when the plaintiff’s attorney failed to file a pretrial memorandum
or attend a pretrial conference without previously contacting the court or offering any
explanation for these omissions. Id. We held that when the record contains no timely
explanation to the trial court for a party’s failure to appear, we cannot find an abuse of
discretion if the district court dismisses the case, and we will not set aside a dismissal in
favor of some lesser sanction under those circumstances. Id. at 767.
5
Oddly, Bratton does not claim that the district court improperly dismissed his petition.
5
[¶24] An attorney’s offered explanation for failing to appear at a status or scheduling
conference will not necessarily deprive a court of the discretion to dismiss his client’s
case under Rules 16(c) and 37(b)(2)(C). In Ikerd v. Lacy, 852 F.2d 1256 (10th Cir.
1988),6 the plaintiff’s attorney did not attend a status and scheduling conference, did not
notify the trial court or opposing counsel that he was unable to attend, and did not seek a
continuance of the conference. The court dismissed his client’s case even though counsel
had not previously violated any scheduling orders. It also denied his motion to
reconsider that ruling even though he claimed to have been in the courthouse but engaged
in proceedings in another case. The appellate court affirmed, noting that counsel was
aware of the setting for the scheduling conference fifteen days before it took place. Id. at
1258-59.
[¶25] Bratton had nearly two months’ notice of the pretrial conference, and
communicated to other attorneys in the case that he knew when it was to be held. He
offered the district court no explanation for his failure to file a pretrial memo or appear.
The district judge acted well within the proper scope of his discretion when he dismissed
Bratton’s petition for guardianship.
Bratton’s Motion to Quash the Order Dismissing His Petition
[¶26] Bratton also asserts that the district court erred in failing to consider his motion to
quash the order dismissing his petition for guardianship. From the title and timing of the
motion, one would expect it to attack the district court’s rationale for dismissing the
petition or to provide some explanation for his failure to file a pretrial memo or appear at
the pretrial conference in an effort to convince the judge to change his ruling. If that
were the case, one could accurately characterize it as a motion for reconsideration of the
order of dismissal. Because it preceded the filing of that order by seventeen days, it was
a prejudgment motion for reconsideration. District courts may properly consider such
motions because, traditionally, trial courts have enjoyed the authority, in their discretion,
to revise their rulings prior to the entry of a final order. McWilliams v. State, 2012 WY
153, ¶ 9, 289 P.3d 780, 783 (Wyo. 2012); Steranko v. Dunks, 2009 WY 9, ¶ 6, 199 P.3d
1096, 1096-97 (Wyo. 2009).
[¶27] If that was Bratton’s intent, he failed miserably. He did not challenge the district
court’s reasons for dismissing his petition, and he did not attempt to explain or excuse his
failure to file a pretrial memo or appear in the motion or any other document in the
record. Consequently, if the motion to quash is viewed as one for reconsideration,
Travelers Insurance and Ikerd compel us to conclude that the district court acted within
its proper discretion in declining to consider and rule on that motion.
6
Because of the similarities between federal and Wyoming rules of civil procedure, we look to federal
authority interpreting a particular rule as an aid in applying the comparable Wyoming rule. Farrell v.
Hursh Agency, Inc., 713 P.2d 1174, 1178 n.4 (Wyo. 1986).
6
[¶28] Bratton’s appellate brief suggests that he intended to renew the motion asserting
what he conceives to be an absolute right to an order requiring mediation. He also
evidently believes that right survived his failure to file a pretrial memorandum and his
absence from the pretrial conference. This argument is identical to the claim that the
district court erred when it failed to order the case to mediation as he requested, which we
address below.
Bratton’s Motion to Assign the Case to a Mediator
[¶29] Bratton’s district court filings and his appellate brief do not directly say as much,
but he appears to base his argument, raised for the first time on appeal, on the following
language of W.R.C.P. 40(b):
(b) Limited assignment for alternative dispute resolution. –
The court may, or at the request of any party shall, assign
the case to another active judge or to a retired judge, retired
justice, or other qualified person on limited assignment for
the purpose of invoking nonbinding alternative dispute
resolution methods, including settlement conference and
mediation. By agreement, the parties may select the person to
conduct the settlement conference or to serve as the mediator.
If the parties are unable to agree, they may advise the court of
their recommendations, and the court shall then appoint a
person to conduct the settlement conference or to serve as the
mediator. A settlement conference or mediation may be
conducted in accordance with procedures prescribed by the
person conducting the settlement conference or mediation.
W.R.C.P. 40(b) (emphasis added).7 Bratton appears to argue that the highlighted
language of the rule required the district judge to assign the case to mediation and to stay
all other proceedings until it was complete.
[¶30] If that is the contention, it is wrong. First of all, the scheduling order set a
deadline to complete mediation, which had long passed when the motion seeking ADR
was filed. It is well within a trial court’s discretion to require the parties to complete
mediation by a date sufficiently in advance of other scheduled dates to assure that late
requests for ADR do not disrupt the docket. A trial judge need not permit a last-minute
7
One might question whether the rule should say that a judge “shall” order mediation when requested by
one party. Parties who have a genuine desire to resolve their disputes commonly arrange for mediation by
private mediators without any court involvement, or they ask the court to appoint a judge who has already
agreed to mediate. The “shall” language has in the experience of this writer been wielded most frequently
by one party to attempt to delay a trial when the other party sees no hope of settlement.
7
request for mediation to derail a schedule which will expeditiously dispose of a pending
case.
[¶31] Moreover, Rule 40(e) specifically provides that “[a]ssignment of a case to
alternative dispute resolution shall not suspend any deadlines or cancel any hearings or
trial.” W.R.C.P. 40(e). Furthermore, a pretrial conference may be used to consider and
take action with respect to “[s]ettlement and the use of special procedures to assist in
resolving the dispute under Rule 40(b) or other alternative dispute resolution procedures.”
W.R.C.P. 16(c)(9). The approximately four weeks between the pretrial conference and
trial were sufficient to allow the parties to hire a private mediator and complete
mediation, and Bratton could have asked the court to enter an order to that effect, as
counsel for Blenkinsop and the GAL evidently anticipated it would. Instead, he failed to
comply with the scheduling order or to appear at the appointed time.
[¶32] Although some allowances are properly made for self-represented litigants in light
of their lack of legal training and experience, courts should for the most part require them
to reasonably adhere to court orders and rules of procedure in the same way that attorneys
are expected to do. Olsen v. Olsen, 2013 WY 115, ¶¶ 7-8, 310 P.3d 888, 891 (Wyo.
2013); Annis v. Beebe & Runyan Furniture Co., 685 P.2d 678, 680 (Wyo. 1984). We
will apply that rule here. This is not a case in which a court was asked to read a pleading
written by a lay person liberally to try to determine its meaning. Bratton ignored the
scheduling orders in this case, which courts cannot tolerate.
[¶33] The district court acted well within the scope of its proper discretion. Its response
was reasonable, in accordance with law, and fair in light of the efforts of counsel for
Blenkinsop and the GAL.
Petition to Disqualify the Presiding Judge for Cause
[¶34] Bratton also claims that his petition to disqualify the judge presiding over the
guardianship case was wrongly denied. We review that claim for an abuse of discretion
as well. Cordova v. Gosar, 719 P.2d 625, 633 (Wyo. 1986). A party seeking to
disqualify a judge for cause is required to present convincing evidence that the judge
harbored such a personal prejudice or bias against him that he or she was unable to
impartially base decisions on the law and the evidence. TZ Land & Cattle Co. v. Condict,
795 P.2d 1204, 1211 (Wyo. 1990).
[¶35] Bratton’s petition for disqualification asserted that the presiding judge’s
disposition of his motions to compel mediation and to quash the proposed order of
dismissal demonstrate his bias. He made a similar claim regarding statements made by
the judge at a hearing on July 19, 2013, after Bratton leveled unsupported accusations
that Blenkinsop’s lawyer and the guardian ad litem were unethically colluding against
him.
8
[¶36] The district judge who considered the disqualification petition correctly observed
that in and of themselves, unfavorable rulings do not constitute evidence of bias, citing
TZ Land & Cattle, 795 P.2d at 1211. He reviewed the transcript of the July 19 hearing,
and he concluded that the challenged statements demonstrated no bias. He found instead
that the presiding judge intended to caution Bratton that his unsupported accusations of
misconduct against two officers of the court poorly served his cause, and that he would
perhaps be better off if his ardent feelings were funneled through someone who could
maintain objectivity and better appreciate the decorum required of counsel and litigants,
i.e., an attorney.
[¶37] We discussed Bratton’s motions for mediation and to quash the proposed order of
dismissal above. As noted there, the district court had ample reason to dismiss his
petition and deny his outstanding motions, and Bratton offered no meaningful
explanation for the conduct that led to those sanctions. No bias is reflected in those
rulings, and the court’s failure to expressly rule on the motions was a natural
consequence of the decision to dismiss his petition. This Court also reviewed the
transcript of the July 19 hearing and agrees with the assessment of the judge who denied
the disqualification petition. The presiding judge listened attentively to the arguments
presented, and he demonstrated no animus or bias against anyone. He simply tried to
direct Bratton to a less perilous path. The petition for disqualification was properly
denied.
W.R.A.P. 10.05 Sanctions
[¶38] Blenkinsop asks us to certify Bratton had no reasonable cause for this appeal, and
to award her costs and attorney fees she has expended under Rule 10.05 of the Wyoming
Rules of Appellate Procedure. As she points out, such relief is generally appropriate—
even against a self-represented appellant—if the issues raised are not supported by cogent
argument or citation to pertinent authority and the record. Baker v. Reed, 965 P.2d 1153,
1154 (Wyo. 1998).
[¶39] By that standard, Bratton would certainly have earned the requested sanctions.
However, Rule 10.05 sanctions are not usually levied when the appeal challenges
discretionary rulings. Russell v. Russell, 948 P.2d 1351, 1356 (Wyo. 1997). This appeal
focused on the discretionary decision to dismiss Bratton’s petition and to deny all his
pending motions. While Bratton’s briefing left a great deal to be desired, we were able to
conduct a meaningful review of the issues presented on the record we received. We
therefore decline to certify that he had no reasonable cause for his appeal, and we deny
the request for sanctions.
9
CONCLUSION
[¶40] The district court did not abuse its discretion in disposing of Bratton’s motions to
submit the case to mediation and to quash the proposed order as it did after properly
dismissing his guardianship petition and temporarily appointing Blenkinsop as her
brother William’s guardian and conservator.
[¶41] The district judge who denied Bratton’s petition to disqualify the presiding judge
likewise did not abuse his discretion. We affirm in all respects, and we deny
Blenkinsop’s request for sanctions.
10