Background
Robert P. Dykes died unexpectedly in Florida in 2022 in the course of a long-term relationship with Katya Hutton. His will, admitted to probate in Wyoming with his sons Michael and J. Christopher Dykes as co-personal representatives, bequeathed a high-end Palm Beach Marriott condominium to Ms. Hutton and required the Estate to pay $10,000 per month to support her during administration. A Florida ancillary probate agreement, adopted by a Florida court, required Ms. Hutton to use best efforts to manage and rent the condo and provide accountings, while the Estate was to distribute the condo to her as soon as reasonably possible. Instead of moving toward distribution, the parties—who had already been embroiled in separate litigation—fought for years over whether Ms. Hutton was properly accounting for rental income.
The Estate sued Ms. Hutton in Wyoming in May 2023 on five claims: statutory liability for embezzlement or alienation of estate funds before testamentary letters were granted (Wyo. Stat. Ann. § 2-7-411), concealment of funds (§§ 2-7-412 through -413), conversion, declaratory judgment, and accounting/restitution (§ 2-7-414). Discovery was extremely contentious: the Estate served 67 requests for production across two sets, filed three motions to compel, and the district court granted them. On the third motion, the district court ordered Ms. Hutton to produce specified documents by 5:00 p.m. on June 27, 2025—less than three full days before trial—and warned that failure would expose her to sanctions. She produced additional documents by the deadline.
On the first day of the two-day bench trial in late June 2025, the Estate renewed its Rule 37 motion and sought default judgment or, at minimum, an order deeming certain facts established. The district court observed that no order-to-show-cause motion had ever been filed, no evidentiary hearing had occurred, and it had received no evidence of a violation of the latest discovery order. The court offered a continuance; the Estate declined. The court took the motion under advisement, proceeded to trial, heard five witnesses (including vigorous cross-examination of Ms. Hutton), and admitted 32 exhibits. In its post-trial ruling the district court found the Estate had failed to prove Ms. Hutton ever received condo rental income that was wrongfully withheld, denied all five claims, and did not expressly rule on the sanctions motion.
The Court’s Holding
Affirmed. The Wyoming Supreme Court affirmed on both issues. On the Rule 37 sanctions question, the Court found no abuse of discretion in the district court’s implied denial of the motion. Discovery sanctions under W.R.C.P. 37 require, as a threshold matter, that a party actually violated a court’s discovery order. At the start of trial, the district court had no evidence that Ms. Hutton violated its June 27 production order—neither an evidentiary hearing nor an order to show cause had been sought. Rule 37 sanctions also cannot be imposed for failing to produce what a party does not possess and cannot obtain. Gooder v. Roth, 788 P.2d 611, 612–13 (Wyo. 1990). The Estate declined a continuance that would have allowed it to develop that evidentiary record, and its counsel acknowledged it had never subpoenaed the underlying documents from third parties such as VRBO, Airbnb, or Marriott. At trial, Ms. Hutton testified she produced everything in her possession, and the court found that testimony credible. The trial court’s entry of judgment for Ms. Hutton constituted an implicit denial of the outstanding sanctions motion.
On the merits, the Court applied clear-error review to the bench-trial findings and found ample record support. The central dispute was whether Marriott occupancy records showed Ms. Hutton rented the condo more often than she accounted for. The district court found those records unreliable: Marriott’s own owner-services manager admitted the records were inaccurate, that guests were sometimes listed under incorrect names, that non-paying guests were misclassified as paying (and vice versa), and that the condo itself was listed as a two-bedroom when it was a three-bedroom. Marriott was embroiled in a $30 million lawsuit with condominium owners over precisely these record-keeping and fee-allocation errors. The district court, as fact-finder, was entitled to discount the Marriott records and credit Ms. Hutton’s testimony that she had produced every reservation and deposited all rental income into the Colorado bank account Mr. Dykes had established before his death. Appellate courts do not substitute their credibility calls for the trial court’s.
Key Takeaways
- A Rule 37 sanctions motion made on the eve of trial—without a prior order to show cause, evidentiary hearing, or third-party subpoenas to prove the opposing party withheld discoverable documents—gives the district court no factual basis to find noncompliance; denial of sanctions in that posture is not an abuse of discretion.
- A party who declines the district court’s offer of a continuance to cure a deficient sanctions record forfeits the ability to argue on appeal that the court should have granted the requested sanctions anyway.
- Rule 37 sanctions cannot punish a party for failing to produce documents she does not have; the moving party must affirmatively establish the documents exist, are within the responding party’s possession or control, and were withheld.
- In bench trials, the finder of fact’s determination that a particular set of records is unreliable—especially where the records’ own custodian acknowledges their inaccuracy—will not be disturbed on appeal under the clear-error standard merely because the losing party found those records more persuasive.
Why It Matters
For Wyoming estate litigators and commercial practitioners, Dykes Estate v. Hutton (the latest installment of ongoing Dykes–Hutton litigation, see Hutton v. Dykes, 2025 WY 94) offers important lessons on the mechanics of discovery sanctions. The opinion confirms that Wyoming courts follow the same well-established framework as federal courts under FRCP 37: sanctions require an established violation, and the district court’s discretion on “whether and how severely to sanction” is nearly unreviewable. Practitioners seeking sanctions for discovery misconduct must build a proper evidentiary record through contempt or order-to-show-cause proceedings before trial—not through a renewed oral motion at the courtroom door. Going to trial on a deficient record, after declining a continuance, waives the ability to complain about the court’s restraint.
The case also reinforces the deference appellate courts accord to bench-trial fact-finding. Attacking a trial court’s credibility determination by arguing the opposing party’s evidence was merely “secondary” rather than “primary source documentation”—a legal distinction the Estate coined but for which it could cite no authority—will not succeed. Where the reliability of documentary evidence is itself a contested fact (as with the Marriott records here), the trial court’s resolution of that dispute is insulated from second-guessing on appeal unless the finding is logically untenable.