*1 offset, ty Company, Wyoming taking account the we Abstract a cor into Even Christensen; poration; support the amount of child Lawrence J. note that County less mother was Commissioners $25.81 Board of awarded Underwood; County; Harry support child Campbell provided than (Defen Fitch; Tarver, court devi- the district B.L. guidelines. When W.B. dants). guidelines in support the child ates from for child determining proper amount Cindy Charles E. BREDTHAUER required to issue written support, it is wife, Bredthauer, husband and S. to account findings on the record specific (Plaintiffs), Appellants 20-6-302(b). deviation. Section for the conclude we the facts of Under v. guide- slight deviation CHRISTIAN, SPRING, AND SEILBACH proper find- lines without issuance ASSOCIATES, corporation, a Montana require us to reverse and ings does (Defendant), Appellee the district court. this case to remand Morehead, 811 P.2d 723- Morehead v. West; Realty, Wyoming corpo a Lila VIP However, empha- 24 n. 1 we ration; Darryl Lynde; Douglas W. P. courts should be careful size that the trial CCP; Cramer; Marquiss; Gary Lance statutory requirements comply with the Polen; Cain; Hafling; Paul J. Helen W. issuing support child deci- when TSP, Wyoming corporation; a Davis sions. Surveying, Wyoming corporation; a Rocky Agen Title Mountain Insurance
Affirmed. cy, Wyoming corporation; Campbell a
County Company, Wyoming Abstract a Christensen; corporation; Lawrence J. County the Board of Commissioners of Underwood; Campbell County; Harry (Defen Tarver, Fitch; and B.L. W.B. dants). 93-11, Nos. 93-12. Supreme Wyoming. Court Nov. 1993. Cindy E. BREDTHAUER Charles Rehearing Denied Dec. 1993. Bredthauer, wife, husband and S. (Plaintiffs), Appellants
TSP, Wyoming corporation, a (Defendant),
Appellee West; Realty, Wyoming corpo a
Lila VIP
ration; Darryl Lynde; Douglas W. P. CCP; Cramer;
Marquiss; Gary Lance Cain; Polen; Hafling; Paul Helen
W. J.
Christian, Spring, Associ
ates, corporation; a Montana Davis
Surveying, Wyoming corporation; Guaranty Compa
First American Title Rocky Wyoming corporation;
ny, a Agency, a Title Insurance
Mountain Campbell
Wyoming corporation; Coun
CARDINE, Justice.
Cindy
sued
and Charles Bredthauer
Christian,
Associates
Spring, Seilbach and
(CSSA)
conducting
for
erroneous
and TSP
granted
The trial
surveys.
land
court
summary judgment
CSSA
TSP
3—107(a)(i)(1988),
two-year
on W.S. 1 —
professionals.
In
of limitations for
Christian, Spring,
Bredthauer v.
Seilbach
Assoc.,
(here
(Wyo.1992)
We affirm.
I. ISSUES Appellants phrase the is- sues as: ruling by Did the Court err in District appellee sur summary judgment veyors and CSSA can now success TSP limitations, fully a new statute of assert (W.S. 1-3-111(a)) a statute labeled as in Bred stipulating after CSSA, thauer v. P.2d 1992) l-3-107(a)(i) controlled W.S. § contrary ruling directly is this case which the case law of decided prior previous appeal and the trial court’s rulings? Appellee follows: frames issue as Patchen, Gillette, appel- for Michael N. A. the District Court erred Whether
lants. Appellee summary judgment granting repose TSP on the basis Berger W. Brown and Robert G. Robert l-3-lll(a) W.S.1977, when set forth in § Sheridan, Lonabaugh Riggs, ap- for Appel- performed by the surveying work pellee TSP. completed substantially lee TSP was Orr, (10) years B. Buchhammer of Buchham- prior Curtis more than ten Kehl, Cheyenne, appellee complaint. filing Chris- mer & Plaintiff’s tian, Assoc. Spring, Seilbach and CSSA, presents Appellee, two issues: raised is- Appellants improperly
I. MACY, C.J., THOMAS, raised be- sues on that were not Before CARDINE, TAYLOR, fore District Court. GOLDEN JJ. two-year properly ruled on the statute of limitations.
II. The District Court forth in that the statute of set this order the trial court commented on the pre- applicability repose by could asserted to W.S. § Appellee Appellants’ stating: claims clude Christian, Spring, and Associ- *3 plaintiffs 15. The have asked this court
ates. year the ten statute of limita- tions set forth in W.S. 1-3-111 to their
II. BACKGROUND
against Defendant Davis.
claims
How-
underlying
ever,
case are
The
facts of this
the court finds that W.S. 1-3-111
in
I and need not be
presented
application
Bredthauer
has no
to the facts of this
* * *
I,
repeated
Bredthauer
here. See
case.
However,
proce-
parts
at
560-61.
appealed to
court
The Bredthauers
this
history leading up
dural
to this second
7,
February
dismissing
order
1991
summary judgment
important
and thus
presented
only
and
as their
CSSA and TSP
need mention.
issue:
1990,
In the fall of
after the Bredthauers
by finding
The Trial Court erred
that
action,
original complaint in
filed their
this
against
survey-
the causes of action
TSP and CSSA filed motions to dis-
both
* * *
Plaintiff-Appel-
ors
accrued to the
prem-
miss.
motion to dismiss was
TSP’s
9, 1988,
lants on June
and as such barred
two-year
ised on the
statute of limitations.
1990,
2[0],
July
by
their claims filed on
dismiss, however,
CSSA’s motion to
was
* * *
l-3-107(a)(i).
operation of
W.S.
two-year
limi-
based on both the
statute of
I,
at
Bredthauer
561. As
result
1-3-111,
and
the statute of
tations
W.S.
appeal,
of this
we held in
I:
Bredthauer
7, 1991,
February
a hear-
repose. On
after
dismiss,
ing
the trial
on these motions
law,
a matter of
the Bredthauers’
[A]s
granting
court issued an order
TSP’s and
cause of action did not accrue before
dismissing
them
CSSA’s motions
both
28, 1988,
July
the date on which
stated,
part:
in
from the case. That order
surveyor’s report
received their land
ad-
agree
provisions
parties
The
that the
vising
surveys
them that the
conducted
applicable
1-3-107 state the
W.S. §
appellee surveyors
[CSSA
period
respect to all
of limitations with
were,
opinion,
in
its
error.
TSP]
against
claims
the Defendants CSSA and
* * *
TSP
after the
known
plaint
n
in this action within two
plaintiffs
of the existence of a cause of
plaintiffs
[*]
did not file their com-
#
knew or should
n
n
years
:jc
Bredthauer
June
law.
cause of action accrued not later than
The district court’s
9, 1988,
I,
445 23, 1992, Ruppert, court P.2d 918 (Wyo.1978); heard June On Gray v. Fitzhugh, and TSP’s arguments CSSA’s oral 1978); Allen, During summary judgment. Allen v. P.2d motions for (Wyo.1976); Realty Baylies, Hatten arguments, briefly Co. v. these 69, 89-93, Wyo. 290 P. the case doctrine and mentioned law of (1930). Hatten, argue the court held that specifically declined to merits of “a position where man is successful to the facts applying proceeding” taken in order, the first then that ease. In filed on Novem- of this position 6, 1992, rejected dignity of conclu ber district “rise[s] Hatten, Wyo. siveness.” at 290 P. es- at 568. arguments, granted toppel CSSA’s *4 summary judgment
TSP’s motions for
Allen,
judicial' estoppel
In
described
we
the
and certi-
on
statute of
as
the order
final under W.R.C.P.
fied
as
estops a party
play
a doctrine which
to
54(b).
The Bredthauers now
this
fast and
the
loose with
courts or to trifle
order.
judicial proceedings.
with
It is an ex
pression
the maxim that
of
one cannot
III. DISCUSSION
hot
blow
and cold in the same
A
breath.
times,
many
As we have stated
party
just
will
not be allowed to maintain
court’s
reviewing
grant
positions
judicial
proceedings
inconsistent
[w]hen
* *
summary
we
judgment,
of
examine
*.
in the same manner as
trial
case
Allen,
JRW,
In
similar in that both the time why or how these two doctrines bar CSSA period plaintiff may within which a com- raising and TSP from distinguishing mence his suit. The fea- Concerning defense. the merits of the two *5 ture the the time at between two is doctrines, only the Bredthauers make the respective periods which the commence. following conclusive statement: * * * * * * Generally, if plaintiff’s the cause Appellees collaterally are es- statutory peri- of action accrues and the topped prohibited by judicata and res occurs, injury od commences when the asserting from a new statute of limita- or, often the as is most when the tions. plaintiff is or should be that he aware before, As we have held numerous times injured, the properly has been statute is arguments supported by cogent argu- not termed a statute of limitations. If the authority ment or will not be considered statutory period upon commences the oc- Ely, this court. Weisbrod 767 P.2d event, regardless currence of an of when (Wyo.1989). occurs, injury the at a time when the C. OTHER ARGUMENTS plaintiff may may any not be aware injury, properly the statute is termed a brief, reply In their and brief * * * repose. statute of Consequently, Bredthauers raise legal several additional plaintiff’s may claim be barred be- support theories in position of their fore he is or should aware that he has precluded CSSA and TSP are raising injured been or has a claim.” repose. legal These theories Homes, doctrine, include the law Village Worden v. 821 P.2d of the case im properly raising (Wyo.1991)(quoting subject an issue which is Wy State ex rel. waiver, Halstead, stipulation, 8(c), to a oming Comp. Worker’s Div. v. W.R.C.P. stat construction, (Wyo.1990)). utory constitutionality 795 P.2d 765 n. 9 and Be repose. problem cause a statute of and a statute of with arguments applied limitations can be these is that none of them same facts were action, properly raised bar the same cause of before the district court. truly not inconsistent. strongly We adhere to the rule forbid parties’ ding The statement contained in the us to “consider for the first time on stipulation concerning CSSA’s and appeal in, TSP’s issues that were neither raised position, parties agree to, initial “the argued court,” that the nor except for provisions ap- of W.S. 1-3-107 state the jurisdictional those issues which are or are § * * *,” plicable period of limitations is a fundamental in nature. Jorgen Oatts v. son, legal because a statute of (Wyo.1991). conclusion limita- We question tions defense is Mason law. follow this rule because “it is unfair to Co., v. Laramie Rivers ruling reverse a of a trial court for reasons preclude application it, ta did not W.S. it be to whether presented not that were 1-3-111. formally never or issues legal theories argued to the nor pleadings in the
raised Id. court.” trial MACY, Justice, dissenting. Chief opposing CSSA’s motions In their I dissent. judgment, the summary motions TSP’s Wyo.Stat. application of The issue of the only judicata res raised l-3-lll(a) (1988) judicata res when sup- was legal theories to estoppel as judicial § Christian, remanded Bredthauer v. Additionally, the trial we position. their port Associates, Spring, orders, summary judg- granting court’s dismissing In an order and TSP based ment to CSSA Survey- claim Davis only judi- addressed ing, party appeal, not a to this Although which is estoppel. judicial cata (a) mention, court determined that at oral district did § Bredthauers’ counsel It apply to the facts of this case. summary judgment mo- did argument for 3—107(a)(i) Wyo.Stat. case, it held that tions, also notion of the law § 1— (1988) to the Bred- in the did and was fatal anywhere else discussed was not record, It is clear that Therefore, it thauers’ case. on the record. (cid:127) relying upon only 1-3- proper- CSSA were only legal theories § is clear that 107(a)(i)as a bar to the Bredthauers’ action by the trial to and considered ly raised appealed, estop- against them. The Bredthauers were res including TSP and parties, the other pel. CSSA, ruling on 1-3- did not legal additional theories Of the 111(a), adverse to them and which was *6 Bredthauers, only appeal by the raised on appealable because the district which was one, constitutionality of the statute of the 54(b) required court made the W.R.C.P. exceptions permit the which repose, fits (no delay and just reason for certification constitutionality of a statute review. judgment en- express direction that be and, therefore, nature, in is fundamental tered). only purpose for the interlocu- despite that issue it may address 54(b) we pursuant to the W.R.C.P. tory review raised below. White being properly to determine whether certification was 102, Fisher, 105 689 P.2d (ei- by time was barred Bredthauers’ suit byor by the statute of limitations ther recently question addressed the We have this case was repose). When (the 1-3-111 of whether W.S. court, at least one to the remanded district Worden, 821 repose) is constitutional. l-3-107(a)(i) Neither thing was certain: § specifically In that we P.2d at 1291. 1-3-111(a) nor barred § in the face 1-3-111 constitutional held W.S. action. 1, Wyoming Constitution. of art. 8 of § Id., raise at 1295. Since the Bredthauers whether we great significance no It is of repose, objection to the statute of this same upon the doctrine premise our decision further than reaffirm our go need no we law of the ease. judicata upon or res reject to their claim of decision in Worden view, However, the doctrine of my in unconstitutionality. in this theory appropriate is the
instance. IV. CONCLUSION ruling had done If the district court’s law, might I sort of violence grant court’s of sum- some We affirm the trial along with the go inclined to and TSP been mary judgment to both CSSA however, case; the district majority fact in this are no issues of material because there and, decision correct, in its initial court was correct trial court was as and because the that deter- reversal of law, an concluding in absent matter of mination, must stand. judica- its decision judicial estoppel and res doctrines of 448
THOMAS, Justice,
dissenting.
Wyo.
(1940).
56
an here, agreed
complaint or in the facts to owners or-
indicate that the then who survey contemplated construc-
dered the survey building.
tion of The shows on a boundary survey only. its face that it is a WETHERELT, Kerry Appellant * * * * * * (Defendant), survey not We that a which is hold building pro- part improvement of an Wyoming, “improvement STATE an ject does not constitute (Plaintiff). Appellee real as that term is used property” C.R.S.1973, 13-80-127, and that actions No. 93-35. negligence per- accruing because Supreme surveys Wyoming. are not forming such within Court purview of that statute. Dec. 1993. upon by appellees The statute relied justify dismissal does trial court to any surveying not other than sur- connote
veying accomplished connection with property. A
some construction
survey purposes of a subdivision is not in,
contemplated it by, and is mentioned if one were to conclude
the statute. Even survey for a subdivision somehow
plat improvement constitutes
property the context of the within impossible
it is determine how the stat- triggered has substantial com-
ute been has
pletion in this instance. owner utilizing effectively prevented
been purpose for which it was survey for the majority opinion, by judicial
intended. The
fiat, scope of expanded has prerogative
and that should left to
legislature. right first
I this court was submit holding
time in the Bredthauers were enti-
tled to their claims determined on upon the
their merits. Reliance nothing
repose in this factual situation is case, Colo.Rev.Stat. any improvement to real construction of 1. The in this 13- years (1973) brought provided: property within two shall be arises, and not there- after the after, for relief architect, contractor, claim any All actions such action be but in no case shall brought engineer, inspector to recover or brought years after sub- than ten more damages injury person property improvement completion design, planning, supervision, stantial caused construction, property. inspection, or observation of