Dubray v. Howshar

T. Linda DUBRAY and Gordon

Dubray, wife, husband and (Plaintiffs),

Appellants Mary G. HOWSHAR

Virginia Howshar, Appellees

(Defendants).

No. 93-244.

Supreme Wyoming. Court of

Oct. 1994. GOLDEN, C.J., THOMAS, Before * MACY, BROWN, JJ., and and

CARDINE J., Retired. Justice,

CARDINE, Retired. personal an This involves action for ease injury arising gunshot damages out of a pa- wound suffered Gordon while Torrington, tronizing and restaurant a bar plaintiffs, couple, Wyoming. The a married summary appeal grant the trial court’s judgment the sellers for deed contract of the and restaurant. bar We affirm.

I. ISSUES below, Appellants, plaintiffs raise one is- sue: granting trial court err in sum-

Did the mary appellees appel- judgment when to judgment lees not entitled as a are genuine law and when issues of matter of material fact exist?

II. FACTS 3, 1989, January On Edward Howshar G. (Howshars), Mary Virginia Howshar wife, purchased husband and what is now Hill known as the Restaurant Hill) Lounge (Sugar Torrington, located in 1989, Wyoming. In November Steve, orally Louis, Sugar Hill to leased Carabajal Alice for a term of months with six option an to renew the lease. On December 6, 1989, Howshar a retail Edward obtained his name for 6, 1990, Carabajal Also on December Alice (Carabajal) option exercised her to renew the lease from the Howshars. The second lease granted Carabajal option purchase an Sugar Hill. 8, 1990,

On Howshar November Edward successfully for renewed Sugar Hill. That license from De- was valid 6, 1990, 5, 1991, until cember December Sep- Edward issued to Howshar. On Maier, Torrington, for appellants. John J. again ap- tember Howshar Jones, Wheatland, plied Frank for appellees. J. renewal license. * July Retired 1994. 24, 1991, Carabajal right leg by

On October exercised an intoxicated Jose Luis Para- (hereinafter purchase Sugar mo-Quiroz option gunman) her and en- while at agreement 12, 1993, with the Sugar January tered into installment Hill. On Gordon wife, agreement Dubray The terms of that Dubray, Howshars. and his Linda filed this $10,- provided: pay would action Hill’s owner before the down, Howshars, Howshars, monthly make installments until Carabajal, 000.00 satisfied, principal pay and interest were gunman gun. and the owner of the agree- taxes after the date of the In complaint, Dubrays their amended ment, premises, maintain insure the and alleged negligent that the Howshars in were (2) condition; premises good in and that the supervising Sugar entrusting Hill and for title, provide merchantable exe- operation Sugar control and Hill and its deed, warranty Carabajal give cute a and license to that the Hows- possession premises. agreement The imposed by liquor hars violated duties licens- following also contained the escrow clause: statutes, ing and that the Howshars were copy 9. ESCROW A PROVISION: liable under nuisance statutes. Agreement, Warranty this Deed execut- 28,1993, Seller, May by Quitclaim On the Howshars ed executed moved Deed Purchaser, summary judgment supporting and filed affi- the abstract of title or title davits and policy, re-assignment Dubrays exhibits. After the filed insurance of li- opposing summary quor casualty judgment memorandum license and the insurance documents, court, supporting and policy provided the trial on as for herein shall be 15, 1993, September granted placed in the Howshars’ Tri-County escrow at Federal Association, summary judgment motion for Savings Wheatland, and a and Loan 54(b) permitting certification Wyoming, W.R.C.P. agent without to said appeal. remaining The case except All de- payments to account. pending fendants is still in the trial paid court. due hereunder shall be to the escrow agent Upon per- for credit to Seller. full Agreement formance of the terms of this III. DISCUSSION Purchaser, agent the escrow shall deliv- summary judgment We sustain if: er all documents to In the Purchaser. (1) genuine there are no issues of material any event of default Purchaser and fact, undisputed and based on those mate therefor, upon written demand all docu- prevailing party rial facts the entitled ments shall be delivered to Seller. judgment as a matter of law. W.R.C.P. 56. addition, agreement under the the Hows- negligence hinges proof in Success actions on right inspect Sugar hars retained the Hill duty, of four elements —defendant’s defen Carabajal properly to insure that maintained duty, dant’s breach of that that the breach premises, they power retained a veto proximately alleged injury, caused the assignment Sugar transfer or alleged injury. failure establish agreement. Hill or the any one of the four elements is fatal to a 24, 1991, Also October the Howshars Nord, negligence. claim of Claassen assignment Sugar executed an Hill’s 189, P.2d The Howshars Carabajal. assignment license to are, therefore, summary judgment entitled subject Carabajal’s ability made to obtain if the material facts are and those approval required for the transfer and Cara- undisputed facts that at demonstrate least

bajal promptly apply approval. for that negligence one of the elements of is absent. 6, 1991, On November after the installment executed, agreement Sugar sales had been element, The existence of the first Hill’s license was renewed and issued duty, is a “matter of law for the court to again in Edward Howshar’s name. Seamands, decide.” Goodrich v. 870 P.2d Builders, during evening January (Wyo.1994) Sometime (citing ABC 18, 1992, early morning (Wyo. and the Phillips, hours of the Inc. v. 632 P.2d 1981)). day, Dubray next Gordon in was shot risk, includ- Law Claim ble owner assumes all the

Common ing liability of ownership, while the seller that the Howshars contend purchaser in legal holds title trust for the Sugar duty, legal holders of title security for performance license, to Hill as holders of contract. injuries to care to avoid reasonable exercise Restaurant, Mayflower Griego, Co. they Hill. The are others while (Wyo.1987) (emphasis add- however, they Howshars, assert because ed). Therefore, longer be- addition to no was shot before sold Hill, ing possession the Howshars Dubrays. duty to owed no longer hold title no because 353 of This court has equitable owner. Restatement, Second, to define the Torts Dubrays the Howshars The contend that by of real of care owed vendors standard Hill Sugar control over and should retained Builders, Inc., 632 P.2d ABC property. See Mr. treated as owners or lessors because be Goodrich, 932; P.2d at 1064. When at 870 liquor li Howshar’s name remains on the (vendee) posses purchaser of land takes the contract cense and because the installment (vendor) land, a has of the the seller sion insurance, Carabajal carry allows requires to artificial con duty natural or to disclose inspection,” limits trans for “reasonable to creates an unreasonable risk that dition ferability Sugar v. Hill. In Anderson (1) land vendee does on the if: the persons Chicago, 54 Cosmopolitan Nat’l Bank of of the or have to know not know reason (1973), the Ill.2d 301 N.E.2d 296 Su (2) risk, the vendor knows or or the condition preme Court of Illinois wrote: (3) condition, know the to of the has reason argument is that those who sell real [T]he the risk realizes should realize vendor upon be estate installment contracts should (4) involved, and the has reason to vendor subjected to a more strict different and not discover the that vendee will believe liability imposed upon than is other ven- Goodrich, 870 or realize risk. condition * * * rights significant because dors of the Second, Restatement, (citing 1064 P.2d at that contract. These he retains under his 353). § Torts usually rights right to enter include that The contend repairs charge and make and to the cost * * * not but should be Howshars are “vendors” buyer[,] right if the to insure Sugar Hill as owners lessors of classified and, buyer to do of a fails so the event subject to a reasonable care part buyer, default on the of the has re under circumstances because simple remedy by may regain which he Sugar Hill un tained sufficient control over by possession. persuaded We this are not the installment virtue der contract argu- argument. Substantially similar agree that liquor Legal license. treatises respect ments can be advanced with parts property “vendor” of real is one “who mortgagees, who or sub- have the same title, possession of that with and control” stantially rights. similar That the device Keeton, property. Page Prosser and W. installment as a means of contract (5th 1984), Torts ed. Keeton On at 446 financing purchase of real estate is Restatement, Second, § 351 comment Torts abuse, subject and indeed has been Thus, a. we must whether determine abused, not that it is not does mean title, parted possession Howshars have with useful credit or that this court device Sugar and control of upon impose should a contract seller liability of an of real estate. owner undisputed It is the Howshars no that longer possess Sugar they exe- Hill and that Anderson, 298-99; also 301 N.E.2d at see warranty Carabajal, cuted a which is deed to Wong, A.2d Pa.Super. Welz held escrow. has held: This court (holding of a 370-71 that valid contract is the same

When is sold under a seller under installment created, pur- quoting and an a conventional contract vendor escrow Anderson). equita- Dubrays’ As to claim that the chaser under the contract retained control over Hill evidence demon Howshar, installment strates that because of the terms of the con- the time Dubray’s injury, not tract, reasoning selling liquor we find the the Illinois with and, therefore, out a very violating was not Supreme persuasive. Court to be any duty rights may imposed which have been un retained the Howshars un- limited (1986). der W.S. 12-8-102 der this contract with affords them evidence reflect, however, day does day management no control Edward Howshar may Sugar Hill and not be a have been in violation of should basis for the statutes liability. governing imposing transfer be licenses may ap cause he have prior not obtained addition, simple In fact that Mr. Hows- proval licensing authority from the before appears name har’s on the license does assigning Carabajal, the license to as re him give not sufficient control over quired under 12-4-601. W.S. support higher liability. standard of assigned the Howshars li- Since Cubin, Distad they obviously cense did not (Wyo.1981), court §§ use, they used, nor intend through Second, Restatement, 288C of the as a means to control Hill. It Torts, guidelines negli for addressing clear that contract also sales gence premised claims duties created property was a sale of bona fide statutes, Id., regulations or ordinances. at that the have not been and Howshars and 175; Ranch, Spring see also Short Creek day-to-day manage- are not involved in the Inc., 1195, (Wyo.1987) 731 P.2d 1198-99 and supervision ment and of Industries, 198, Dubus v. Dresser 649 P.2d (Wyo.1982). 202 provides: 286 Section Having determined that the may adopt The court of the standard parted possession, have title conduct of a man require- reasonable the Hill, and control over we hold that legislative ments of a enactment or duty no appel are vendors who owed to regulation purpose administrative whose upon based pronouncements lants our in exclusively part found to or in be Builders, satisfied, ABC Inc. We are based (a) protect persons to of a class which facts, anyone on if the that had invaded, includes the one whose interest is alleged to know or reason knew of the dan and gerous operation of li condition —careless a (b) protect particular to the interest quor establishment —it was the invaded, which is and being dangerous vendee. And there no con (c) protect against to the that interest premises, dition the Howshars had no resulted, kind of harm which has and duty by § required to disclose as 353 of the (d) Restatement. protect to that interest particular from hazard which the harm Statutory Claim results. words, statute, regulation In other a or ordi- In addition to their claims of common law may nance as the of be standard duties, Dubrays that assert only injured party belongs care if “the Howshar, as liquor the named licensee on the persons class of that statute was intend- used at Hill when Mr. protect, injury type ed to and the is of the shot, provisions Wyo- violated several of prevent.” the statute was intended to (Title 12) ming’s Beverages Alcoholic Act and 204, Sagebrush City, Ltd. v. Carson 99 Nev. proximately that those violations caused Mr. (1983). 660 P.2d 1015 Dubray’s injuries. alleged 12 Title viola- (1) 4—102(b), “directions,” are: under W.S. W.S. Based on these we

tions 12— 12^-201(a), W.S. and 12-4- 12-4-601 W.S. must determine the four whether criteria * * * (1986),illegal license; “because, § not, of a transfer 286 are met if then (1986), and under selling imposes W.S. 12-8-102 no statute of care for the proper without a license. breach of which he will be heard to success- Co., Dubus, ing.” Kurpjuweit P.2d Dev. complain.” Northwestern fully Inc., Short, if Since 731 P.2d at 1198-99. “[E]ven see purpose 12-4-601 and -604 is not to [four] finds that criteria of of W.S. the court met, protect against by not the kind harm suffered required court] is [the are injuiy ,we Dubrays physical decline to 12-4-601] as standard adopt [W.S. — — adopt stan- permissive language those statutes the Howshars’ because of the conduct Short, 731 P.2d at dard of care. 2d.” of the Restatement 167). Distad, (citing 633 P.2d Claim Nuisance illegal it trans- 12-4-604 W.S. Under complaint, the also In their except in as directed W.S. fer Wyoming’s claims based nui asserted 12-4-601, part: in provides which 6-6-209, statutes, sance W.S. 6-6-201 (b) licensee, the executor admin- A or own, illegal it control or lease which make of a deceased licen- estate istrator * * * disposition of “for sale or see, assign may transfer license or * * * intoxicating liquor in violation of law.” good by a sale made faith. permit They allege that the Howshars’ violation of assignment transfer shall first licensing statutes amounts licensing authority, approval proximately and that it caused Du- nuisance part shall be based which consideration bray’s injuries. hearing application and an upon public assignee existed, by or trans- If not under oath nuisance it was created filed showing entity to be person Howshars. feree permit license or under qualified hold a damage caused [T]he test trans- Wyoming approval law. turns on the defen nuisance whether licensing given not fer shall be in control the instrumen dants were proceedings pending are authority if nuisance, alleged tality to constitute the penalize the suspend, revoke or otherwise through ownership or otherwise either * * * holder. A trans- original permit license or one is liable for no to be held a [and] require permit of a license or shall not fer physical nuisance which he cannot himself payment any of additional license fee the ly legal against anoth abate without action assignment upon the for the transfer purpose, er that unless the nuisance is for assignee may privilege the of con- exercise wrongful the result of his own conduct. li- tinuing the authorized the business (1989). §§ Nuisances 117-118 Am.Jur.2d permit. cense or Although Edward Howshar’s name remained license, that liquor this stat- on The district court concluded the the facts and, therefore, purely it that the Howshars ute is administrative demonstrate neither Howshars, controlled, owned, duty not create a from the nor does maintained leased licensees, Dubrays. Sugar In to the McClellan Hill at the time that Gordon addition, Tottenhoff, injured. this held that several stat- was court since Hows- contract, Sugar of utes in Title which forbid the sale hars sold Hill under a had minors, duty they a that con- impose vendors were bound terms of McClellan, legal general public. 666 tract have to resort toward and would had significant proceedings any Unlike the stat- to assert control McClellan, Therefore, in 1241-601 and -604 that utes W.S. we hold no general protect public are not intended action in lies nuisance Howshars requirement alleged that physical injury. they from The had no control over the because according only licenses transferred nuisance. be to assure that the to W.S. 12-4-601 serves IV. CONCLUSION li- regulatory can administer the authorities orderly sum- censing process properly The district court entered in an fashion mary in operator judgment favor of the Howshars [a] that “the of retail estab- * * * scrutiny undisputed material facts show exposed to the of because the lishment be statutory licensing process including public they that owed no common law or hear- (iii) Any and, person duty they little to the since had who does own not Hill, building in or no control over were not liable which the sales room is lo nuisance, was, any if period for cated hold a written lease for there created for will Sugar Hill. which the license be con effective taining agreement by an the lessor that We affirm. beverages alcoholic or may malt be sold upon pro premises, except leased THOMAS, J., dissenting opinion. files a (iv) by paragraph vided of this subsection * * added.) (Emphasis *. THOMAS, Justice, dissenting. § 12-8-101 violation makes Wyo.Stat. product majority opinion of is any provision of the title a misdemeanor. accountability respect compliance instance, In this either the were in Howshars relating with the laws to the sale of intoxicat- they violation the law held a li- because ing li- beverages and the transfer of owning building cense without in which censes is I do not think that result excused. located; they room aiding' the sales was were appropriate, is and I dissent. abetting violation Cara- and. law license; bajal selling liquor for without a major premise majority opinion Carabajal was agent the Howshars’ duty persons by is that no third owed to operation Restaurant and property vendor of real under a for contract Lounge. any I would rather assume that and, deed since the Howshars were vendors activity not unlawful intended or under- deed, of real contract under a for taken, was the Howshars’ Dubrays. no owed to the agent. complaint Since encompasses majority opinion eschews reference allegation adequate agency, Whitlock, (Wyo. Scranton v. 389 P.2d 1015 the Howshars be to trial should submitted 1964). that, Yet the thrust of Scranton is any liability Carabajal. like because of violation of 12-4— Wyo.Stat. 601(b) (1986), very upon contract which My understanding prior of our decisions rely protection from liabili policy is that area we void, ty “illegal, and unenforceable.” accountability by that demands the vendor of Scranton, might 389 P.2d at 1018. As it Inc., HA, beverages. alcoholic White v. ease, apply to the facts of this in which the (Wyo.1989); Mayflower P.2d 1125 Restau license was held someone other Griego, (Wyo.1987); v. rant Co. 741 P.2d 1106 building than the owner of the in which it Tottenhoff, (Wyo. McClellan P.2d 408 used, Kurp was Scranton was reaffirmed in 1983); Robbins, Wyo. Fisher v. juweit Co., Inc., v. Northwestern Dev. (Wyo.1957). Tottenhoff, P.2d P.2d 39 we “a to described exercise the per degree required of care of a reasonable however, My concern, primary is with light son in of all In the the circumstances.” application statutory provisions of the relat- Fisher, seminal case of 319 P.2d at we ing to local licenses for the sale of alcoholic said: beverages and malt and the such transfers of anything do not intend that which We regard, licenses. In this it is clear the coun- plac- we have said should be considered as ty liquor license for the Restau- many ing disagreement us in with well- Lounge rant and was G. issued reputable from au- considered statements Howshar. It never transferred Alice high degree thorities as to of care Carabajal in connection with the sale of the main- which must be exercised those (1986) pro- business. 12-4-103 Wyo.Stat. taining places public patronage, and for pertinent part: vides in especially for of that class establishments (a) permit A or authorized experience where has shown disturbances by, title shall not be held issued or trans- of more less violent character are more ferred to: is, course, particu- likely to occur. This respect larly true with barrooms ***.*** intoxicating li- places where other similar consumed, it is common

quors are fre- use of intoxicants

knowledge that the unduly tempers, emo- excites

quently indulge in those actions of who

tions and

them. applied court this rule

Apparently, the trial Carabajal. If the issue respect it to be tried as

liability is liability the vicarious

follows tried. must also be accountability of a vendor

Applying liquor of the constitutes holder policy, particu- extension of our

appropriate

larly as this in which the in an instance such

only utilization of license would lawful agent holder of the

constitute the vendor agree I case is cannot the license. relating

appropriately resolved under rules I ownership property, real majority.

dissent from decision it to

I reverse the case remand would question of court for trial on the district

the vicarious holder

liquor license. COMPANY, Wy-

MOUNTAIN CEMENT Partnership, Ap-

oming Joint Venture (Defendant),

pellant and Deanna J.

Millard C. JOHNSON (Plaintiffs). Johnson, Appellees

No. 93-227. Wyoming.

Supreme Court 28, 1994.

Oct.

Rehearing Nov. Denied 1994.

Case Details

Case Name: Dubray v. Howshar

Court Name: Wyoming Supreme Court

Date Published: Oct 28, 1994

Citation: 884 P.2d 23

Docket Number: 93-244

Court Abbreviation: Wyo.