Eddy v. First Wyoming Bank, N.A.-Lander

228 39-6-604(a) provisions is that found complaint is not defective under § that Replacement). The (May W.S.1977 1985 these standards. statute, however, is that significance of the urges that Lastly, appellant provision; it cannot it adds a contractual to re prove its entitlement State failed statutory completely independent create a appellant claims that particular, lief. statutory obligation cannot obligation. The evidence, failed to introduce the State in a vacuum. function notice, deficiency other than simply is to is true If the thrust of the statute by the contractor. It owed statutory obligation, independent some must have submitted create an the State every efficacy of its claim. an area of exclusive element then its within

evidence Manning, Wyo., legislative jurisdiction P.2d is not autho- v. 685 federal Osborn Act, (1984). courts 105 et also conceded that the Buck U.S.C. It is rized §§ Hendrickson v. obligation supply seq. this attaches cannot evidence. Unless Hendrickson, Wyo., 583 P.2d condition Act bond as an additional Miller however, bonds, intro (1978). contract, were validity no it would have of that 1,No. Exhibit of Plaintiff’s duced the confines of Yellowstone Nation- within construction amount of the and indicate the con- The Buck Act cannot be al Park. liability of limits the contract. The statute pursuant legislation authorize strued to per of this amount. surety to three cent collectible which sales or use taxes are evidence bonds to be sufficient We find the stranger to the transaction. from a reasonably could the trial court from which on the I would reverse the district court the amount of conclude subject matter ground that it was without the tax owed. provision of the jurisdiction because of the reasons, foregoing For brought requiring suit to be Miller Act is affirmed. trial court States District Court. United C.J., dissenting opinion. THOMAS, files a Justice,

THOMAS, dissenting. Chief is an that this persuaded I am

Because must Act bond which upon a Miller

action District brought in the United States be (Defendant), EDDY, Appellant Bruce N. Court, dissent from the I constrained to am this case. my position of brothers v. imposes an our statute true that be BANK, N.A.-LAN- FIRST WYOMING statutory obligation, but independent Lander, DER, Wyoming, a United lever in this obligation is statutory Banking Corporation, Appellee States Act surely the Miller bond operation, and (Plaintiff). recovery Obviously could no the fulcrum. Wyoming (Defendant), CATES, the State Appellant be E.C. bond, and it is to Miller Act absence that contract conditions of BANK, N.A.-LAN- WYOMING FIRST obligation attaches. statutory independent Lander, DER, Wyoming, a United provisions invoke the In order to Banking Corporation, States must, and Wyoming statute the State (Plaintiff). the bond which did, furnishing of allege the 85-21, an exhibit complaint Nos. 85-22. to its it attached by refer- allegations incorporated in its Wyoming. Supreme Court of obviously fur- quite ence. The bond Jan. 1986. Act. the Miller nished the action perceive situation As I in the form of

brought upon a contract of the contractual

Miller Act bond. One Laird, Casper, appellant

Dallas for J. Eddy. Davidson, Whitehead, Urbigkit,

Sue Davidson, P.C., Cheyenne, Zunker and for appellant Cates. Gist, Lander, appellee.

Richard D. ROSE,* THOMAS, C.J., Before CARDINE, ROONEY,** JJ. BROWN ROSE, Justice. case, Eddy Cates and pro nunc tunc which

attack a severally jointly decrees that are $207,110.55as of appellee liable to bank for May 1983. The after a motion tunc was entered “amend, seeking and cor- prior judgment, rect” nunc tunc a year well over one motion was made ** Retired November 1985. 1985. Retired November 28, 1982, ary any payments had been ren- and thus after the by the court. contend dered that date bank received after should have was im- reduced the balance owed. agree that set proper, we it must be hand, bank, on the other claims that aside. judgment proclaimed that the appel- lants owed FACTS supports the date The. bank of complaint filed a on Janu- Appellee bank position relying upon language the by 28,1982, seeking appel- to recover from ary 23, judgment, May in the which was dated or lants, co-makers of a guarantors as 1983, ordering bank have judg- The bank promissory of notes. number against Eddy in ment and the of Cates sum agreed to settle this and both $207,110.55. stipulation and confession of suit judgment, and stipulation the ment. The wished to enforce the Because the bank bank, provided the by the prepared upon appellants’ judgment and foreclose severally jointly appellants would be and selling property, yet and avoid more of $193,929.86 $13,180.69 plus in at- liable property necessary to satisfy than was fees, $207,110.55. of torney’s a total “amend, owed, debt to clarify it moved and stipu- appellants signed the The and tunc.” judgment correct The trial judgment May of confession on lation and eq- court it had inherent found that and 1983, whereupon 17, was power uitable to consider bank’s mo- 23, May signed the district court on tion, and was no clerical in that there error 1983, upon the of that entered records and court then 1984, In July, 1984. court in March of granted and subsequent- the bank’s motion concerning conflict arose ly entered a tunc. sought what appellant Cates to settle when provided part in $64,000 of thought he a balance some was * “ * * pursuant to the judgment, while the bank owing on herein, Judgment and filed Confession of approxi- due that the balance claimed Judgment against should be entered $184,000. springs The difference mately them, jointly each of appel- Defendants and and payments made whether $207,110.55 period of severally, in the from Janu- for the sum to lants to the bank 23, 1983, 28, 1982, already May gether at ary to interest thereon the rate with stipulation January, been credited of after 28 from and 1982 10% * * * ." payments those instead ment or whether judgment from the reduced the provided stipulation $207,110.55. * * “ * Plaintiff shall have is attributable to the The conflict * * * against jointly and the Defendants interpretations * * * 1982, severally, January, as 28of upon which stipulation $207,110.55 together following rely on Appellants based. with at the rate interest thereon of 10% stipulation: language in the per January, and after 28 annum from shall Plaintiff have “That * * added.) (Emphasis 1982 * * * jointly and against the Defendants * * * In its judgment nunc severally, January, 28 1982 found: $207,110.55 together in the amount of thereon at the rate of jurisdiction interest 10% with “That has inherent the Court January, and after 28 per annum from equitable power to consider and rule * * added.) (Emphasis *.” Amend, Motion to Clari- Plaintiff’s Judgment fy and Nunc Pro Tunc Correct language supports their claim This or to statute rule of Janu- without reference they owed the bank order, evidence, upon proper grant to act.1 contend that the motion relief from a clerical error. sought change the bank material

[*] ^{[*] [*] [*]} # ^[*] parts of the judgment, 17 months after the signed, had been Judgment May “The as rendered on and that trial court did not any have does contain not clerical error. change power as it did. language, meaning “That and ef- fect of the as rendered herein Preliminarily, we must deal appel- with * * * 23, 1983, Defendants, May on lants’ contention that the bank’s motion to owed, severally, jointly and to Plaintiff should have been dis- * * * principal on sum missed for the reason that the bank failed $207,110.55together interest on with 5(d), W.R.C.P., comply with Rule since per principal said sum at the rate of 10% motion judge was forwarded to the trial annum calculated from and after Janu- * and the did not send it to the clerk added.) (Emphasis ary 5(e), W.R.C.P., filing. Rule which is completely nunc tunc rule, provides identical to the federal to refer to the and confes- failed part: judgment, indisputably sion of which was filing pleadings “The papers and other original judgment the basis for the and was required by with the court as times these rules referred to six tune also consisted by filing shall be made them with the double-spaced pages six while the court, except judge clerk of the that the single-spaced was six may permit papers to be filed with * * * pages, indicates the considerable him, in which he event shall forth- changes made. with transmit them to the office of the entry clerk.” telephone a conference call was made after undisputed Here it is the bank’s evidentiary hearing dealing and without an judge motion forwarded to the trial with the intent when entered hearing on well before the motion and The bank claims that into were informed of and merely original judg clarified its prepared Wright to contest the motion. 4 uncertainty vagueness ment to avoid and Miller, Procedure, & Federal Practice and enforcement, interpretation (1969), 5(e), Civil discusses Rule power that the court has inherent as well § 60(a), W.R.C.P., F.R.C.P., power Rule to so under and states: 60, W.R.C.P., provides part: diligence due have 1. Rule could not been discov- ered in time to move for a new trial under "(a) Clerical mistakes.—Clerical mistakes in (whether 59(b); (3) Rule fraud heretofore de- parts judgments, orders or other of the record extrinsic), misrepre- nominated intrinsic or sentation, arising oversight and errors therein from or or other misconduct of adverse may any omission be corrected the court at void; (4) (5) party; is of its own initiative or on the motion of time satisfied, released, or ment has been charged, dis- notice, any, any party and after such if as the prior judgment upon or which it is During pendency ap- court orders. of an vacated, based has been reversed or otherwise peal, may such mistakes be so corrected be- longer equitable itor is no appeal Supreme is docketed in the fore (6) prospective application; should have or Court, appeal while the and thereafter justifying other reason relief from the may pending be so corrected with leave operation The motion shall Supreme Court. (1) year Mistakes; inadvertence; one after the "(b) be made within ne- excusable ment, order, proceeding evidence; or or was entered glect; newly fraud, etc. discovered * * *” motion, just, taken. —On such terms as are amend, clarify party legal The motion to and correct was the court representative relieve a or his order, year judgment, made well over one after the a final rendered, (1) proceeding following been and there is no claim for the reasons: or mistake, inadvertence, 60(b), surprise, court could have acted under Rule W.R. or excusable (2) neglect; newly discovered evidence which C.P. “A. or the Trial

“Accordingly, the decided seem to Whether not Court had cases Judgment authority to enter the Nunc ‘filing’ taken indicate that whether has Pro Tunc filed December 1984?” may depend on the context in which place good question arises and the faith of agreed Eddy’s Appellee bank with state- party obliged to file. who of the issue but restated the issue in ment ^{[*] [*] [*] [*] [*]} its case against Cates as: filing in this “It should be noted that “A. Did the District Court err in sus- also amend, taining complete context is when the has the Motion of Judgment to for- custody papers; his failure and correct Nunc Pro prejudice entering Judgment forthwith will not Tunc Nunc Pro ward them comply party attempting with the Tunc: filing requirement.” “1. Pursuant to the Court’s inherent equitable powers supplemented case, appellants do 60(a), Wyoming Rule Rules of Civil bank’s actions harmed not claim that the Procedure, which clarified and affirmed them. and their counsel were meaning and intent of the Court’s motion and notice of served with bank’s original Judgment to avoid a claimed un- context, hearing on same. In this certainty, vagueness ambiguity or in cal- “filing” required had tak we hold that the culating place. en indebtedness? “2. That affirmed that the amount of ISSUES the indebtedness stated in the Court’s the issues to be: Appellant Cates claims Judgment was calculated and de- err in sus- “A. Did the District Court 23, 1983, May termined owed as of Amend, taining of to the Motion original Judgment?” date of the Judgment Nunc Pro Clarify and Correct entering Judgment a Nunc Pro Tunc

Tunc: CLERICAL ERROR appellee, By granting relief to here- “1. The bank contends that the court had ‘Bank’, designated in from clerical error power power both inherent under Rule premised on jurisdictionally whether 60(a), W.R.C.P., 60(a) as it to act did. Rule 60, Wyoming Rule Rules of Civil Proce- in in provides that “clerical mistakes * * * by invoking power a contended dure or may judgments be corrected jurisdiction to inherent of the Court as Therefore, court at time.” it is neces- equitable power grant to relief from sary to determine whether the court below error, more one clerical at a date than corrected a clerical mistake so that its ac- original Judg- year after execution of the 60(a). can to be within tion be said Rule ment; The “error” in the entering Judgment Nunc By “2. ambigu- is this case is although specifically the Court Pro Tunc May ous. Dated amendatory judgment in the held decreed that the bank have and recover a judgment did not contain $207,110.55; yet in the sum of error; clerical also decreed that the matter By determining that the debt bal- “3. upon stipulation had come before the court payment credits accrued for ance and and confession of and that and not 2983 [sic] ment should be entered Stipulation; provided 1982 as stipulation clearly stated * * * refusing grant parties an By “4. to “shall have * * * before opportunity to evidence January, of 28 as entry.” Therefore, $207,110.55.” it is uncertain of as: what the intended. Appellant Eddy states the issue Spomer Spomer, Wyo., In Holmes, 580 P.2d termination. Holmes v. supra. (1978), 60(a) this court held that Rule Kane, In Wyo., Kane v. 616 P.2d 780 correct, designed clarify to as well as (1980), this court held that a clerical error and that it can be used when it is uncertain occurred when counsel for successful However, what an earlier order intended. party prepared a which failed to 60(a) though even Rule can be used to complete description include a of prop- order, clarify an earlier it still is not intend- erty which was to be awarded his client. clerical, judicial, opposed ed to correct bar, In the case at counsel for the bank Therefore, error. order to this prepared which fails to unam- 60(a), judgment under Rule the error which biguously state the date from which the made the unclear must have been bank would have clerical. original judgment signed by. the Spomer primary court set its fo- judge of the trial court was not the result scope 60(a) cus on the of Rule and stated: judicial of a determination made after a “We think it clear that this rule was not trial. agreement was the of result designed as appeal, a substitute for nor parties and, the two by appellant as stated portions substantive affect Cates: * * * ment or decree. It is not [Citation.] “The Court had no opportunity to judicial, opposed intended to correct apply judicial reasoning judi or make a * * clerical, added.) (Emphasis error.” cial determination *. The Court was * * * P.2d at 1148-1149. asked to approve sign and did We went on to note in distinguishing Judg Confession of * * error, n .” judicial between clerical and “[t]he ment and key factor whether or not the court repeat We that: pur- reached a decision in the intentional or “ errors, mistakes, or omissions ‘[A]ll poseful judicial exercise of its function.” which are not the result of the exercise Id. at 1149. judicial function’ be called We dealt with the distinction between judicial clerical errors while a error is judicial again and clerical error In re one which is ‘the deliberate result of Kimball, Wyo., 588 P.2d 1274 Estate judicial reasoning determination,’ * * (1978). question The threshold in Kimball Kimball, supra, In re Estate of was whether the trial court was correct 583 P.2d at 1277-1278. holding its that there “was a clerical error The himself stated that he subject which could the be of correction only signed original judgment the based on since, pro virtue of order nunc if it stipulation judgment the and confession of error, judicial beyond was a it would be the presented parties. which was himto the jurisdiction of the court to correct.” Id. at The mistake was made counsel in draft- 1277. We stated: ing judgment the so that were “ errors, mistakes, or omissions ‘[A]ll judgment liable on the from both are not the which result of the exercise 23, and from 1983. Such a judicial function’ be called mistake was not the deliberate result of judicial clerical errors while a error is judicial reasoning and determination. one which ‘the deliberate result of was, instead, a clerical error. determination,’ judicial reasoning and * * 1277-1278, quoting Id. at Although the trial court found that 817, Holmes, Wyo. Holmes v. 211 66 error,” there was no “clerical such a find 946, (1949). P.2d 953 ing is not conclusive. We have before re amending viewed the actions of courts in We have also said that the distinction depend upon person judgments does not so the which were asserted to contain much error, making upon the error as whether it clerical to determine whether there was reasoning the deliberate a result of and de- was clerical error or whether the claimed 234 judicial unambiguous upon document which was instead error. See In re the

error 1274; based, Kimball, supra, 583 P.2d was intended to be but Estate of supra, clearly from which the deviated. Spomer, 580 P.2d 1146. Spomer v. court, cases, pro In in its developed fact the in those Applying the test tunc, completely ignores stipulation the there was clerical error in we believe that upon original judgment was original judgment. drafting

based, changing, opposed clarify- thus JUDGMENT NUNC PRO TUNC ing, judgment. clari- hold that the court could have We contends that the motion “did believe, We do not fied meaning not involve the and effect of the however, action taken language and Confession original judgment; instead the clarified the of nor the of of intent either pro

judgment nunc tunc altered their or counsel.” We cannot longer was based judgment so that it no agree. could parties. upon stipulation of understood, meaning be clarified if its clearly upon it was because based easily many In cases “clerical error” stipulation, absolutely necessary it was The trial court In re Estate remedied. agreement examine the contained in the 1274, Kimball, supra, P.2d had cor- 583 of stipulation in order to determine what was decree, years 28 rected a rendered some original judgment. intended previous, it was clear that decree when position bank’s successful is further indica- upon failed to include was based a will but tion that the tunc com- the will. We held pertinent provision changed pletely original judgment. Likewise, in Midwest such action valid. 25, Wyo. 44 7 P.2d Refining George, v.Co. The nunc tunc is limited to cases (1932), that the court could 213 we held necessary where it is to make the judgment, which was ren- correct an earlier truth, speak the and cannot be used to par- stipulation to a dered State, change Arnold v. ties, not in accord- (1957). when Wyo. 306 P.2d In these cases stipulation. court, ance with the judgment nunc tunc the in this easily remedied be- case, clarification, the clerical error was guise under the al judgments clearly deviated from cause the tered the when it failed to enter in- upon which were the instruments based parties. tended to be based. bar,

In the at does not The actions taken in case of Vigil case Ap- clearly Vigil, Mich.App. 324 N.W.2d 571 so deviate from affidavit, (1982), case, pellants Eddy, by stat- are instructive here. In that Cates and they agreed to have en- the trial court refused to allow defendant ed that against them for evidence of the intent as tered they meaning ambiguous an in January and that believed to the term a bank, judgment upon stipulation The on the which was based a settle- the so stated. hand, parties. ment reached The appellants’ inter- the court other contends recovery recognized interpreting judgment, that in a pretation gives them a double only payments received the bank the trial court will often need look to since the 28,1982, already findings its own of fact and conclusions of January were credit- after accept ambiguity. law to resolve an The court agreed the bank to ed and that $207,110.55 familiarity only then stated that this rule judgment extends, however, judgments resulting dispute, the trial to 1983. Because of this decisions, easily clarify judgment the from the trial court’s own and not could judgment plain- underlying stip- the is drafted the that it to the when so conformed court, Midwest, and not the trial resolu- tiff’s counsel ulation. Unlike Kimball and ambiguity the in the can not in there was an tion of was a situation which only January figures “$207,- be had reference to 1982” additional after the The proofs. case was remanded to allow 110.55”—all without the need for remand. parties present to evidence as to the ambiguity There is no in original ambiguous very term. The case is judgment. It was rendered stipula- Vigil similar to in that a which judgment. tion and confession of There ambiguous pursuant was entered hearing. no present- Evidence was not was. parties. agreement of the In order to clari- backward, goTo ed. a hearing, have and fy judgment, altering origi- without concerning plain receive evidence and agreement intent it nal conform to the unambiguous language stipulation parties, necessary it was for the judgment upon and confession of the court to receive additional evidence of the original predicated parties’ they intent when entered into the improper. would be stipulation. The court failed to take such Our concern here should not be with entering additional evidence in possible ambiguity original in the nunc tunc and this failure resulted in ment. entirely It was based on complete change original stipula- tion and ment confession of rather than a clarification of the We need stipulation to look to same. and confes- analyze sion of and under- original judgment The failed to re original judgment. stand the Evidence flect the exact date from which Cates and might necessary be to determine if intent $207,- Eddy were liable to the bank for ambiguity stipulation there were in the error, 110.55. This mistake was a clerical original confession of opposed judi to the deliberate result of ambiguous. itself was not determination, reasoning cial and was simply contained a clerical mistake. The subject therefore to clarification under opinion majority acknowledges that the lan- 60(a). Rule The actions of the court in guage stipulation “supports their tunc, rendering [appellants’] they claim that owed the bank however, original judg did not 28,1982.” Then, ment which was entered later, opinion considers affidavits filed stipulation, but rather altered the reflecting contrary the bank an intent judgment from what was intended. In or plain language Still original judgment der for the to be clari later, opinion switches to a considera- fied, parties’ evidence of the intent when ambiguity tion of they stipulation entered into the must be origi- and concludes that order for the “[i]n taken. clarified, nal to be evidence of tunc is set aside intent when entered into case remanded further action stipulation (Empha- must be taken.” opinion. which is not with this inconsistent added.) recog- sis And the being ambiguous. nized as not ROONEY, Justice, concurring in plainly says it dissenting part, with whom against “pursu- is entered the defendants Justice, BROWN, joins. ant to the and Confession of agree I that there was a clerical error Judgment filed It then herein.” sets forth original judgment. agree I do not judgment, the amount of the but mistaken- If any ambiguity there was it. there is stipulated language ly omits the “as of 28 ambiguity resulting necessity with January, 1982.” intent, determine the error would not be extent, majority opin- simple matter of a mis- clerical. To this This clerical “arising I would from ion inconsistent. reverse and take oversight “may correct the clerical error in the or omission” which be cor- inserting any the court at time” judgment by the words “as of rected 60(a), W.R.C.P., provides to Rule

pertinent part: * * * - judgments “Clerical mistakes in

arising oversight or omission at time

be corrected ^{[*] [*]} ." direct that if the

I reverse and would sufficiently was not pur- it through recitation that was

clear stipulation and confession of

suant stipulated setting obli-

gation to be of that date was a cleri- the omission judgment be corrected

cal error and the

accordingly. INC., WELDING, Appellant

MM &

(Defendant Third-Party

Plaintiff),

v. and Glenn

Richard PAVLICEK

Deming, (Third-Party

Defendants), CASPER, WYOMING

FIRST BANK — (Plaintiff).

No. 85-111. Wyoming.

Supreme Court of 28, 1986.

Jan.

Case Details

Case Name: Eddy v. First Wyoming Bank, N.A.-Lander

Court Name: Wyoming Supreme Court

Date Published: Jan 27, 1986

Citation: 713 P.2d 228

Docket Number: 85-21, 85-22

Court Abbreviation: Wyo.