*1 Simpson, Ap Hilda H. John SIMPSON and Third-Party pellants (Defendants and below),
Defendants v. INC.,
PETROLEUM, Corporation, a Kansas (Plaintiff below), Appellee al., Ap et CO.
CARDINAL PETROLEUM pellees (Third-Party Defendants
below).
No. 4518.
Supreme Wyoming. Court
April Denied'April
Rehearing 29,1976. *2 Shoumaker, preliminary injunc The so-called Badley, Badley Bruce P. & tion, however, plaintiff appeared granted in all Sheridan, and signed the brief injunctive requested. relief appellants. which had for argument oral be nothing There was left to considered Toner, Tom C. and A. Yonkee Lawrence effect, any hearing a final and Sheridan, signed Redle, Arney, & Yonkee final and Rule 65 germanent_injunction. appear- Yonkee brief Lawrence A. and W.R.C.P., pertinent part, pro (a)(2), Petroleum, appellee, argument for ed oral vides as follows: Inc. or after of “Before the commencement GUTHRIE, J., and McCLIN- C. Before hearing application pre- a ROSE, RAPER, TOCK, and THOMAS liminary injunction, the court JJ- trial on merits of the action to be advanced and consolidated with the RAPER, Justice. * ** hearing application. of appellants-defendants The any The record sort discloses no order a appealed granting advancing from the trial of the action on merits, the trial court. preliminary injunction by applica- to be consolidated with the preserve the preliminary injunction is to A that de- It is reasonable to believe tion. be until the an action can appeared hearing expecting status merits of at the fendants decided, Danigan, ex rel. only against granting Weiss State of a v. defend The defend injunction. They willing Wyo.l96/^34P2d^61, preliminary were district court complaint ants here to do that and make no about that^the granting preliminary injunction appearing purpose. erred a It for that limited judgment thing had the effect of a final appear which one a on bringing and preliminary injunction without the matter for matter of a trialjjj proposition. away cited that from that Weiss another walk squarely This will be within permanent injunction. with a saddled dispositive perimeter issue-as abun- language 65(a)(2) Rule appeal. dantly very clear in its terms that there advancing be must an order on The record discloses that December need no construction. Never- and should 1974, in- 3, preliminary theless, spoken in the federal courts have plaintiff-appellee for junction by was filed regard. a When injunction “re- preliminary issuance of liminary injunction hearing on becomes a appellants-defend- straining enjoining” F.R.C.P., merits, interfering preventing or with ants from Wyoming’s identical rule of the same leading oil plaintiff shaling a road from an number, ad- there must notice of such ap- gas well land. on defendants’ v. Dry Lodge, vancement. Creek Inc. plication preliminary States, 926, 515 F.2d United 10 Cir. hearing on December set down for 935-936,and the references there footnoted. later, days court two a district Amusements, Nattin, set, Nationwide Inc. commissioner, date the dis- and on the explains that 452 F.2d announced that judge opened trict court and re- though written of order is no form hearing on an court was convened for quired, have some form must plication injunction. After has day in court notice that final he is label- hearing, made and entered what court No order was made come. Granting Preliminary Injunc- ed an Order began after the nor did the trial granted tion. defendants manner that he con- indicate stay appeal upon de- pending conditioned bond, hearings at sidered these consolidated posting supersedeas fendants which Appellants beginning hearing. has done. been never advised that the court would pro- discretion court’s demonstrated this matter in such manner particular determine in this cedures followed case. disposal there would be a final thereof and problem respect could not have known of this is no There *3 judgment result until was appealability entered. “Order Grant slightest
There is not the hint in the record ing Preliminary Injunction.” It was not a say, fact, here that the had defendants their last a preliminary injunction; granted, before the final relief was 72(a), when and falls within Rule final order only preliminary relief sought. was W.R.C.P.: upon days’
The was had two an order af- (1) “A final order is: any action, notice to defendants and before right in an fecting a substantial purpose answer was filed. The of the when such order effect determines * * injunction preserve liminary is to the status prevents judgment; action and a quo until the rights of the can order, effect, determined the action The fairly inquired into and determined under prevented any judgment final because and equitable principles. and conditions To do when, try nothing there was left is perverting otherwise the function of the fact, defendants were entitled to status preliminary injunction. quo final and a further on merits.
Generally, a preliminary injunc will tion not be where its awarded effect order of the district court is re- The give principal plaintiff relief seeks the cause versed and remanded with direc- bringing without cause trial. Weiss preliminary injunction tions to vacate the ex Danigan, supra; v. State rel. La Chem proceed and to final on the merits. Mills, Inc., ise Lacoste v. General 3 Cir. ROSE, (dissenting). 1973, 312; King 487 F.2d v. Saddleback Justice District, Junior College 9 Cir. 425 opinion says: majority remand, D.C.C.D.Cal., on F.2d 318 F. . The defendants here 89; Supp. Meiselman v. Paramount Film granting ‘the district court erred Distributing Corp., 4 180 F.2d Cir. injunction a preliminary which had the 94; Gittone, Warner Bros. Pictures 3 judgment bring- of a final effect without 292; Galiger, F.2d Hansen v. ing the matter trial’ and cited Weiss Mont. P.2d 1049. See proposition. of that This Miller, Wright Federal and & Practice per- will be within the squarely Civil, in Procedure: 2948-9. §§ dispositive issue as of the imeter case, stant the issuance a appeal.” injunction preserve would not the status quo My disagreement but would majority disturb with the lies— allowing shaling plainly simply pit-run scoria of a four-mile the fact that I do —with previously where, not find appeal, stretch of which had an issue in road raised, upon, been extensively surfaced on defendants’ relied contemplated complaint or sur briefed a of in- land. Defendants claim there damage sufficient notice of agreement face and shal- consolidation under violation 65(a) W.R.C.P., any Rule injurious (2), other due- ing road is to their ranch process-of-law ing operation. transgression as that doc- contemplates guarantee. trine fair remedy The extraordinary in an junction means, is a far-reaching assume that force and must indulged appellate above delineation of the hastily under issue contrived It is a judicial quoted opinion conditions. the hereinafter power delicate mate- rial, proceed and court must that the deprived with caution and deliberation before a fair exercising remedy. trial because of insufficient time to We hold prepare. that there was an abuse of the granted, relief was when the final excerpts are from before following sought. was only preliminary relief quoted portion of Referring
opinion.
W.R.C.P.,1
the author
65(a)(2),
days’
had
two
“The
was
says:
the defendants
notice to
”
answer was filed.
prelimi-
for hear-
set down
nary
my
analysis
set out
herewith
days
5, 1974,
two
ing on December
me
reso-
has led
to the firm
problem which
commissioner,
later,
district
inadequate notice of consolida-
lution that
judge
set,
district
date
and on the
W.R.C.P., and
tion under Rule
that court
opened
and announced
guarantees
fair-trial
of due
the other
appli-
was convened
been
and re-
have never
raised
*4
cation for
.
.
injunction.
preliminary
appeal. Naturally,
the
lied
appellee
responded
has not
the issue
opinion goes on:
“
argu-
up
it
not called
either
since was
to believe
.
.
It
is reasonable
.
ment or in brief.
hearing
at the
appeared
that defendants
only against
the
to defend
expecting
majority’s
that
agree
holding
with the
injunction.
preliminary
granting of a
hearing
a
the consolidated
was
trial on the
make
willing to do that and
They were
merits,
final, appealable or-
from which a
that
appearing for
complaint
no
about
says:
majority opinion
der
issued.
thing
is one
purpose.
limited
It
“The so-called
injunction,
preliminary
a
pear
matter of
hearing
the
however, granted
plaintiff
all
injunction
another
preliminary
and
n
requested.
injunctive relief which it had
hearing saddled
that
away
walk
from
nothing left to be considered
There was
injunction.”
permanent
awith
was,
it
any
final
and
in ef
Again,
65(a)(2)
reference to Rule
fect,
permanent injunction.
a final and
adequate
appellants’
notice
and the
lack
” 2
.
disposition
and final
that consolidation
¡be
says:
made—the
would
not, however, go
It should
unnoticed
and the
court treated
that
“.
.
order was made
. No
injunction.
It
this matter as a
began
nor did
after the
preliminary
appealed
a preliminary
as
was
indicate
trial court
manner
urged
argued
as a
hearings
he
these
considered
injunction question in
it
this court.
If
beginning of
consolidated at
truth,
preliminary injunction prob-
a
hearing. Appellants
never advised
the ultimate issues had lem which
this mat-
that the court would determine
and, therefore,
decided
made
been
order
ter in such manner that there would
and entered
the lower court was
disposal
thereof and
final
nature,
interlocutory
an
an
such
order
un-
have known of this result
could not
appealable
would not have been final and
is
judgment
entered. There
til the
was
appeal
and the
should have been dismissed.
slightest
in the
not the
hint
record
546;
Wyo.
say,
P.2d
their last
Book,
the defendants had
Book v.
1328, 1329,
F.2d
where
is said:
1.
‘Before or after
commencement
is
from
.
.
situation
different
an
Our
Oil Co.
Texas v.
liminary injunction,
eases like Standard
the court
order
Lopeno
Co.,
(5th
Cas
ad-
“As production of been refuted has appealable, general poli- are not sions in this brief.” shown records permit appeal being cy of law judgments, final decisions from gas on the oil and The “Riders” 3. spe- or rule in the absence statute question were discussed. lease providing .” cifically otherwise between law of accommodation 4. The dissenting opinion, purposes of this analyzed For and surface estate estate mineral however, assume, grant and concede with citations. emanating from the trial court appellants express interpre- 5. ais appli- of the law contract tation permanent injunction “final .” to this cable case.
because the ultimate issues were decided. concerning The rule of is recited law reason, agree For I can with the duty appellate if it becomes *5 opinion where is holds: that a has been made convinced mistake problem
“There is respect no with to the below. appealability Granting of the Pre- ‘Order State, Wyo., 7. Weiss P.2d liminary Injunction.’ pre- It was not a following proposition: is cited for liminary injunction; fact, support . The “. record does not final order .” Injunction Preliminary this Court that, agree At least would while it was ruled . has guise preliminary tried under the aof in- temporary injunction ‘Award is junction, it determined the ultimate issues extraordinary remedy which will not and, therefore, appealable order was except granted showing clear 72(a), under Rule W.R.C.P. probable possible success and ir- ” reparable injury to plaintiff.’ [Em- APPELLANTS’ STATEMENT OF phasis supplied] THE LAW First, respect above, to Number 7 The brief of appellants incorporates Weiss, supra, emphasize in re that the the following heading capital letters: appellants citation not is offered authority granting relief from their “STATEMENT OF THE LAW having not had sufficient notice to enable “THE DISTRICT COURT ERRED IN prepare them to consolidated GRANTING A PRELIMINARY IN on the issues. JUNCTION WHICH HAD THE EF They cite the case support Weiss their FECT AOF FINAL JUDGMENT theory that WITHOUT BRINGING THE MAT should not have issued because TER FOR TRIAL” support proposition, this there (a) showing “prob- was no clear argue and points discuss these : success”; able 3. This is opinion the reference the squarely . This will be appellants’ makes brief, to the perimeter where the within the of that issue as dis- opinion states positive appeal.” para- of the the first —See “The defendants graph dissent. says: and then discovery to be done “possible prepare yet showing of was no there (b) —that hav- complaint urged any other —nor was injury.” irreparable notice or consoli- ing to do with lack of words, by the cited Weiss is In other argue, appellants simply do dation. The that authority for the contention pellants as orally brief or either in their support evidence is there insufficient court, time they were denied complaint that support of a order—not hearing and that pare for the consolidated rights protected 65(a)(2), Rule W.R. court suffered presentation to the their C.P., not in been violated—and thereby. appellants’ rights to allegation that appellants conclude statement contemplation of the fair trial within the plea to us for reversal Federal of facts with Amendment to the Con- Fourteenth not show that the evidence did ground and Article stitution Section necessary gravel the road Wyoming have that it was Constitution State jury remand for a and ask that we been denied them. that another fact-finder in order apparent matters readily It go question of the permitted to into the through are listed under 6 above Numbers necessity undertaking that task.4 inapplicable to the also consolidation say that the facts In short—the philosophy contemplated of notice lack presented judge in the W.R.C.P., and the con- but, liking way issues due-process requirements. notice stitutional out, jury there should be a came now questions They legal unrelated concern trial. insufficiency argument about make the evidence. plea That to this court—not prepare insufficient there was time
APPELLANTS’ STATEMENT OF anything below—or that would THE FACTS *6 jury trial be different if were held. appellants Having In their of facts the held “final” statement the order to be testimony great appealable' the conflict in the at majority recite the thus of —the cite length they discuss the contract and court undertakes to anchor its — appellants appropriately process quotes from it. The then of due the doctrine when it W.R.C.P., supra: say: 65(a)(2), from Rule “Petroleum, into court on ‘Before or after the Inc. rushed commencement of 3, 1974, hearing application Defendant the forcing December the 5, 1974, upon liminary injunction, hearing to a on December the court grounds they the suffer ir- the trial of the would action on the merits to be reparable they gravel if advanced and harm could not consolidated with the hear- ’”* * * prior spring ing application. the road to the winter and supplied] [Emphasis season . . .” relates the rule to be that there “must” be an Following argument this order before consolida- statement appellee prove [Emphasis supplied] tion will be is made that did not effected. says “irreparable if The rule “may” harm” would court order the result graveled. road was not consolidation. authority theory As for by objection
Not a way word is of there said “must” be notice of “forcing” hearing. That consolidation under Dry is—there cites is no assertion that the States, ready' Lodge, weren’t Creek Inc. v. United 10 Cir. they time needed —that injunctive proceedings Appellants, request brief, I do this effected these pass upon in this dissent. return the matter to the lower court for not by jury. not this could be Whether or 935-936, again making argu- and the ref Time and when his 515 F.2d ment, footnoted, counsel there and Nationwide for would erences contend Nattin, 4 Amusements, position Inc. that his before this court was to test the principle that lower for the court’s decision the area F.2d fact-finding. of consolidat Counsel must have notice stated: ing on the “The order was issued on erroneous the trial of with facts.” the issues. “It was based on an error fact.” complete agreement am in with that by asked When Thomas about Justice rule, but both of the above last-cited whether there had been an order consolidat- appears cases it that motions were made ing preliminary injunc- on the prepare, certainly more time to merits, tion awith the at- due-process guarantees violation torney appellants responded: Here, assigned appeal. as error on there ” 5 “Well, get did not . we into that no motion made more time which object In other words—he did not at that prepare plead; nor were —discover—or time record fails show lack of notice of consolidation and viola- prior objection or later to either the manner tion process assigned of due to this errors conducting or to a denial appellants. any rights to a fair trial. power consolidate the appellants argued before this court must, indeed, with a trial on the merits and in their brief whether or not about principles take into consideration the properly interpreted the lower court con- process. due proper- tract and the judge whether Wright Miller, It is said & Federal evidence, ly weighed heavy em- Practice and Civil Procedure: § phasis placed upon being whether one of Injunctions, Preliminary p. 486: spoke the witnesses the truth or did not However, power (of speak they argue But truth. did tempered consolidation) must be due law. process principle due fair notice the rules announced this court Under opportunity and an to be heard must be repeat, the many too times to even cite or
given litigants disposition matters last mentioned are for the trial of a case on the merits [Par- judge court—unless the court—not enthetical supplied] matter *7 of committed I find no such error law. If appellants the had made an issue neither does of errors in this record—and question Further, of no resulting majority. lack I not find that do notice— of prepare time to depositions or to take is there insufficient to evidence discovery make order, argument would have enthu- is another made which —I siastically majority. appellants majori- held with the I want does the —neither to deny be the litigant ty. last to right his ato fair trial. opinion, majority The basis for the sole however, is, it, matter as read is that the fact of process do guarantees not that their denied of their due due-process rights have been violated reason of the court’s failure to enter an through a timely failure to giving receive notice of notice of con- consolidation solidating preliminary injunction hear- aon ing with a hearing merits of the with a on ultimate issues under case. not This was W.R.C.P. quotes tape argument.
5. The above are from the court recorder which recorded the opinion. ap- first time error grounds as assigned for respond pleas this How can peal to this court. petition appellee’s attorney majority opinion here author of the we have rehearing argues when he wrote, 1976), recently (February very jurisdictional wrongfully a non considered g; Mader v. James cases of Fannin appeal raised question when it was not on James, Wyo., Mader Fanning; and v. v. and, oppor- therefore, he did have the not P.2d 195: tunity argue the issue this to brief or in the not raised question .A Surely he cannot be faulted for court? by the considered be trial court cannot point having argued the when not raised or Guggemos Tom supreme v. court. appel- he issue in the had no notice Inc., Wyo.1971, McCue, Searl-Frank us. argument lants’ brief or supra 51; Tysdal, v. Gaido [68 P.2d say are here estab- that I feel we must Wyo. also P.2d See 741]. precedent lishing a which bad Wyo cited in cases West’s multitude of regret. appellate law but one which we will §=> Error, 169.” ming Digest, Appeal error, I saying, finding In so no other my judgment, the lower would have affirmed court. efficacy this appeal destroys the in this and shat- rule, rendering it devastated so McCLINTOCK, this J., concurs in dis- being longer incapable as tered sent. ap- Bar for by the Bench and relied pellate purposes. point this dissent not make the
doI adequate days’ time two notice magnitude make —I assuming it is not—the argument that —
pellants assign required still should be fair granted Appellant
their failure to Larry NEWELL, below), (Defendant they can consideration before error our court, except of this have attention jurisdictional Wyoming, Appellee matters. STATE below). (Plaintiff opinions upon If we fashion our do No. 4508. actually upon by litigants relied
issues idea appellees —how are Wyoming. Supreme Court attorney prepare what to for ? How can an April 1976. his appellee know how advise May Rehearing Denied justice what client? can one know How appropriately prop- his should Brothers decision-making
erly contemplate in the willing we are unless designated be restricted to the issues *8 appel- conformity rules
late and case law?
There is not one word about insufficient little
notice—due trial —too —fair etc., prepare, appel- time to in either the appellee—
lants’ brief or the brief argued question was never here. party considered
Neither these factors the issue issue. We raise