*1 664 de-ef- process demean and adjudicatory in Court.
vancing Constitutions State I em- state’s constitution. 41 fectuate this Rights, 27 Trial Protecting Individual unreservedly dissent. Con- 1991); Witt, Supreme phatically and (October Elder State preservation re- rights and their stitutional Toward Tilting the Balance Courts: us, 1988); main, primary a and unlimit- to each of Governing (August 30 I Change, holder obligation, an office ed whether as Quade, The Next Courts: Vicki State citizen, jurist lawyer. This deci- Liberties, or as a 19 Human Frontier Civil resolution, 1992); sion, by dicta or with (Winter Kincaid & whether Rights John 14 responsibility. fails that Williams, Fed- The New Judicial Robert F. Rights Lead in Pro- The States’
eralism: I dissent. (April- tection, 50 65 J. State Government 1992); Symposium, “The Law the June ” Carolina Constitu- The North Land. Law, 70
tion and State Constitutional Latzer, (1992); Barry 1701
N.C.L.Rev. and Criminal Justice
State Constitutions Massey, (1992); Federalism and R. Calvin COMPANY, a Delaware COAL TRITON The Ninth Amend- Rights: Fundamental (Defendant), Appellant Corporation, (1987); ment, L.J. Sol Hastings Amendment, Wachtler, the Ninth Judging HUSMAN, INC., Wyoming Corporation (1991); A. Hans L.Rev. Fordham Debtor-in-Possession, Appellee Linde, Common Are State Constitutions (Plaintiff). Law?, (1992); National 34 Ariz.L.Rev. Re- Judicial State-Federal Conference HUSMAN, INC., Wyoming Corporation (1992); lationships, 78 Va.L.Rev. Debtor-in-Possession, Appellant Latzer, Barry Devel- State Constitutional (Plaintiff), (March-April opments, 28 Crim.L.Bull. 141 1992). COMPANY, a Delaware TRITON COAL extensive, incomplete, still list- but This (Defendant). Appellee Corporation, material, is legal and source review abstractly for this presented dissent. 92-55, 92-56. Nos. one It to demonstrate that mere serves Supreme Wyoming. Court of “lockstep” in the adaptation of sentence opinion ignores an actual universe
majority Feb. 1993. analy- contrary decisions academic Denied 1993. Rehearing Feb. Wyoming and reality, ses. state of Mandate of Reversal Motion Vacate judiciary and inward looks backward (in part) Denied March bowing century. character of another That special pur- groups unitary interest hardly duty Wyo- to the pose can serve our greater
ming Constitution and build progressive faced
society forward within Wyoming.
state —our
V. CONCLUSION affirming con-
Harm is done in Saldana’s Wy- present structure of
viction within trial deficien-
oming criminal law under the greater damage is presented.
cies Far rights every
done citizen under constitution, persuasive
the state without
logic, by “lockstep” the adaptation of a *2 Assuming the breach of contract following preserved
claims were did the Court appeal, the initial District regarding in its those err instructions *3 by failing to claims claims define the sufficiently juror and to avoid confusion recovery by possibility of a double the the Plaintiff? deny- by Did
5.
the District Court err
ing
Motion for a Directed Ver-
Triton’s
the
the
site
dict on
tort claims since
wet
and therefore
conditions were visible
responsibility
matter of
contractor’s
as a
Schultz, and
Day,
R.
Donald I.
Patrick
law?
Hart, Chey-
of Holland &
Mary J. Chinnock
us in
previously
This case was
before
enne, for
Coal Co.
Triton
Husman,
Company,
Inc. v. Triton Coal
A.
Lynne
and
Col-
Lawrence A. Yonkee
ad-
(Wyo.1991).
properly
P.2d 796
To
Toner, Sheridan, for Hus-
lins of Yonkee &
appeal, it is
dress the issues in this second
man, Inc.
necessary to
in
examine
some detail
In
procedural history of
first case.
THOMAS,
MACY, C.J., and
Before
1988,
Triton
April
Husman contracted with
CARDINE, URBIGKIT,
GOLDEN,
and
JJ.
Tri-
topsoil
to remove
and overburden
Gillette, Wyo-
coal
near
ton’s
mine located
MACY, Chief Justice.
ming.
its bid
remove the
Husman made
spe-
Company appeals from
Triton Coal
topsoil
impres-
overburden and
under the
granting breach-of-contract
cial verdict
job.”
job
“dry
that the
would be
dirt
sion
Inc.,
damages
part,
in
because
began working, however,
After it
Husman
fully
for its
pay
failed to
Husman
Triton
topsoil
and
satu-
encountered overburden
topsoil from
of
removal
overburden
removal
rated with moisture which made
coal
Triton’s
mine.
original-
it
significantly more difficult than
anticipated.
high
moisture
ly
Despite
part, and
part,
in
reverse in
We affirm
content,
un-
perform
Husman continued to
remand.
agreed
to remove
der
contract
even
following
ap-
Triton
issues on
raises the
which
beyond
overburden
amount to
peal:
agreed.
parties initially
On October
.
its
1. Did
Court exceed
the District
finally
the con-
Triton
terminated
submitting
of con-
jurisdiction by
breach
tract, opting to have a different contractor
jury which
tract claims to the
dispute
with the removal. A
arose
proceed
by
appealed
Husman
therefore be-
after Husman
between Triton
Husman
in
yond
scope
identified
its final
the material
submitted
invoice for
following
this Court’s Order on Remand
Triton
removed. Husman claimed that
it
appeal?
the first
$246,551.72,
included
owed a total of
by refus-
2. Did
Court err
the District
$181,801.25
as
for the material removed
Di-
grant
for a
Triton’s Motions
$64,750.47
Husman
retainage.
well as
for
rected Verdict or for a J.N.O.V. on
“load
its
total
its
based
invoice
properly
only breach of contract
i.e.,
count”;
number of
truckloads
ini-
preserved by
following
Husman
it
In a
dirt
removed.
November
appeal?
tial
letter,
Triton claimed
it owed
Assuming
$12,165.60
the breach of contract
Husman. Triton arrived at
$191,-
preserved following
figure by deducting
claims were
the lower
almost
prove
the initial
did the
appeal,
overpayments
Plaintiff
as evidenced
re-
any damages
requisite degree
survey
material
with the
actual
$40,000
removing
certainty
moved,
required by
penalties
for
Wyoming law?
In
required minimum the full volume material
removed.
less than the contract’s
verdict,
$336,-
August
September,
special
awarded
the months
$3,500
spare
approximately
damages
Triton’s
well as
117.23 in
Husman for
brought suit
parts.
subsequently
$131,264.50
contract
breach of the
against Triton.
negligent misrepresentation of the
Triton’s
site conditions.
complaint,
amended
parties’
claimed that Triton breached
question
The central
raised
Triton
by failing to
the water-
contract
disclose
appeal is
this second
whether the lower
topsoil
condition of
and over-
saturated
grant
summary judg-
initial
court’s
burden,
the contract
breached
against Husman on all issues and
ment
$246,551.72
by failing
pay
for the mate-
Husman’s failure to raise some of those
*4
removed,
intentionally
rial
that Triton
mis-
II,
appeal, including
on
Count meant
issues
conditions,
Tri-
represented
that
the subsoil
pursuing
that Husman was
from
foreclosed
negligently misrepresented
ton
the subsoil
subsequent
though
Count II
trial even
conditions, and, finally,
Triton breach-
that
summary judgment
this Court reversed
good
implied
ed
of
the contract’s
covenant
appealed.
on the issues which
To
for,
dealing.
moved
faith and fair
Triton
support
position
its
was fore-
that Husman
summary
granted,
court
and the lower
II,
pursuing
from
Triton ar-
closed
Count
issues, although
all five
judgment on
gues
appeal
that Husman’s failure to
$33,525.34
for
court did award
to Husman
against
summary judgment
it on that issue
retainage.
appealed
meant the lower court’s
became
it,
against
summary
entered
of the case”
that Husman’s
the “law
and
claiming
genuine
that
of material
issues
appeal
to
Count II rendered the trial
failure
concerning
and
the tort claims
fact existed
summary judgment
pursuant
court’s
implied
of
claim for breach
an
covenant
Although
to the doctrine of waiver.
waiver
particular
dealing.
significance
of
Of
fair
generally
“law of the
and the
case”
appeal
Hus-
to the current
is the fact that
doctrines,
unique pos-
quite distinct
identify
summary
man did not
as error the
perceive
to have
of this case we
them
ture
II,
against
entered
it
its
on Count
underlying rationale
essentially the same
$246,551.72
pay
Triton failed
claim that
to
Triton
fail-
agree with
that Husman’s
material
removed.
on
II
a trial
ure to
Count
foreclosed
Husman, Inc.,
In
this
reversed the
Court
upon
remand. Because
decision and remanded the case
court’s
argument relates to the
thrust of Triton’s
genuine
finding that
issues of materi-
after
case,”
briefly
helpful
“law of the
is
concerning
al
existed
Husman’s claims
fact
why
doctrine and
think
explain we
fraud, negligent
misrepresentation,
of
type
applied
case”
in this
the “law of the
good
the covenant
faith and
breach of
of
simply
example
an
waiver.
is
of case
remand,
dealing.
fair
case”
18 ChaRles Alan
H.
Timber
Cooper,
(Wyo.1992);
v. Standard
Arthur R. Miller
& Edward
Schaffer
Wyo.
P.2d 611
Company,
and Procedure
Federal
Practice
§
commonly,
case,
the “law
(1958).
Most
the district
present
adhere to
requires a trial
summary
finally
case”
court entered a
rulings of
to the
prior rulings, adhere
own
II
disposing of
of Husman’s com-
court, or
to another
appellate
adhere
raise or
When Husman failed to
plaint.
same
or a close
rulings in the
case
judge’s
appeal,
the issue on
the issue
discuss
however,
Triton,
re
ly related
Id.
case.
or abandoned.
waived
and much less utilized
lies
a fourth
argues
the doctrine
ruling
the rule in which a court’s
aspect of
case because
waiver
this
inapplicable
appealed,
have
an issue that could
been
on
that,
appeal meant
reversal in the first
our
not,
preclusive
given
effect.
but was
will be
remand,
free to
the district court was
Construction,
City
Inc.
Tom Beuchler
any procedure
retry any
follow
Williston,
(N.D.
N.W.2d
upon,
in-
had
ruled
Court
courts label
Although some
1987).
upon the
cluding Count II.1 Husman relies
case,” it
category as the “law of the
fourth
Appeal
rule
in 5B
general
as stated
C.J.S.
Generally, the
something
misfit.
Error,
sup-
supra,
1950 at
§
*5
the
arises because a court
case”
“law
port its claim:
ruling is to
and that
has ruled on a matter
general
unqualified
The
effect of
and
proceedings in the
applied
subsequent
to
be
order,
judgment,
of a
or decree
reversal
However,
category
in the
litigation.
fourth
nullify completely
the
is to
it
and to leave
Triton,
litigant’s
upon by
is the
relied
order,
standing
judgment,
case
as if such
appeal which
to
an issue on
failure
raise
rendered, ex-
or decree had never been
gives
preclusive
to
effect
rise
the
or
cept
rights
in so
as
to a
.far
new
ruling.
ruling, not a court
lower court’s
proceedings may
further
survive.
Vestal,
Single-
Allan
Law
Case:
D.
Preclusion,
(1967).
Suit
1
11 Utah L.Rev.
agree
by
the rule cited Husman
We
cate
underlying
of the fourth
The
rationale
repeated by large
jurisdic-
and
number
that a
gory of the “law of the case” is
See,
country.
e.g.,
tions around the
Shilts
appellate
an
court
litigant
argue
can
1981).
(Alaska
Young,
Similarly, the case because district court any not interde- we do detect notwithstanding pendence granted have between Count II and Husman’s Hus- misrepre- on the issue of whether claims for fraud and the verdict negligent penalized. wrongfully sentation. necessary to man was elements Q I’m continue just going in this considering propriety of When spare parts 157-A. is not an So issue. J.N.O.V.: And that’s how much? full review of rec- undertake a [W]e $3,561.36[.] A to the of the ord deference views without Q Okay. other did What deductions determining whether a court. Triton claim? granted, JNOV motion should be we con- August penalty Sep- A The the evidence is such that sider “whether $40,000. tember weighing credibility without Q Forty? witnesses, considering the or otherwise A Yeah. evidence, weight there can be but Q persons Anything could else? one conclusion reasonable reached_” Magill, have Erickson v. A No. (Wyo.1986). In our P.2d $190,824.76. Q And so we have to add the evidence favor-
review we consider assuming correctly, that I can add So nonmoving party, giving able to it all $246,000 some, you sent in a bill for A court $234,000 reasonable inferences. should said there in cred- was grant $12,000 cautiously sparingly Triton, JNOV leaving its to differ- ence. motions. Right. A Threading, Inc.
Inter-Mountain v. Baker Q Okay. you yourself Did find to be Services, Inc., Hughes Tubular agreement any figures in of these (some (Wyo.1991) citations 558-59 spare parts? other than the omitted), McMahon, quoted in Wilson penalty probably per A The (Wyo.1992). contract, there terms but were a review, Applying con- our standard we control, our beyond number of reasons clude that the trial was correct not them, making yard- not some those granting a favor of Triton on J.N.O.V. I ages months. So think the those two remaining breach-of-contract issue. penalty question. is a that a J.N.O.V. have claims would cross-examination, On Mr. Deurloo testified proper prove Husman did been because not as follows: regular surveys to conduct failure Q Now, testimony on you had some penalties caused it to incur the amount $40,000 Friday penalties for about the $40,000. According Triton, the wit- August meeting production ness who the issue testified on admitted that? September. you Do recall the penalties imposed $20,000 per A Yes. I think it was “per the contract” and Husman knew month. from its count that it own load Q making Okay. you But weren’t removing a sufficient volume material to *8 your production relying minimum even penalties. avoid the Triton relies the counts, your correct? on load following exchange between Husman’s at- August September? A In Deurloo, part torney a and Bob owner mean, Q operating I the the blind mining engineer, Husman as well as a to adjustment not to knowing precise the support its claim: surveyed affect volumes didn’t whether Q your last Okay. So invoice is for you penalties made because those $246,000 they say you about were you reported even volume as it was So, $190,824.76. overpaid how did requirements, right? below the minimum $12,000? get from there to September. A August It was $3,561.36 A Then subtracted [Triton] Q that Those are the months spare had parts for which we used. for; penalty Triton a isn’t that assessed Q agreeable? That’s right? Right. A A Yes. such a reasonable view, testimony is evidence existed that Mr. Deurloo’s
In our
concluded that the satu-
interpretations
person
could have
varying
subject to
so
the material was not
claim for
rated condition of
support
Triton’s
not sufficient
apparent.
presented
jury
with
not concede
Husman
Mr. Deurloo did
a J.N.O.V.
Emme,
testimony
Doug
engineer
imposed
but
penalty
that the
was
quoted
knowledge about coal
with considerable
questionable.
it
said that was
that, after vis-
mines. Mr. Emme testified
testimony
support
also
Triton’s
fails
mine,
impression
iting
his
of materi-
operating
knew
it was
claims that
“potato
consequently
al
removed was that it was
to be
behind schedule and
“Loose,
which,
words,
dirt”
in his
meant:
monthly surveys
to conduct
did
failure
you
easily.
move
penalized.
sandy material that
can
improperly
cause Husman to be
It
It
a lot of water
it....
Husman knew from
doesn’t have
asked whether
When
good garden
grow
operating
it
would be
material
load count that was
its own
carrots, potatoes
things
Ralph
like that.”
production require-
the minimum
below
—
Stark,
for
ments,
August
helped
“In
who
assemble
bid
Deurloo answered:
Mr.
contractor,
ap-
also testified:
September?” It is not clear whether
another
“[I]t
peared
a
we would
oper-
job
realized it was
to be
was what
he
that Husman
meant
job,
job
you
good
he
to as a
dirt
a
ating
schedule or
was
refer
behind
whether
good scraper
filled with mini-
get
in which the would
merely clarifying the months
effort,
haul,
ap-
A
mum
and a
penalties
imposed.
J.N.O.V. is
amount of
short
good dump,
going
persons
the material is not
to be
propriate when reasonable
could
so
sticky
one conclusion. Reason-
forth.” Mr. Stark testified
have reached but
mines,
mine,
expected
more
like all
persons could have reached
than
that he
able
case, and, therefore,
dry
water but that he bid as a
one conclusion in this
have some
Mr.
the mine after
agree
job.
the district court’s decision dirt
Stark visited
we
opera-
for a
won the bid
observe
deny
Triton’s motion
J.N.O.V.
tion
“amazed” at the amount of
and was
only remaining issue
Triton’s
estimation,
In our
water and mud.
we
consider is whether it was entitled
must
sup-
foregoing testimony was sufficient to
to a
verdict on
claim of
directed
Husman’s
port
that the moisture was not
a conclusion
negligent misrepresentation
because
obvious.
saturated condition
material to be
92-56,
In Case No.
Husman raises
Triton
removed was so obvious.
relies
following
cross-appeal:
in its
Fox,
upon Appeal
No. 76-139-
AGBCA
err
1. Did the District Court
in refus-
14, 1980),
(Ag.B.C.A.
1980WL 2372
Nov.
ing to instruct
Plaintiff’s
proposition
for
that a contractor
re
theory
damages?
total cost
sponsible
expenses
associated with site
obvious,
Did
the burden to
conditions when the conditions are
2.
Plaintiff have
degree
misrepresents
prove
damages
even
to a reasonable
if the site’s owner
certainty?
support
conditions. To
its contention that
the saturated condition
the overburden
Did
District
err in enter-
Court
obvious,
long
cites to a
list of
unspeci-
in an
ing judgment
setoff
witnesses who testified that
material
Defendant did not
fied amount where
wet,
obviously
photographs
as well as
support
allege or offer evidence in
taken Husman’s own Mr. Deurloo show
counterclaim?
water
where Husman
area
would
posi-
If
correctly understand Husman’s
we
*9
working.
be
tion,
cross-appeal
first
issues on
two
Our
that
case
considering
standard of review for
raised
the event
we remand the
virtually
negligent-misrepre-
directed verdict
same
for
new
on its
is
stan-
trial
considering
dard as used for
a J.N.O.V.
sentation claim in Case No. 92-55. Since
Cody Atkins,
affirming
negligent-misrepre-
(Wyo.1983).
658 P.2d
we are
Although
strong
Triton
in Case No. 92-55 and are
presented
case at
sentation award
obvious,
trial
remanding
that the
for a new trial on
narrow
water was
sufficient
Apodaca, 524
Co. v.
imposed Security Insurance
improperly
Triton
of whether
(Wyo.1974). See also Mad
we do not
monthly penalty provisions,
Inc.,
Trips,
525.34 be jury’s recoupments should be viewed that the award offs and judge assumed courts, counterclaims, the $33,525.34 had defenses or and that Triton included the provision invoking misdesignation Husman’s already paid that amount 8(c), treat matter of this in Rule should creditors, deduction to so he ordered the designated if had type as it been pay Husman’s making Triton twice. avoid defendant, penalize and should arrangement, say agreed with this counsel labelling. improper ing: “These claims have been filed and could we make bankruptcy proceeding Wright 5 ChaRles Arthur R. Mil- Alan & they actually paid out the so that if have it ler, and Procedure Federal Practice they get credit for it?” How thirty-three, the facts On 1275 at 459-60 § ever, argues that Tri appeal, Husman Tri- case, clear whether less than a setoff which had to be ton’s claim was its claim as a pleaded have ton should pur compulsory counterclaim pleaded as a Triton or as a counterclaim. defense 13(a)2 that, since choosing to W.R.C.P. penalized suant not now be should defense, pleaded it as an affirmative Triton defense. Husman plead its claim as a the claim was barred. claim and even ample of Triton’s had notice hear- post-trial-directed-verdict agreed in a Goit, counters, citing Lukens $33,525.34 be deducted ing that should that its (Wyo.1967), 610-11 paid the creditors. Our Triton had in fact lien claim- retainage pay right to use pleading was valid that Triton’s decision “recoupment defense” rather ants was a justice as interests of consistent with the was, therefore, properly than a setoff con- liberality with which we well as the as a counter- as a defense and not pleaded pleadings. strue to our decision Luk- Subsequent claim. Triton failed to claims that there Husman also ens, said: “Under Rule this Court showing it ac- introduce evidence purposes general difference is no and, creditors setoff, tually paid any of Husman’s recoupment, or pleading between creditors, what amounts pay any if it did in the sense that claims independent that Hus- response is paid. Triton’s Hawkeye- constitute counterclaims.” all 3. effective March 2. Revised Id. *10 genu- there no finds that Chapter bankrupt- Court currently in a [T]he
man fact and the bankruptcy ine issues as to material and that cy proceeding Judg- resolving all for is entitled proper forum Defendant court is the [Triton] agree matter on all claims ment as a of law accounting issues. We (cid:127) paid, to what the Plaintiff. asserted amounts which creditors, in the be determined should 11, 1990, filed its notice July On Husman bankruptcy proceeding. appeal supreme to the court of valid, and states: pleading was
Triton’s actually paid the full has whether Triton Supreme hereby appeals to the Court $33,525.34 creditors must be to Husman’s Judg- Wyoming from the State bankruptcy proceeding. in the determined July 9, herein on ment and Order entered However, $33,525.34 deduct should be after our judgment as it stands ed from the separately upon judgment did rule The not have the district court did decision that entered the claims asserted but II. district try Count The jurisdiction to against general judgment $33,525.34 to be deducted judge allowed from case. The the entire $336,- judgment because from the summary judgment. supreme The total included award 117.23-breach-of-contract remanded, stating court reversed want judge did not that amount and the mandate as follows: Since retainage twice. pay Triton being fully apprised in The Court now the breach-of-contract we have reversed matter, say does and find there is misrepresen negligent award and pro- in the record of the reversible error remains, $33,525.34 should tation award ceedings of the District Court Sheri- The from that amount. not be deducted County. dan questions concerning the only remaining adjudged It ordered and is therefore $33,525.34 actually paid Triton are whether for the reasons stated and, so, if in what Husman’s creditors day filed that herein this delivered and can be amounts. Those determinations be, the District Court proceeding. bankruptcy made in the is, hereby reversed.... and the same jury’s verdict summary, we affirm [emphasis added] misrepresentation, re- negligent and we for 14, 1991, court en- On June the district We the breach-of-contract award. verse setting vacating and aside tered an order court to determine remand for the district which stated follows: required to conduct whether Triton was therefore, is, AD- It AND ORDERED monthly surveys of the material removed order JUDGED that the and, so, wrongfully im- whether 9,1990, July filed of this dated and Court $20,000 penalty provi- posed the contract’s the above be and set aside and vacated August Sep- for sions the months set for trial be- entitled action shall be tember. persons of twelve at time jury fore counsel, convenient to the Court CARDINE, Justice, dissenting, with [emphasis added] THOMAS, Justice, joins. whom presented here for our determi- Company Husman sued Triton Coal nation is: resulting damage recover loss and fail- no live witness of Triton’s Where there has been breach contract because testimony, no determination of credibili- pay ure to overburden moved or evi- negligent misrepresentation ty, and wa- no introduction of exhibits soil dence, ter en- trial to a court or result- conditions which caused Husman to no judgment, pre- causing damage. ter into On but instead the contract 9, 1990, disposition by summary judg- July liminary sum- entered case, mary very complex, ment in a difficult of Triton and favor judg- against appellant, must an from that total stating: *11 ment, argument ev- 570 present and P.2d at 454. Remand in the instant brief claim, fact, specific purpose case was not for a ery disputed every but issue general judgment upon from reversal trial, theory preserve every and to it for the entire case. disputed it sufficient to demonstrate or is application of issues of fact or incorrect First, I would hold that the trial court losing party law to entitle the to a rever- correctly tried jury the entire ease to the sal, remand, opportunity try his and because:
case?
plain
This
and
unqualified
was
is a
judgment
reversal. To reverse a
or or-
very great
I see a
difference between the
by
der means to
contrary
overthrow it
appeal
disposed
upon
case
motion
decision,
judg-
to make it void. When a
appeal
trial and
of a case in which
before
ment or order is
reversed it is as
never
judgment
final
has been entered after a
rendered or made. Raun v. Reynolds,
in
upon
trial
the merits which there was a
275, 276,
page
18 Cal.
at
opportunity
present
all
the facts
full
Fraser,
Central
Stockyards
Montana
Making
for decision.
this dis-
and evidence
168,
981,
(1957).
133 Mont.
320 P.2d
tinction,
by
the result
in cases cited
Appeal
See also 5B C.J.S.
& Error §
Thus,
parties is understandable.
in Rob-
(1958). Thus,
p. 511
the entire case was
Vondriska, 547 P.2d
erts Const. Co. v.
trial,
remanded for
and the trial court cor
(Wyo.1976),
there was a trial
rectly ruled that the entire case should be
(not
preliminary disposition),
judg-
jury.
tried to a
ment,
appeal.
appeal
and
The
was suffi-
The second reason this entire case was
cient to raise the issue of the order to
tried to the
is that this was a
gate,
appellant
restore a
but
chose not to
upon
nothing
suit
and
contract
more.
argue
brief or
that issue. It was held that
negligence
Claims were asserted of
and
any claim that he
Roberts waived
should
contract,
misrepresentation
making
in
required
gate.
not be
to restore the
quanti-
breach for failure to determine
order to restore in the final
was
damages
ties of
overburden moved
clear;
trial;
fully
it had
resolved
been
pay
failure to
for overburden moved
appellant
Appellant
did not contest it.
contract;
assessing penalties
under the
requirement
obviously
on notice of the
but the entire case concerned the contract
comply.
intended not to contest
but
Thus,
parties.
of the
it is well stated that:
specific
this case there is no
order or notice
multi-party
appeal
This
is not a
multi-
penalty
right;
aof
or loss of a
no final
action,
single
claim
claim between
but
determining
ques-
after trial
all
parties. “The word ‘claim’ in Rule
two
tions, liability
damages;
and no clear
54(b)
giving
refers to a set of facts
rise
impending
statement of
right
loss of
claimant,
legal rights in
not to
present
upon
its entire case
a trial
rever-
legal
recovery
theories of
based
sal.
those facts.” Where “each count sets
Likewise, the
decision
Potter v. Gil
legal theory,
forth a different
but each is
key,
(Wyo.1977),
P.2d 449
is not author
transactions as evi-
based on
same
deed,”
ity for the court’s decision here for it was
denced in the contract and
there is
claim,
reversal of a
and re
one
but
omitted]
[citations
after
specific purpose.
mand for a
said:
We
State,
100 Idaho
Hutchins
so,
reality,
there
And
finding
assignment
Here the
The contract is at
is here but one claim.
improper because the trial court had no
controversy,
the center of the
and all
authority
any
issues other than
tried to
claims should have been and were
those directed
the former mandate
jury upon
remand.
necessary
that were
to reach a decision on the mandated is-
entry
summary
In its
already
court,
sues and which had
supreme
appellant
been
to the
argued
negligent
decided.
raised as
*12
failed,
appellant
in
both
contending that
will concede
claim
misrepresentation
argument,
fact
to
printed
of material
brief and on oral
disputed issues
its
there were
eighth
as a matter of law.
required
assignment
reversal
of error
discuss the
mentioned,
opinion is that
for this court’s
The basis
next thereinafter
[citations
also,
summary
of
on
should
omitted]
argued
the
briefed
judgment, have
necessary
Assuming it were
damage for overburden
contract
breach of
the breach of contract
issue
present
to
hauled.
excavated and
waiver,
penalty
disregard
upon the
I would
in
decision
this
The result
the court’s
of
of
affirm the decision
the
the failure and
from a sum-
require
appellant
case will
jury.
court to
the entire case to
court,
mary
present
dissent,
per my
disposed
this case
of
Were
upon every
argument
appeal, issues and
recognize
I
that Husman should
would also
claim, every theory,
case, every
in the
fact
more than that claimed for
recover
in a
consequences
of waiver
or suffer
contract,
$247,000,
of
and would
breach
should not
never tried. We
case that was
accordingly
or remand
reduce
for cases in which
result
mandate this
damage question.
to resolve this
disposition by
preliminary
there has been a
ever
entry
there has
of
before
Justice,
THOMAS,
dissenting.
called, testimony taken,
witness
been a
issues of fact
credibility judged, disputed
too,
I,
in
I agree
must dissent
this case.
resolved,
judg-
and a final
developed and
join
in
dissent-
with Justice Cardine
his
jury.
by a court or
ment after trial
agree
ing opinion.
particularly
I
with his
distinguishing
character-
discussion of
Finally, although I do not believe
nec-
minimum,
upon by the
would,
the cases relied
essary,
hold that
istics between
I
at a
court,
appellate
which refer to the
effect
effecting
majority
in
of
sub-
the interest
ease,
following
in
affirm the deci-
a trial on the
justice
stantial
of the reversal
judge
ordering
in
trial of
summary judgment
sion of the district
those of a
merits and
in accordance
by
simply
this entire case
I
the court before a trial.
issued
rehearing Wyuta
with our statement on
distinguishing Wyo-
he
in
says
add to what
135,
Connell, Wyo.
299
v.
43
P.
Garrelts,
Cattle Co.
precedent that
v.
ming
Vorrath
152,
279,
155,
Wyo.
43
3 P.2d
reh’g denied
(1973),
142, 211
Mich.App.
49
N.W.2d 536
101,
(1931),
King
quoting
103
Solomon
Construction,
City
Inc. v.
Tom Beuchler
Mary
Mining
Dev.
v.
Verna
Tunnel &
Co.
Williston,
(N.D.1987),
413
336
N.W.2d
of
and
528,
129,
Co.,
P.
131
Colo.App.
22
127
Valley Irrigation
Spokane
Calistro
(1912):
234,
No.
78 Wash.2d
472
539
Dist.
Appellee
the well-estab-
also invokes
(1970),
distinguishable
are
because
likewise
general
appellate
courts
lished
rule
summary
none of these cases involves a
assigned,
will not consider errors
but not
Dep’t
judgment.
Lang v. Federated
printed
briefs or on oral
discussed
Stores, Inc.,
Ga.App.
287 S.E.2d
Notwithstanding
gen-
argument.
these
(1982),
specifically
speaks
“cause
rules,
eral
think
are at all
we do not
theory.
I
not an issue or a
also
action”
all circumstances inflexi-
times and under
agree with Justice Cardine that
con-
may
appellate
ble. The
courts
in their
controversy
tract
is at the center
discretion,
do, disregard
and sometimes
all
making the issues so interwoven that
same,
prevent
miscar-
in order to
jury upon
tried
claims
justice.
riage of
think
substan-
We
State,
Idaho
remand. Hutchins v.
rights
litigants
greater
tial
P.2d 995
weight
the inadvertence or omis-
than
Husman,
listing
the issues
Inc.
attorneys.
sions of their
We are satis-
Co.,
(Wyo.
Triton Coal
justifies
fied
here
record
1991),
included this one:
we
considering
same
formu-
genuine
material
Whether
issues of
lating
opinion, although
may
the rule
disregarded by appellant.
as to whether
have
We
fact exist
been
[Triton Coal]
theory
native
to the claim for a breach of
the contract and its covenant
breached
dealing.
good
implied
good
and fair
covenant of
faith and
faith
fair
dealing.
objected
trying
In our
we did
II, arguing
disposed
the issue had been
any breach of contract
specifically address
granting
summary
the trial court’s
Instead,
we discussed
issue.
and Husman’s failure to raise
good
of a covenant of
faith
breach
*13
judge
appeal.
the issue on
The trial
denied
dealing, saying:
and fair
prerogative
This
Triton’s motion.
was the
requir-
hold that the contract term
We
judge correctly
of the trial
The
court.
con-
ambiguous.
calculation is
a volume
requiring
strued our
in Husman as
Company
True
v. Sinclair Oil
See
Oil
case, including
trial of the whole
II.
Count
Corporation,
(Wyo.1989)
On the lower court by indefatigable ment diehards. In one Husman to its tort claims and statement, Holmes noted implied classic Justice its claim for a breach of the cove- “merely good dealing, nant of law of the case doctrine faith and fair but also general- expresses practice Count II. II of courts Count was the breach of ly reopen contract claim for the what has been material removed for to refuse to decided, pay. power.” which Triton did not It limit to their was an alter- not a of the said district in 5B C.J.S. rule is stated applicable The is, reversed, hereby (1958)(footnote be, and the same and Error Appeal § proceedings omitted)1: the case is remanded opinion. with the consistent unqualified general The effect order, or decree judgment, reversal of pursuing not foreclosed from to leave completely nullify tois trial, subsequent even II at the order, standing judgment, if such as case summary appeal the had failed to rendered, ex- had never been or decree against it on that issue. opinion of the by the cept restricted issue, controlling on I two cases find court. appellate briefs, in their parties both one cited rule, general recognizes this majority are, The cases neither cited. and one that large it, out that points agrees State, Idaho Hutchins country around jurisdictions number recently, Zavarelli (1979), more *14 However, majority rule. follow this (1989). Might, 239 Mont. not mean our rule does such a then finds Hutchins, of Ida- Supreme Court In granted the in the first reversal considering action for second ho was II in Count jurisdiction district court time, Supreme hand. The in the case at as I am satis- Majority 668. at this case. See summary initially had reversed a Court holding erroneous. is fied this against the State judgment entered following complete open are The issues proceedings. the case for further remanded by appel- qualified reversal, except as as- appealed not from that had Hutchins is found principle general This late court. in judgment entered pect summary of Appeal and Error § at 5 AM.JUR.2D appeal, In the second of the State. favor (1962): agreed with Supreme Court of Idaho remand, may consid- the trial court On saying: the district court open by left any matters er and decide upon by passed not issues [A]ll is free to make appellate court open him at the second Court prog- in further any order or direction reversal, general a trial trial. After case, not inconsistent with of the ress in its any error is free to correct court court, appellate as decision findings and conclusions as original presented settled such not or question appellate passed on not matters open generally The decision. court. a case is reversed on a retrial when Hutchins, (citations omit- at If proceedings. for further remanded ted). light of speaks the mandate found, court is the lower special facts reversed, decision is the trial court’s When respects proceed in all other liberty to at final, longer and the is no that, according judg- its in the manner origi- an error may trial correct ment, justice may require. passed findings nal to matter pro- in this case The Mandate on Reversal trial court appellate The by the court. jurisdiction, regardless vided: continues have brought on specifically heretofore tak- a claim having been whether This cause hap- court, exactly advisement, being appeal This is what or not. en under matter, if Husman had pened does case. Even fully apprised now specifically, error in II that would say find is reversible there raised the Dis- to the trial proceedings jurisdiction was lost the record not mean County. re- contrary occurs. The trict Court Sheridan Just the court. summary judgment on one versal adjudged It therefore ordered on all other implicitly reverses more counts in the for the reasons stated Thus, proper for the counts. and filed that day herein this delivered * * Appeal § and Error large *.” 5 AM.JUR.2D "The at for read- 1. reversal sets the matter case, judication in the of all issues involved Count II to consider judge to allow CALENE, (Defendant), Appellant hand.
in the case at John Zavarelli, court s issuance In the district appealed. injunction was permanent Wyoming, The STATE Supreme (Plaintiff). of Montana reversed
The Court Appellee remand, After and remanded the case. No. 90-264. appealed. ruling again district court’s Supreme Wyoming. Court that, Supreme held on reversal Court remand, reinvest- the district court was Feb. pro- for further jurisdiction ed full the court stated: ceedings. Specifically, the first this Court reversed
When Court as to a
judgment of the District easement, and remanded the
prescriptive District Court for further
cause to the the cause was then before
proceedings, posture of not
the District Court situa-
having judgment.
tion, nothing in the terms when there is *15 it, prevent the trial
of the mandate to reconsideration, power,
court has change its
to find the same facts and facts consis-
holding, or to find different holding. Imperial original
tent with its Industries Ltd. v. National
Chemical (2d Corp.
Distillers and Chemical Cir. 1965), 354 F.2d
New York
A.L.R.3d 492.
Zavarelli, at 493. in this precisely
This is the situation remand, the case was
case. On
posture having judgment, a final
thus, neither the doctrine of of the case law applies.
nor A care- the doctrine waiver reading
ful and mandate nothing pre-
this case illustrates there having juris- full
vent the trial court from claims, regardless
diction to hear all of the specifically were raised whether
not.
I II was con- would hold Count I jury,
sidered and would affirm entirety. in its verdict