Anderson v. Sno-King Village Ass'n, Inc.

• Decision Date: 06 November 1987
• Docket Number: SNO-KING,No. 86-209,86-209
• Parties: James G. ANDERSON, Jr., Appellant (Defendant), Sno-King Village, a joint venture, composed of James G. Anderson, Jr., C.G. Aben, Jr., and James A. Engstrom, Defendants, v.VILLAGE ASSOCIATION, INC., a Wyoming corporation, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 540

745 P.2d 540

James G. ANDERSON, Jr., Appellant (Defendant), Sno-King Village, a joint venture, composed of James G. Anderson, Jr., C.G. Aben, Jr., and James A. Engstrom, Defendants, v. SNO-KING VILLAGE ASSOCIATION, INC., a Wyoming corporation, Appellee (Plaintiff).

No. 86-209.

Supreme Court of Wyoming.

Nov. 6, 1987.

Robert W. Horn, Jackson, for appellant.

Don W. Riske, Cheyenne, and Henry C. Phibbs, II of Phibbs & Resor, P.C., Jackson, for appellee.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

URBIGKIT, Justice.

This construction-defect litigation brings an appeal issue of the validity of a judgment in favor of Buyers following denial of a Rule 60(b), W.R.C.P. motion to set aside the judgment, when defendant developers did not appear for trial. The issue is whether the trial court actually had individual party jurisdiction over appellant, and if so, was there absence of discretion in denial of the motion to set aside the noncontested judgment.

We decide the case on judicial estoppel, and affirm.

FACTS

In 1981, Sno-King Village Association, Inc., and its individual members and officers as plaintiffs brought a suit against Sno-King Village, a joint venture composed of James G. Anderson, Jr., James Engstrom, Jr., and C.G. Aben, Jr. The appeal was later dismissed by this court without prejudice, pursuant to an agreement between appellees as owner-buyers of developed units, signed individually by two of them. In settlement, the parties agreed that developers would remedy the problems which more pervasively involved water seepage, and that, if it became necessary to commence another action on the construction defects, after failure to remedy, service of process (against the venture and its members) could be made by service on their attorney.

On July 30, 1982, appellees, as the homeowners association separately and in behalf of the individual homeowners, with defects apparently unremedied, commenced this second suit for breach of an implied warranty of fitness in the design and construction of the Sno-King Village townhouses. Copies of the filed complaint and issued summonses were delivered to Kenneth S. Cohen, the attorney named in the prior settlement agreement, and then accepted as service of process. A few months later, an amended complaint against the developers was filed, and Cohen again signed the general acceptance of service. From 1982 this litigation climbed the rapids and descended the falls in near interminable processes, to the climax of a judgment entered May 28, 1986, against the individual members of the joint venture only since the venture entity was then in bankruptcy. Judgment was entered against the three persons individually and jointly for $956,500 at a noncontested hearing where none of the individuals, Cohen, or other counsel appeared.

The resulting judgment contained findings that the action against the joint-venture entity had been stayed by a joint-venture petition in bankruptcy, but that action did not stop the continued action against the individual members. Also contained in the judgment was a finding that the individual developers abused the intent and purpose of the United States Bankruptcy Code by filing bankruptcy petitions prior to trial dates and then dismissed after securing the desired dilatory effect upon trial assignments.

In July, James Anderson, Jr., appellant, through present counsel filed a motion to alter and/or grant relief from the May judgment pursuant to Rules 59(e) and 60(b)(4) and (6), W.R.C.P. The motion attacked the acceptance of service by Cohen, and generally contended that appellant had not been sued in his individual capacity and consequently was not a party to the proceeding. It is from the July 15, 1986 denial of the Rule 60(b) motion that the present appeal is taken. A separate appeal of Aben was dismissed by settlement, and Engstrom pursued bankruptcy court resolution.

The issues actually presented in this appeal are sufficiency of service, and sufficiency of the caption to denominate the individual defendants who were participants in the joint venture as parties in the litigation. This court answers both contentions raised by appellant adversely to him on a judicial-estoppel basis.

COURSE OF PLEADINGS AND SERVICE OF PROCESS

Summonses were issued against each individual on July 30, 1982, and the first acceptance was filed by Cohen as their attorney on August 9, 1982 based on the agreement dated December 4, 1981 which resulted in dismissal of the lawsuit and which stated:

"7. The agreement by the Owners to Dismiss Without Prejudice is subject to the following:

"(a) In the event that the Owners reinstitute the same or similar lawsuit, service of process on the Developer's attorney of record, Kenneth S. Cohen, will be deemed to be service of process upon each of the Developers."

The agreement defined the developer as:

" * * * SNO-KING VILLAGE, a Joint Venture composed of JAMES G. ANDERSON, JR., an individual, C.G. ABEN, JR., an individual, and JAMES A. ENGSTROM, an individual, acting individually and together as Sno-King Village, a joint venture, (hereinafter referred to as 'the Developer')."

The acceptance of service by Cohen accordingly recited:

"1. That he is the attorney for the Defendant in the above-captioned action.

"2. That on the 5th day of August, 1982 a copy of Summons and Complaint filed in the above-captioned action was delivered to Kenneth S. Cohen.

"3. That the Defendants in said action, Sno-King Village, a joint venture, composed of James G. Anderson, Jr., C.G. Aben, Jr., and James A. Engstrom personally agreed to be served in the manner described above, and that their attorney, Kenneth S. Cohen, hereby accepts service of the Summons and Complaint in this matter upon the aforementioned joint venture and each of its members, and hereby waives any defects which might or may have occurred in the service of the same." (Emphasis added.)

Having specifically accepted service on both the venture and its partners, a curious motion to dismiss was filed:

"COMES NOW the Defendant, Sno-King Village, a joint venture, by and through its attorney, and moves the Court for an order dismissing the Complaint for the following reasons:

"[various reasons stated]."

This would seem to have left the individuals in defendant status as earlier served, without having filed a similar responsive pleading. Following stipulation for a continuance and leave to amend, an amended complaint was filed, with the listing of defendants in the case caption unchanged. Cohen duly filed another acceptance on February 10, 1983:

"1. That he is the attorney for the Defendants in the above-captioned action.

"2. That on the 9th day of February, 1983 a copy of the Amended Complaint filed in the above-captioned action was delivered to Kenneth S. Cohen.

"3. That the Defendants in said action, Sno-King Village a joint venture, composed of James G. Anderson, Jr., C.G. Aben, Jr. and James A. Engstrom personally agreed to be served in the manner above described, and that their attorney Kenneth S. Cohen, hereby accepts service of the Amended Complaint in this matter upon the aforementioned joint venture and each of its members, and hereby waives any defects which might or may have occurred in the service of the same."

The caption of the case, uniformly continued through all proceedings including final judgment except on occasions when pleadings filed by Cohen used the singular tense "Defendant," read:

"SNO-KING VILLAGE ASSOCIATION, )

INC., A Wyoming corporation, )

BEAN HILL RESIDENCES, a general )

partnership consisting of )

BARBARA G. WHITE AND ROBERT E. )

WHITE, husband and wife, and )

[other named individuals] )

)

Plaintiffs, )

vs. ) Civil Action

) No. 5206

SNO-KING VILLAGE, a joint )

venture composed of James G. )

Anderson, Jr., C. G. Aben, Jr. )

and James A. Engstrom )

)

Defendants. )"

It is apparent that in the many pleadings that followed initial filing counsel for plaintiffs thought that the individual venturers were parties, as demonstrated by stated text including pre-trial memoranda, even though Cohen, as counsel, sometimes used the word "Defendant" in his pleading terminology. He withdrew for fee nonpayment, refiled an appearance, and then did not attend the regularly scheduled trial session of May, 1986.

We resolve the entry-of-appearance question by concluding that the appellant, by executing the prior suit settlement agreement, authorized Cohen to accept service of process and never thereafter made any effort to strike service or otherwise withdraw that authority. Rule 4(d), W.R.C.P.; National Equipment Rental, Limited v. Szukhent, 375 U.S. 311, 316, 84 S.Ct. 411, 414, 11 L.Ed.2d 354 (1964); Wright & Miller, Federal Practice and Procedure: Civil 2d § 1097, p. 88. Incidentally, at least as indicated by bankruptcy schedules, Anderson was a resident of the Teton County area during the course of litigation.

CAPTION SUFFICIENCY TO INCLUDE ANDERSON

The substantial issue of this appeal is whether the case pleading caption was sufficient to properly denominate the three individual members of the joint venture as designated defendants. Rule 4(b), W.R.C.P. provides:

"The summons shall be signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant * * *."

Rule 10(a), W.R.C.P. provides:

"Every pleading shall contain a caption setting forth the name of the court, the title of the action, the file number, and a designation as in Rule 7(a). In the complaint the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties."

Serious question exists whether the caption is sufficient, no matter what the text of the pleading, to clearly demonstrate that the individuals are named parties, in view of the accepted principle...