Bredthauer v. TSP
| Decision Date | 19 November 1993 |
| Docket Number | Nos. 93-11,93-12,s. 93-11 |
| Citation | 864 P.2d 442 |
| Parties | Charles E. BREDTHAUER and Cindy S. Bredthauer, husband and wife, Appellants (Plaintiffs), v. TSP, a Wyoming corporation, Appellee (Defendant), Lila West; VIP Realty, a Wyoming corporation; Darryl W. Lynde; Douglas P. Marquiss; CCP; Lance Cramer; Gary W. Cain; Paul J. Polen; Helen Hafling; Christian, Spring, Seilbach and Associates, a Montana corporation; Davis Surveying, a Wyoming corporation; First American Title Guaranty Company, a Wyoming corporation; Rocky Mountain Title Insurance Agency, a Wyoming corporation; Campbell County Abstract Company, a Wyoming corporation; Lawrence J. Christensen; the Board of County Commissioners of Campbell County; Harry Underwood; W.B. Fitch; and B.L. Tarver, (Defendants). Charles E. BREDTHAUER and Cindy S. Bredthauer, husband and wife, Appellants (Plaintiffs), v. CHRISTIAN, SPRING, SEILBACH AND ASSOCIATES, a Montana corporation, Appellee (Defendant), Lila West; VIP Realty, a Wyoming corporation; Darryl W. Lynde; Douglas P. Marquiss; CCP; Lance Cramer; Gary W. Cain; Paul J. Polen; Helen Hafling; TSP, a Wyoming corporation; Davis Surveying, a Wyoming corporation; Rocky Mountain Title Insurance Agency, a Wyoming corporation; Campbell County Abstract Company, a Wyoming corporation; Lawrence J. Christensen; the Board of County Commissioners of Campbell County; Harry Underwood; W.B. Fitch; and B.L. Tarver, (Defendants). |
| Court | Wyoming Supreme Court |
Michael N. Patchen, Gillette, for appellants.
Robert W. Brown and Robert G. Berger of Lonabaugh and Riggs, Sheridan, for appellee TSP.
Curtis B. Buchhammer of Orr, Buchhammer & Kehl, Cheyenne, for appellee Christian, Spring, Seilbach and Assoc.
Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.
Cindy and Charles Bredthauer sued Christian, Spring, Seilbach and Associates (CSSA) and TSP for conducting erroneous land surveys. The trial court granted CSSA and TSP summary judgment based on W.S. 1-3-107(a)(i) (1988), the two-year statute of limitations for professionals. In Bredthauer v. Christian, Spring, Seilbach and Assoc., 824 P.2d 560 (Wyo.1992) (hereinafter Bredthauer I ), we reversed the trial court because of error in determining the date that the statutory limitation period had begun running. Bredthauer I, 824 P.2d at 564. On remand the trial court again granted CSSA and TSP summary judgment, this time based upon the limitation period in W.S. 1-3-111 (1988), the statute of repose. The Bredthauers appeal from this second summary judgment arguing res judicata, collateral estoppel, judicial estoppel and the doctrine of the law of the case.
We affirm.
Appellants Bredthauers phrase the issues as:
Did the District Court err in ruling by summary judgment that the appellee surveyors TSP and CSSA can now successfully assert a new statute of limitations, (W.S. § 1-3-111(a)) labeled as a statute of repose, after stipulating in Bredthauer v. CSSA, 824 P.2d 560 (Wyo.1992) that W.S. § 1-3-107(a)(i) controlled this case which ruling is directly contrary to the law of the case decided by the previous appeal and the trial court's prior rulings?
Appellee TSP frames the issue as follows:
A. Whether the District Court erred in granting summary judgment to Appellee TSP on the basis of the statute of repose set forth in § 1-3-111(a) W.S.1977, when the surveying work performed by Appellee TSP was substantially completed more than ten (10) years prior to the filing of Plaintiff's complaint.
Appellee, CSSA, presents two issues:
I. Appellants have improperly raised issues on appeal that were not raised before the District Court.
II. The District Court properly ruled that the statute of repose set forth in W.S. § 1-3-111 could be asserted to preclude Appellants' claims against Appellee Christian, Spring, Seilbach and Associates.
The underlying facts of this case are presented in Bredthauer I and need not be repeated here. See Bredthauer I, 824 P.2d at 560-61. However, parts of the procedural history leading up to this second summary judgment are important and thus need mention.
In the fall of 1990, after the Bredthauers filed their original complaint in this action, both TSP and CSSA filed motions to dismiss. TSP's motion to dismiss was premised on the two-year statute of limitations. CSSA's motion to dismiss, however, was based on both the two-year statute of limitations and W.S. 1-3-111, the statute of repose. On February 7, 1991, after a hearing on these motions to dismiss, the trial court issued an order granting TSP's and CSSA's motions and dismissing them both from the case. That order stated, in part:
The parties agree that the provisions of W.S. § 1-3-107 state the applicable period of limitations with respect to all claims against the Defendants CSSA and TSP. * * *
* * * * * *
The plaintiffs did not file their complaint in this action within two years after the plaintiffs knew or should have known of the existence of a cause of action against the Defendants CSSA and TSP. Therefore the Defendants CSSA and TSP should be dismissed from this action.
Around the same time that CSSA and TSP presented these motions to dismiss, another defendant, Davis Surveying, filed a motion for summary judgment arguing, in addition to the two-year statute of limitations, that the statute of repose applied to bar the Bredthauers' claim against them. On February 15, 1991, the trial court issued an order dismissing Davis Surveying based on the two-year statute of limitations. In this order the trial court commented on the applicability of the statute of repose by stating:
15. The plaintiffs have asked this court to apply the ten year statute of limitations set forth in W.S. 1-3-111 to their claims against Defendant Davis. However, the court finds that W.S. 1-3-111 has no application to the facts of this case. * * *
The Bredthauers appealed to this court the February 7, 1991 order dismissing CSSA and TSP and presented as their only issue:
The Trial Court erred by finding that the causes of action against the surveyors * * * accrued to the Plaintiff-Appellants on June 9, 1988, and as such barred their claims filed on July 2, 1990, by operation of * * * W.S. 1-3-107(a)(i).
Bredthauer I, 824 P.2d at 561. As a result of this appeal, we held in Bredthauer I:
[A]s a matter of law, the Bredthauers' cause of action did not accrue before July 28, 1988, the date on which they received their land surveyor's report advising them that the surveys conducted by the appellee surveyors [CSSA and TSP] were, in its opinion, in error.
* * * * * *
The district court's finding that the cause of action accrued not later than June 9, 1988, is incorrect as a matter of law.
Bredthauer I, 824 P.2d at 562-64.
In the spring of 1992, after remand from Bredthauer I, TSP and CSSA both filed motions for summary judgment arguing that the statute of repose applies to bar the Bredthauers from bringing their action. The Bredthauers responded with a motion opposing CSSA's and TSP's motions, arguing that the doctrines of res judicata and judicial estoppel preclude CSSA and TSP from raising the statute of repose and asserting that this court's Bredthauer I opinion ruled that the two-year statute of limitations controls.
On June 23, 1992, the trial court heard oral arguments upon CSSA's and TSP's motions for summary judgment. During these arguments, the Bredthauers briefly mentioned the law of the case doctrine and specifically declined to argue the merits of applying the statute of repose to the facts of this case. In an order, filed on November 6, 1992, the district court rejected the Bredthauers' res judicata and judicial estoppel arguments, granted CSSA's and TSP's motions for summary judgment based on the statute of repose, and certified the order as final under W.R.C.P. 54(b). The Bredthauers now appeal this order.
As we have stated many times,
[w]hen reviewing the trial court's grant of summary judgment, we examine the case in the same manner as the trial court. Our task requires that we make a dual finding that no genuine issue of material fact exists, and that the prevailing party was entitled to judgment as a matter of law. When considering questions of law, we accord no special deference to the district court's determination.
Davidson v. Sherman, 848 P.2d 1341, 1343 (Wyo.1993) (citations omitted). Since the Bredthauers have not raised an issue concerning the facts, we examine only if TSP and CSSA were entitled to judgment as a matter of law. Although the Bredthauers raise only a single issue, they argue a number of different legal theories as support. Thus, we will address each theory separately.
This court has, on several occasions, invoked the doctrine of judicial estoppel. Matter of Paternity of JRW, 814 P.2d 1256, 1265-66 (Wyo.1991); Zwemer v. Production Credit Ass'n, 792 P.2d 245, 246 (Wyo.1990); Anderson v. Sno-King Village Ass'n, Inc., 745 P.2d 540, 545 (Wyo.1987); Texas West Oil & Gas Corp. v. First Interstate Bank, 743 P.2d 857, 866 (Wyo.1987); Matter of Parental Rights of ARW, 716 P.2d 353, 356 (Wyo.1986); Snell v. Ruppert, 582 P.2d 916, 918 (Wyo.1978); Gray v. Fitzhugh, 576 P.2d 88, 91 (Wyo.1978); Allen v. Allen, 550 P.2d 1137, 1142 (Wyo.1976); Hatten Realty Co. v. Baylies, 42 Wyo. 69, 89-93, 290 P. 561, 566-68 (1930). In Hatten, this court held that where "a man is successful in the position taken in the first proceeding" then that position "rise[s] to the dignity of conclusiveness." Hatten, 42 Wyo. at 93, 290 P. at 568.
In Allen, we described judicial estoppel as
a doctrine which estops a party to play fast and loose with the courts or to trifle with judicial proceedings. It is an expression of the maxim that one cannot blow hot and cold in the same breath. A party will just not be allowed to maintain inconsistent positions in judicial proceedings * * *.
Allen, 550 P.2d at 1142. In...
To continue reading
Request your trial
-
McCreary v. Weast
...v. Cook Ford Sales, Inc., 927 P.2d 1168, 1170 (Wyo.1996); Hiltz v. Robert W. Horn, P.C., 910 P.2d 566, 570 (Wyo.1996); Bredthauer v. TSP, 864 P.2d 442, 446 (Wyo.1993); Union Pacific Resources Co. v. State, 839 P.2d 356, 366-67 (Wyo.1992); Mills v. Garlow, 768 P.2d 554, 555 (Wyo.1989); Diamo......
-
Hanft v. City of Laramie
...See Int. of: AA, 2021 WY 18, 479 P.3d 1252 (Wyo. 2021); ECH, ¶ 21, 423 P.3d at 302; see also Cooper, 1 P.3d at 1208; Bredthauer v. TSP, 864 P.2d 442, 447 (Wyo. 1993). Issues that qualify under one of these exceptions are evaluated under the plain error doctrine. See VS, ¶ 25, 429 P.3d at 21......
-
Bell v. Schell
...a time when the plaintiff may or may not be aware of any injury, the statute is properly termed a statute of repose.'" Bredthauer v. TSP, 864 P.2d 442, 446 (Wyo. 1993) (quoting Worden v. Village Homes, 821 P.2d 1291, 1295 (Wyo. 1991) and State ex rel. Wyoming Workers' Compensation Div. v. H......
-
Wallop v. Wallop
...are fundamental in nature.'" Donaghy v. Board of Adjustment, 2002 WY 150, ¶ 11, 55 P.3d 707, ¶ 11 (Wyo. 2002) (quoting Bredthauer v. TSP, 864 P.2d 442, 446 (Wyo.1993) and Oatts v. Jorgenson, 821 P.2d 108, 111 (Wyo.1991)). We will not abrogate this rule now. Additionally, Wife sets forth no ......