City of Wahpeton v. Drake-Henne, Inc.

• Decision Date: 02 April 1975
• Docket Number: No. 9067,DRAKE-HENN,INC,9067
• Citation: 228 N.W.2d 324
• Parties: CITY OF WAHPETON, North Dakota, a Municipal Corporation, Plaintiff and Appellee, v., a corporation, et al., Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 324

228 N.W.2d 324

CITY OF WAHPETON, North Dakota, a Municipal Corporation Plaintiff and Appellee, v. DRAKE-HENNE, INC., a corporation, et al., Defendants and Appellants.

Civ. No. 9067.

Supreme Court of North Dakota.

April 2, 1975.

Syllabus by the Court

1. A decision is not necessary as to whether 'newly discovered evidence' must have existed prior to judgment in order to be considered under Rule 60(b)(2), N.D.R.Civ.P., or whether evidence which comes into existence after judgment may be considered, since the facts do not disclose an adequate basis for consideration under either rule.

2. Evidence which does not tend to prove a fact or condition existing at or prior to the time of trial does not constitute 'newly discovered evidence' which may be considered under Rule 60(b)(2), N.D.R.Civ.P.

3. One who is entitled to recover for injury to property due to breach of contract is not required to make repairs.

4. Decision is not necessary as to whether an unpaid money judgment can ever have 'prospective application' under Rule 60(b)(5), N.D.R.Civ.P., since grounds stated for application of Rule 60(b)(5) are inadequate to show that it is no longer equitable that the judgment be prospectively applied.

5. Financial condition of a defendant usually is not a material factor in considering motion under Rule 60(b)(5), N.D.R.Civ.P.

6. Standard of discretion in ruling on a motion under Rule 60, N.D.R.Civ.P., for relief from a default judgment is different from that in ruling on a motion to reopen a judgment entered after a contested trial.

7. The motion under Rule 60(b)(6) to reopen judgment is not supported by sufficient extraordinary facts to justify the extraordinary relief sought.

8. There must be an end to litigation so that suits may not be immortal, while men are mortal.

Johnson, Milloy, Eckert & Johnson, Wahpeton, and Bruce E. Bohlman, Grand Forks, for plaintiff and appellee, argued by Robert L. Eckert and Mr. Bohlman.

Dorsey, Marquart, Windhorst, West & Halladay, Minneapolis, Minn., and Vogel, Vogel, Brantner & Kelly, Fargo, for defendants and appellants Johnson, Drake & Piper, Inc., and Drake-Henne, Inc., argued by Jan Stuurmans, Minneapolis.

Degnan, McElroy, Lamb, Camrud & Maddock, Grand Forks, for defendant and appellant American Casualty Co., argued by James L. Lamb.

VOGEL, Justice.

This is an appeal from an order of the district court of Richland County denying the motion of the defendants under Rule 60(b), North Dakota Rules of Civil Procedure, to vacate a judgment against the defendants and grant a new trial on the issue of damages.

The judgment in question was entered pursuant to the majority opinion in a previous appeal reported at 215 N.W.2d 897 (N.D.1974).

THE FACTS AND CONTENTIONS OF THE PARTIES

The action arose from a dispute over whether the defendant Drake-Henne, Inc., properly performed a contract to construct storm sewer, sanitary sewer, and waterworks improvements. A simultaneous contract between the City and a third party provided for pavement to be laid over the sewer and water mains. The trial court, sitting without a jury, found that the paving was defective due to failure of the sewer and water contractor to compact the soil beneath the paving to the degree required by the contract. Defendant Johnson, Drake & Piper, Incorporated, is the successor to Drake-Henne, and defendant American Casualty Company is surety on its performance bond.

Judgment was entered for $58,367.30. The defendants appealed, and the City, claiming the damages inadequate, cross-appealed. The appeals were filed in 1968 and argued in 1973. The delay was due largely to inaction by former counsel for the City. An opinion was written, a petition for rehearing was granted, and upon rehearing a majority affirmed the judgment of the trial court on the issue of liability but modified it as to damages and directed that judgment be entered in favor of the City in the amount of $517.791.60. It should be noted that the former appeal was taken under former Section 28--27--32, N.D.C.C., allowing trial de novo in the Supreme Court. Trials de novo have since been abolished. Ch. 311, 1971 S.L.

A petition for certiorari to the United States Supreme Court was made and was denied. 419 U.S. 986, 95 S.Ct. 245, 42 L.Ed.2d 194 (1974).

Judgment on remittitur was entered on May 2, 1974. The defendants thereafter made a motion to the district court under Rule 60(b), N.D.R.Civ.P., to vacate the judgment and grant a new trial on the issue of damages.

The defendants' motion under Rule 60(b)(2), (5), and (6), is based on claims: (1) of newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59, N.D.R.Civ.P.; (2) that it no longer is equitable that the judgment should have prospective application; and (3) that other reasons justify the granting of relief from the judgment.

The motion to reopen is based upon affidavits of William H. DeButts, James L. Lamb, and John Drake, and upon a letter from Robert L. Eckert, city attorney of Wahpeton, to Mr. Lamb, dated June 18, 1974.

The letter of Mr. Eckert, written during settlement negotiations after the case was decided by this court, was a reply to an inquiry as to the amount of repairs to the pavement project since it was completed. Mr. Eckert stated that about $2,000 had been spent in 1970, about $6,400 in 1971, about $10,200 in 1972, and about $9,700 in 1973, and that $10,000 was projected for expenditures in 1974. He also stated that the city engineer estimated that less than 50 percent of the necessary repairs had been completed.

From these statements the defendants argue that total repairs necessary to the project would be slightly more than double the expenditures made through 1974, or about $80,000, and that therefore the judgment in favor of the City in the amount of $517,791.60 constitutes a windfall to the City, and the judgment should not be allowed to stand.

This argument ignores a portion of Mr. Eckert's letter stating that '. . . the City Engineer's office has been taking this on a year-by-year basis. Obviously the City is limited in regard to its funds available for repairs so it is prohibited from making all of the repairs at one particular time.'

In further explanation of the letter and in opposition to the motion, the City submitted affidavits of Mr. Eckert and the City engineer to the effect that the repairs made were only patchwork, that the City had no way of raising the money necessary to do more, and that to restore the streets, sidewalks, and boulevards to the condition they would have been in if Drake-Henne had performed its contract according to its terms would cost in excess of $1,000,000.

The affidavit of Mr. DeButts, who was a witness at the original trial, shows that he spent approximately 4 1/2 hours on August 12, 1974, driving over and inspecting the project, and that in his opinion the curb and gutter, pavement, and boulevard over or directly adjacent to trenches excavated by the defendant Drake-Henne had stabilized and would not significantly or substantially change in the future other than as a result of normal deterioration; that no further trenches would need to be disturbed or recompacted; that all present irregularities in the pavement can be repaired and maintained at nominal normal maintenance cost; and that only approximately 3,045 feet of curb and gutter had been replaced since the termination of the project on August 5, 1963.

In opposition to the DeButts affidavit the City presented affidavits of Arden Anderson, city auditor of Wahpeton, Ross Milne, a consulting engineer, and Adolph Tryba, city engineer for the City of Wahpeton. The Anderson affidavit indicates that there have been numerous breaks in city water mains which were directly caused by improper backfilling on the project; that there will be recurring problems due to curbs sinking and applying pressure to water and sewer lines; that some houses in one addition to the city were having trouble with private sewer line blockage resulting from improper backfilling; and that the City was being asked to compensate the private owners for losses.

The Milne affidavit was to the effect that the patching of the streets in the project area did not take care of the underlying defects, which could be corrected only by a general reconstruction of the streets to improve traffic and correct grade and drainage problems; that maintenance costs are higher because of the defective streets; that until drainage is restored the curbs and gutters will continue to shift, which will cause increased breaking up of the pavement; and that to put the project into condition called for by the contract would cost in excess of $1,000,000. The affidavit of Adolph Tryba was substantially similar.

The affidavit of Robert Eckert, previously referred to, also stated that Wahpeton was exposed to great legal liability by reason of sinking sidewalks, which constituted a threat to the safety of the public, for which the City was liable.

The defendants vigorously assert that the affidavits, fairly read, show that the soil in the project area has now stabilized; that the City does not plan to tear up and reconstruct the entire project; that the damages attributable to the cost of recompacting were excessive in the amount of at least $133,000; and that the case should be reopened and a new trial granted on the issue of damages.

We do not so read the affidavits. It may very well be true that with the passage of some 11 years since the completion of the project natural compaction and partial or complete stabilization of the soil has occurred. But Wahpeton contracted to have the compaction done mechanically by Drake-Henne, and within a short period of time, not to have it done by nature over a period of 11 years. At the time the motion was made, Wahpeton had already suffered 11 years of improper drainage, settling curbs, gutters, sidewalks, and...