Claassen v. Nord
| Decision Date | 10 June 1988 |
| Docket Number | No. 87-205,87-205 |
| Citation | 756 P.2d 189 |
| Parties | Perry Evan CLAASSEN, Appellant (Plaintiff), v. Finn E. NORD, and Green Management, Inc., Appellees (Defendants). Tom COLLINS, Appellee (Defendant and Third-Party Plaintiff), v. FARMERS COOPERATIVE ASSOCIATION OF GILLETTE, Wyoming, a Wyoming corporation, (Third-Party Defendant). |
| Court | Wyoming Supreme Court |
Robert J. O'Neil, Gillette, for appellant.
Robert Jerry Hand of Hand, Hand, and Hand, Casper, for appellee Finn E. Nord.
Ann M. Rochelle of Williams, Porter, Day & Neville, Casper, for appellee Green Management Corp., Inc.
Michael K. Davis of Redle, Yonkee & Arney, Sheridan, for appellee Tom Collins.
Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.
This is an appeal from two trial court orders. The first order sets aside the entry of default and default judgment that appellant Perry Evan Claassen once possessed against appellee Finn E. Nord (Nord). The second order grants summary judgment to appellees Green Management Company (Green), Tom Collins (Collins) and Nord. Appellant raises the following issues:
facts sufficient to support a finding that Nord breached that duty to Claassen or, in the alternative that Nord owed no duty whatsoever to Claassen.
We affirm both orders.
This case centers on appellees' alleged tort liability arising out of a gas explosion in a four-plex apartment building that used to be located at 104 1/2 Ross Avenue, Gillette, Wyoming. Collins and his wife owned the building until August 29, 1975, when they sold it to Nord under a contract for warranty deed. They surrendered possession on the date of sale. Nord managed the four apartments in the building from the time he purchased them until May 1981. During this period, there was a fire in apartment number 4; after the fire that apartment was converted from propane gas appliances to electric appliances.
The parties do not dispute that the propane-to-electricity conversion in apartment 4, was completed by a company named "Builders Diversified." Appellant also admits that Builders Diversified maintained the legal status of an independent contractor when it did the work. Cf. Holliday v. Bannister, Wyo., 741 P.2d 89, 95 (1987). Appellant has never alleged that any of the appellees might be liable in tort for damages from the explosion under a theory of negligent hiring of Builders Diversified. Rather, appellant's arguments attempt to build genuine issues of fact for his negligence action based on the differences in the deposition testimony of Nord and other witnesses concerning who might have supervised the independent contractor, or what appellees may have known about the conversion later on. Nord contends that his insurance adjuster, Wade Chalfant, hired and supervised Builders Diversified after the 1981 fire. Chalfant's deposition, however, indicates that Nord hired and supervised the independent contractor. Neither Nord nor Chalfant seem to have personal knowledge or recollection of the other's contacts with Builders Diversified. The record shows that the insurance company paid for the work.
Also, there was speculation that the Gillette Fire Department turned off the gas supply to apartment 4 after the 1981 fire by turning the valve on the meter located in a wooden box on the back of the building. This box was not locked but its cover was held shut by a pin.
From the time apartment 4 was converted to electricity, until April 1981, Nord managed the building personally. On April 7, 1981, he retained Green to manage and rent apartment 4. Nord was responsible for repairs under his agreement with Green. This was Green's first involvement in the apartment, and Green never had a written agreement with Nord concerning the other three apartments at 104 1/2 Ross Avenue. Green did, however, collect rents for all of the apartments at 104 1/2 Ross Avenue from April 1981 to June 1982.
In December 1981, Green entered into a six-month term lease agreement for apartment 4 with a man named Edd Nowlin. The lease prohibited subleasing without Green's consent. Appellant moved into apartment 4 in April 1982. He never signed a lease or other agreement with Green or Nowlin, but claims he paid some rent to Nowlin. He also claims both Green By March 1982, Nowlin was behind on his rent payments. He failed to pay after receiving a default notice from Green and his lease was terminated. Nowlin and appellant vacated the apartment in May 1982. It remained empty during most of June. Appellant moved into one of the other apartments in the building, again under some casual rental agreement with the occupant, but he kept a key to apartment 4 because he left a sofa/hide-a-bed there.
and Nowlin were aware of his presence in the apartment and did not object. There is no evidence in the record suggesting that Collins knew he was there.
On June 29, 1982, appellant entered apartment 4 intending to remove his sofa. Once inside, he lit a cigarette and set off a gas explosion. The explosion burned his face, arms, hands and torso and set apartments 3 and 4 on fire. As a result of his burns, appellant went to a hospital in Texas. His treatment involved repeated skin debridements and skin grafting.
The only contact Collins had with the apartments in 1982 concerned Nord's failure to pay real property taxes, carry insurance on the building or make his payments under the contract for deed. Collins sent Nord notice of this fact in April 1982. In May 1982 Carole Collins sent the escrow agent a demand for return of the deed to the property and other escrow documents. Collins received the deed on May 14, 1982, and promptly recorded it. He did not inspect the building between August 1975 and May 1982. In May 1982, Collins went to inspect the apartments, but was unable to get inside because the door was padlocked.
About the same time, Carole Collins contacted Green regarding possession of the building. Green refused to surrender possession and Collins' attorney later told him he would probably have to sue Nord and Green to regain physical control of the property. In June 1982, Green's vice-president sent Nord a memo telling him of the Collins' inquiries and asking him for a response. Nord made no reply. Green sent Nord a second memo on July 15, 1982, after the explosion and fire, asking about who currently owned the building. The memo stated that failure to respond would mean that Green could assume Nord no longer owned the building. There was no response to the second memo, and on August 3, 1982, Green wrote Nord and told him it was returning control and management of the property to him. This action was finalized with an August 9, 1982, letter from Green to the Collins' attorney stating that Finn Nord had control of the apartments.
During the summer of 1982 the City of Gillette began condemnation proceedings against the building. At the same time, Collins filed a declaratory judgment action against Nord and Green seeking sole legal ownership and possession of the property. In September, Green, acting as agent for Nord, agreed to account to Collins for rents and profits if Collins would allow the building to be demolished. Nord agreed and delivered a warranty deed to Collins at the same time.
In August 1982, the Farmers Co-operative Association of Gillette, which had supplied propane gas to the building, settled an earlier negligence action with appellant. As a result of that settlement, little evidence regarding the delivery of propane to the building is available as a part of this record.
Appellant filed this negligence action against Nord, Collins and Green on June 27, 1986. Green and Collins answered on July 17 and 22, 1986, respectively. Collins counterclaimed against appellant and cross-claimed against Nord and Green. Green also cross-claimed against Nord and Collins.
The record shows that Nord was not served with process until August 13, 1986, when a deputy sheriff located him in the Campbell County Library in Gillette. Nord denies that he was ever served but the trial court did not accept that assertion. By February 6, 1987, Nord still had not filed an answer; appellant filed an application for entry of default against Nord on that day. On March 3, 1987, appellant moved the trial court for a hearing on damages and a hearing was scheduled for March 10.
By this time Nord's insurance company had retained an attorney for him. On March 7, Nord's attorney had been apprised of the upcoming hearing and he called appellant's attorney and asked for a continuance. This request was refused. On March 9, the trial court granted partial default judgment against Nord in the amount of $86,859 in medical expenses and $1,000,000 for pain and suffering. This default judgment was entered without an evidentiary hearing.
Nord's new attorney filed a "Motion to Set Aside Entry of Default" the same day. The...
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