Eddy v. First Wyoming Bank N.A.-Lander, s. 85-21

• Decision Date: 27 January 1986
• Docket Number: 85-22,Nos. 85-21,s. 85-21
• Citation: 713 P.2d 228
• Parties: Bruce N. EDDY, Appellant (Defendant), v. FIRST WYOMING BANK, N.A.-LANDER, Lander, Wyoming, a United States Banking Corporation, Appellee (Plaintiff). E.C. CATES, Appellant (Defendant), v. FIRST WYOMING BANK, N.A.-LANDER, Lander, Wyoming, a United States Banking Corporation, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 228

713 P.2d 228

Bruce N. EDDY, Appellant (Defendant), v. FIRST WYOMING BANK, N.A.-LANDER, Lander, Wyoming, a United States Banking Corporation, Appellee (Plaintiff).

E.C. CATES, Appellant (Defendant), v. FIRST WYOMING BANK, N.A.-LANDER, Lander, Wyoming, a United States Banking Corporation, Appellee (Plaintiff).

Nos. 85-21, 85-22.

Supreme Court of Wyoming.

Jan. 27, 1986.

Dallas J. Laird, Casper, for appellant Eddy.

Sue Davidson, of Urbigkit, Whitehead, Zunker and Davidson, P.C., Cheyenne, for appellant Cates.

Richard D. Gist, Lander, for appellee.

Before THOMAS, C.J., and ROSE, ^* ROONEY, ^** BROWN and CARDINE, JJ.

ROSE, Justice (Retired).

In this case, appellants Cates and Eddy attack a judgment nunc pro tunc which decrees that they are jointly and severally liable to appellee bank for $207,110.55 as of May 23, 1983. The judgment nunc pro tunc was entered after a motion by the bank seeking to "amend, clarify and correct" nunc pro tunc a prior judgment, which motion was made well over one year

after the original judgment had been rendered by the court. Appellants contend that the judgment nunc pro tunc was improper, and we agree that it must be set aside.

FACTS

Appellee bank filed a complaint on January 28, 1982, seeking to recover from appellants, as guarantors or co-makers of a number of promissory notes. The bank and both appellants agreed to settle this suit by stipulation and confession of judgment. The stipulation and the judgment, prepared by the bank, provided that the appellants would be jointly and severally liable for $193,929.86 plus $13,180.69 in attorney's fees, a total of $207,110.55.

The bank and appellants signed the stipulation and confession of judgment on May 17, 1983, whereupon the judgment was signed by the district court on May 23, 1983, and entered upon the records of that court in March of 1984. In July, 1984, a conflict arose concerning the judgment when appellant Cates sought to settle what he thought was a balance of some $64,000 owing on the judgment, while the bank claimed that the balance due was approximately $184,000. The difference springs from whether payments made by appellants to the bank in the period from January 28, 1982, to May 23, 1983, had already been credited in the stipulation and judgment or whether those payments instead reduced the judgment from the original $207,110.55.

The conflict is attributable to the parties' interpretations of the judgment and the stipulation upon which the judgment was based. Appellants rely on the following language in the stipulation:

"That Plaintiff shall have judgment against the Defendants * * * jointly and severally, as of 28 January, 1982 * * * in the amount of $207,110.55 together with interest thereon at the rate of 10% per annum from and after 28 January, 1982 * * *." (Emphasis added.)

This language supports their claim that they owed the bank $207,110.55 as of January 28, 1982, and thus any payments the bank received after that date should have reduced the balance owed.

The bank, on the other hand, claims that the judgment proclaimed that the appellants owed $207,110.55 as of May 23, 1983, the date of judgment. The bank supports this position by relying upon the language in the judgment, which was dated May 23, 1983, ordering that the bank have a judgment against Cates and Eddy in the sum of $207,110.55.

Because the bank wished to enforce the judgment and foreclose upon appellants' property, and yet avoid selling more of the property than was necessary to satisfy the debt owed, it moved to "amend, clarify and correct judgment nunc pro tunc." The trial court found that it had inherent and equitable power to consider the bank's motion, and that there was no clerical error in the original judgment. The court then granted the bank's motion and subsequently entered a judgment nunc pro tunc.

The original judgment provided in part

" * * * that pursuant to the Stipulation and Confession of Judgment filed herein, Judgment should be entered against the Defendants and each of them, jointly and severally, for the sum of $207,110.55 together with interest thereon at the rate of 10% from and after 28 January, 1982 * * *."

The stipulation provided in part that

" * * * Plaintiff shall have judgment against the Defendants * * * jointly and severally, as of 28 January, 1982, * * * in the amount of $207,110.55 together with interest thereon at the rate of 10% per annum from and after 28 January, 1982 * * *." (Emphasis added.)

In its judgment nunc pro tunc the court found:

"That the Court has inherent jurisdiction and equitable power to consider and rule upon Plaintiff's Motion to Amend, Clarify and Correct Judgment Nunc Pro Tunc without reference to statute or rule in * * *

order, upon proper evidence, to grant relief from a clerical error.

* * *

"The Judgment as rendered on May 23, 1983, does not contain any clerical error.

"That by the language, meaning and effect of the Judgment as rendered herein on May 23, 1983, the Defendants, * * * jointly and severally, owed to Plaintiff * * * on May 23, 1983, the principal sum of $207,110.55 together with interest on said principal sum at the rate of 10% per annum calculated from and after January 28, 1982 * * *." (Emphasis added.)

The judgment nunc pro tunc completely failed to refer to the stipulation and confession of judgment, which was indisputably the basis for the original judgment and was referred to six times by that judgment. The judgment nunc pro tunc also consisted of only six double-spaced pages while the original judgment was six single-spaced pages, which indicates the considerable changes made.

The entry of the judgment nunc pro tunc was made after a conference telephone call and without an evidentiary hearing dealing with the parties' intent when they entered into the stipulation. The bank claims that the court merely clarified its original judgment to avoid uncertainty and vagueness in its interpretation and enforcement, and that the court has inherent power as well as power under Rule 60(a), W.R.C.P., to so act. ¹ Appellants contend that the motion by the bank sought to change material parts of the judgment, 17 months after the judgment and stipulation had been signed, and that the trial court did not have any power to change the judgment as it did.

Preliminarily, we must deal with appellants' contention that the bank's motion to clarify the judgment should have been dismissed for the reason that the bank failed to comply with Rule 5(d), W.R.C.P., since the motion was forwarded to the trial judge and the judge did not send it to the clerk for filing. Rule 5(e), W.R.C.P., which is identical to the federal rule, provides in part:

"The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him, in which event he shall * * * forthwith transmit them to the office of the clerk."

Here it is undisputed that the bank's motion was forwarded to the trial judge well before the hearing on the motion and that the appellants were informed of and prepared to contest the motion. 4 Wright & Miller, Federal Practice and Procedure, Civil § 1153 (1969), discusses Rule 5(e), F.R.C.P., and states "Accordingly, the decided cases seem to indicate that whether 'filing' has taken place may depend on the context in which the question arises and the good faith of the party who is obliged to file.

* * *

* * *

"It also should be noted that filing in this context is complete when the judge has custody of the papers; his failure to forward them forthwith will not prejudice the party attempting to comply with the filing requirement."

In the present case, appellants do not claim that the bank's actions harmed them. Appellants and their counsel were served with the bank's motion and notice of the hearing on the same. In this context, we hold that the required "filing" had taken place.

ISSUES

Appellant Cates claims the issues to be:

"A. Did the District Court err in sustaining the Motion of Appellee to Amend, Clarify and Correct Judgment Nunc Pro Tunc by entering a Judgment Nunc Pro Tunc:

"1. By granting relief to appellee, herein designated 'Bank', from clerical error whether jurisdictionally premised on Rule 60, Wyoming Rules of Civil Procedure or by invoking a contended power of the Court as to inherent jurisdiction and equitable power to grant relief from clerical error, at a date more than one year after execution of the original Judgment;

"2. By entering the Judgment Nunc Pro Tunc although the Court specifically held in the amendatory judgment that the original judgment did not contain clerical error;

"3. By determining that the debt balance and payment credits accrued for May 23, 2983 [sic] and not January 28, 1982 as provided by the Stipulation;

"4. By refusing to grant the parties an opportunity to present evidence before entry."

Appellant Eddy states the issue as:

"A. Whether or not the Trial Court had authority to enter the Judgment Nunc Pro Tunc filed December 24, 1984?"

Appellee bank agreed with Eddy's statement of the issue but restated the issue in its case against Cates as:

"A. Did the District Court err in sustaining the Motion of Appellee to amend, clarify and correct Judgment Nunc Pro Tunc by entering a Judgment Nunc Pro Tunc:

"1. Pursuant to the Court's inherent and equitable powers as supplemented by Rule 60(a), Wyoming Rules of Civil Procedure, which clarified and affirmed the meaning and intent of the Court's original Judgment to avoid a claimed uncertainty, vagueness or ambiguity in calculating the amount of the Judgment indebtedness?

"2. That affirmed that the amount of the indebtedness stated in the Court's original Judgment was calculated and determined owed as of May 23, 1983, the date of the original Judgment?"

CLERICAL ERROR

The bank contends that the court had both inherent power and power under Rule 60(a),...