England v. Simmons, No. 86-74

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore THOMAS; BROWN; URBIGKIT
Citation728 P.2d 1137
PartiesVictor L. ENGLAND and Frances England, Husband and Wife, Appellants (Plaintiffs), v. Phil O. SIMMONS and Kissack Water and Oil Service, Inc., Appellees (Defendants), Michael E. Barnes and Apollo Drilling Company, (Defendants).
Docket NumberNo. 86-74
Decision Date01 December 1986

Page 1137

728 P.2d 1137
Victor L. ENGLAND and Frances England, Husband and Wife, Appellants (Plaintiffs),
v.
Phil O. SIMMONS and Kissack Water and Oil Service, Inc., Appellees (Defendants),
Michael E. Barnes and Apollo Drilling Company, (Defendants).
No. 86-74.
Supreme Court of Wyoming.
Dec. 1, 1986.
Rehearing Denied Dec. 22, 1986.

Page 1138

William D. Omohundro and Randall T. Cox, of Omohundro and Palmerlee, Buffalo, for appellants.

J. Scott Burnworth of Schwartz, Bon, McCrary & Walker, Casper, for appellees.

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

BROWN, Justice.

Appellants Victor L. England, and Frances England, his spouse, filed a complaint alleging negligence and/or willful and wanton conduct on the part of Phil O. Simmons, Kissack Water and Oil Service, Inc., Michael E. Barnes and Apollo Drilling Company after Victor England was injured in an automobile collision. 1 On July 3, 1985, the district court denied appellants' motion to amend their complaint in order to join additional parties. Subsequently, on October 1, 1985, the district court entered a summary judgment in favor of appellees, determining that no genuine issue as to any material fact existed. On appeal two issues are raised:

1. Did the district court abuse its discretion by refusing leave to appellants to amend their complaint and thereby add other individuals as defendants?

2. Did the district court abuse its discretion in determining that no genuine issue of material fact existed concerning appellees' negligent and/or willful and wanton conduct and in entering summary judgment in favor of appellees?

We will affirm.

On September 26, 1983, Phil Simmons was driving east on Iberlin Road, a gravel road in Campbell County, in a 25-ton water truck owned by Kissack Water and Oil Service, Inc. A southerly wind that day caused a dust cloud to trail Simmons' vehicle. The cloud covered the lane of traffic to the rear and immediate left of an eastward-bound truck for a period of time. Michael Barnes, an employee of Apollo Drilling Company, entered the Iberlin Road behind Simmons' truck. He was driving a

Page 1139

crew cab pickup and followed behind Simmons. Meanwhile, Victor England drove his pickup truck with his co-worker Anthony Bentley in the opposite direction toward Simmons and Barnes.

The Barnes' vehicle attempted to pass Simmons, entering the dust cloud into the passing or lefthand lane and collided with the England vehicle. Both vehicles were substantially destroyed, and several persons were injured.

The only dispute concerns what part the Simmons' truck played in the accident. Appellants contend that Simmons waited until he was very near England to flash his brake lights and pull to the righthand side of his lane--giving Barnes the "do pass signal"--and thereby negligently and/or willfully and wantonly caused the accident. Appellants joined Simmons' employer, Kissack Water and Oil Service, Inc., via use of a respondeat superior theory. Conversely, appellees state that immediately before the England truck came even with the front of the water truck in which Simmons was driving, Simmons looked in his right rearview mirror and realized that Barnes was no longer behind him. Only after realizing that Barnes was trying to pass him with an oncoming vehicle approaching did Simmons hit his brakes and pull to the right edge of the road in an attempt to prevent an accident.

I

Appellants maintain that the district court abused its discretion by refusing to permit joinder of other individuals as defendants in this case. On June 24, 1985, appellants sought to amend their complaint to add the individual officers of Kissack Water and Oil Service, Inc., one of the then existing parties, as defendants. However, October 24, 1985, the district court denied that motion giving no authority or reasoning for doing so.

In determining whether a joinder of parties should be allowed, the rule provides:

"(a) * * * All persons may be joined in one (1) action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. * * *

"(b) The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom he asserts no claim and who asserts no claim against him, and may order separate trials or make other orders to prevent delay or prejudice." Rule 20, Wyoming Rules of Civil Procedure.

Rule 20, Federal Rules of Civil Procedure, which is identical to Wyoming's rule, is explained in 7 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d §§ 1653 and 1660. It is stated at § 1653, p. 382:

"Instead of developing one generalized test for ascertaining whether or not a particular factual situation constitutes a single transaction or occurrence for purposes of Rule 20, the courts seem to have adopted a case by case approach. As stated by one district court judge:

"there can be no hard and fast rule, and that the approach must be a general one of whether there are enough ultimate factual concurrences that it would be fair to the parties to require them to defend jointly [the several claims] against them * * *."

And at § 1660, pp. 436-438:

"The general philosophy of the joinder provisions of the federal rules is to allow virtually unlimited joinder at the pleading stage but to give the district court discretion to shape the trial to the necessities of the particular case. Rule 20(b) furthers this policy by giving the court authority to order separate trials or make any other order to prevent a party from being embarrassed, delayed, prejudiced, or put to unnecessary expense by joinder of a party * * *.

"In addition to safeguarding the interests of the parties, the provision furthers

Page 1140

trial convenience by granting the court discretion to sever multiple issues that technically may be joined in one action under liberalized joinder rules but that could be determined more conveniently and expeditiously in separate trials. * * * The district court's decision on the issue of separate trials will not be disturbed on appeal except in the rare case when a clear abuse of discretion can be shown." (Emphasis added.)

See also, State, by and through Christopulos v. Husky Oil Company of Delaware, Wyo., 575 P.2d 262 (1978).

This court has defined abuse of discretion numerous times. Recently, we said:

" 'A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. * * * ' Martinez v. State, Wyo., 611 P.2d 831, 838 (1980).

* * *

* * *

"Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Byerly v. Madsen, 41 Wash.App. 495, 704 P.2d 1236 (1985).

* * *

* * *

" * * * Each case must be determined on its peculiar facts. * * * " Martin v. State, Wyo., 720 P.2d 894, 896-897 (1986).

Here, appellants contend that the only plausible explanation for denial of the motion to join additional parties was to prevent delay in trial. The order denying joinder states no rationale or basis for denial.

"Our consideration is limited to a determination of whether the trial court was clearly wrong in denying this motion, Turnbough v. Campbell County Memorial Hospital [Wyo., 499 P.2d 595, 597 (1972) ]; and we cannot consider the contentions asserted by appellant in attacking the * * * judgment, Brennan v. Midwestern United Life Insurance Company, 7 Cir., 450 F.2d 999, 13 A.L.R.F. 243 [1971], certiorari denied 405 U.S. 921, 92 S.Ct. 957, 30 L.Ed.2d 792 [1972]." Martellaro v. Sailors, Wyo., 515 P.2d 974, 976 (1973).

It should be noted that Rule 20, W.R.C.P., is entitled "permissive joinder." (Emphasis added.) Under our statutes relating to joinder, the trial court is entitled to exercise considerable discretion in determining who should be joined or retained. Casper National Bank v. Jones, 79 Wyo. 38, 329 P.2d 1077 (1958).

After careful review of the record, we conclude that any one of the reasons under Rule 20(b), W.R.C.P., may be a plausible reason for denial of joinder. Conjecture by this court as to the specific ground for denial is not required. After applying the current definition of abuse of discretion and its standard of review, we give due deference to the district court judge and his denial of joinder of the parties.

II

Appellants contend that the district court erred in determining that no genuine issue of material fact existed concerning appellees' negligence and/or willful and wanton conduct in entering its summary judgment in favor of appellees. Further, they argue that whether or not appellees proximately caused the collision is a question solely for jury consideration. Therefore, appellants propose that the district court erred as a matter of law.

According to Rule 56(c), W.R.C.P., a summary judgment

" * * * shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * * "

Page 1141

The purpose of summary judgment is to eliminate formal trials where only questions of law are involved, Johnson v. Soulis, Wyo., 542 P.2d 867 (1975), and to pierce the formal allegations and reach the merits of a controversy where no material issue of fact is present. Siebert v. Fowler, Wyo., 637 P.2d 255 (1981). Where there...

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78 practice notes
  • Bogdanski v. Budzik, S-17-0049
    • United States
    • United States State Supreme Court of Wyoming
    • January 24, 2018
    ...of material fact. [408 P.3d 1161 Boehm v. Cody Cntry. Chamber of Commerce , 748 P.2d 704, 710 (Wyo. 1987) (citing England v. Simmons , 728 P.2d 1137, 1140-41 (Wyo. 1986) ). The party opposing the motion must present specific facts; relying on conclusory statements or mere opinion will not s......
  • Allmaras v. Mudge, No. 90-275
    • United States
    • United States State Supreme Court of Wyoming
    • November 8, 1991
    ...brought about by the defendant's acts, even though they were not reasonably to be anticipated. * * * " Id. at 290. England v. Simmons, 728 P.2d 1137, 1150-51 (Wyo.1986), Urbigkit, J., Prosser and Keeton on Torts, supra, § 45 at 321 (footnotes omitted) states: Thus, in any case where there m......
  • Mantle v. N. Star Energy & Constr. LLC, S-18-0101
    • United States
    • United States State Supreme Court of Wyoming
    • March 12, 2019
    ...genuine issues of material fact. Boehm v. Cody Cntry. Chamber of Commerce , 748 P.2d 704, 710 (Wyo. 1987) (citing England v. Simmons , 728 P.2d 1137, 1140-41 (Wyo. 1986) ). The party opposing the motion must present specific facts; relying on conclusory statements or mere opinion will not s......
  • Four Nines Gold, Inc. v. 71 Const., Inc., No. 90-227
    • United States
    • United States State Supreme Court of Wyoming
    • April 12, 1991
    ...included in the affidavits provided in resistance to the motion for summary judgment. Davenport, 744 P.2d 1110; England v. Simmons, 728 P.2d 1137 7 For an assertion about a lack of clarity of the entire subject of intentional interference, see Dobbs, Tortious Interference with Contractual R......
  • Request a trial to view additional results
78 cases
  • Bogdanski v. Budzik, S-17-0049
    • United States
    • United States State Supreme Court of Wyoming
    • January 24, 2018
    ...of material fact. [408 P.3d 1161 Boehm v. Cody Cntry. Chamber of Commerce , 748 P.2d 704, 710 (Wyo. 1987) (citing England v. Simmons , 728 P.2d 1137, 1140-41 (Wyo. 1986) ). The party opposing the motion must present specific facts; relying on conclusory statements or mere opinion will not s......
  • Allmaras v. Mudge, No. 90-275
    • United States
    • United States State Supreme Court of Wyoming
    • November 8, 1991
    ...brought about by the defendant's acts, even though they were not reasonably to be anticipated. * * * " Id. at 290. England v. Simmons, 728 P.2d 1137, 1150-51 (Wyo.1986), Urbigkit, J., Prosser and Keeton on Torts, supra, § 45 at 321 (footnotes omitted) states: Thus, in any case where there m......
  • Mantle v. N. Star Energy & Constr. LLC, S-18-0101
    • United States
    • United States State Supreme Court of Wyoming
    • March 12, 2019
    ...genuine issues of material fact. Boehm v. Cody Cntry. Chamber of Commerce , 748 P.2d 704, 710 (Wyo. 1987) (citing England v. Simmons , 728 P.2d 1137, 1140-41 (Wyo. 1986) ). The party opposing the motion must present specific facts; relying on conclusory statements or mere opinion will not s......
  • Four Nines Gold, Inc. v. 71 Const., Inc., No. 90-227
    • United States
    • United States State Supreme Court of Wyoming
    • April 12, 1991
    ...included in the affidavits provided in resistance to the motion for summary judgment. Davenport, 744 P.2d 1110; England v. Simmons, 728 P.2d 1137 7 For an assertion about a lack of clarity of the entire subject of intentional interference, see Dobbs, Tortious Interference with Contractual R......
  • Request a trial to view additional results

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