Foianini v. Brinton, 92-195

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: Before MACY; MACY
• Citation: 855 P.2d 1238
• Parties: Gino FOIANINI, Appellant (Plaintiff), v. Jay Howard BRINTON and John David Brinton, Appellees (Defendants).
• Docket Number: No. 92-195,92-195
• Decision Date: 14 July 1993

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855 P.2d 1238 Gino FOIANINI, Appellant (Plaintiff),
v.
Jay Howard BRINTON and John David Brinton, Appellees (Defendants). No. 92-195. Supreme Court of Wyoming. July 14, 1993.

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Jack Gage of Gage and Moxley, Cheyenne, for appellant.

J.C. DeMers, Cheyenne, for appellees.

Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.

MACY, Chief Justice.

Appellant Gino Foianini appeals from a summary judgment entered against him in his action to condemn an irrigation ditch right-of-way located on land owned by Appellee Jay Howard Brinton.

We reverse and remand.

Mr. Foianini presents a single issue for our review:

[D]id plaintiff/appellant Gino Foianini impermissibly split a single cause of action by not bringing the suit to establish the ditch right-of-way by condemnation at the same time that he attempted to establish that right-of-way by prescription?

Mr. Foianini and Mr. Brinton owned adjoining land in Uinta County, Wyoming. Until the summer of 1989, Mr. Foianini irrigated his land by drawing water through a ditch which crossed Mr. Brinton's property. The record is not exactly clear as to the reason, but in the summer of 1989 Mr. Brinton filled in the ditch. On July 10, 1989, Mr. Foianini filed a lawsuit against Mr. Brinton, alleging that he had a prescriptive easement or, alternatively, an irrevocable license to use the ditch on Mr. Brinton's property. The district court denied the claim, finding that Mr. Foianini had no legal interest in the ditch.

Mr. Foianini subsequently brought a second action in which he sought to condemn a ditch right-of-way across Mr. Brinton's land. Mr. Brinton moved for a summary judgment, claiming that the rule against splitting a cause of action required Mr. Foianini to include the condemnation action with his first suit. The district court agreed and granted a summary judgment in favor of Mr. Brinton. The court offered the following rationale in its decision letter:

Although a number of different legal theories may apply to a given episode and although several legal theories may depend on different shadings of the facts, or would emphasize different elements of the facts, or would call for different kinds of relief, after judgment against the plaintiff he is precluded from seeking remedies derived from the same grouping of facts that were not brought out in his original action. See Restatement Judgments (Second) §§ 24 and 25 (1982).

The basis of the rule is that under modern rules of civil procedure a plaintiff may pursue in one action all possible remedies whether or not consistent, whether alternative or cumulative, legal or equitable. Rule 8(e)(2) W.R.C.P.

The plaintiff in his brief opposing the motion to dismiss discusses the inherent

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inconsistencies of claiming a prescriptive right and then claiming no right at all in order to seek condemnation. However, as the Restatement clearly indicates, mutually exclusive remedies do not give rise to separate causes of action.

....

The defendant has established that this case and the plaintiff's original suit involve the same cause of action; that plaintiff could have pursued condemnation as an alternative remedy in his original action but did not; and, that, therefore, the plaintiff has violated the rule against splitting a cause of action.

Our familiar standard of review for summary judgment appeals is: "We examine [the record to determine] whether a genuine issue of material fact exists and whether the prevailing party was entitled to judgment as a matter of law." Slavens v. Board of County Commissioners for Uinta County, Wyoming, 854 P.2d 683, 685 (Wyo.1993).

Mr. Foianini argues that the trial court acted improperly in granting the summary judgment because he did not impermissibly split a single cause of action by bringing the condemnation action after he had brought the prescriptive easement action. We agree. The general rule regarding splitting a cause of action is: "[A] single wrong gives rise to one cause of action for which only one suit may be maintained,...