Osborn v. Manning
| Decision Date | 17 May 1991 |
| Docket Number | No. 90-257,90-257 |
| Citation | 812 P.2d 545 |
| Parties | Richard B. OSBORN, Appellant (Plaintiff), v. Clarice L. MANNING, Appellee (Defendant). |
| Court | Wyoming Supreme Court |
Richard B. Osborn, pro se.
Donald Painter, Casper, for appellee.
Before URBIGKIT, C.J., THOMAS, MACY and GOLDEN, JJ., and ROONEY, J., Retired.
Appellant Richard B. Osborn seeks review of an order of the district court which denied his motion to disqualify the presiding judge and dismissed his petition to enforce an earlier injunction issued by the district court. The injunction prevented appellee Clarice L. Manning from constructing her fence so as to impede the flow of water through a cattle guard on the road to Osborn's house.
We affirm.
Osborn identified the following as the issues for review:
1. That an affidavit and supporting evidence such as photographs, are sufficient evidence to re-open and charge a defendant for violating a court decision and order.
2. That a "prima facie case" was made by the appellant to show that the defendant had indeed violated the court order.
3. That the defendant appellee failed to respond to these charges, and therefore is responsible to the appellant for damages.
4. That an affidavit and supporting evidence is sufficient evidence with a motion for disqualification of a judge for cause.
5. That as Wyoming Rules of Civil Procedure Rule 40.1(b)(2) states: "Whenever the grounds for such motion become known." The above quoted statement means "ANY TIME" and not before an action is filed in court.
6. That a court which "refuses" to enforce its own decision without a hearing as to the facts, is an ABUSE OF DISCRETION by that court.
Manning identified only two issues for review:
1. Whether Appellant presented a prima facie case of violation of the District Court's previous orders in this matter.
2. Whether the District Court should have recused itself when Appellant moved for change of judge.
Osborn filed a pro se complaint alleging that Manning was obstructing a roadway/easement Osborn had across Manning's property. At the conclusion of the proceedings in the district court, that court issued a decision letter dated December 6, 1985, which included these remarks:
The evidence reflects that Clarise [sic] Manning, on March 12, 1974, conveyed a thirty foot strip right-of-way for a roadway to be utilized for the private use of the plaintiff.
The easement document describes the easement as being in and across the SE 1/4NE 1/4, section 20, and the SW 1/4NW 1/4, section 21, Township 35 North, Range 83 West of the 6th P.M., and more specifically a thirty foot strip beginning thirty feet north of the Southwest corner of the SE 1/4NE 1/4, section 20; thence 89? 21' E. 1461.8 feet to the intersection of the Natrona County Road.
* * * * * *
The most basic difficulty between the parties commenced when the defendant [Manning] constructed a cattle guard and access gate and sheep barrier within the easement area. The plaintiff [Osborn] asserts that the position of the supporting post and the sheep barrier results in a damming effect which has or will cause a flooding of the roadway. The plaintiff suggests that the problem can be avoided by moving the support post or posts to the edge of the cattle guard, thus leaving the ditch running under the cattle guard free from obstruction.
The Court agrees that the fence as constructed constitutes an obstruction and should be abated and moved so as to eliminate the obstruction.
The district court directed that counsel for Manning prepare an order consistent with the district court's decision letter. Manning's counsel prepared such an order and sent it to Osborn, but "that is where it bogged down." However, on January 3, 1986, the district court entered an order which had been prepared by Osborn, was not reviewed or approved by Manning's counsel, and which contained the following provisions:
IT IS THEREFORE ORDERED that the complaint on file herein be dismissed as to the defendants, Thomas Manning, Charles Manning, and Neil Manning.
IT IS FURTHER ORDERED that, upon plaintiff's complaint, that defendant Clarice Manning, be and she is hereby restrained and enjoined from constructing or causing to be constructed any posts near the cattle guard of the subject easement that have the effect of impeding the free flow of the surface water.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED as follows:
(1) That Clarice Lyle Manning, on March 12, 1974, conveyed a thirty foot strip right-of-way for a roadway to be utilized for the private use of the plaintiff, Richard B. Osborn.
(2) That the roadway as has been used and established is 15 feet on each side of the center of the constructed and maintained road, and the length of the road extends from the point of intersection with the Natrona County road a distance of 1461.8 feet.
(3) That the plaintiff has the legal obligation of maintenance of the road.
IT IS FINALLY ORDERED that the defendants take nothing on their counterclaim.
No appeal was taken from this judgment, but on November 25, 1986, Manning filed a motion to amend or correct the judgment. She claimed that Osborn was using the district court's judgment to maintain the position that the roadway/easement was solely for Osborn's private use and benefit and was preventing Manning from making any use of the road. Manning claimed that the judgment entered on January 3, 1986, had only come to her attention within the fifteen days preceding her filing of the motion to amend the judgment. Osborn resisted the motion to amend the judgment on the basis of laches, res judicata, as well as other assertions. On January 12, 1987, the district court entered this order:
THE ABOVE-ENTITLED MATTER having come before this Court upon the Motion to Amend or Correct Judgment filed by counsel for Defendant, Clarice Lyle Manning; and Plaintiff having appeared pro se and Defendant having appeared through counsel, Donald L. Painter; and the Court having reviewed the file herein; and the Court having concluded that the Judgment and Order entered herein on January 3, 1986, was procured by the fraud and deception of Plaintiff without which the Court would not have signed said Judgment and Order; and it further appearing that the Order prepared by Defendant's counsel is a fair representation and summary of the Court's Decision Letter in this matter; and it further appearing from the file herein that Defendant's counsel prepared an Order in accordance with the last paragraph of said Decision Letter and submitted the same to Plaintiff after which Plaintiff practiced fraud and deception by obtaining the Court's signature upon the Judgment and Order entered herein January 3, 1986; and the Court being fully advised in the premises;
IT IS THEREFORE ORDERED that the Judgment and Order entered herein January 3, 1986, be stricken.
The district court entered a new judgment which provided as follows:
IT IS FURTHER ORDERED that, upon Plaintiff's Complaint, that Defendant, Clarice Manning, be and she hereby is restrained and enjoined from constructing or causing to be constructed any posts near the cattle guard of the subject Easement that have the effect of impeding the free flow of surface water.
No appeals were taken from any of these subsequent orders and judgments of the district court.
On April 6, 1990, Osborn again filed pro se what he styled as a petition to enforce the district court's order of January 12, 1987. The original obstruction had apparently been removed, but Osborn claimed that Manning had now constructed a different fence in the same area which had a similar effect, i.e., the new fence caused weeds and debris to collect against the fence, thereby restricting the free flow of the surface water.
Contemporaneously with the petition to enforce the district court's order, Osborn filed a motion to disqualify the presiding judge. Osborn maintained that he had filed a "civil rights" claim against the judge and he produced a letter from the Wyoming State Auditor which demonstrated that a claim filed by Osborn had been forwarded to other agencies of Wyoming state government for processing. In an accompanying affidavit, Osborn stated that, as a result of his claim...
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