Osborn v. Painter

• Decision Date: 08 January 1996
• Docket Number: No. 95-58,95-58
• Citation: 909 P.2d 960
• Parties: Richard B. OSBORN, Appellant (Plaintiff), v. Donald PAINTER and Clarice Lyle Manning, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 960

909 P.2d 960

Richard B. OSBORN, Appellant (Plaintiff), v. Donald PAINTER and Clarice Lyle Manning, Appellees (Defendants).

No. 95-58.

Supreme Court of Wyoming.

Jan. 8, 1996.

Rehearing Denied Jan. 30, 1996.

Richard B. Osborn, pro se.

Donald L. Painter, Casper, for Appellees.

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

THOMAS, Justice.

The question posed by this case is whether a civil action is subject to dismissal for failure to state a claim upon which relief can be granted when the action, confessedly, is brought to relitigate issues resolved by a final county court judgment entered in 1989. Richard B. Osborn (Osborn), who represents himself in all his litigation, asserts he is not foreclosed from a collateral attack on the county court judgment because Donald L. Painter (Painter), the attorney for Clarice Lyle Manning (Manning), made an incorrect and fraudulent statement in pleading the county court action; for that reason, the county court judgment is deemed void; and, in any event, res judicata would not apply as to Painter, a party in this action who was not a party in the county court action. The district court dismissed Osborn's complaint, after finding the county court judgment could not be attacked by a separate action, and Osborn's only remedies were appeal or a motion for relief under the provisions of WYO.R.CIV.P. 60(b). We are satisfied as to the finality of the county court judgment, and we agree with the district court that the claim is simply an effort to relitigate the issues posed before the county court and resolved by a final judgment. We affirm the order of dismissal entered in the district court, and we also grant Painter's and Manning's Motion for Sanctions.

In the Brief of Appellant, Osborn submitted a prolix and rambling statement of issues. ¹

In the Appellees' Brief, Painter and Manning state only one issue:

1. Whether Appellant's position in this matter is barred by the Doctrine of res judicata.

We deal with the single question of whether an action is subject to dismissal when the action on its face is one to relitigate a final judgment.

This is the fifth appeal taken by Osborn in the last eleven years relating to difficulties between him and members of the Manning family. ² In the county court case, Manning filed a complaint against Osborn in 1988 for damages flowing from a ditch Osborn had dug across a road. The history of the road and the easement for the road is outlined in Osborn v. Manning, 812 P.2d 545 (Wyo.1991). Manning's complaint sought damages for trespass, malicious trespass, and destruction of her property rights. In a decision letter issued on February 9, 1989, the county court stated:

The court finds and concludes that the said roadway is an easement, that the Defendant is the owner of the dominant estate, that the Plaintiff is the owner of the servient estate, that the roadway serves a two fold purpose, i.e., as the Defendant's means of access to the Defendant's property and as the Plaintiff's means of access to the Plaintiff's property and buildings, that the construction by the Defendant of the ditch in question interfered with the Plaintiff's use of the servient estate, that the Plaintiff was thereby damaged and that the amount of the damages measured by the cost of returning the ditch to its original condition is $1,268.00, that the amount of damages is reasonable, that there are insufficient facts from which the Court can conclude that the Defendant's actions were wanton and willful and that therefore the Plaintiff is not awarded punitive damages, that the Court is in doubt about the basis of awarding a restraining order and therefore declines to do so, and finally the Court finds generally for the Plaintiff and against the Defendant on the merits of the actions.

A judgment was entered in the county court consistent with the decision letter, and Osborn appealed to the district court of the Seventh Judicial District. The district court also authored a decision letter in which it said:

Numerous errors of law are asserted in defendant's statement of errors. He contends that there was no trial on the merits, there was insufficient evidence, the decision was contrary to law, the counter-claim was not heard, defendant was not given the opportunity to respond, plaintiff committed procedural error, motions filed by the defendant were not ruled upon, res judicata, complaint not verified as to truth, unauthorized prosecution of suit in the name of another, and the county court used intimidation and coercion against the will of appellant in requiring him to withdraw his motion for default.

The district court found the county court did not abuse its discretion in holding that Osborn impermissibly burdened the easement; the money damages were not excessive or contrary to the evidence; the failure to strictly comply with the rules of procedure did not constitute error; and the district court refused to consider other allegations not supported by the evidence. Osborn sought to appeal that decision to this court but, after reviewing the files and the record, we dismissed the appeal and denied his request for discretionary review pursuant to our power of certiorari.

That brings us to the instant suit, which was filed on January 12, 1993. In his complaint, Osborn alleged fraud, breach of contract, violation of civil rights, impairment of contract (federal issue) and asserted a claim for damages and relief. Osborn also alleged Painter committed fraud when he made this comment in a brief filed in the 1989 action: "Moreover, an examination of the ditch which is deep and wide enough to conceal a small car from view when placed therein will divert at least 100 years of runoff condensed into a single day of rainfall." While he neglected to make them a part of the record, Osborn apparently obtained Answers to Interrogatories from Painter, and he relied upon a statement made by Painter with respect to the brief that "the statement was made as an exaggeration for the sake of emphasis in directing the judge's attention to the ditch in question." Osborn's argument is that, lacking personal knowledge of the facts in the case, Painter had exaggerated them to impress the court without investigating the facts and that action constituted fraud. The district court dismissed Osborn's complaint on the ground that the pleadings failed to state a cause of action. Osborn's appeal is taken from that Order of Dismissal.

The essence of Osborn's position in this appeal is that the county court judgment is void and "is open to attack or impeachment in a proceeding, direct or collateral, and at any time or place" (State of Wyoming ex rel. TRL by Avery v. RLP, 772 P.2d 1054, 1057 (Wyo.1989)). This is the conclusion Osborn draws from the asserted fraudulent conduct of Painter. The rule with respect to judgments deemed to be void and the availability of collateral attacks is set forth in Hume v. Ricketts, 69 Wyo. 222, 240 P.2d 881, 882-83 (1952) (emphasis added):

Jurisdiction of the court over the parties is an essential to the validity of any judgment and a personal judgment rendered without such jurisdiction is void. See 31 Am.Jur. "Judgments" Paragraph 409; 49 C.J.S., Judgments, § 19b. However, the judgment is presumed to be valid and the presumption in favor of jurisdiction extends to jurisdiction of the parties, 31 Am.Jur. "Judgments" Paragraphs 415 and 417. By the general rule, a collateral attack may not be made upon a judgment where the absence of jurisdiction over the parties does not appear upon the record. See 49 C.J.S., Judgments, § 401; 31 Am.Jur. "Judgments" Paragraph 602 citing numerous cases, some collected in 23 Am.St.Rep. 105 and 44 Am.St.Rep. 562; Reynolds v. Lloyd Cotton Mills, 177 N.C. 412, 99 S.E. 240, 5 A.L.R. 284; Murrell v. Stock [Growers'] National Bank, 10 Cir., 74 F.2d 827. It seems to be the general rule that a void judgment, such as one wherein the court lacks jurisdiction over the parties, can be attacked collaterally only where the invalidity appears on the face of the record. Where the invalidity does not appear on the face of the record, the proper action is a direct attack.

While Hume addresses jurisdiction over the parties, the same result would pertain if the court lacked jurisdiction over the subject matter.

We find no suggestion in the file in this case, however, that any lack of jurisdiction by the county court for Natrona County over the parties or over the subject matter of the action appeared on the face of the record. In the absence of those criteria, the proper action is a direct appeal. In 1990, Osborn did appeal from the county court judgment, but there is no indication that he asserted the county court judgment was void in the appeal. In the instant case, the district court did suggest that the opportunity to raise the question of fraud would exist under WYO.R.CIV.P. 60(b), but the record does not demonstrate any effort on the part of Osborn to pursue that remedy.

We then are confronted almost purely with the effect of the doctrine of res judicata. In the case of Osborn v. Manning, 798 P.2d 1208, 1210 (Wyo.1990), we summarized the doctrine of res judicata:

The doctrines of res judicata and collateral estoppel

"incorporate a universal precept of common-law jurisprudence to the effect that a 'right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction ... cannot be disputed in a subsequent suit between the same parties or their privies.' "

Rialto Theatre, Inc. v. Commonwealth Theatres, Inc., 714 P.2d 328, 336 (Wyo.1986) (quoting Delgue v. Curutchet, 677 P.2d 208, 213 (Wyo.1984)). Res judicata "constitutes an absolute bar to a subsequent action involving the same claim, demand, or cause of action." Barrett v. Town of Guernsey, 652 P.2d 395, 398 (Wyo.1982), quoted in Swasso v. State ex rel. Wyoming Worker's Compensation Division, 751 P.2d 887, 890 (Wyo.1988). S...