Robertson v. TWP, Inc.

• Citation: 656 P.2d 547
• Decision Date: 03 January 1983
• Docket Number: No. 5716,5716
• Parties: Ken ROBERTSON and Nick Beresky dba Koko International Properties, Appellants (Third-Party Plaintiffs), v. TWP, INC., Appellee (Third-Party Defendant).
• Court: United States State Supreme Court of Wyoming

Page 547

656 P.2d 547

Ken ROBERTSON and Nick Beresky dba Koko International Properties, Appellants (Third-Party Plaintiffs), v. TWP, INC., Appellee (Third-Party Defendant).

No. 5716.

Supreme Court of Wyoming.

Jan. 3, 1983.

Warren R. Darrow and J.C. Brooks of Vlastos, Reeves & Murdock, P.C., Casper, for appellants.

H.B. Harden, Jr., Casper, for appellee.

Before ROSE, C.J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

THOMAS, Justice.

The most troublesome issue raised by this appeal involves the right of third-party plaintiffs to amend their third-party complaint to assert additional claims against a third-party defendant after the entry of a summary judgment in favor of the third-party defendant on the third-party plaintiffs' claim for indemnity, but before that summary judgment became final under our Wyoming Rules of Civil Procedure. The second question involves the liability of an intermediate seller of land to its purchaser for indemnity for tortious acts of the purchaser against neighboring landowners. The district court entered a summary judgment in favor of the third-party defendant (appellee) on the claim of the third-party plaintiffs (appellants) for indemnity. Subsequently the district court denied a motion to amend their third-party complaint, which was submitted before the summary judgment became final under Rule 54(b), W.R.C.P. We shall affirm the district court.

The appellants purchased a tract of land in Natrona County, Wyoming, for the purpose of constructing a real estate development thereon. The purchase was accomplished by the assignment by TWP, Inc., of its rights as a purchaser under a contract for the sale of the land to the appellants. Paragraph 5 of the Contract for Deed which was assigned provided in part " * * * [I]t is anticipated that sewer service for subject property will be provided by a new sewer plant to be constructed by Radix, Inc. Sellers shall provide Buyer with a Letter of Commitment to Buyer's satisfaction that Radix will service subject property with sewer service at Three Hundred Fifty Dollars ($350.00) each for at least one hundred fifty (150) single-family residences subject to Buyer installing mains, man-holes and the like."

The assignment of the Contract for Deed occurred about July 6, 1979, and thereafter the appellants proceeded to execute their plans for constructing a subdivision by accomplishing grading and excavating on the property. It is their position that the president of the appellee had on a number of occasions made specific representations that the sewer service would be supplied in accordance with the quoted language of the contract.

In about October of 1979 the development work on the subdivision project was stopped. It appears that this was because of advice by representatives of Natrona County that a final plat could not be obtained because adequate sewer facilities were not available for the subdivision. Natrona County also advised the appellants that no further development activities could be undertaken until such time as a final plat approval was obtained.

During the balance of that fall and winter loose dirt from the land owned by the appellant was blown by the winds upon the property of their neighbors. On March 18, 1980, those neighbors sued the appellants, T.W. Pittman and Radix, Inc., for damages to their property. The claims of the neighbors were premised upon public nuisance, violation of zoning regulations, violation of statutes, and violation of Department of Environmental Quality regulations, and punitive damages were sought. The particular damages ran the complete gamut of possibilities of damage that can result from blowing dirt, including damages to the residences of the neighbors, damages to their personal property, and damages to their land, and the costs and expenses of cleaning up their residences, property and land.

Answers and cross-claims were filed by the several defendants, and on August 25, 1980, pursuant to leave granted by the district court, the appellants filed a third-party complaint against the appellee. Pursuant to that third-party complaint the appellants sought indemnity from the appellee for any damages for which they might be found liable to the original plaintiffs. It was their theory that the appellee breached its agreement with them in that sewer service was not provided, and that the appellee impliedly warranted the property was suitable for residential subdividing; that if they had known that sewer service would not be provided they would not have begun the grading and excavating of the property and no erosion would have resulted; and that except for the failure to provide the sewer service the damages to the plaintiffs would not have resulted.

After a good deal of discovery among the several parties the appellee filed a "Motion for Summary Judgment against Third-Party Complaint; Motion to Dismiss Third-Party Complaint for Failure to Join Indispensible [sic] Parties; Motion to Add Parties; Motion to Compel Answers to Interrogatories." On April 9, 1981, the district court entered a "Summary Judgment in Favor of T.W.P., Inc., Third-Party Defendant Against Ken Robertson and Nick Beresky dba KoKo International Properties Third-Party Plaintiffs on Third-Party Complaint." The summary judgment is silent with respect to the reasons for which the district court granted it. The entry of the summary judgment still left pending several claims by some parties against other parties.

On September 23, 1981, the appellants filed a Motion for Modification Order or in the Alternative to Amend, pursuant to which they requested an order modifying the summary judgment entered against them and in favor of the appellee, "or, in the alternative, said defendants would request that they be permitted to amend their Third-Party Complaint against T.W.P., Inc." In a Memorandum in Support of Motion for Modification, or, in the Alternative, Motion to Amend, the appellants made it clear that they were concerned about the possible effect of res judicata upon their other claims against the appellee if the summary judgment were not modified or if they were not granted leave to amend. On November 30, 1981, the district court entered its order denying the Motion for Modification, or, in the Alternative, Motion to Amend. It does not appear that an amended third-party complaint was filed, even in connection with the motion, but it is clear that the claims which the appellants would have injected into the proceeding would relate to claims against the appellee for breach of contract, breach of warranty, or negligent misrepresentations resulting in damages for loss of use and loss of profits, diminution in value, and expenses incurred with respect to the development of the property in question.

All claims ultimately were disposed of by the entry of an order based upon a stipulation of dismissal with respect to the appellants and another third-party defendant, which was entered on May 21, 1982. This appeal then followed, with the notice of appeal specifying that the appellants appeal from the summary judgment in favor of TWP, Inc., and from the order denying the appellants' motion to modify the summary judgment, or alternatively to modify their third-party complaint.

As stated by the appellants in their brief, the issues in this case are as follows:

"A. IT APPEARING THAT THE DISTRICT COURT IMPLIEDLY FOUND THAT ANY ACTS OR OMISSIONS OF THE APPELLEE WERE NOT THE PROXIMATE CAUSE OF THE PLAINTIFFS' DAMAGES, DID THE DISTRICT COURT ERR IN CONCLUDING THAT THERE WAS NO GENUINE ISSUE AS TO ANY MATERIAL FACT RELATING TO PROXIMATE CAUSE IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE APPELLEE AND AGAINST THE APPELLANTS ON THEIR CLAIM FOR CONTRIBUTION AND INDEMNITY?

"B. IN DENYING THE APPELLEES' MOTION TO MODIFY THE ORDER GRANTING SUMMARY JUDGMENT DURING [sic] THE ALTERNATIVE TO AMEND THEIR THIRD PARTY COMPLAINT, DID THE DISTRICT COURT ERR IN THAT IT MAY HAVE FORECLOSED THE APPELLANTS FROM PURSUING ANY OTHER CLAIMS FOR DAMAGE THEY MAY HAVE HAD ARISING OUT OF THE PURCHASE OF THE PROPERTY AND THE APPELLEES' MISREPRESENTATIONS RELATIVE TO THE AVAILABILITY OF SEWER FACILITIES?"

The appellee does not resist the statement of issues by the appellants, but in its brief it specifically takes the position that the effect of the issue identified as "B" is to induce this court to make a determination that the theories sought to be injected by amendment into the third-party complaint would not be barred by the entry of the summary judgment on the third-party complaint under the doctrine of res judicata. The appellee's position unequivocally is that this court should not decide that question but should await the ripening of the issue before reviewing it.

The summary judgment entered in the district court in favor of appellee and against appellants is not definitive as to the basis for which it was entered. In this court, however, the parties are in agreement that the ground upon which the district court granted the summary judgment was that of proximate cause. Succinctly stated, the district court held that no action on the part of appellee was a proximate cause of the injuries to the plaintiffs with respect to whose claims indemnity was sought by the appellants; that there was no genuine issue of fact with respect to that legal ground; and for that reason there was no genuine issue as to any other material facts. We affirm the entry of the summary judgment by the district court. The right of the appellants to seek indemnity from the appellee in this instance is controlled by what this court said in Kopriva v. Union Pacific Railroad Company, Wyo., 592 P.2d 711 (1979). Paraphrasing what we there said, assuming that TWP, Inc., was guilty of a breach of contract with respect to the agreement assigning the Contract for Deed, the question is whether that breach of contract is a proximate cause of the injury to the plaintiffs.

"* * * We agree that but for the act of...