Texas West Oil and Gas Corp. v. First Interstate Bank of Casper

• Decision Date: 02 October 1987
• Docket Number: No. 86-123,86-123
• Citation: 743 P.2d 857
• Parties: TEXAS WEST OIL AND GAS CORPORATION, Appellant (Plaintiff), v. FIRST INTERSTATE BANK OF CASPER, and Gordon Gibson, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 857

743 P.2d 857

TEXAS WEST OIL AND GAS CORPORATION, Appellant (Plaintiff), v. FIRST INTERSTATE BANK OF CASPER, and Gordon Gibson, Appellees (Defendants).

No. 86-123.

Supreme Court of Wyoming.

Oct. 2, 1987.

Jeffrey C. Gosman, Casper, for appellant.

Richard E. Day, and Ann M. Rochelle, of Williams, Porter, Day & Neville, P.C., Casper, for appellee First Interstate Bank of Casper, Susan Mayer Overeem, Casper, for appellee Gordon Gibson.

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

URBIGKIT, Justice.

This case is a sequel to Texas West Oil and Gas Corporation v. Fitzgerald, Wyo., 726 P.2d 1056 (1986), involving manufacture of a drilling rig, which case was remanded for retrial on the issue of damages on an intentional-interference claim against a bank loan guarantor. With remand on damages, this court also affirmed an arbitration award that determined a contractual balance remained due and unpaid from Texas West, the buyer, to Oil Patch Sales and Rentals of Wyoming, Inc., the manufacturer.

Texas West has now filed suit, also premised generally on intentional-interference claims, against First Interstate Bank of Casper, N.A., which provided operational funding to Oil Patch, and against Gordon Gibson, president of Oil Patch, as a director, after motions for leave to amend had been filed in the earlier suit to add present appellees as defendants. In this second case, appeal is taken from the order sustaining motions to dismiss by both defendants. Although the court also denied sanctions, attorney's fees and costs requested by Gibson, no cross-appeal was taken.

The briefs in this appeal are replete with contentions of fact not to be discerned in the record, some of which are at the least conclusory and others questionable. A general factual analysis of the controversy is found in this court's earlier decision.

I

RES-JUDICATA AND COLLATERAL-ESTOPPEL

CONSIDERATION BY A MOTION TO DISMISS

Our preliminary inquiry is required to determine whether the res judicata or collateral-estoppel defense can be sustained on a motion to dismiss. We recognized the validity of the defined standard that upon entry of an order dismissing a complaint pursuant to Rule 12(b)(6), W.R.C.P., the trial court accepts the pleadings as true, except for facts or records properly subject to judicial notice.

" * * * Although normally a motion to dismiss admits all well-pleaded facts, it does not admit facts which the court can judicially notice as not being correct * * *." (Emphasis added.) Weber v. Johnston Fuel Liners, Inc., Wyo., 540 P.2d 535, 538 (1975),

and we now include facts which the court can judicially notice as determined or true.

Many cases consider whether res judicata and collateral estoppel can be determined on the motion to dismiss or can only be raised successfully by summary judgment or affirmative answer processes. This court follows the modern trend which was first enunciated for Wyoming in Weber, that if the information necessary for decision is available to the court by judicial notice, defendant can raise res judicata or collateral estoppel for consideration by a motion to dismiss. Additionally, it is to be recognized that if either party supplements the record by affidavit or other new documentation, then the automatic conversion provision of Rule 12(b)(6) applies in that where matters outside of the pleadings are presented to and not excluded by the court, "the motion shall be treated as one for summary judgment," and the notice provisions and processes therein provided will be utilized. Torrey v. Twiford, Wyo., 713 P.2d 1160 (1986).

II JUDICIAL NOTICE

For simplicity, we will designate the first case Texas West I, and this second case Texas West II. In analysis, we find it now necessary to determine what, if any, information from Texas West I could have been judicially noticed by the trial court in Texas West II to be considered at this time for our appellate review. This case is closely related to Texas West I in that it involves the same transaction, participants, and appellant again as plaintiff. The defendant parties are the only difference. The interrelations of the cases can be more clearly discerned by the history and text of the pleadings.

Within this criteria, and with the entire record of Texas West I remaining in the physical possession of this court following denial of the petition for rehearing, we determine that the rule for review of the sufficiency of the motion to dismiss will be considered by judicially noticing the Texas West I record. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); National Fire Insurance Co. v. Thompson, 281 U.S. 331, 50 S.Ct. 288, 74 L.Ed. 881 (1930); Weber v. Johnston Fuel Liners, Inc., supra; Ellis v. Cauhaupe, 71 Wyo. 475, 260 P.2d 309 (1953); State ex rel. Romsa v. Grace, 43 Wyo. 454, 5 P.2d 301 (1931); State in Interest of C, Wyo., 638 P.2d 165 (1981); 31 C.J.S. Evidence § 50(3)(b) at 1034.

"Because both parties have relied upon the opinion and judgment in the original case and have injected it in both their briefs and arguments, we will rely thereon in determining the sufficiency of this complaint. There is another basis for taking judicial notice of the prior proceedings in the original case between these parties. We do not deem it improper to take notice of the judgment, temporary restraining order, and opinion in the earlier case because of the identity of the parties and the interrelationship of these actions. See Shuttlesworth v. City of Birmingham, [supra]; National Fire Ins. Co. of Hartford v. Thompson, 281 U.S. 331, 50 S.Ct. 288, 290, 74 L.Ed. 881; 31 C.J.S. Evidence § 50(1), p. 1021, and § 50(3), pp. 1032-1033. This has been applied in motions to dismiss. Although normally a motion to dismiss admits all well-pleaded facts, it does not admit facts which the court can judicially notice as not being correct, Interstate Natural Gas Co. v. Southern California Gas Co., 9 Cir., 209 F.2d 380, 384; Gulf Coast Western Oil Co. v. Trapp, 10 Cir., 165 F.2d 343, 349; Maniaci v. Warren, D.C. Wis., 314 F.Supp. 853, 857; Golaris v. Jewel Tea Co., D.C.Ill., 22 F.R.D. 16, 19." Weber v. Johnston Fuel Liners, Inc., supra, 540 P.2d at 538-539.

To the extent that other cases may be in conflict with this rule, we would now disapprove Demars v. Hickey, 13 Wyo. 371, 80 P. 521, reh. denied 81 P. 705 (1905); Sidlo, Simons, Day & Co. v. Phillips, 48 Wyo. 390, 49 P.2d 243 (1935); and Tibbals v. Graham, 50 Wyo. 277, 61 P.2d 279, reh. denied 62 P.2d 285 (1936). See also Amfac Mechanical Supply Co. v. Federer, Wyo., 645 P.2d 73, 79 (1982), wherein this court, in analyzing prior inconsistent testimony in a case in which testimony had been retailored, said:

" * * * The courts will not allow parties to blow hot and cold in the same breath and in separate judicial proceedings, a party will not be allowed to maintain an inconsistent position."

It is not established in that opinion how the record in a totally separate case and its evidence came to be part of the Amfac record for appellate review.

The history of these two cases upon which the defendants now premise their motion to dismiss includes the following litigative panorama.

III TEXAS WEST I

On June 1, 1981, Oil Patch entered into an agreement to construct a drilling rig for Texas West. Following construction problems, on October 18, 1982 Texas West started this litigative program by a complaint against Oil Patch, with one claim for replevin of the less than completed drilling rig, and a second claim for damages.

After supporting and opposing affidavits were filed, Oil Patch first responded by a motion to dismiss. At the same time, D.N. Fitzgerald, a guarantor on a bank loan obtained by Oil Patch from First Interstate Bank (present appellee) moved to intervene in claiming a security interest in the rig as acquired when he honored the bank loan guarantee and received an assignment of chattel financing which First Interstate Bank had secured against the inventory of Oil Patch. Oil Patch filed an answer and a counterclaim, to which Texas West filed its reply, with a motion for appointment of a receiver which was never otherwise pursued.

The first dispositive action of the district court occurred on January 11, 1983, when the court ruled in favor of the defendant Oil Patch on the motion for replevin. Plaintiff Texas West then responded by filing a motion for change of judge, and the case was reassigned.

By May 6, 1983, plaintiff had filed its first motion to amend the complaint to add additional parties. Added by change in the caption were D.N. Fitzgerald and W.T. Harries, but the text and the prayer also alleged claims against Gordon Gibson on the basis of his status as a shareholder and member of the Board of Directors of Oil Patch. The pleading made separate claims against Harries and Fitzgerald for intentional interference with a written contract. By concurrent pretrial memorandum it was indicated by caption omission that the amended complaint was not intended to include Gibson, but the memorandum then included Gibson in a discussion of the legal theories upon which recovery was sought. A further motion to amend was filed May 20, 1983 which clearly intended to include Gibson as a named defendant as well as another corporation situate in Texas. On the same day, plaintiff filed a request for arbitration to determine the issue of purchase price due on the purchase contract. Counsel for plaintiff obtained a setting for June 6, 1983 before the presiding judge on the arbitration request motion, but did not include either of the pending motions for leave to amend.

A pretrial order did not determine the amendment question, and a further amended complaint was filed June 10, 1983. By a decision letter of July 20, 1983 the trial court found that arbitration was required, but did not address amendments. After the parties commenced to dispute what was to be arbitrated, a...