Triton Coal Co. v. Husman, Inc.

Decision Date03 February 1993
Docket Number92-56,Nos. 92-55,s. 92-55
Citation846 P.2d 664
PartiesTRITON COAL COMPANY, a Delaware Corporation, Appellant (Defendant), v. HUSMAN, INC., a Wyoming Corporation and Debtor-in-Possession, Appellee (Plaintiff). HUSMAN, INC., a Wyoming Corporation and Debtor-in-Possession, Appellant (Plaintiff), v. TRITON COAL COMPANY, a Delaware Corporation, Appellee (Defendant).
CourtWyoming Supreme Court

Patrick R. Day, Donald I. Schultz, and Mary J. Chinnock of Holland & Hart, Cheyenne, for Triton Coal Co.

Lawrence A. Yonkee and Lynne A. Collins of Yonkee & Toner, Sheridan, for Husman, Inc.

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

MACY, Chief Justice.

Triton Coal Company appeals from a special verdict granting breach-of-contract damages to Husman, Inc., in part, because Triton failed to fully pay Husman for its removal of overburden and topsoil from Triton's coal mine.

We affirm in part, reverse in part, and remand.

Triton raises the following issues on appeal:

1. Did the District Court exceed its jurisdiction by submitting breach of contract claims to the jury which were not appealed by Husman and therefore beyond the scope of the issues identified in this Court's Order on Remand following the first appeal?

2. Did the District Court err by refusing to grant Triton's Motions for a Directed Verdict or for a J.N.O.V. on the only breach of contract issue properly preserved by Husman following the initial appeal?

3. Assuming the breach of contract claims were properly preserved following the initial appeal, did the Plaintiff prove any damages with the requisite degree of certainty required by Wyoming law?

4. Assuming the breach of contract claims were properly preserved following the initial appeal, did the District Court err in its instructions regarding those claims by failing to define the claims sufficiently to avoid juror confusion and the possibility of a double recovery by the Plaintiff?

5. Did the District Court err by denying Triton's Motion for a Directed Verdict on the tort claims since the wet site conditions were visible and therefore the contractor's responsibility as a matter of law?

This case was previously before us in Husman, Inc. v. Triton Coal Company, 809 P.2d 796 (Wyo.1991). To properly address the issues in this second appeal, it is necessary to examine in some detail the procedural history of the first case. In April 1988, Husman contracted with Triton to remove topsoil and overburden from Triton's coal mine located near Gillette, Wyoming. Husman made its bid to remove the overburden and topsoil under the impression that the job would be a "dry dirt job." After it began working, however, Husman encountered overburden and topsoil saturated with moisture which made removal significantly more difficult than it originally anticipated. Despite the high moisture content, Husman continued to perform under the contract and even agreed to remove overburden beyond the amount to which the parties initially agreed. On October 1, 1988, Triton finally terminated the contract, opting to have a different contractor proceed with the removal. A dispute arose between Triton and Husman after Husman submitted its final invoice for the material it removed. Husman claimed that Triton owed a total of $246,551.72, which included $181,801.25 for the material removed as well as $64,750.47 for retainage. Husman based its invoice total upon its "load count"; i.e., the number of truckloads of dirt it removed. In a November 9, 1988, letter, Triton claimed that it owed only $12,165.60 to Husman. Triton arrived at the lower figure by deducting almost $191,000 in overpayments as evidenced by a final survey of the actual material removed, $40,000 in penalties for removing less than the contract's required minimum in the months of August and September, as well as approximately $3,500 for spare parts. Husman subsequently brought suit against Triton.

In its amended complaint, Husman claimed that Triton breached the parties' contract by failing to disclose the water-saturated condition of the topsoil and overburden, that Triton breached the contract by failing to pay $246,551.72 for the material removed, that Triton intentionally misrepresented the subsoil conditions, that Triton negligently misrepresented the subsoil conditions, and, finally, that Triton breached the contract's implied covenant of good faith and fair dealing. Triton moved for, and the lower court granted, a summary judgment on all five issues, although the court did award $33,525.34 to Husman for retainage. Husman appealed from the summary judgment entered against it, claiming that genuine issues of material fact existed concerning the tort claims and the claim for breach of an implied covenant of fair dealing. Of particular significance to the current appeal is the fact that Husman did not identify as error the summary judgment entered against it on Count II, its claim that Triton failed to pay $246,551.72 for the material removed.

In Husman, Inc., this Court reversed the trial court's decision and remanded the case after finding that genuine issues of material fact existed concerning Husman's claims of fraud, negligent misrepresentation, and breach of the covenant of good faith and fair dealing. 809 P.2d 796. On remand, the lower court permitted Husman to try not only its tort claims and claim for a breach of the implied covenant of good faith and fair dealing but also Count II, the breach-of-contract claim for the material removed for which Triton did not pay. In a pretrial motion, Triton objected to trying Count II because the issue had been disposed of by the trial court's grant of a summary judgment and by Husman's failure to raise the issue on appeal. The trial judge denied Triton's motion, construing our opinion in Husman, Inc. as requiring him to try the whole case, including the issue of whether Husman had been paid for the full volume of material it removed. In a special verdict, the jury awarded $336,117.23 in damages to Husman for Triton's breach of the contract and $131,264.50 for Triton's negligent misrepresentation of the site conditions.

The central question raised by Triton in this second appeal is whether the lower court's initial grant of a summary judgment against Husman on all issues and Husman's failure to raise some of those issues on appeal, including Count II, meant that Husman was foreclosed from pursuing Count II in a subsequent trial even though this Court reversed the summary judgment on the issues which were appealed. To support its position that Husman was foreclosed from pursuing Count II, Triton argues that Husman's failure to appeal the summary judgment against it on that issue meant the lower court's judgment became the "law of the case" and that Husman's failure to appeal Count II rendered the trial court's summary judgment final pursuant to the doctrine of waiver. Although waiver and the "law of the case" are generally quite distinct doctrines, in the unique posture of this case we perceive them to have essentially the same underlying rationale and agree with Triton that Husman's failure to appeal Count II foreclosed a trial on that issue upon remand. Because the thrust of Triton's argument relates to the "law of the case," it is helpful to briefly explain the doctrine and why we think that the "law of the case" as applied in this type of case is simply an example of waiver.

Under the "law of the case" doctrine, a court's decision on an issue of law made at one stage of a case becomes a binding precedent to be followed in successive stages of the same litigation. 1B JAMES W. MOORE, JO DESHA LUCAS & THOMAS S. CURRIER, MOORE'S FEDERAL PRACTICE p 0.404 (2d ed. 1983). The "law of the case" is a doctrine designed to avoid repetitious litigation and to promote consistent decision making. As such, it is in the same family as res judicata, collateral estoppel, and stare decisis. In their treatise, Professors Wright, Miller, and Cooper identify four situations in which the "law of the case" may arise. 18 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4478 (1981). Most commonly, the "law of the case" requires a trial court to adhere to its own prior rulings, adhere to the rulings of an appellate court, or adhere to another judge's rulings in the same case or a closely related case. Id. Triton, however, relies upon a fourth and much less utilized aspect of the rule in which a court's ruling on an issue that could have been appealed, but was not, will be given preclusive effect. Tom Beuchler Construction, Inc. v. City of Williston, 413 N.W.2d 336, 339 (N.D.1987). Although some courts label this fourth category as the "law of the case," it is something of a misfit. Generally, the "law of the case" arises because a court has ruled on a matter and that ruling is to be applied to subsequent proceedings in the litigation. However, in the fourth category relied upon by Triton, it is the litigant's failure to raise an issue on appeal which gives rise to the preclusive effect of the lower court's ruling, not a court ruling. Allan D. Vestal, Law of the Case: Single-Suit Preclusion, 11 UTAH L.REV. 1 (1967). The underlying rationale of the fourth category of the "law of the case" is that a litigant can argue to an appellate court only those issues which he raised on appeal. Id. at 21. The idea that a litigant is limited to arguing those issues he raised on appeal is, in essence, the concept of waiver.

The general rule concerning waiver is:

[Q]uestions assigned as error are deemed to have been abandoned or waived where they are not urged or discussed on appeal by brief or argument, or are not sufficiently so discussed; and the same rule applies to cross errors.

5B C.J.S. Appeal and Error § 1803 at 98 (1958). This Court has consistently applied this long-standing rule...

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