Weber v. Johnston Fuel Liners, Inc.

• Decision Date: 03 October 1975
• Docket Number: 4471,Nos. 4470,s. 4470
• Citation: 540 P.2d 535
• Parties: Wayne and Evelyn WEBER, Appellants (Plaintiffs below), v. JOHNSTON FUEL LINERS, INC., a Wyoming Corporation, et al., Appellees(Defendants below). Wayne and Evelyn WEBER, Appellants (Defendants below), v. JOHNSTON FUEL LINERS, INC., a Wyoming Corporation, and Bard Ranch Company, a Wyoming Corporation, Appellees (Plaintiffs below).
• Court: Wyoming Supreme Court

Page 535

540 P.2d 535

Wayne and Evelyn WEBER, Appellants (Plaintiffs below), v. JOHNSTON FUEL LINERS, INC., a Wyoming Corporation, et al., Appellees(Defendants below).

Wayne and Evelyn WEBER, Appellants (Defendants below), v. JOHNSTON FUEL LINERS, INC., a Wyoming Corporation, and Bard Ranch Company, a Wyoming Corporation, Appellees (Plaintiffs below).

Nos. 4470, 4471.

Supreme Court of Wyoming.

Oct. 3, 1975.

Jack R. Gage, Cheyenne Law Center, Cheyenne, for appellants.

William R. Jones and Raymond B. Hunkins of Jones, Jones, Vines & Hunkins, Wheatland, for appellees.

Before GUTHRIE, C. J., and McCLINTOCK and THOMAS, JJ.

GUTHRIE, Chief Justice.

These appeals involve a judgment in one case and an order dismissing a complaint in another, which were consolidated for the purpose of appeal. Case No. 4471 involves a proceeding and judgment on the bond which had been filed to secure a temporary restraining order in a case which has heretofore been the subject of an appeal in this court, Weber v. Johnston Fuel Liners, Inc., Wyo., 519 P.2d 972. Case No. 4470 involves a separate action and claim of the Webers against Johnston for malicious prosecution of the first-mentioned suit wherein the bond was filed. Although they are plural, appellants and appellees will be described hereinafter by the names Weber and Johnston, or as they appeared in the lower court.

No. 4471

The judgment from which appeal is taken is one for $1,000 in favor of Wayne and Evelyn Weber that being the face amount of the bond filed to secure a temporary restraining order which we found to have been wrongfully issued. This proceeding was had under Rule 65.1, W.R.C.P., and was not filed as an independent action but pursuant to the mandate in the original case which commanded as follows:

'* * * that the case be remanded for a complete hearing upon the question of damages, both those claimed by Weber and those claimed by Johnston as accruing damages * * *'

which follows the words of the original opinion, 519 P.2d at 980. It is to be remembered, however, that at the time the original judgment for $1,000 on this bond was entered this court found that there was no testimony to support this award, and it was for this reason the judgment was set aside insofar as it allowed Weber this sum under the bond. In the original appeal Johnston objected because he had not been permitted to rebut the evidence of this damage item and claimed damages from Weber for acts which might have been set off against such recovery or for a judgment for such damages under the pleadings.

Weber now asserts that by virtue of this mandate the trial judge should have considered the question of accruing damages to Weber and that this included damages arising from a cause for malicious prosecution. ¹ This was not the expressed intention of this court when it is considered in context of the facts appearing in the earlier appeal, and the trial judge was correct in limiting Weber's recovery to $1,000, being the total penal sum of the bond. It is to be noted that in this mandate the accruing damages referred to were those claimed by Johnston and not by Weber, and in reference to Johnston's contention that he was entitled upon the pleadings to make a showing of accruing damages as appears on page 978 of the original opinion and it was at this contention that the mandate made such direction. It is to be noted in that opinion we refused to consider the question of the prematurity of Weber's damage claim on the ground of invited error but in no manner suggested the propriety of such determination in the original suit. Inasmuch as it appears that a suit for malicious prosecution is a common-law action and separate claim, and not one on the bond as mentioned before, this contention is in no manner tenable nor would it have been possible under Rule 65.1, W.R.C.P., which provides not for joinder of such actions but allows only proceedings to enforce the bond as ancillary to the principal suit. In the instant proceeding the parties stipulated that the damages 'were limited to those damages arising out of the wrongful issuance of the temporary restraining order' and agreed that Weber would be able to present evidence of damages in excess of $1,000 for such wrongful issuance. Based thereon the trial court entered judgment in the sum of $1,000 from which amount this appeal is prosecuted. From an examination of the stipulation itself we might make disposal of this case because it is clear that the stipulation presented to the court the sole question of the damages arising out of the wrongful issuance of the temporary restraining order.

When the action or proceeding is upon the bond issued in an injunction case, the almost universal rule is that nothing in excess of the face of the bond is recoverable by way of damages, United Mail Order Warehouse & Retail Employees Union, Local 20 v. Montgomery Ward & Co., 9 Ill.2d 101, 137 N.E.2d 47, 52, certiorari denied 352 U.S. 1002, 77 S.Ct. 558, 1 L.Ed.2d 546; Strong v. Duff, 228 Ky. 615, 15 S.W.2d 517, 521, 70 A.L.R. 56, and annotation beginning at 62; 42 Am.Jur.2d, Injunctions, § 369, pp. 1184-85. The party securing the wrongful injunction may have some liability for malicious prosecution, Strong v. Duff, supra, 15 S.W.2d at 521, and the injured party is said to have a common-law right in some jurisdictions. ² That, however, was not before the trial court in No. 4471 and the judgment must be properly limited to the sum of the bond. Attention was directed in our earlier opinion to the fact that Weber at no time had attacked the sufficiency of the bond nor sought any increase, 519 P.2d at 978.

No. 4470

In this case Weber prosecutes an appeal from an order of another trial judge in the same district, sustaining a motion to dismiss a separate action which he filed for malicious prosecution based upon the action in which the temporary restraining order was issued and which has heretofore occasioned the opinion and remand from this court, Weber v. Johnston Fuel Liners, Inc., supra, upon the following grounds and reasons:

'1. That the cause of action asserted by the Plaintiffs is based upon an allegation of malicious prosecution arising out of the facts and circumstances which are currently being litigated in Civil Action No. 12-177, previously remanded to the District Court of the First Judicial District, Platte County, Wyoming, by the Supreme Court of Wyoming.

'2. That any malicious prosecution action based upon the circumstances and facts involved in civil action No. 12-177 will not ripen and be mature for adjudication until such time as civil action No. 12-177 is fully and finally disposed of.

'3. That this Court has no jurisdiction to entertain such an action in view of the law of the case existing in case No. 12-177.'

Although we do not agree this was a proper basis for this dismissal, insofar as it was based upon the ground of prematurity, we do affirm the court's order. The limited remand of this earlier case gives it a finality for purposes of the disposal here. This action is taken because of our rule that even though the trial court's basis of decision is incorrect, if it is sustainable on another theory it should not be reversed, Miller v. Hedderman, Wyo., 464 P.2d 544, 545-546; Heyl v. Heyl, Wyo., 518 P.2d 28, 30; Younglove v. Graham & Hill, Wyo., 526 P.2d 689, 693.

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, ala., 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162, on remand 45 Ala.App. 723, 222 So.2d 377; National Fire Ins. Co. of Hartford v. Thompson, 281 U.S. 331, 50 S.Ct. 288, 290, 76 L.Ed. 881; 31 C.J.S. Evidence § 50(1), p. 1021, and § 80(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. It seems most desirable to make a final disposition of this matter and to terminate this continuing controversy, so we shall also discuss the other grounds for our disposal hereof.

Insofar as plaintiffs seek to base any claim for damages upon the filing of the principal suit, they can have no remedy. We have recognized by a line of unbroken authority that to have any recovery for malicious prosecution the proceedings must not only be terminated but have resulted in a finding in plaintiff's favor, Consumers Filling Station Co. v. Durante, 79 Wyo. 237, 333 P.2d 691, 694. This is not the case here. Although the proceedings in the principal suit have terminated, they were not terminated by any finding in Weber's favor except that the temporary restraining order was held to have been wrongfully issued.

If plaintiffs have any basis for recovery herein it must result solely from the wrongful issuance of the temporary restraining order and any remedy would necessarily be confined to damages flowing...