Wyoming State Highway Dept. v. Napolitano

• Decision Date: 04 May 1978
• Docket Number: 4728,Nos. 4727,s. 4727
• Citation: 578 P.2d 1342
• Parties: WYOMING STATE HIGHWAY DEPARTMENT and State Highway Commission, Appellants (Defendants below), v. Frank D. NAPOLITANO and Norma Napolitano, Appellees (Plaintiffs below). Frank D. NAPOLITANO and Norma Napolitano, Appellants (Plaintiffs below), v. WYOMING STATE HIGHWAY DEPARTMENT and State Highway Commission, Appellees(Defendants below).
• Court: Wyoming Supreme Court

Page 1342

578 P.2d 1342

WYOMING STATE HIGHWAY DEPARTMENT and State Highway Commission, Appellants (Defendants below), v. Frank D. NAPOLITANO and Norma Napolitano, Appellees (Plaintiffs below).

Frank D. NAPOLITANO and Norma Napolitano, Appellants (Plaintiffs below), v. WYOMING STATE HIGHWAY DEPARTMENT and State Highway Commission, Appellees(Defendants below).

Nos. 4727, 4728.

Supreme Court of Wyoming.

May 4, 1978.

Rehearing Denied June 20, 1978.

V. Frank Mendicino, Atty. Gen., Glenn A. Williams, Senior Asst. Atty. Gen., and Daniel E. White, Asst. Atty. Gen., Cheyenne, for Wyoming State Highway Dept. and State Highway Commission.

Edward S. Halsey, Newcastle, and George A. Bangs, Rapid City, S. D., for Frank D. Napolitano and Norma Napolitano.

Before GUTHRIE, C. J., RAPER, THOMAS and ROSE, JJ., and MAHONEY, D. J.

ROSE, Justice.

Two cases are here consolidated upon appeal, one of which is taken by the Wyoming State Highway Department and State Highway Commission, defendants-appellants, from a judgment entered in Weston County District Court, Sixth Judicial District. This judgment awards plaintiffs-appellees, the Napolitanos, damages of $87,500.00 plus costs of $12.00 and sets aside a written agreement insofar as it purports to be a complete settlement for consequential damages in the taking of Plaintiffs' land for a public purpose.

The second appeal is taken by the Plaintiffs from that portion of the judgment which denied them their attorney's fees, engineering fees, expert's appraisal fees, and pre-judgment interest.

When issues were joined in the appeal first mentioned above, the Defendants filed a motion for summary judgment on the grounds that Plaintiffs had not complied with the provisions of § 9-2-332, W.S.1977 (§ 9-71, W.S.1957). This statute provides:

"Persons having claims against the state shall exhibit the same, with the evidence in support thereof, to the auditor, to be audited, settled and allowed, within one (1) year after such claim shall accrue, and not afterward."

The trial court denied the motion for summary judgment, whereupon the parties went to trial on the issues, with the court holding generally for the Plaintiffs, except for their claim for fees. We will reverse the trial court's order overruling the Defendants' motion for summary judgment, will affirm its holding denying fees, and will not, therefore, reach the other issues.

FACTS

At all times pertinent to this litigation, Plaintiffs were owners of property in Weston County, Wyoming, known as the Flying V Ranch, where they operated the Flying V Cambria Inn, a guest facility with restaurant and lounge. In connection with a federally assisted project on United States Highway 85 which proceeds north out of Newcastle, Wyoming, to Lead, South Dakota, the Defendants, in July and August of 1972, negotiated with Plaintiffs for a deed to a parcel of their land. The purpose of the acquisition was to permit relocation of the then-existing U. S. Highway 85, the consequence of which would be to change the relative position of the highway with respect to the Flying V Cambria Inn. Plaintiffs charged in their complaint that, during the negotiations, the authorized agents of the Defendants represented to them that the elevation of the new highway, as it approached from the south, would be no higher than the top of a certain pine tree, that, when constructed, it would be such that the lights of oncoming motor vehicles from the south would shine on the buildings of the Inn; and that the elevation of the relocated highway, as it passed the buildings, would be at the level of the foundation of a certain cabin referred to as the "big cabin." Plaintiffs' position is that, in reliance upon the representations thus made, the parties executed a Memorandum of Agreement on August 17, 1972. Under the agreement, Plaintiffs were to convey the land to Defendants for highway purposes for an acceptable and agreed-upon consideration. Accordingly, the consideration was paid and a deed was issued to the Defendants.

The Plaintiffs charge, and the trial court found, that, as actually constructed, the relocated highway rises to as much as twenty feet above the level which the Plaintiffs contend was represented by the Defendants to be the ultimate highway elevation. The result is that passing vehicles cannot see the buildings of the Inn, and Plaintiffs charge that this has resulted in a business loss. The court agreed. Other consequential damages are claimed by the Plaintiffs and found by the court, especially having to do with the steepness of the grade going into and away from the Inn.

Appellees-Plaintiffs define the summary judgment issue in the following way:

"I

"Article 1, Section 33 of the Wyoming Constitution is self-executing and Plaintiff (sic) has (sic) a right thereunder, irrespective of sovereign immunity and independent of any legislative enactment.

"II

"The filing of a statutory notice of claim against a governmental body is unnecessary where the proceedings are in the nature of inverse condemnation and are brought as a matter of constitutional right.

"III

"Under the circumstances here present, the State of Wyoming is estopped to claim that Plaintiffs' remedy is barred by the lapse of one year from date of taking."

The trial court heard the summary judgment motion on January 19, 1976, and ruled that

" . . . the highway project here involved was not officially closed and concluded as required by law until August, 1975. Accordingly, it appears to the Court that, if the statute requiring verified claim is applicable to this proceeding in inverse condemnation, it does not clearly appear as a matter of law that a year has elapsed since the accrual of such cause of action. Accordingly, it is by the Court:

"ORDERED that Defendants' Motion for Summary Judgment be and the same is hereby denied.

"FURTHER ORDERED that the Plaintiffs may amend their Complaint on or before February 2, 1976, to allege the filing of a verified claim with the State Auditor."

The relevant "Findings of Fact and Conclusions of Law" made and found by the court on July 8, 1976, the day judgment was entered, are these:

"As a result of the increased elevation of the highway, the Southerly approach access to plaintiffs' property from the highway is so steep and dangerous as to require closing of plaintiffs' business establishment during the winter months thereby lessening the fair market value of such property."

"As a result of the increased elevation of the highway, occupants of vehicles approaching the Flying V Cambria Inn from both the South and the North are unable to view the buildings in which the plaintiffs operate their business. The number of transient patrons and former patrons of the plaintiffs' business has substantially declined."

"The court concludes that the signatures of the plaintiffs on Defendants' Exhibit 1 (the Memorandum of Agreement) were secured by representations concerning material facts which were untrue and upon which plaintiffs placed justifiable reliance. Accordingly the agreement should be and is hereby set aside insofar as it purports to establish the consideration paid as a complete and full satisfaction and discharge of plaintiffs' loss and damage from the acquisition of property and construction of the highway."

"The court finds and concludes that the remaining property owned by these plaintiffs has been diminished in value by the acquisition of right of way and construction of the highway in its present location in the total additional amount of Eighty-seven Thousand Five Hundred Dollars ($87,500.00) . . . ."

The pertinent and relevant dates having to do with the claim filing are:

In August of 1972, the Defendants obtained a right-of-way from the owners of the Flying V. In August, 1973, Plaintiffs complained to a foreman working for the construction company that the highway was being laid out at a location different from that represented by the right-of-way negotiator for the State Highway Department, and in the spring of 1974, Plaintiffs made a similar contact with a Highway Department employee. Both men represented that they were building the road according to plans. On October 16, 1974, the relocated highway was opened for traffic. ¹ Plaintiffs wrote Defendants on July 23, 1975, alleging misrepresentations at the time the agreement was entered into and threatened action for rescission to force a re-evaluation. This letter does not purport to be a formal claim. In August, 1975, notice of highway final acceptance by the Highway Commission, was published. On September 18, 1975, the parties met to discuss the Plaintiffs' objections on October 1, 1975, the Defendants wrote a letter denying Plaintiffs' demands, and on November 13, 1975, the Plaintiffs filed their complaint for damages, in response to which the Defendants filed their answer on December 3, 1975. On December 22, 1975, Defendants filed a motion for summary judgment, alleging failure to comply with § 9-2-332, supra, which motion was, on January 22, 1976, overruled, with the court granting the Plaintiffs authority to amend their complaint to allege the filing of a verified claim with the State Auditor. The amended complaint was filed on January 22, 1976, alleging that on or about December 29, 1975, Plaintiffs had filed a verified claim with the State Auditor for damages a fact which is supported by the record.

THE ISSUES

Section 9-2-332, W.S.1977, requires the filing of a claim where it is contended the contract has been breached by the State or its agents:

Throughout the record and the briefs, the Wyoming State Highway Department and State Highway Commission have argued that as a condition precedent to bringing this action whether it be in contract or inverse condemnation it is required that a claim under § 9-2-332, supra, must first be filed. The Defendants go on to argue that since the claim was not timely filed, the court erred in overruling the motion for summary judgment. It is the...