Martinez v. City of Cheyenne

Page 949

791 P.2d 949

Alejandro C. MARTINEZ and Dorothy A. Martinez, d/b/a Fleetwood Motel, Appellants (Plaintiffs), v. CITY OF CHEYENNE, State of Wyoming and Wyoming State Highway Department, Appellees (Defendants).Department, Appellees (Defendants).

STATE of Wyoming and Wyoming State Highway Department, Appellants (Defendants), v. Alejandro C. MARTINEZ and Dorothy A. Martinez, d/b/a Fleetwood Motel, Appellees (Plaintiffs).

Supreme Court of Wyoming.

May 4, 1990.

Glenn A. Hottenstein, Guy, Williams, White & Argeris, Cheyenne, for Alejandro C. Martinez and Dorthy A. Martinez, d/b/a Fleetwood Motel.

Kenneth G. Vines, Vines, Gusea & White, P.C., Cheyenne, for State of Wyoming and Wyoming State Highway Dept.

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

THOMAS, Justice.

The issues in this case relate to jurisdiction, both in this court and in the trial court; procedure, which involves essentially the related questions of jurisdiction; and substantive law relating to damages in a negligence case. The jurisdictional issue with respect to this court is whether the notice of appeal was timely filed. It is not without difficulty that we conclude that the notice of appeal was timely filed. The dual questions of jurisdiction in the trial court concern the scope of the statutory waiver of governmental immunity and the authority of the trial court to enter an order of additur more than 90 days after the entry of judgment. We are satisfied that there was an appropriate waiver of governmental immunity in this instance, and the trial court did have jurisdiction to address the liability of the State of Wyoming. We are equally satisfied that the trial court had no jurisdiction to enter an order of additur more than ninety days after the entry of judgment, and that ruling must be reversed. Perhaps the most interesting of the issues involves the question of liability of a tortfeasor for damages arising out of a flooding of the plaintiffs' property in the course of an unprecedented rainstorm. We conclude that the jury verdict that awarded $36,000 in damages was contrary to the evidence and the instructions given to the jury in view of the evidence of the actual loss the plaintiffs sustained in the amount of $120,000. We reverse the judgment entered by the trial court and remand the case for a new trial on the issue of damages only.

The initial appeal was taken by Alejandro C. Martinez and Dorthy A. Martinez, dba Fleetwood Motel (Fleetwood). In their Brief of Appellants, the issues in the case are described as follows:

"QUESTION 1. Was the trial Court's action vacating the hearing on the motion for additur or new trial set for March 9, 1989, and directing the motion be submitted on briefs with additional argument effective under Rule 59(f), Wyoming Rules of Civil Procedure, as an extension of time for consideration of the motion for additur or new trial to 90 days or April 11, 1989?

"QUESTION 2. Before appeal by either party, did the District Court have jurisdiction to enter an order granting additur within the appeal period of Rule 2.01, W.R.A.P., but after expiration of the ninety-day period set forth in Rule 59(f) of the Wyoming Rules of Civil Procedure by reason of inherent jurisdiction based on waiver?

"QUESTION 3. Was the jury's verdict allocating to Appellee only $36,000 of Appellants' uncontradicted damages of $120,000 contrary to the evidence and to the Court's instructions?

"QUESTION 4. Did the Court commit error in failing to instruct the jury that there can be no allocation of damages between a rare and unusual storm constituting an act of God and a negligent defendant?"

The State of Wyoming and the Wyoming State Highway Department (State), in their brief as appellee, rephrase the issues asserted by Fleetwood in this way:

"1. Should Appellants' appeal be dismissed because it was not timely filed pursuant to Rule 2.01, Wyoming Rules of Appellate Procedure?

"2. Did the District Court have jurisdiction to enter an Order Granting Additur or New Trial on Damages once the motion for additur or new trial on which the order was based was deemed denied pursuant to Rule 59(f), Wyoming Rules of Civil Procedure?

"3. Did the District Court have authority or jurisdiction to enter on May 9, 1989, an Order Nunc Pro Tunc Continuing Time to Determine the Plaintiffs' Motion for Additur or New Trial after the time period contained in Rule 59(f), Wyoming Rules of Civil Procedure, had run and the motion for additur or new trial had been deemed denied?

"4. Was the jury verdict dated December 5, 1988, proper and regular on its face so that the judgment entered thereon on January 11, 1989 should stand as valid and enforceable thereby making the District Court's granting of a new trial an abuse of discretion?

"5. Did The District Court commit error in failing to instruct the jury that there can be no allocation of damages between a rare and unusual storm constituting an act of God and a negligent defendant?

"6. Did the failure of the trial court to include the plaintiffs on the jury verdict form for comparative negligence purposes constitute reversible error?

"7. Did the failure of the District Court to give a proposed jury instruction offered by the state relating to comparative negligence constitute reversible error?

"8. Is this lawsuit barred by the Wyoming Governmental Claims Act, W.S. § 1-39-101, et seq. (1977)?

"9. Did the lower court lack jurisdiction to hear this case pursuant to Article 16, Section 7, Wyoming Constitution, which requires that the claim against the state be certified to under penalty of perjury?"

The State perfected a cross-appeal in which it asserts the following issues:

"1. Did the district court have jurisdiction to enter an Order Granting Additur or New Trial on Damages once the motion for additur or new trial on which the order was based was deemed denied pursuant to Rule 59(f), Wyoming Rules of Civil Procedure?

"2. Did the district court have the authority and jurisdiction to enter on May 9, 1989, an Order Nunc Pro Tunc Continuing Time to Determine the Plaintiffs' Motion for Additur or New Trial after the time period contained in Rule 59(f), Wyoming Rules of Civil Procedure, had run and the motion for additur or new trial had been deemed denied?

"3. Was the jury verdict dated December 5, 1988, proper and regular on its face so that the judgment entered thereon on January 11, 1989 should stand as valid and enforceable thereby making the district court's granting of a new trial an abuse of discretion?

"4. Did the failure of the trial court to include the plaintiffs on the jury verdict form for comparative negligence purposes constitute reversible error?

"5. Did the failure of the District Court to give a proposed jury instruction offered by the state relating to comparative negligence constitute reversible error?

"6. Is this lawsuit barred by the Wyoming Governmental Claims Act, W.S. § 1-39-101 et seq. (1977)?

"7. Did the lower court lack jurisdiction to hear this case pursuant to Article 16, Section 7 of the Wyoming Constitution, which requires that a claim against the state be certified to under penalty of perjury?"

Fleetwood, as cross-appellee, responds to the same issues asserted by the State. No separate statement of the issues is presented by Fleetwood.

The material facts in this case are straightforward and uncomplicated, although they were the subject of lengthy interpretation by a number of expert witnesses. Alejandro and Dorthy Martinez own the Fleetwood Motel in Cheyenne and, on August 1, 1985, it was severely flooded when a rainstorm of unprecedented intensity occurred in its vicinity. The Fleetwood Motel fronts East Lincolnway on the eastern edge of the city. East Lincolnway is a part of U.S. Highway 30 as it passes through Cheyenne. Not far from the Fleetwood Motel, a drainage system for diverting water beneath the highway is provided, starting with two lateral culverts that run parallel to the road. Those two lateral culverts empty into one main culvert that crosses the right-of-way underneath the highway. At the time the storm occurred, the primary culvert was partially obstructed by a concrete bulkhead, which had the effect of reducing the capacity of the culvert to carry runoff water by a substantial amount. This particular drainage system services a basin that is approximately four and one-half square miles.

There is no controversy about the fact that, on the day in question, these culverts were inadequate to carry off the water generated by the downpour. Puddles as much as two feet deep formed on the Fleetwood side of the road. The Fleetwood property was inundated by the water and extensively damaged. In an effort to obtain compensation for the damage, Fleetwood sued the State of Wyoming, the Wyoming State Highway Department, and the City of Cheyenne (City) alleging negligence in the design, construction, maintenance, and operation of the highway and its drainage system. The complaint also included claims of inverse condemnation.

The State and the City denied Fleetwood's claims and asserted, instead, that the damage to the motel was an unforeseen catastrophe attributable entirely to natural causes. The defendants contended that the August 1, 1985 storm was unique, extremely rare, and of unprecedented severity. The State further defended by asserting that Fleetwood had failed to mitigate damages; that Fleetwood was contributorily negligent; and that, in any event, the claims were barred by the Wyoming Governmental Claims Act, §§ 1-39-101 to -120, W.S.1977.

Late in November of 1988, the case came to trial, and a verdict was reached promptly. The jury relieved both the State and the City from liability under any theory of inverse condemnation. It also found that the City was not negligent. In its special verdict form, however, the jury did find that the State was negligent in its operation of Highway 30 by reason of its design of the drainage system in and...