Tolar v. Amax Coal Co.

862 P.2d 144, 1993 Wyo. LEXIS 167, 1993 WL 449193

• Court: Wyoming Supreme Court
• Decided: November 1, 1993
• Docket: No. 92-282
• Status: Published

Opinions

CARDINE, Justice.

Jackie and Ada Tolar appeal from the district court’s award of summary judgment in favor of Amax Coal Company, wherein the district court found that the cause of any damage to the Tolars’ businesses was the result of a downturn in the Gillette economy and not the result of the escape of methane and hydrogen sulphide gases from a mine developed by Amax.

We reverse.

The Tolars state these issues:

1. Did the trial court err in determining as a matter of law that the appellants incurred no damages as a proximate cause of the appellee’s negligence?

2. Did the trial court err in refusing to reverse its decision upon the appellants’ motion for reconsideration?

3. Did the trial court err in granting summary judgment on the issue of punitive damages?

4. Are there genuine issues of material fact entitling the appellants to have all issues determined by a jury?

In turn, Amax offers this summary of the issues:

A. Did the district court properly grant summary judgment to Amax Coal Company where there was no dispute of fact that the Tolars suffered no compensable damages caused by the evacuation of Rawhide Subdivision, irrespective of how the gas seepage in Rawhide was caused?

B. Did the district court properly grant summary judgment to Amax Coal Company on the issue of punitive damages when plaintiffs suffered no compensable actual damages?

The Tolars opened a “Cent Saver” convenience store in Horizon, a subdivision located about seven miles north of Gillette and adjacent to Rawhide Village, on August 28, 1986. They contend that Amax’s mining operations resulted in the release into the atmosphere of poisonous methane and hydrogen sulphide gases and that, on June 2, 1987, the Board of County Commissioners of Campbell County ordered the evacuation of Horizon and Rawhide Village because of the presence of those gases. The Tolars contend they were forced to evacuate their business and that the evacuation resulted in the complete destruction of that business, as well as consequential damages to other business enterprises they owned. The Tolars filed their complaint on December 8, 1989. The complaint presented four causes of action against Amax:

1. Amax’s mining activities were inherently dangerous and created a public nuisance which proximately caused injury to the Tolars’ business.

2. Amax’s acts and omissions constituted a private nuisance which proximately caused injury to the Tolars.

3. Amax was negligent in its operation of the mine and that negligence was the proximate cause of the Tolars’ injury.

4. Amax’s actions were grossly negligent, caused injury to the Tolars and give rise to an award of punitive damages.

As the case progressed through the district court, the issue of whether the gas seepage actually occurred, or was the fault of Amax, was put to one side, and no evidence was heard concerning that matter. Rather, Amax filed a motion for summary judgment premised on the theory that, irrespective of the gas seepage, the Tolars’ damages, if any, were the result of a general downturn in the Gillette area economy and the “Cent Saver” business would have failed whether or not there had been a gas seepage problem and subsequent evacuation.

The facts available to the district court were these: The Tolars moved to Gillette in 1982. They were in the business mainly of residential construction. They also operated a carpet business and an eave gutter installation business. They had no direct prior experience in the convenience store business. In August 1986, they opened a “Cent Saver” convenience store, almost entirely with borrowed money. They operated that store until late June of 1987; and, during that ten month period, the store was unprofitable. In early 1987, concern began to develop over the presence of methane and hydrogen sulphide gases in the Rawhide and Horizon Subdivisions. Those subdivisions were the primary market served by the convenience store. On June 2, 1987, the Board of County Commissioners of Campbell County ordered the evacuation of both the Rawhide Subdivision and the Horizon Subdivision, such evacuation to be accomplished not later than July 31, 1987. In response to that order, the Tolars closed the “Cent Saver” store on June 25, 1987. The evacuation order was rescinded on July 28, 1987. The Tolars did not reopen the store. The Tolars filed a chapter 11 bankruptcy in February 1988, at least in part because of the closure.

The Tolars’ depositions reveal that they accomplished what they considered to be a careful market study before opening the store and believed that it would eventually be a profitable enterprise, although they did not expect it to be profitable during the first two years of operation. They also intended to expand the operation to include wine and beer sales, as well as a pizza parlor, in order to enhance the profitability of the store.

Expert witnesses were hired by both parties and, as might be expected, their views were quite divergent. Suffice it to say that the Tolars’ expert opined that the store could have become a profitable venture, and the experts for Amax opined that the store was a foolish venture that was destined never to be profitable.

A significant factor in this ease was the general downturn in the Gillette economy which began in the mid 1980’s and persisted until the time of the hearing on Amax’s motions for summary judgment. One result of that economic downturn was a dramatic reduction in housing starts, and that was particularly true for the Rawhide and Horizon subdivisions where the Tolars had done much residential construction and where they intended to do more construction in the future.

We review a summary judgment in the same light as the district court, using the same materials and following the same standards. Summary judgment is proper only where there are no genuine issues of material fact and the prevailing party is entitled to judgment a matter of law. Romero v. Hoppal, 855 P.2d 366, 368 (Wyo.1993); Eisenbarth v. Hartford Fire Ins. Co., 840 P.2d 945, 948 (Wyo.1992).

In the explanation of its decision to grant summary judgment for Amax, the district court viewed the testimony by and on behalf of the Tolars as “unsupported optimism” and “wishful thinking” and “[i]t appears to me quite clear that the convenience store would have failed irrespective of what happened with Amax.” The district court based these conclusions on the general downturn in the Gillette economy.

Our discussion need only be- brief. It is manifest from the evidence presented to the district court that, as a factual matter, the cause of the failure of the convenience store and the consequential economic problems experienced by the Tolars was hotly disputed. The Tolars claim the cause was the methane and hydrogen sulphide gas seepage, and Amax contends that it was the downturn in the Gillette economy. Very likely, the truth lies somewhere in between, but that is a question which must be resolved by a fact finder. As is evident from the testimony in this case thus far, there may be countless factors which enter into every business failure — lack of intelligent management or skilled technical direction, insufficient capitalization, basic infirmities in process or method, delays, miscalculations, inefficiency of personnel, an economic downturn, premature closure brought about by an external force, and so on. The very purpose of the jury system is to resolve such complex and multi-faceted problems. See, e.g., Springfield v. State, 860 P.2d 435, 443 (Wyo.1993) (citing United States v. Jakobetz, 955 F.2d 786, 796 (2nd Cir.1992)). Under these circumstances, we do not perceive the dual requirements of no genuine issue of material fact and that Amax is entitled to judgment as a matter of law. See Jurkovich v. Estate of Tomlinson, 843 P.2d 1166, 1173-74 (Wyo.1992). Thus, we are compelled to reverse.

The orders on summary judgment are reversed and the matter is remanded to the district court for further proceedings consistent with this opinion.