Hill v. Zimmerer
Annotate this Case
Hill v. Zimmerer
1992 WY 139
839 P.2d 977
Case Number: 92-50
Decided: 10/28/1992
Supreme Court of Wyoming
Ron HILL, Appellant (Defendant),
v.
Bob
ZIMMERER, Appellee (Plaintiff).
Appeal from District Court, GoshenCounty, John T. Langdon,
J.
James A.
Eddington of Jones, Eddington & Weaver, Torrington, for appellant.
Michael
E. Warren of Sawyer, Warren & Kautz, Torrington, for appellee.
Before
MACY, C.J., and THOMAS, CARDINE,
URBIGKIT and GOLDEN, JJ.
GOLDEN, Justice.
[¶1.] Ron Hill appeals from a
district court judgment which adjudged him to be an apparent joint adventurer
with his cousin, Johnny Hill, in a hay hauling operation. As a result of this
determination, the district court ordered that judgment be entered against Ron
Hill for a debt incurred via a hay purchase agreement with appellee Bob
Zimmerer. We will affirm.
ISSUES
[¶2.] The primary issues
are:
1. Whether the
district court abused its discretion by allowing evidence to be presented at
trial concerning the apparent business relationship of Ron Hill and Johnny Hill
as partners or joint adventurers.
2. Whether the
district court erred by failing to grant Ron Hill's Wyo.R.Civ.P. 41(b)(1) motion
to dismiss after Bob Zimmerer had presented his
case-in-chief.
3. Whether the
district court's Findings of Fact, Conclusions of Law and Judgment were
supported by sufficient evidence.
FACTS
[¶3.] Very few facts of this
case are not in dispute. Of those that are not, however, some foundation can be
given to the present controversy. In March of 1988, Ron Hill contacted Bob
Zimmerer to see if he had any hay to sell. Bob Zimmerer informed Ron Hill that
he did. A short time thereafter, Ron Hill, Johnny Hill, Bobby Hill and Bobby
Hill, Jr. showed up at Bob Zimmerer's place to load hay. The hay was first
ground by Bobby Hill and Bobby Hill, Jr. for a price of $10 per ton. It was then
loaded into Johnny Hill's trailer which was pulled by Ron Hill's over-the-road
tractor. Once loaded, the hay was delivered to various feedlots to satisfy
supply contracts held by Johnny Hill. Ron and Johnny Hill agreed to split
profits on a 60/40 ratio.
[¶4.] By mid-April, the Hills
had hauled eleven loads of hay from Bob Zimmerer's place without paying for
them. Bob Zimmerer put a halt to the operation at this point and demanded
payment. Payment in full was made by late May with checks which were drafted on
Johnny Hill's account. Thereafter, the hay hauling operation resumed. Ron Hill
did not actively participate from this point forward, as he left for Texas to do custom
harvesting. He did, however, leave his tractor behind for continued use. The
Hills hauled another twenty-three and one-half loads of hay from Bob Zimmerer's
farm by early-July. Once again, they had fallen substantially behind with their
payments. Bob Zimmerer told them not to take any more hay and demanded payment.
The Hills subsequently left and never returned.
[¶5.] Bob Zimmerer filed a
complaint against Johnny Hill and Ron Hill October 13, 1988, which stated in
pertinent part:
2. That
during the months of March, April, May, June and July, 1988, Plaintiff sold to
Defendants $19,375.00 worth of alfalfa hay which Defendants have removed from
Plaintiff's property and have failed to pay for.
3. That
during the same period of time Defendants purchased an additional $6,250.00
worth of alfalfa hay which they have failed to pick up and which has
deteriorated in value because of weather damage. That during the same period of
time Plaintiff ground hay for the Defendants and his labor for said work was
$1,000.00.
4. The
Defendants owe to Plaintiff the total sum of $26,625.00 which sum they have
refused to pay.
5. That
all of the transactions between the Plaintiff and the Defendants were conducted
in Goshen County, Wyoming, and all contacts between the Plaintiff and the
Defendants were in Goshen
County, Wyoming.
WHEREFORE,
Plaintiff prays for judgment against the Defendants in the amount of $26,625.00,
plus the costs of this action, attorney's fees and all other relief to which the
Plaintiff is entitled.
[¶6.] Neither Johnny Hill nor
Ron Hill timely responded to the complaint, and default judgments were entered
against them. The default judgment against Johnny Hill was subsequently
discharged in bankruptcy and that against Ron Hill was vacated so that the case
could proceed on its merits.
[¶7.] After numerous
procedural delays not relevant to this appeal, a one-day, nonjury trial was held
on December 11, 1991. Bob Zimmerer's theory of the case was that Ron Hill and
Johnny Hill's business relationship constituted an ostensible partnership. Ron
Hill had two primary lines of defense. First, he asserted that he was neither a
partner nor a joint adventurer with Johnny Hill in the hay hauling operation.
Ron Hill explained that he merely accommodated Johnny Hill by contacting Bob
Zimmerer on his behalf and by "leasing" his tractor to him for a share of the
profits. Second, Ron Hill asserted that, if he did have a contract with Bob
Zimmerer, it was only for the first eleven loads of hay (250 tons) which had
been paid for in full.
[¶8.] After the trial, the
district court filed its judgment which contained findings of fact and
conclusions of law. The district court concluded that Ron Hill and Johnny Hill
were apparent joint adventurers in the hay hauling operation and ordered that
judgment be entered against Ron Hill in the amount of $17,507.50 plus costs of
$111.34 at seven percent interest. This appeal followed.
DISCUSSION
[¶9.] Ron Hill argues
initially that the district court abused it discretion by permitting partnership
and joint adventure evidence to be admitted over his objection at trial and
without amendment of the pleadings. He contends that such evidence went beyond
the scope of the pleadings, depriving him of adequate notice and opportunity to
defend. While it is true that Bob Zimmerer's complaint does not specifically
contain the words "partnership" or "joint adventure," Ron Hill's assertion that
he was prejudicially surprised by Bob Zimmerer's theory of the case is wholly
without merit. The record clearly reflects, through affidavits, discovery
documents and the trial transcript, that Ron Hill had notice of and prepared a
defense for a partnership or joint adventure theory of liability - the two
theories being virtually indistinguishable substantively. Consequently, we hold
that the district court did not abuse its discretion by permitting evidence to
be introduced concerning Bob Zimmerer's theory of the
case.
[¶10.] Ron Hill contends secondly that the
district court erred by failing to grant his Wyo.R.Civ.P. 41(b)(1)1 motion to dismiss at the close of
Bob Zimmerer's case-in-chief. Ron Hill's argument before the district court, and
now on appeal, was essentially that Bob Zimmerer had failed to present facts
which would entitle him to relief under the law. The district court denied this
motion on the basis that the facts presented looked to him very much like Bob
Zimmerer had made out a claim of joint adventure. Following the denial, Ron Hill
proceeded to present his defense.
[¶11.] We find no Wyoming case which has
dealt specifically with the issue of whether a district court's denial of a Rule
41(b)(1) motion to dismiss is reviewable when a defendant has proceeded to
present evidence following the ruling.2 The matter has, however, been
considered in the federal courts. The general rule in the federal courts was
that a defendant, by presenting evidence, waived his right to appeal from a
denial of a Rule 41(b)(1) motion to dismiss.3 E.g., Bituminous Const., Inc. v.
Rucker Enter., Inc., 816 F.2d 965, 967 (4th Cir. 1987); 5 James Wm. Moore et
al., Moore's
Federal Practice ¶ 41.13[1] (2d ed. 1991). The significance of this rule was
that, when a defendant appealed an adverse final judgment, a review was made by
considering all of the evidence relied upon by the district court, not just that
presented in plaintiff's case-in-chief. 9 Charles A. Wright & Arthur R.
Miller, Federal Practice & Procedure § 2371 (1971 and Supp.
1992).
[¶12.] We believe that the federal rule promotes
the policy of deciding cases on their merits and that it is consonant with the
provision in Rule 41(b)(1) which allows courts to defer ruling on a motion to
dismiss until all evidence has been presented. Consequently, we apply the
federal rule in this case and hold that Ron Hill has waived his right to appeal
the district court's denial of his motion to dismiss. We proceed then, in accord
with the federal rule, to consider the entire record to determine if sufficient
evidence exists to support the district court's judgment.
[¶13.] As indicated above, our analysis of Ron
Hill's second issue leads us directly to his third area of concern - sufficiency
of the evidence. Ron Hill argues primarily that the evidence in the record is
insufficient to support the district court's finding that he was an apparent
joint adventurer with his cousin, Johnny Hill, in the hay hauling operation. He
does not challenge the amount of the judgment except to the extent that $662.50
was awarded for damaged hay. After setting forth the applicable standard of
review, we will address these contentions in order.
[¶14.] Our standard of review when faced with a
sufficiency-of-the-evidence challenge is well known. We presume that the
findings of the district court are correct and will not disturb them unless they
are clearly erroneous or contrary to the great weight of the evidence. E.g.,
Ferguson v. Reed, 822 P.2d 1287, 1290 (Wyo. 1991). When
reviewing the evidence, we accept the evidence of the prevailing party as true,
giving it all favorable inferences and leaving out all evidence in conflict
therewith. E.g., Town of Wheatland v. Bellis
Farms, Inc., 806 P.2d 281, 284 (Wyo. 1991).
[¶15.] The evidence that we look for initially
is that of a joint adventure. A joint adventure is defined generically as an
"association of persons to carry out a single business enterprise for profit,
for which purpose they combine their property, money, effects, skill, and
knowledge." Black's Law Dictionary (5th ed. 1979). As between the parties, a
joint adventurer relationship may be formed only by contract. 46 Am.Jur.2d Joint
Ventures § 8 (1969). Consequently, such a relationship will be found when there
exists (1) an agreement, express or implied, (2) to carry out a common business
purpose, (3) for pecuniary gain, (4) in which each party has an equal voice in
control and direction of the undertaking. Popejoy v. Steinle, 820 P.2d 545, 549
(Wyo. 1991).
As to third persons, however, the law will impose joint adventurer status upon
individuals or entities conducting their affairs as though they are joint
adventurers, regardless of their actual intent. 46 Am.Jur.2d Joint Ventures § 9
(1969). Whether or not a joint adventurer relationship exists may be inferred
from the circumstances, True v. Hi-Plains Elevator, 577 P.2d 991, 997 (Wyo.
1978), and is preeminently a question for the finder of fact, Robinson Trans.
Co. v. Hawkeye Sec. Ins. Co., 385 P.2d 203, 205 (Wyo.
1963).
[¶16.] The district court as finder of fact
determined that Ron Hill was an apparent joint adventurer with his cousin,
Johnny Hill, and that Ron Hill should be held jointly and severally liable for
the hay purchase debt incurred with Bob Zimmerer. Applying our standard of
review to the evidence, we are satisfied that the district court's
determinations are amply supported. The record reflects that both Ron Hill and
Johnny Hill negotiated with Bob Zimmerer to purchase hay; that the purpose of
the negotiations was to satisfy supply contracts which Johnny Hill held with
various feed lots; that Ron Hill and Johnny Hill both contributed their time,
talents and property to the undertaking; that they agreed to share the profits
and losses on a 60/40 ratio; and that Bob Zimmerer thought that Johnny Hill and
Ron Hill were jointly involved in the hay hauling operation. While Johnny Hill
explained that he was merely leasing Ron Hill's tractor, the most favorable
inference that may reasonably be drawn from the evidence is that Johnny Hill and
Ron Hill were engaged in a joint adventure. The district court, after hearing
the testimony, determining credibility and weighing the evidence, so determined.
We find no reason to disturb its findings in this regard.
[¶17.] Ron Hill's other
sufficiency-of-the-evidence challenge concerns $662.50 that was awarded to Bob
Zimmerer as compensation for damaged hay. The district court made this award in
relation to Bob Zimmerer's testimony that the Hills left 106 tons of hay at his
place which they never picked up. Bob Zimmerer testified that he was able to
sell fifty-three tons and that he fed the other fifty-three tons, which became
badly damaged by the weather, to his cows. He estimated that the value of the
hay, as damaged, would be $37.50 per ton. Accordingly, the district court
awarded compensation of $662.50 (53 X [$50.00 - $37.50]). Ron Hill, however,
argues that no compensation should be awarded as Bob Zimmerer got full use of
the hay by feeding it to his cows. We are not impressed with this argument.
Common sense dictates that damaged hay is less valuable than good hay,
regardless of whether it is used for one's own purposes or sold to others. The
district court's award of $662.50 is supported by substantial
evidence.
[¶18.] In sum, after reviewing all the evidence
in this case, we are persuaded that the judgment of the district court serves
the ends of justice, and that it is neither clearly erroneous nor contrary to
the great weight of the evidence.
[¶19.] Affirmed.
FOOTNOTES
1 Wyo.R.Civ.P. 41(b)(1)
provides in relevant part:
After the
plaintiff, in an action tried by the court without a jury, has completed the
presentation of evidence, the defendant, without waiving the right to offer
evidence in the event the motion is not granted, may move for a dismissal on the
ground that upon the facts and the law the plaintiff has shown no right to
relief. The court as trier of the facts may then determine them and render
judgment against the plaintiff or may decline to render any judgment until the
close of all the evidence.
2 The court has, on several
occasions, addressed the standard of review applicable when a Rule 41(b)(1)
motion to dismiss has been granted by a district court. See, e.g., True Oil Co.
v. Sinclair Oil Corp., 771 P.2d 781 (Wyo.
1989); Kure v. Chevrolet Motor Div., 581 P.2d 603
(Wyo. 1978); Arbenz v. Bebout, 444 P.2d 317
(Wyo.
1968).
3 The language in Fed.R.Civ.P. 41(b),
which authorized the use of the rule to terminate a nonjury action on the merits
when a plaintiff failed to carry his burden of proof, was deleted in 1991 and
was replaced by subsection (c) of Fed.R.Civ.P. 52. As Wyoming has not similarly
amended its rule, we find the preamendment cases and commentary regarding
Fed.R.Civ.P. 41(b) to be persuasive.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.