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Western Municipal Construction of Wyoming, Inc. v. Better Living

June 29, 2010

WESTERN MUNICIPAL CONSTRUCTION OF WYOMING, INC., APPELLANT (PLAINTIFF),
v.
BETTER LIVING, LLC, APPELLEE (DEFENDANT).



Appeal from the District Court of Sheridan County The Honorable John G. Fenn, Judge.

The opinion of the court was delivered by: Hill, Justice.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

[¶1] Appellant, Western Municipal Construction (Western), challenges the district court's order granting summary judgment in favor of the Appellee, Better Living, LLC (Better Living). We will reverse and remand for entry of summary judgment in favor of Western.

ISSUE

[¶2] Western states this issue:

Did the district court improperly grant summary judgment for [Better Living] by failing to review the Settlement Agreement and improperly superimposing the Project Contract's dispute procedures?

Better Living restates the issue thus:

Did the trial court properly grant Better Living's motion to dismiss Western's complaint for declaratory judgment based on Western's undisputed failure to comply with an express condition precedent in the parties' contract?

FACTS AND PROCEEDINGS

[¶3] This appeal arises out of the dismissal of a Complaint for Declaratory Judgment. That complaint sought to declare the parties' rights under a settlement agreement resulting from a mediated dispute concerning a construction contract. Western is a Wyoming corporation which was the contractor for a residential infrastructure construction project in Sheridan. Better Living is a Wyoming LLC which was the owner of the project. A dispute arose concerning two items: (1) the amount of liquidated damages, for which Better Living had assessed a $345,000.00 deduction against the $1.4 million contract price, and (2) the amount due under a "Force Account" bid item. The parties agreed to mediate that dispute and eventually they reached a settlement agreement.

[¶4] On December 3, 2008, Western filed a Complaint for Declaratory Judgment asking the district court to review the parties' Settlement Agreement and enter an order enforcing the unambiguous language of that agreement to the effect that Better Homes owed Western $250,000.00 as full and complete compensation for any and all amounts owed on the project. Western also asked that it be awarded its fees and costs for bringing this action, as provided for in the contract between the parties. Both parties filed motions for summary judgment. On May 1, 2009, the district court entered summary judgment in favor of Better Homes on the bases set out in its Decision Letter filed of record on April 14, 2009.

[¶5] Prior to these proceedings, the parties had submitted the disputes between them to a mediator for resolution. The results of that mediation were memorialized in this agreement which was executed on September 29, 2008:

SKEELS ST/POPLAR GROVE PHASE I STREET AND UTILITY PROJECT CONTRACT AMENDMENT TO SETTLE DISPUTES REGARDING LIQUIDATED DAMAGES CLAIMS AND FORCE ACCOUNT BID ITEM

WHEREAS, the Parties, Better Living, LLC ("Owner") and Western Municipal Construction of Wyoming, Inc. ("Contractor") mutually desire to resolve their legal and equitable disputes arising under the above referenced Contract in the most timely and cost effective manner available to them; and

WHEREAS, the parties have participated in mediation in Casper, Wyoming, with their respective legal counsel and mediator Mark Gifford, Esq.; and

WHEREAS, the parties have agreed through mediation to settle their existing disagreements concerning amounts to be paid by Owner to Contractor under paragraph 3.2 of the June 11, 2007 Agreement for the Project and otherwise under the Project contract documents and concerning Project bid item #145 on Schedule G of the Alternate 1 Project Contract Bid package and otherwise under the Project contract documents; and

WHEREAS, the parties desire to resolve these two items of dispute under the existing Project contract documents only as set forth herein and to otherwise go forward pursuant to the existing ...


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