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Excel Construction, Inc., A Wyoming Corporation v. Town of Lovell

December 20, 2011

EXCEL CONSTRUCTION, INC., A WYOMING CORPORATION, APPELLANT (PLAINTIFF),
v.
TOWN OF LOVELL, WYOMING, AN INCORPORATED MUNICIPALITY, APPELLEE (DEFENDANT).



Appeal from the District Court of Big Horn County The Honorable Steven R. Cranfill, Judge

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

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

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] Excel Construction, Inc. (Excel) entered into a contract with the Town of Lovell to replace the Town's water and sewer system mains and service connections. Excel subsequently filed a complaint against the Town for breach of that contract and related claims. The district court dismissed Excel's claims for failure to submit a governmental notice of claim that met the itemization requirements of the Wyoming Constitution and the Wyoming Governmental Claims Act. We reverse.

ISSUES

[¶2] Excel presents its issues on appeal as follows:

A. Whether the District Court erred when it found that Excel Construction did not present an "Itemized Statement" in its Notice of Claim.

1. Did Excel Construction need to further categorize its $2,688,173.80 in claimed damages with the missing "Exhibit A Page?"

2. Did Excel Construction's Notice of Claim contain all the information required by the Constitution, the Wyoming Governmental Claims Act, and the Wyoming Supreme Court (even without the "Exhibit A Page?")?

B. Should Excel's counsel's clerical mistake be corrected pursuant to Rule 60(a), W.R.Civ.P.?

C. Did Excel Construction timely present its First Amended Notice of Claim to the Town of Lovell on July 10, 2009?

D. Did Excel Construction properly present its Notice of Claim and First Amended Notice of Claim to the Town Mayor and Town Administrator (instead of to the Town Treasurer)?

E. Did the District Court somehow "lose" its subject matter jurisdiction when Excel Construction filed its Amended Complaint without the Beaulieu II averments (after filing its original Complaint with the Beaulieu II averments)?

FACTS

[¶3] On March 15, 2006, Excel and the Town of Lovell entered into a contract for Excel to replace the Town's water and sewer system mains and service connections. The parties disagree as to the date on which the project reached substantial completion and the date on which Excel last performed work on the project, but they do agree that within the statutorily prescribed time, on January 24, 2008, Excel served a Notice of Claim on the Town.

[¶4] Excel served its Notice of Claim by certified mail with copies delivered to Town Mayor Bruce Morrison, Town Administrator Bart Grant, Town Attorney Sandra Kitchen, and Frank Page of HKM Engineering, the Town's project engineer. The Notice of Claim was a four page document that contained four identified categories of information: 1) "Time, Place and Circumstances of the Loss or Injury;" 2) "Claimant and Its Attorneys;"

3) "Compensation;" and 4) "Service this Notice of Claim."

[¶5] The "Compensation" paragraph of the Notice of Claim set forth the monetary damages that Excel sought from the Town and its officials. The paragraph detailed those damages as follows:

Lovell has failed to pay Excel the monies owed under the contract, including that for retainage, change orders, and affirmative claims, all in breach of the Construction Agreement. An itemized statement of the amount owed to Excel is attached hereto as Exhibit A. In sum, it shows that Lovell owes Excel at least $2,688,173.80. Excel seeks these $2,688,173.80 in damages for breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, and declaratory judgment.

[¶6] When Excel served its Notice of Claim on the Town of Lovell, its attorney inadvertently failed to attach the "Exhibit A" referred to in the paragraph detailing Excel's damages. "Exhibit A" broke down Excel's claimed damages as follows:

1. Retainage $512,084.00

2. Additional work completed between 11/1/06 and 8/24/07 $739,169.25

3. Additional Work Impacts Reports 1-90 $715,166.34

4. Additional Work Impact Report 91 $68,010.96

5. Additional Work Impact Report 92 $353,089.28

6. Additional Work Impact Report 93 $264,277.81

7. Additional Work Impact Reports MDU ...


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