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Jackman Construction, Inc., A Wyoming Corporation v. Town of Baggs

June 12, 2012

JACKMAN CONSTRUCTION, INC., A WYOMING CORPORATION, APPELLANT (PLAINTIFF),
v.
TOWN OF BAGGS, WYOMING, APPELLEE (DEFENDANT).



Appeal from the District Court of Carbon County The Honorable Wade E. Waldrip, Judge

The opinion of the court was delivered by: Hill, 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] Jackman Construction, Inc. (Jackman), was awarded a contract to improve the Town of Baggs' (the Town) water treatment plant. After the project suffered significant delays, payments were submitted and accepted, and a dispute ensued as to whether or not the last payment constituted "final payment." Jackman filed a governmental claim as well as a complaint for breach of contract, both seeking damages from the Town. The Town filed its "Motion for Summary Judgment," which the district court granted. We affirm.

ISSUES

[¶2] Jackman presents three issues for our consideration:

A. Whether the district court erred in finding no genuine issues of material fact and that the last payment by the Town to Jackman was "Final Payment" under the contract between the parties;

B. Whether the district court erred in finding no genuine issues of material fact and that the Town did not expressly acknowledge in writing that the issue of liquidated damages was still unsettled when it made its last payment to Jackman; and

C. Whether the district court erred in finding no genuine issues of material fact and that Jackman was required to submit, but had not submitted, a written "claim" in connection with the Town's imposition of liquidated damages.

FACTS

[¶3] In September of 2006, the Town sought bids to upgrade its water treatment plant. The Town awarded one general contract to Jackman and one general contract to Westech Construction. On December 20, 2006, the Town and Jackman entered a contract detailing the work to be performed by Jackman as well as the price to be paid by the Town.

[¶4] Originally, the contract required Jackman to be substantially finished with its construction within 120 days. An additional 30 days was given for finalization, including payment, for a total projected time of 150 days. A "Notice to Proceed" was sent to Jackman on March 15, 2007, effective as of March 22, 2007.

[¶5] The dates of the project were affected by change orders filed by the Town. Also, the cost of the project increased. Change Order No. 3, effective July 11, 2007, altered the date of completion to 36 calendar days later, making the date for "final payment" September 26, 2007. Change Order No. 5 increased the contract price by $4,670.00, increased the contract time by 3 days, making the date for "final payment" September 29, 2007. Change Order No. 7 again increased the contract price, this time by $3,488.00 and changed the contract time as well, making the date for "final payment" April 26, 2008. Change Order No. 7 added 208 days for "approved delays." All of these change orders were submitted by Jackman. As it happened, due to project delays, the Certificate of Substantial Completion was dated September 12, 2008, and final completion occurred on October 13, 2008.

[ΒΆ6] After the project was substantially completed, Jackman sought "final payment" from the Town in the amount of $187,944.08. However, the Town approved "final payment" to Jackman for a smaller amount, $154,968.08. Correspondence from the Town to Jackman incorporated Change Order Nos. 1-7 into the ultimate approval of paying the smaller amount to Jackman. The correspondence also explained that the Town purposefully would withhold $100,000.00 in ...


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