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Big-D Signature Corporation, A Wyoming Corporation v. Sterrett Properties

October 31, 2012

BIG-D SIGNATURE CORPORATION, A WYOMING CORPORATION, APPELLANT (PLAINTIFF),
v.
STERRETT PROPERTIES, LLC, 3 CREEK RANCHES, LLC, UTAH LIMITED LIABILITY COMPANIES, AND MORRIS R. STERRETT, AN INDIVIDUAL, APPELLEES (DEFENDANTS). STERRETT PROPERTIES, LLC, 3 CREEK RANCHES, LLC, UTAH LIMITED LIABILITY COMPANIES, AND MORRIS R. STERRETT, AN INDIVIDUAL, APPELLANTS (DEFENDANTS),
v.
BIG-D SIGNATURE CORPORATION, A WYOMING CORPORATION, APPELLEE (PLAINTIFF).



Appeals from the District Court of Teton County The Honorable Dennis L. Sanderson, Judge

The opinion of the court was delivered by: Price, District Judge.

Representing Big-D Signature Corporation:

Before KITE, C.J., and HILL, VOIGT, BURKE, JJ., and PRICE, D.J.

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] This case arises out of a home construction contract between the contractors, Big-D Signature Corporation (Big-D) and two LLCs, Sterrett Properties, LLC and 3 Creek Ranches, LLC (LLCs). Morris Sterrett (Mr. Sterrett) is the owner of the property on which the home was built. Big-D filed suit against the LLCs and Mr. Sterrett, who then counterclaimed. The district court entered a partial summary adjudication which was later partially vacated. Then a jury trial commenced, but a mistrial was declared. A partial summary judgment order followed. The remaining issues were disposed of by the district court under a sua sponte dismissal with prejudice. Both sides appealed. We will affirm in part and reverse and remand in part.

ISSUES

[¶2] In their briefs, the parties present multiple issues for appeal, and there is conflict as to whether some of those issues are properly before this Court. Rather than quote the issues as put forward in the briefs, this Court finds it simpler to restate the issues. There are six separate issues that need to be decided in these appeals.

1. Does this Court have jurisdiction to consider the Order Granting Plaintiff's Motion for Partial Summary Judgment and Order on Issues Remaining for Trial even though it was not specifically mentioned in the notice of appeal? In other words, is that order subsumed into the final order of the case?

2. Did the district court properly grant summary judgment in favor of Big-D as to the original contract and Prime Contract Change Order (PCCO) Nos. 1 and 2, or was there a genuine issue of material fact making that ruling inappropriate?

3. Was the partial summary judgment entered against Mr. Sterrett as an individual or only against the LLCs?

4. Did the district court properly dismiss Big-D's unjust enrichment claim against Mr. Sterrett? Namely, was there an adequate remedy at law under the contract making the claim inappropriate?

5. Did the district court properly dismiss Big-D's claims under PCCO Nos. 3 and 4? Specifically, were they barred by the contract because they were unsigned?

6. Did the district court properly dismiss the LLCs' and Mr. Sterrett's claim for delay damages? Simply put, were they barred by the consequential damages waiver in the contract or because contractual requirements were not met in bringing the claim?

FACTS

[¶3] This case arises out of an AIA (American Institute of Architects) contract to build a home on Lot 81,*fn1 which was entered into by the LLCs and Big-D on October 26, 2005. Mr. Sterrett is the owner of Lot 81. There are a number of contract provisions which are relevant to these appeals: First, the contract specifically allows for escalation costs, but bars consequential damages. Second, it contains an integration clause which states that the contract may be changed only by a modification. A modification is defined as a written agreement signed by both parties or a change order.*fn2 Finally, the contract contains a provision establishing the process for entering change orders.

[¶4] Two PCCOs were signed by both parties: No. 1 on November 7, 2006, and No. 2 on November 8, 2006. PCCO No. 2 contains a new contract value of $1,509,811, which is handwritten and initialed. There were two more PCCOs which were proposed but never signed: No. 3, dated August 13, 2007, and No. 4, dated April 21, 2008. The LLCs have paid $1,194,425.04 to Big-D for the home built on Lot 81.

[¶5] This suit was initiated on September 26, 2008, when Big-D filed a complaint alleging breach of contract and unjust enrichment against the LLCs and Mr. Sterrett.*fn3

Then, on November 3, 2008, the LLCs and Mr. Sterrett filed a counterclaim alleging breach of contract. The district court entered an Order of Partial Summary Adjudication on February 17, 2011, in which it made three rulings:

1. The LLCs and Mr. Sterrett are barred from bringing any claim for consequential damages.

2. The LLCs and Mr. Sterrett are barred from bringing claims related to Lots 75 and 85.*fn4

3. The final contract amount is $1,509,811.00 pursuant to PCCO No. 2.*fn5

[¶6] A jury trial commenced on March 14, 2011, and on March 15, 2011, was continued indefinitely in order for counsel to simplify the issues. Because of the long delay before the trial could be recommenced, a mistrial was ordered.

[¶7] The district court then entered an Order Granting Plaintiff's Motion for Partial Summary Judgment and Order on Issues Remaining for Trial on November 23, 2011, in which it made three rulings:

1. There is a valid, express, unambiguous, enforceable contract modified by PCCO Nos. 1 and 2.

2. Total contract price is $1,509,811.00.

3. The remaining issues for trial are Big-D's claims for breach of contract and unjust enrichment related to PCCO Nos. 3 and 4 and the LLCs' and Mr. Sterrett's counterclaims for breach of contract related to delay.

[¶8] Finally, the district court entered an Order of Dismissal with Prejudice on December 16, 2011, in which it made three rulings:

1. Big-D's breach of contract claim for PCCO Nos. 3 and 4 is dismissed for failing to follow the modification requirements of the contract.

2. Big-D's unjust enrichment claim against Mr. Sterrett is dismissed because there is an adequate remedy at law.

3. The LLCs' and Mr. Sterrett's breach of contract claim is dismissed for failure to meet the requirements of the contract in bringing the claim and as consequential damages, which were waived by the contract.

STANDARD OF REVIEW

[¶9] As there are multiple issues to be decided, there will be multiple standards of review.

[¶10] First, the standard of review on summary judgment is well known and has been set out as follows:

We review a summary judgment in the same light as the district court, using the same materials and following the same standards. [Snyder v. Lovercheck, 992 P.2d 1079, 1083 (Wyo. 1999)]; 40 North Corp. v. Morrell, 964 P.2d 423, 426 (Wyo. 1998). We examine the record from the vantage point most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences that may fairly be drawn from the record. Id. A material fact is one which, if proved, would have the effect of establishing or refuting an essential element of the cause of action or defense asserted by the parties. Id. If the moving party presents supporting summary judgment materials demonstrating no genuine issue of material fact exists, the burden is shifted to the non-moving party to present appropriate supporting materials posing a genuine issue of a material fact for trial. Roberts v. Klinkosh, 986 P.2d 153, 155 (Wyo. 1999) [(overruled in part on other grounds by Borns v. Voss, 2003 WY 74, ¶ 17, 70 P.3d 262, 268-69 (Wyo. 2003))]; Downen v. Sinclair Oil Corp., 887 P.2d 515, 519 (Wyo. 1994). We review a grant of summary judgment deciding a question of law de novo and afford no deference to the district court's ruling. Roberts v. Klinkosh, 986 P.2d at 156; Blagrove v. JB Mechanical, Inc., 934 P.2d 1273, 1275 (Wyo. 1997).

Lindsey v. Harriet, 2011 WY 80, ¶ 18, 255 P.3d 873, 880 (Wyo. 2011).

Wallace v. Pinnacle Bank-Wyo., 2012 WY 64, ΒΆ 11, 275 P.3d 1250, ...


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