STERRETT PROPERTIES, LLC, 3 Creek Ranches, LLC, Utah Limited Liability Companies, and Morris R. Sterrett, an individual, Appellants (Defendants),
BIG-D Signature CORPORATION, a Wyoming Corporation, Appellee (Plaintiff).
Representing Appellants: Patrick J. Crank, Crank Legal Group, P.C., Cheyenne, Wyoming.
Representing Appellee: David F. DeFazio and Sarah E. Tollison, DeFazio Law Office, LLC, Jackson, Wyoming.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
[¶ 1] This matter is before this Court for a second time. In
Big-D Signature Corp. v. Sterrett Props., LLC, 2012 WY 138, 288 P.3d 72 (Wyo.2012), we affirmed the district court's judgment against Appellants, Morris Sterrett, Sterrett Properties, LLC, and 3 Creek Ranches, LLC, and in favor of Appellee, Big-D Signature Corporation (Big-D), with respect to Big-D's claims under Prime Contract Change Order (PCCO) Nos. 1 and 2. However, we reversed the district court's order dismissing Big-D's claims relating to PCCO Nos. 3 and 4. Our decision also affirmed the district court's dismissal of the counterclaims asserted by Appellants. On remand, the district court granted Big-D's voluntary motion to dismiss its remaining claims. In dismissing those claims the district court also dismissed all counterclaims of Appellants because they were " moot." Appellants challenge the district court's order dismissing their counterclaims. Appellants also challenge the district court's denial of their request for costs and attorney's fees. We affirm.
[¶ 2] Appellants present the following issues:
1. Did the district court abuse its discretion by dismissing Appellants' counterclaims?
2. Did the district court abuse its discretion by not awarding costs and attorney fees to Appellants?
[¶ 3] The underlying facts of this case have been set forth in Big-D Signature Corp. v. Sterrett Props., LLC, ¶¶ 3-8, 288 P.3d at 74-75 and need not be repeated at length here. In 2008, three years after entering a home construction contract with Appellants, Big-D filed an action against Appellants alleging breach of contract and unjust enrichment. Appellants counterclaimed, asserting breach of contract. The ensuing litigation concerned PCCO Nos. 1 and 2, which were signed by the parties, and PCCO Nos. 3 and 4, which were proposed but were never signed. Big-D moved for summary judgment with respect to its claims under PCCO Nos. 1 and 2. The district court granted that motion and entered judgment against Appellants in the amount of $441,612.41 on November 23, 2011. The court ruled that " 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." Id., ¶ 7, 288 P.3d at 75.
[¶ 4] The court subsequently entered an order, sua sponte, dismissing Big-D's claims with respect to PCCO Nos. 3 and 4 because those change orders had not been signed by the parties. The order also dismissed Appellants' counterclaims. The district court determined that the LLCs and Mr. Sterrett had failed to meet contractual requirements for bringing the claims and that the claims were for consequential damages, which were barred by the contract. Both parties appealed.
[¶ 5] On appeal, we affirmed the district court's grant of Big-D's motion for summary judgment with respect to amounts claimed due under PCCO Nos. 1 and 2. Id., ¶ 25, 288 P.3d at 78. However, we reversed the district court's dismissal of Big-D's claims with respect to PCCO Nos. 3 and 4 after finding that Big-D could obtain relief if it demonstrated the existence of an oral agreement to modify the parties' contract. Id., ¶ 34, 288 P.3d at 81. Finally, we affirmed the district court's dismissal of Appellants' counterclaims for damages caused by delay because the damages sought constituted consequential damages that were waived under the contract. Id., ¶ 38, 288 P.3d at 81.
[¶ 6] On remand to the district court, Big-D filed a voluntary motion to dismiss its claims with respect to PCCO Nos. 3 and 4, stating that " Plaintiff has analyzed the costs and benefits in pursuing its claims regarding PCCO Nos. 3 and 4, and is opting not to pursue those claims any further." According to Big-D, the value of its remaining claims was approximately $11,000.00. Appellants objected to Big-D's motion to dismiss and asserted that " Final judgment regarding the amount owed is improper without first adjudicating Sterretts' counterclaims ...