MOTZKO COMPANY USA, LLC., a Minnesota Limited Liability Co., Appellant (Defendant),
A & D OILFIELD DOZERS, INC., a Wyoming Corporation, Appellee (Plaintiff).
Representing Appellant: Ronald G. Pretty, Cheyenne, Wyoming.
Representing Appellee: Kurt Kelly and Brandon W. Snyder of MacPherson, Kelly & Thompson, LLC, Rawlins, Wyoming.
Before KITE, C.J., and HILL, VOIGT [*], BURKE, and DAVIS, JJ.
KITE, Chief Justice.
[¶ 1] The district court granted A & D Oilfield Dozer, Inc.'s (A & D) motion for summary judgment dismissing Motzko Company USA, LLC's (Motzko) counterclaim as untimely. After the district court held a bench trial on A & D's claims and entered judgment, Motzko appealed the district court's summary judgment order.
[¶ 2] We affirm.
[¶ 3] The issues on appeal are:
1. Whether the district court properly granted summary judgment in favor of A & D dismissing Motzko's counterclaim.
2. Whether Motzko's counterclaim is moot in light of the district court's ruling after the bench trial on A & D's claims.
3. Whether A & D is entitled to attorney fees and costs under W.R.A.P. 10.05.
[¶ 4] The facts relevant to the issues raised in this appeal are undisputed. In April 2009, the United States Department of Transportation, Federal Highway Administration, awarded Motzko a contract for work on Sage Creek Road in Carbon County. On July 22, 2010, Motzko and A & D entered into a standard subcontract for part of the Sage Creek Road work and agreed that A & D would be paid $97,917. A & D satisfactorily completed the work under the subcontract by August 31, 2010.
[¶ 5] Motzko and A & D entered into a second contract for additional work on the project on a time and materials basis. Motzko gave A & D notice to proceed with the additional work on September 13, 2010. As part of the additional work, A & D demobilized Motzko's equipment and materials and removed them from the jobsite to a storage area belonging to A & D.
[¶ 6] A & D invoiced Motzko $245,098.03 for the work under both contracts. Motzko sent A & D a check for $173,754.07 with the notation— " Final Pymt— Sage Creek Road." A & D demanded the check be reissued without the " final payment" notation, and Motzko complied.
[¶ 7] A & D demanded payment for the remaining balance due of $71,343.96 and it eventually received another check for $20,000. In June 2012, A & D filed suit against Motzko for breach of contract damages and storage fees for Motzko's equipment and materials. Motzko's attorney accepted service of the complaint and summons on July 2, 2012. Motzko then moved to have the matter removed to federal court and filed its answer and counterclaim in that court. On August 8, 2012, the federal court remanded the case to the state district court because there was no showing of a basis for the federal court to assume jurisdiction. Neither Motzko's answer nor counterclaim was filed in the state court.
[¶ 8] After the case was remanded to the state court, A & D filed an answer to Motzko's counterclaim. At a scheduling conference on September 6, 2012, the district court asked A & D why it had filed an answer to Motzko's counterclaim when there was no counterclaim on record in the district court. Motzko filed its counterclaim in the district court on September 25, 2012. The counterclaim alleged that A & D had been overpaid on the contracts and had converted Motzko's equipment.
[¶ 9] A & D filed a motion for summary judgment, claiming Motzko's counterclaim was untimely and should be dismissed. After a hearing, the district court ruled, pursuant to W.R.C.P. 13, Motzko's counterclaim was compulsory; it was not filed in the district court within the time period allowed by the rule; and Motzko did not request leave to file a late counterclaim. Motzko asserted its counterclaim was timely because it was filed in federal court and the entire federal court file should have been transferred to the district court upon remand. The district court noted Motzko cited no authority for this position and federal statute only required a ...