JACKMAN CONSTRUCTION, INC., a Wyoming Corporation, Appellant (Defendant),
ROCK SPRINGS WINNELSON CO., INC., Appellee (Plaintiff).
from the District Court of Sweetwater County The Honorable
Nena James, Judge
Representing Appellant: Clark Stith, Rock Springs, Wyoming.
Representing Appellee: Danielle M. Mathey of Mathey Law
Office, P.C., Green River, Wyoming.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Appellee Rock Springs Winnelson Co. (Winnelson) sued
Appellant Jackman Construction, Inc. (Jackman) for nonpayment
of materials supplied for the Southside Improvements Project
in Green River, Wyoming (project). Jackman counterclaimed on
various legal theories, including promissory estoppel, to
recover the amount it paid in excess of Winnelson's
subcontractor bid. After a bench trial, the district court
generally found in favor of Winnelson and denied
Jackman asserts the district court erred by rejecting its
promissory estoppel claim. The record contains ample evidence
to support the district court's factual determinations
and it did not commit any prejudicial errors of law. We,
Jackman presents the following issues for our review:
1. Did the district court err by not conducting any analysis
of promissory estoppel?
2. Did the district court err by refusing to accept the
stipulation of the parties that [Jackman] paid Winnelson
$679, 941.52 toward the [project]?
3. Was the district court's finding that Jackman later
agreed to pay higher prices than those that appeared on
Winnelson's bid clearly erroneous?
counters with these issues, which we have restated:
Jackman barred from arguing that Winnelson's freight
charges were fraudulent because the argument was not made
below and/or the fraud claim was not pled with particularity?
Jackman barred from arguing the bid expiration date was
unreasonable because the argument was not made below?
the district court err by deciding that Jackman had failed to
prove the elements of promissory estoppel?
any error in refusing to recognize the parties'
W.R.A.P. 10.05 sanctions appropriate?
On May 4, 2010, Jackman was the successful bidder on a
project to install new water lines and a pump station for the
City of Green River. Prior to the general contract bid
letting, Winnelson submitted a bid to supply plumbing
materials for the job (Bid #1) to several general
contractors, including Jackman. There were several bid
schedules covering materials for different aspects of the
project. Winnelson's bid of $550, 247.81 was for most of
the materials, but it did not include materials for three of
the bid schedules. Winnelson's fax cover sheet which
accompanied Bid #1 notified the general contractors that
"All FBE fittings special order contractor to verify
[quantities] & items as most fittings are 4-6 weeks
delivery. Nonreturnable after order, any questions please
call." Winnelson's bid also had a thirty day
expiration date which, depending on the particular bid
schedule, was either May 16 or May 19, 2010.
A couple of days before the bid letting, Jackman's
project manager, Heather Glenn, requested that Winnelson
prepare a separate quote just for the pipe to be used on the
project. That same pipe had been included in Winnelson's
Bid #1. Winnelson provided the pipe bid which was $254,
821.70 (Bid #2). That bid was conditioned for "immediate
acceptance" and the prices were applicable "only if
all items listed [were] ordered."
Jackman never executed a written contract with Winnelson to
supply the materials or specifically notified Winnelson that
it was accepting Bid #1 or Bid #2. Jackman owner, Lynn
Jackman, testified that he accepted the bid for all of the
project materials on the day after the bid letting by telling
Pete Frullo, the president of Winnelson, to "get [his]
submittals in order." A submittal is a document in which
the supplier provides information about the specific
materials it intends to provide to meet the project
specifications. For this project, submittals had to be
approved by the project engineer prior to the general
contractor ordering the materials. Mr. Jackman did not
indicate whether Winnelson should get "submittals in
order" for Bid #1 or Bid #2.
Despite Mr. Jackman's statement, the submittal process
was not followed in an orderly fashion. Mr. Jackman ordered
the pipe (corresponding to Bid #2) on May 14, 2010, without
first having a submittal approved by the project engineer.
Mr. Jackman did not comply with the condition in Bid #1
requiring it to verify the items and quantities of fittings
and parts. Without that information, Winnelson could not
prepare submittals or order the other materials. Instead, Ms.
Glenn, on behalf of Jackman, ordered materials piecemeal
during the course of the project, long after Bid #1 had
already expired, without ever providing Winnelson a complete
set of approved submittals.
Winnelson honored its bid prices for the pipe, but on the
other items it charged Jackman the price in effect at the
time of the order. Winnelson also added freight charges to
its invoices, often including charges for expedited delivery
when Jackman needed the items quickly. The freight charges
were not always listed separately on the invoices, and Mr.
Frullo explained that Ms. Glenn agreed to pay additional
freight but asked that it be incorporated into the price of
Toward the end of the job, Jackman had trouble paying
Winnelson's invoices. Some large checks were returned for
insufficient funds, and Winnelson began to require payment
before it would provide materials to Jackman. Eventually,
Jackman stopped paying altogether, and Winnelson refused to
provide any more materials. Jackman obtained the rest of the
materials it needed for the job from another supplier.
Winnelson filed suit in circuit court against
Jackman for its failure to pay invoices totaling
$21, 705.31, which included principal and service charges.
Jackman counterclaimed for breach of contract, promissory
estoppel and negligent misrepresentation and, in its
amended counterclaim, requested damages of more than $50,
000. Jackman asserted that Bid #1 was enforceable based on
promissory estoppel, and that Winnelson breached the terms of
Bid #1 by charging more for parts than the bid prices.
Because the amount claimed by Jackman exceeded the circuit
court's jurisdiction, the matter was transferred to
The district court conducted a one-day bench trial and issued
findings of fact and conclusions of law under W.R.C.P. 52,
granting judgment in favor of Winnelson on the outstanding
principal. The district court denied Winnelson's claim
for unpaid service charges because the language on
Winnelson's invoice form indicated the charge was
discretionary and did not specify the amount to be charged or
the method of calculating it.
The district court denied Jackman's counterclaims. It
ruled that, to be enforceable under the statute of frauds, a
contract for the project materials had to be in writing
because it involved a sale of goods for a price of $500 or
more. See Wyo. Stat. Ann. § 34.1-2-201
(LexisNexis 2015). Given Jackman did not accept Bid #1 in
writing prior to the expiration dates, the court concluded no
valid contract based upon the bid was formed. Instead, the
district court found that the parties contracted under Bid #2
when Jackman ordered the pipe and entered into a series of
smaller contracts when other materials were ordered by Ms.
Glenn. The district court also rejected Jackman's
alternative claims based upon promissory estoppel, unjust
enrichment and negligent or intentional misrepresentation.
Jackman filed a timely notice of appeal.
When the district court conducts a bench trial and issues
findings of fact and conclusion of law pursuant to Rule 52,
we review its factual findings for clear error and its
conclusions of law de novo. Wime ...