Summary 2007 WY 19

Summary of Decision issued January 31, 2007

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Case Name: Farmer d/b/a Farmer Construction v. Rickard & Rickard, Trustees

Citation: 2007 WY 19

Docket Number: 06-132

Appeal from the District Court of Park County, the Honorable Hunter Patrick, Judge (Retired)

Representing Appellant (Defendant): Jay A. Gilbertz and Michael K. Davis of Yonkee & Toner, LLP, Sheridan, Wyoming. Argument by Mr. Gilbertz.

Representing Appellees (Plaintiffs): Laurence W. Stinson and Bradley D. Bonner of Bonner Stinson PC, Powell, Wyoming. Argument by Mr. Stinson.

Issues: Whether the trial court erred in denying Farmer summary judgment and in granting a partial summary judgment for the Rickards establishing a duty on the part of Farmer to guarantee the adequacy of the blueprints chosen by the Rickards for unknown soil conditions on a lot selected by the Rickards. Whether the trial court erred in extending its partial summary judgment to strike Farmer’s defense that the Rickards breached the implied covenant of good faith and fair dealing which was based on the fact that the Rickards had been warned about the soil conditions on their lot and withheld those warnings from Farmer. Whether this case should be reversed with instructions to the trial court to grant summary judgment to Farmer.
Facts/Discussion: Farmer seeks review of an appealable order of the district court awarding Rickards damages in the amount of $220,000. Farmer built a home and detached garage/bus barn near Cody for the Rickards. Before trial, the court granted the Rickards’ motion for a partial summary judgment which had the effect of assigning Farmer the duty to guarantee the adequacy of the Rickards’ house plan for the soil conditions present on a lot they purchased from a third party prior to entering into their construction contract with Farmer. The trial phase of the instant case addressed only the issue of damages.
When the Court reviews a summary judgment, they have before them the same materials as the district court and they follow the same standards which applied to the proceedings below. Questions of law are reviewed de novo.
The district court concluded the contract between the parties unambiguously contained an express provision assigning a duty to Farmer to take account of the soil in which the Rickards’ house was to be built. The Court agreed the contract was not ambiguous, but concluded the contract itself, as well as the language for the house plans about “conditions” was silent as to the matter of who would be responsible for whether soil testing was necessary. In Reiman Const. Co. v. Jerry Hiller Co., the Court considered a case wherein the building team included a soils engineer, an architect, a civil engineering firm, as well as a builder. The district court concluded the Reiman case was not applicable to the circumstances of the present case. The Court however concluded it must be a part of the discussion even though it was not dispositive of the issue presented. An important factor in Reiman was the fact the architect and engineers knew they were dealing with soil problems when they assembled the plan that Reiman constructed. A builder-vendor who builds houses on lands he owns, may be liable for soil conditions under the theory of an implied warranty of fitness and/or habitability. Because of the disposition below, inadequate fact gathering and no fact finding has been done. The Court stated there were genuine issues of material fact that precluded summary judgment at this juncture.
Holding: The Court reversed and remanded because the contract between Farmer and the Rickards is unambiguous that Farmer did not specifically agree to be responsible for subsurface soil conditions at the work site and his duty to the Rickards with respect to soil conditions, if any, could not rest upon their written contract. The Rickards’ complaint and the defenses interposed by Farmer preclude summary judgment because they have generated genuine issues of material fact that must be sorted out by the fact finder.

The appealable order and the partial summary judgment in favor of the Rickards were reversed and remanded.

J. Hill delivered the decision.

Link: http://tinyurl.com/38pl5z .