Summary 2008 WY 34

Summary of Decision issued March 28, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Garrison v. CC Builders, Inc.; CC Builders, Inc. v. Garrison

Citation: 2008 WY 34

Docket Number: S-07-0132; S-07-0133; S-07-0162

Appeal from the District Court of Teton County, the Honorable Nancy J. Guthrie, Judge

Representing the Garrisons: Lawrence B. Hartnett of Law Offices of Lawrence B. Hartnett, Jackson, Wyoming.

Representing CC Builders, Inc.: Kenneth S. Cohen of Cohen Law Office, PC, Jackson, Wyoming; and Heather Noble of Jackson, Wyoming.

Facts/Discussion: CC Builders built the Garrisons a house in Teton County on a “cost plus” basis. The litigation is a result of the parties’ subsequent disagreement as to the reasonable cost of construction. Both parties appealed from the district court’s award of damages and costs to the Garrisons.
Are the district court’s findings of fact as to damages clearly erroneous: The Court noted that they accept the district court’s findings of fact unless they are clearly erroneous. The district court relied upon specific numbers in its computation of the amount of damages which meant there was an underlying evidentiary basis for the district court’s conclusion. After reviewing the record, the Court stated that it could not conclude that the district court’s finding was clearly erroneous.
Are the district court’s conclusions of law as to damages inconsistent with its findings of fact: This issue was couched in terms of the district court not following its own announced methodology in determining the damage award. The Court noted that the district court used their “methodology” but used different numbers than those the Garrisons thought were the “right” numbers.
Did the district court err in concluding that CC Builders had not committed fraud: The Court thoroughly combed the record and agreed with the district court that the Garrisons did not prove their fraud claims against CC Builders. They did not find any clear and convincing evidence of actual fraud in the record. There was no evidence of a false representation by CC Builders and no detrimental reliance by the Garrisons. The claim relating to labor charges failed because the testimony of industry custom and practice was not sufficiently uniform to establish that any deviation therefrom must be fraudulent. The district court found that some of the charges were not reasonable and therefore exceeded the reasonable cost of a “cost plus” contract. The evidence supported that conclusion.
Did the district court abuse its discretion in its award of costs to the Garrisons: After entry of the Judgment, the Garrisons filed a Bill of Costs and CC Builders filed a timely objection. The Garrisons’ costs were awarded as requested. A verified bill of costs is prima facie evidence that the items listed were necessarily expended and are properly taxable as costs. The Court stated that the instant case was fundamentally a breach of contract case won for the most part by the Garrisons. The district court did not abuse its discretion in finding the Garrisons to be the prevailing party and in awarding their costs. However, the bill of costs was not verified and of the ten discovery depositions for which costs were requested, only two were used at trial. Three of the remaining depositions were noticed by CC Builders and the appropriate costs related thereto are awardable to the Garrisons. The remaining five had no substantiation. The record did not contain a transcript of the district court hearing on the motion to award costs. The district court’s finding did not reveal any analysis under Rule 501(a)(3)(D). The Court concluded the Garrisons did not overcome the limiting language of the Rule in regard to those five discovery depositions. The Court reduced the costs awarded in the Judgment from $11,042.70 to $4,895.20.

Holding: The Court stated that the district court’s findings of fact were not clearly erroneous, its conclusions of law were not inconsistent with the findings of fact and it did not err in concluding that the Garrisons had failed to prove by clear and convincing evidence that CC Builders committed fraud. The Judgment as reduced by the district court upon remand to $72, 062.77 was affirmed. The Court stated that the award of costs must be reduced to $4.895.20 and remanded to the district court for entry of a new judgment in the appropriate amount.

Affirmed in part and reversed in part.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/3clto6 .

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