2011 WY 166

Summary of Decision December 20, 2011

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Case Name:  Excel Construction v. Town of Lovell

Citation:  2011 WY 166

Docket Number: S-11-0001

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464948

Appeal from the District Court of Big Horn County, The Honorable Steven R. Cranfill, Judge

Representing Appellant (Plaintiff):  Patrick J. Murphy of Williams, Porter, Day & Neville, P.C., Casper, Wyoming

Representing Appellee (Defendant):  Tracy J. Copenhaver of Copenhaver, Kath, Kitchen & Kolpitcke, LLC, Powell, Wyoming; Bradley D. Bonner of Bonner Stinson, P.C., Cody, Wyoming.  Argument by Mr. Copenhaver.

Date of Decision: December 20, 2011

Facts:  Appellant and Appellee town entered into a contract for Appellant to replace the town’s water and sewer system mains and service connections.  The parties disagree as to the date on which the project reached substantial completion and the date on which Appellant last performed work on the project, but they do agree that within the statutorily prescribed time, Appellant served a Notice of Claim on Appellee.  The Notice of Claim was a four page document that contained four identified categories of information: 1) “Time, Place and Circumstances of the Loss or Injury;” 2) “Claimant and Its Attorneys;” 3) “Compensation;” and 4) “Service this Notice of Claim.”  The “Compensation” paragraph of the Notice of Claim set forth the monetary damages that Appellant sought from the town and its officials.” However, when Appellant served its Notice of Claim on the town, its attorney inadvertently failed to attach the “Exhibit A” referred to in the compensation paragraph, which detailed Appellant’s damages.  The town mayor and town administrator both noticed and discussed with each other that the “Exhibit A” referenced in the Notice of Claim was not attached to the document they received.  The mayor did not attempt to obtain a copy of the missing exhibit or seek to have the claim audited, instead referring the claim to the town’s attorney for further handling.

Thereafter, Appellant filed its Complaint against Appellee. This complaint alleged compliance with  Beaulieu II. However, when Appellant later filed an amended complaint to add a party, the subsequent amended complaint, due to a drafting error, failed to plead compliance.

Only several months later did Appellant learn that the Notice of Claim it served on Appellee did not have the referenced “Exhibit A” attached to it.  On that same date, Appellant notified the town of the omission and served on it a First Amended Notice of Claim that included the previously omitted “Exhibit A.”

Subsequently, Appellee filed a summary judgment motion.  The town alleged it was entitled to summary judgment on three separate grounds: 1) Appellant failed to timely file the Notice of Claim with the required full itemization of damages; 2) Appellant failed to serve its Notice of Claim on the proper town officer, specifically, the town treasurer; and 3) Appellant’s first Amended Complaint failed to plead compliance with the Beaulieu II requirements.  In response, Appellant filed a Motion for Leave to File a Second Amended Complaint.

The district court concluded that because Appellant omitted “Exhibit A” from its original Notice of Claim, the Notice of Claim failed to provide a full itemization of damages as required by the Wyoming Constitution and the Governmental Claims Act.  It further concluded that Appellant’s attempt to amend its Notice of Claim failed because the First Amended Notice of Claim was not filed within two years of the alleged act, error or omission that gave rise to the claim, as required by the Governmental Claims Act.  The district court finally concluded that due to Appellant’s failure to comply with the Governmental Claims Act in its submission of its original Notice of Claim, the court had no subject matter jurisdiction and could not rule on Appellant’s Motion for Leave to File a Second Amended Complaint.  On these grounds, the district court granted Appellee’s Motion to Dismiss and/or Motion for Summary Judgment and dismissed Appellant’s claims against the town.

Issues: A) Whether the District Court erred when it found that Appellant did not present an “Itemized Statement” in its Notice of Claim, and 1) Whether Appellant needed to further categorize its claimed damages with the missing “Exhibit A Page?” and 2) Whether Appellant’s Notice of Claim contained all the information required by the Constitution, the Wyoming Governmental Claims Act, and the Wyoming Supreme Court (even without the “Exhibit A Page?”); B) Whether Appellant’s counsel’s clerical mistake should be corrected pursuant to Rule 60(a), W.R.Civ.P.; C) Whether Appellant timely presented its First Amended Notice of Claim to the town; D) Whether Appellant properly presented its Notice of Claim and First Amended Notice of Claim to the mayor and town administrator (instead of to the town treasurer)?; and E) Whether the District Court somehow “lost” its subject matter jurisdiction when Appellant filed its Amended Complaint without the Beaulieu II averments (after filing its original Complaint with the Beaulieu II averments).

Holdings:  The Court concluded that Appellant identified the precise dollar amount of damages it was seeking in its Notice of Claim, and held that Appellant’s Notice of Claim met the itemization requirements of Wyo. Stat. Ann. § 1-39-113(b)(iii) and Article 16, Section 7 of the Constitution.  Because the Court found Appellant’s Notice of Claim adequately itemized the damages it was demanding, the Court did not address Appellant’s W.R.C.P. 60(a) argument or the timeliness of its Amended Notice of Claim.

As to the presentation of claim issue, the Court concluded that Appellant complied with the service requirements of Article 16, Section 7 of the Wyoming Constitution when it served its Notice of Claim on the town mayor, town administrator, town attorney, and the town’s project engineer on the water and sewer project from which Appellant’s claims arose. The Court observed that the town had not in writing or by practice designated its town treasurer to be the official on whom governmental claims must be served.

As to the final issue, pursuant to its recent ruling in Brown v. City of Casper, 2011 WY 35, the Court found the district court has jurisdiction to rule on Appellant’s motion for leave to file a second amended complaint.

The Court reversed and remanded for further proceedings consistent with the opinion.

J. Golden delivered the opinion for the court.