Summary 2012 WY 138

Summary of Decision October 31, 2012

Judge Price delivered the opinion for the Court. Affirmed in part. Reversed and remanded in part.

Case Names: BIG-D SIGNATURE CORPORATION, a Wyoming Corporation v. STERRETT PROPERTIES, LLC, 3 CREEK RANCHES, LLC, Utah Limited Liability Companies, and MORRIS R. STERRETT, an individual;

STERRETT PROPERTIES, LLC, 3 CREEK RANCHES, LLC, Utah Limited Liability Companies, and MORRIS R. STERRETT, an individual v. BIG-D SIGNATURE CORPORATION, a Wyoming Corporation

Docket Number: S-12-0046; S-12-0047

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Teton County, Honorable Dennis L. Sanderson, Judge.

Representing Big-D Signature Corporation: David F. DeFazio and Sarah E. Tollison of DeFazio Law Office, LLC, Jackson, Wyoming. Argument by Ms. Tollison and Mr. DeFazio.

Representing Sterrett Properties, LLC, 3 Creek Ranches, LLC, and Morris R. Sterrett: Andrea L. Richard of The Richard Law Firm, P.C. Jackson, Wyoming.

Date of Decision: October 31, 2012

Facts: This case arose out of a home construction contract between the contractors, Big-D Signature Corporation (Big-D) and two LLCs, Sterrett Properties, LLC and 3 Creek Ranches, LLC (LLCs). Morris Sterrett is the owner of the property on which the home was built. Big-D filed suit against the LLCs and Mr. Sterrett, who then counterclaimed. The district court entered a partial summary adjudication which was later partially vacated. Then a jury trial commenced, but a mistrial was declared. A partial summary judgment order followed. The remaining issues were disposed of by the district court under a sua sponte dismissal with prejudice. Both sides appealed.

Issues: In their briefs, the parties present multiple issues for appeal, and there is conflict as to whether some of those issues are properly before this Court. Rather than quote the issues as put forward in the briefs, this Court finds it simpler to restate the issues. There are six separate issues that need to be decided in these appeals.

1. Does this Court have jurisdiction to consider the Order Granting Plaintiff’s Motion for Partial Summary Judgment and Order on Issues Remaining for Trial even though it was not specifically mentioned in the notice of appeal? In other words, is that order subsumed into the final order of the case?

2. Did the district court properly grant summary judgment in favor of Big-D as to the original contract and Prime Contract Change Order (PCCO) Nos. 1 and 2, or was there a genuine issue of material fact making that ruling inappropriate?

3. Was the partial summary judgment entered against Mr. Sterrett as an individual or only against the LLCs?

4. Did the district court properly dismiss Big-D’s unjust enrichment claim against Mr. Sterrett? Namely, was there an adequate remedy at law under the contract making the claim inappropriate?

5. Did the district court properly dismiss Big-D’s claims under PCCO Nos. 3 and 4? Specifically, were they barred by the contract because they were unsigned?

6. Did the district court properly dismiss the LLCs’ and Mr. Sterrett’s claim for delay damages? Simply put, were they barred by the consequential damages waiver in the contract or because contractual requirements were not met in bringing the claim?

Holdings: The Court found that the Order Granting Plaintiff’s Motion for Partial Summary Judgment and Order on Issues Remaining for Trial entered by the district court was properly before the Court because it was subsumed into the final Order of Dismissal with Prejudice. They also found that there were no genuine issues of material fact as to the original contract and PCCO Nos. 1 and 2. The Order Granting Plaintiff’s Motion for Partial Summary Judgment and Order on Issues Remaining for Trial entered by the district court was affirmed. Furthermore, the Court found that Mr. Sterrett was individually liable under the contract and the PCCOs because his counsel conceded the point after referring to his affidavit in which he admitted it was his project.

Next, the Court found that there were facts under which Big-D could obtain relief under PCCO Nos. 3 and 4. On this issue, the district court’s Order of Dismissal with Prejudice was reversed and the case is remanded. On remand, Big-D will have the burden of proving that there was an oral agreement as to PCCO Nos. 3 and 4, and that both parties took action consistent with the oral agreement. As to the contention of the LLCs and Mr. Sterrett that some of the items in PCCO Nos. 3 and 4 were consequential damages barred by the contract and not escalation costs, the Court will also remand that issue to the district court.

Finally, the Court found that the damages claims of the LLCs and Mr. Sterrett are barred by the contract’s waiver of consequential damages. The district court’s Order of Dismissal with Prejudice was affirmed on this issue. Affirmed in part. Reversed and remanded in part.

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

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