Motzko Co. v. A&D Oilfield Dozers, Inc.

Decision Date15 January 2014
Docket NumberNo. S–13–0096.,S–13–0096.
Citation316 P.3d 1177
CourtWyoming Supreme Court
PartiesMOTZKO COMPANY USA, LLC., a Minnesota Limited Liability Co., Appellant (Defendant), v. A & D OILFIELD DOZERS, INC., a Wyoming Corporation, Appellee (Plaintiff).


Representing Appellant: Ronald G. Pretty, Cheyenne, Wyoming.

Representing Appellee: Kurt Kelly and Brandon W. Snyder of MacPherson, Kelly & Thompson, LLC, Rawlins, Wyoming.

Before KITE, C.J., and HILL, VOIGT *, BURKE, and DAVIS, JJ.

KITE, Chief Justice.

[¶ 1] The district court granted A & D Oilfield Dozer, Inc.'s (A & D) motion for summary judgment dismissing Motzko Company USA, LLC's (Motzko) counterclaim as untimely. After the district court held a bench trial on A & D's claims and entered judgment, Motzko appealed the district court's summary judgment order.

[¶ 2] We affirm.


[¶ 3] The issues on appeal are:

1. Whether the district court properly granted summary judgment in favor of A & D dismissing Motzko's counterclaim.

2. Whether Motzko's counterclaim is moot in light of the district court's ruling after the bench trial on A & D's claims.

3. Whether A & D is entitled to attorney fees and costs under W.R.A.P. 10.05.


[¶ 4] The facts relevant to the issues raised in this appeal are undisputed. In April 2009, the United States Department of Transportation, Federal Highway Administration, awarded Motzko a contract for work on Sage Creek Road in Carbon County. On July 22, 2010, Motzko and A & D entered into a standard subcontract for part of the Sage Creek Road work and agreed that A & D would be paid $97,917. A & D satisfactorily completed the work under the subcontract by August 31, 2010.

[¶ 5] Motzko and A & D entered into a second contract for additional work on the project on a time and materials basis. Motzko gave A & D notice to proceed with the additional work on September 13, 2010. As part of the additional work, A & D demobilized Motzko's equipment and materials and removed them from the jobsite to a storage area belonging to A & D.

[¶ 6] A & D invoiced Motzko $245,098.03 for the work under both contracts. Motzko sent A & D a check for $173,754.07 with the notation—“Final Pymt—Sage Creek Road.” A & D demanded the check be reissued without the “final payment” notation, and Motzko complied.

[¶ 7] A & D demanded payment for the remaining balance due of $71,343.96 and it eventually received another check for $20,000. In June 2012, A & D filed suit against Motzko for breach of contract damages and storage fees for Motzko's equipment and materials. Motzko's attorney accepted service of the complaint and summons on July 2, 2012. Motzko then moved to have the matter removed to federal court and filed its answer and counterclaim in that court. On August 8, 2012, the federal court remanded the case to the state district court because there was no showing of a basis for the federal court to assume jurisdiction. Neither Motzko's answer nor counterclaim was filed in the state court.

[¶ 8] After the case was remanded to the state court, A & D filed an answer to Motzko's counterclaim. At a scheduling conference on September 6, 2012, the district court asked A & D why it had filed an answer to Motzko's counterclaim when there was no counterclaim on record in the district court. Motzko filed its counterclaim in the district court on September 25, 2012. The counterclaim alleged that A & D had been overpaid on the contracts and had converted Motzko's equipment.

[¶ 9] A & D filed a motion for summary judgment, claiming Motzko's counterclaim was untimely and should be dismissed. After a hearing, the district court ruled, pursuant to W.R.C.P. 13, Motzko's counterclaim was compulsory; it was not filed in the district court within the time period allowed by the rule; and Motzko did not request leave to file a late counterclaim. Motzko asserted its counterclaim was timely because it was filed in federal court and the entire federal court file should have been transferred to the district court upon remand. The district court noted Motzko cited no authority for this position and federal statute only required a copy of the order of remand, rather than the entire file, be sent to the district court. It granted summary judgment to A & D and dismissed Motzko's counterclaim.

[¶ 10] The district court then held a bench trial on A & D's claims and granted judgment in its favor for contract damages and storage fees. Motzko appealed the district court's dismissal of its counterclaim.


[¶ 11] Our standard of review for a summary judgment decision is de novo, and we use the same materials and follow the same standards as the district court. Michael's Constr., Inc. v. American Nat'l Bank, 2012 WY 76, ¶ 8, 278 P.3d 701, 703–04 (Wyo.2012); Grynberg v. L & R Exploration Venture, 2011 WY 134, ¶ 16, 261 P.3d 731, 736 (Wyo.2011).

A. Summary Judgment on Counterclaim

[¶ 12] A & D's summary judgment motion sought dismissal of Motzko's counterclaimon the grounds it was compulsory and had not been filed in a timely manner under W.R.C.P. 13. Rule 13 states in relevant part:

(a) Compulsory Counterclaims.—A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim....


(c) Effect of Counterclaim on Relief Sought by Opposing Party.—A counterclaim may or may not diminish or defeat the recovery sought by the opposing party.


(f) Omitted Counterclaim.—When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment.

In Lane Co. v. Busch Dev., Inc., 662 P.2d 419, 423–24 (Wyo.1983), we stated that [o]rdinarily, a claim which is a compulsory counterclaim under ... W.R.C.P. 13(a), but is not brought, is thereafter barred.”

[¶ 13] The district court ruled that Motzko's counterclaim was compulsory because it arose out of the same transaction or occurrence that was the subject matter of A & D's complaint and it was not filed in state court within the time required by Rule 13(a). Motzko also did not seek leave under Rule 13(f) to file a late counterclaim. On appeal, Motzko does not contest the district court's findings that the counterclaim was compulsory and was not filed in state court before the procedural deadline.1 Applying the Lane ruling, Motzko's failure to file a compulsory counterclaim results in it being barred.

[¶ 14] Motzko asserted in the district court that it had filed the counterclaim in a timely fashion in federal court and “the Federal Rules of Civil Procedure required the entire federal court file, including all pleadings, be transmitted” to the state court. Motzko did not cite any specific rule or other pertinent authority in support of its argument that the entire file should have been remanded and the district court concluded Motzko was incorrect. Motzko, likewise, does not provide any pertinent authority or cogent argument regarding the significance of the federal court filings in its appellate brief in this Court. We will not, therefore, consider whether the district court was correct in ruling the federal court filings were not effective in state court.2See Moore v. State, 2013 WY 146, ¶ 3 n. 1, 313 P.3d 505, 507 n. 1 (Wyo.2013), citing Sands v. Brown, 2013 WY 60, ¶ 2 n. 1, 301 P.3d 128, 129 n. 1 (Wyo.2013).

[¶ 15] Instead of challenging the underlying basis for the dismissal of its counterclaim, Motzko asserts the district court did not have authority to dismiss it on summary judgment. Motzko asserts summary judgment cannot be granted on a claim simply because a litigant did not comply with procedural rules. Motzko's position is, of course, incorrect.

[¶ 16] W.R.C.P. 56(c) governs summary judgments and states in relevant part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Summary judgments are often used when a claim is barred for failing to comply with procedural requirements. See, e.g., Case v. Sink & Rise, Inc., 2013 WY 19, 297 P.3d 762 (Wyo.2013) and Sandstrom v. Sandstrom, 884 P.2d 968 (Wyo.1994) (affirming summary judgments dismissing claims because of the appellants' failures to respond to motion in accordance with the rules). Although a summary judgment motion may be based upon affidavits and other documents which assert a lack of material facts, it may also be based solely on a question of law which is set out exclusively in the pleadings. Under those circumstances, a summary judgment motion is functionally equivalent to a motion to dismiss under Rule 12(b)(6) or a motion for judgment on the pleadings under Rule 12(c). Landmark, Inc. v. Stockmen's Bank & Trust, Co., 680 P.2d 471, 474–75 (Wyo.1984). In Duran v. Board of County Comm'rs of Sweetwater County, 787 P.2d 971, 975 (Wyo.1990), this Court concluded that either summary judgment or dismissal under Rule 12(b)(6) was proper when the claim was not filed within the statutory period.3 Motzko has not demonstrated any basis to reverse the district court's dismissal of its counterclaim on summary judgment.

B. Mootness

[¶ 17] A & D also argues the issues raised in the counterclaim were necessarily and finally decided upon the trial of A & D's complaint, rendering Motzko's proposed counterclaim moot. [A]n issue is moot when it no longer presents a live controversy with respect to which the court can give meaningful relief.’ White v. Shane Edeburn Constr., LLC, 2012 WY 118, ¶ 13, 285 P.3d 949, 953 (Wyo.2012), quoting Christian Coalition of Fla., Inc. v. United States, 662 F.3d 1182, 1189 (11th Cir.2011).

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    ...the question of what effect they should be given. See Motzco Co. USA, LLC v. A & D Oilfield Dozers, Inc., 2014 WY 5, ¶ 14 n.2, 316 P.3d 1177, 1180 n.2 (Wyo. 2014) (noting conflicting authorities on question but declining to address it where appellant provided no cogent argument). Now that t......
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    ...which is set out exclusively in the pleadings") (quoting Motzko Co. USA, LLC v. A & D Oilfield Dozers, Inc. , 2014 WY 5, ¶ 16, 316 P.3d 1177, 1181 (Wyo. 2014) ). [¶12] Our review of a W.R.C.P. 12(b)(6) dismissal is de novo.2 We review orders granting a motion to dismiss under Rule 12(b)(6) ......
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    ...solely a question of law based on the pleadings and was the functional equivalent of a W.R.C.P. 12(b)(6) dismissal. See Motzko, ¶ 16, 316 P.3d at 1181. We will therefore review the ruling as would a Rule 12(b)(6) dismissal and accept the facts alleged in the complaint as true and view them ......

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