BUDD-FALEN LAW OFFICES v. ROCKY MOUNTAIN, 04-215.
| Decision Date | 13 July 2005 |
| Docket Number | No. 04-215.,04-215. |
| Citation | 114 P.3d 1284,2005 WY 77 |
| Parties | BUDD-FALEN LAW OFFICES, P.C., Appellant (Defendant), v. ROCKY MOUNTAIN RECOVERY, INC., a Wyoming Corporation, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Franklin J. Falen, Karen Budd-Falen, Lloyd D. Richenbach and Brandon Jensen of Budd-Falen Law Offices, LLC, Cheyenne, Wyoming; and Thomas R. French of Thomas R. French, P.C., Ft. Collins, Colorado.
Representing Appellee: Keith R. Nachbar and Patrick J. LeBrun of Keith R. Nachbar, P.C., Casper, Wyoming.
Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BROOKS, D.J.
[¶ 1] Rocky Mountain Recovery, Inc., (Rocky Mountain) sought to recover monies Bunn & Associates (Bunn) alleged Budd-Falen Law Offices, P.C. (Budd-Falen) owed for court reporting transcription services. Budd-Falen claimed it was not responsible for payment for the transcription services. The district court held otherwise and ordered Budd-Falen to pay transcription fees in the amount of $12,113.80 plus prejudgment interest of $2,409.14. Budd-Falen appealed. We affirm.
[¶ 2] Budd-Falen presents the following issues:
Rocky Mountain re-states the issues as follows:
[¶ 3] Budd-Falen represented eight clients in an appeal to the Hearings Division of the Office of Hearings and Appeals of the Department of Interior (OHA). OHA hired Bunn to transcribe the thirteen-day hearing. During the course of the hearing, Budd-Falen ordered and received daily e-mail copies of the hearing transcripts on a next day delivery basis.
[¶ 4] After the hearing and the completion of its services, Bunn submitted bills to OHA and Budd-Falen for its services. OHA paid its bill. Budd-Falen did not, claiming that it was not responsible to Bunn for payment of the daily e-mail copies of the hearing transcript ordered by Karen Budd-Falen. After further efforts to obtain payment failed, Bunn hired Rocky Mountain to collect the amount owing from Budd-Falen.
[¶ 5] On July 22, 2003, Rocky Mountain filed a complaint against Budd-Falen for breach of contract alleging the firm received services from Bunn valued at $14,013.22, which it refused to pay. Rocky Mountain sought payment of the amount allegedly owed plus interest in the amount of $801.04 and the $75.00 cost of filing the complaint. Budd-Falen answered and moved for summary judgment asserting that: 1) as an agent of disclosed principals (i.e., its clients) it was not liable for the contract entered into on behalf of the principal; 2) the purchase order between OHA and Bunn failed to state the amount interested parties such as Budd-Falen would be charged for copies of the transcript as required by 43 C.F.R. § 4.23, and because of that failure, Bunn was not entitled to recover any amount; and, 3) Rocky Mountain was not entitled to recover attorney's fees. [¶ 6] Rocky Mountain also moved for summary judgment, contending simply that Budd-Falen and Bunn entered into a contract when Karen Budd-Falen, an attorney acting on behalf of the firm, asked Bunn during the hearing to provide her with daily copies of the hearing transcript on a next day delivery basis; the court reporter told her this service would be expensive; Ms. Budd-Falen asked her to provide the transcripts anyway; and the court reporter provided the service as requested. Budd-Falen filed a response asserting that Rocky Mountain failed to demonstrate the absence of a genuine issue of material fact on its contract claim and reasserting its agency claim.
[¶ 7] The district court held a scheduling conference and heard argument on the cross motions for summary judgment on March 10, 2004. At that time, Rocky Mountain moved to amend its complaint to add claims for unjust enrichment and promissory estoppel. The district court granted the motion, Rocky Mountain filed its amended complaint and Budd-Falen answered. The district court then gave the parties until April 27, 2004, to file briefs supplementing their summary judgment motions. Rocky Mountain filed a supplemental memorandum on April 28, 2004, in which it presented arguments in support of its unjust enrichment and promissory estoppel claims.1 Budd-Falen did not file a supplemental memorandum pursuant to the district court's order. On June 2, 2004, however, Budd-Falen filed a motion for leave to file a response to Rocky Mountain's supplemental memorandum. The motion contained the response Budd-Falen sought leave to file. In the response, Budd-Falen argued summary judgment was not appropriate on Rocky Mountain's unjust enrichment claim because, under its agency claim, the clients, not the attorneys, were the party to be charged for the transcription services. Budd-Falen contended summary judgment likewise was improper on the promissory estoppel claim because the evidence was disputed as to whether Karen Budd-Falen promised Bunn the law firm would pay for the transcription services. Like its other filings up to this point, Budd-Falen's response focused on the contention that its clients were responsible for payment for the services.
[¶ 8] On June 9, 2004, the district court conducted a pretrial conference. The following day, stating that the district court asked at the pretrial conference about the custom and usage for payments to court reporters in federal grazing appeals, Budd-Falen submitted supplemental authority citing 43 C.F.R. § 4.476 and contending under that regulation the federal government was responsible for the reporter's fees and Budd-Falen was responsible only for the actual cost of copies furnished at its request. This was the first time Budd-Falen cited the federal regulation as a basis for resolving the dispute. Rocky Mountain moved to strike the supplemental authority as untimely.
[¶ 9] Several days later the district court entered an order granting summary judgment in favor of Rocky Mountain and ordering Budd-Falen to pay $12,113.80, the total amount charged for the transcripts, plus interest in the amount of $2,409.14 and costs. In its order, the district court concluded a contract was formed between Budd-Falen and Bunn, the customary business practice was for the attorney to pay costs unless there was a specific agreement stating otherwise, the reasonable cost for the transcript was the $3.10 per page for testimony and $1.00 per page for concordance billed by Bunn, and Budd-Falen was liable for that amount plus interest and costs.
[¶ 10] Budd-Falen appealed to this Court from the summary judgment order. In its opening brief, filed November 24, 2004, Budd-Falen asserted three issues. As reflected in the statement of issues set out above in this decision, Budd-Falen's first issue was whether the federal regulations limited the law firm's liability to the actual cost of copies of the transcripts. In support of this argument, Budd-Falen cited the federal regulations and the Supremacy Clause of the United States Constitution. Its opening brief cited no other authority supporting its argument. Budd-Falen's second issue was whether the law firm, as an agent of disclosed principals, was liable for any payment to Bunn.
[¶ 11] On January 21, 2005, after Rocky Mountain filed its appellate brief, Budd-Falen filed a twenty-seven page reply brief.2 For the first time in the entirety of this case, Budd-Falen cited case law and other authorities in support of its argument that the federal regulations controlled the outcome of this dispute and limited its liability to the actual costs of copies of the transcript.3
[¶ 12] Three and a half months after filing its brief, after Rocky Mountain filed its responsive brief, and just five days before oral argument, Budd-Falen withdrew the second issue, the agency claim, from consideration by this Court. The only issues orally argued before this Court were Budd-Falen's claims that the federal regulations limited its liability to actual costs and questions of fact existed on the reasonableness of the charges.
[¶ 13] We review orders granting summary judgment according to the following standards:
Summary judgment is appropriate when no genuine issue as to any material fact exists and the prevailing party is entitled to judgment as a matter of law. A genuine issue of material fact exists when a disputed fact, if it were proven, would have the effect of establishing or refuting an essential element of the cause of action or defense which the parties have asserted. We examine the record from the vantage point most favorable to the party who opposed the motion, and we give that party the benefit of all favorable inferences which may fairly be drawn from the record. We evaluate the propriety of a summary judgment using the same standards and materials as the lower court used. We...
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