Century Ready-Mix Co. v. Campbell County School Dist., READY-MIX

• Citation: 816 P.2d 795
• Decision Date: 20 August 1991
• Docket Number: No. 90-129,READY-MIX,90-129
• Parties: 70 Ed. Law Rep. 651 CENTURYCOMPANY; Charles Ness and Gloria Ness, Appellants (Plaintiffs), v. CAMPBELL COUNTY SCHOOL DISTRICT; Lower & Company; Tom Barker, d/b/a Cooper Engineering & Material Testing; Rundquist & Hard; and Chris Hard, individually, Appellees (Defendants).
• Court: United States State Supreme Court of Wyoming

Page 795

816 P.2d 795

70 Ed. Law Rep. 651

CENTURY READY-MIX COMPANY; Charles Ness and Gloria Ness, Appellants (Plaintiffs), v. CAMPBELL COUNTY SCHOOL DISTRICT; Lower & Company; Tom Barker, d/b/a Cooper Engineering & Material Testing; Rundquist & Hard; and Chris Hard, individually, Appellees (Defendants).

No. 90-129.

Supreme Court of Wyoming.

Aug. 20, 1991.

H.W. Rasmussen, Badley & Rasmussen, P.C., Sheridan, for appellants.

John A. Coppede, Redle, Yonkee & Toner, Sheridan, for appellee Campbell County School Dist.

Robert Brown, Lonabaugh & Riggs, Sheridan, for appellee Tom Barker d/b/a Cooper Engineering and Material Testing.

J. Stan Wolfe and S. Gregory Thomas, Banks, Johnson & Wolfe, Gillette, for appellee Chris Hard and Rundquist & Hard.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

GOLDEN, Justice.

Appellant Century Ready-Mix Company (Century) appeals the trial court's orders granting summary judgment to appellees in this suit arising out of an agreement to provide concrete for an addition to Campbell County High School in Gillette, Wyoming.

Appellant raises the following issue:

[Whether] [t]he District Court erred in granting Summary Judgment to Appellees, Campbell School District, Rundquist & Hard, P.C., and Chris Hard, and Tom Barker dba Cooper Engineering & Material Testing.

We affirm the orders granting summary judgment.

FACTS

This case is before us a second time. In Century Ready-Mix Company v. Lower & Company, 770 P.2d 692 (Wyo.1989) (Century I ), we reversed summary judgment entered against Century and in favor of Lower & Company, the general contractor. We are now faced with an appeal from orders granting summary judgment to the other defendants.

Some of the facts presented here overlap those of our earlier opinion. In 1986, Campbell County School District (CCSD) decided to expand the Campbell County High School building in Gillette. CCSD let bids, and Lower & Company (Lower) was chosen as the general contractor for the project. Lower entered into a detailed, standard form agreement with CCSD.

Appellee Rundquist & Hard contracted with CCSD to provide architectural services. Rundquist & Hard signed a written standard-form contract with CCSD. Appellee Tom Barker, doing business as Cooper Engineering and Materials Testing (C.E. & M.T.), was hired by CCSD to do initial geotechnical investigation and to provide materials testing after construction began, apparently without a formal, written contract. ¹

Century received a purchase order from Lower to supply concrete for the project. C.E. & M.T. tested samples of Century's concrete as it was poured. The results of some of the 28-day tests ² showed that the concrete samples failed to meet the design Century then called in an independent expert to evaluate C.E. & M.T.'s testing procedures. The expert, William Rossi, found that C.E. & M.T.'s testing procedures did not meet American Concrete Institute (ACI) and American Society for Testing in Materials (ASTM) standards. He characterized the procedures used by C.E. & M.T. for testing Century's concrete as "the most careless and negligent procedures I had observed in 27 years of concrete testing."

specifications required by the district. Specifically, the concrete broke at lower pressures than those required.

Chris Hard, the architect, recommended to the school board that core samples of the concrete already in place be removed and tested. Testing showed that the concrete in place met the design requirements and specifications.

The school board met on February 10, 1987. At this meeting, Chris Hard gave a progress report on construction of the high school addition. Larry Hite, one of the school board members, questioned Hard about the quantity of concrete already poured and then made a motion to stop the pouring of concrete until the testing problems could be worked out. During the discussion which ensued on this motion, Tom Barker of C.E. & M.T. stated that the unusual variations noticed in the stress the samples could handle was "probably a mistake in the ingredients." Barker suggested that the job ought to continue under "more intense investigative activities to lay the basis for design mix revision."

Hite asked Chris Hard for his opinion whether there was a problem with continuing to pour. Hard responded that in his opinion there was no major problem. He indicated that the already-poured concrete met the specifications of the bid. Nevertheless, the board voted to suspend pouring.

Barker then informed the board that an expert from the School of Mines in Rapid City had reviewed the procedures used on the projects and had indicated that the testing procedures were not the cause of the inconsistent test results. He stated that he "hoped" that the error was a product error, rather than a testing error.

After the meeting, Hard telephoned Jack Ylitalo, Lower's project coordinator, and advised him of the board's ruling. Hard received a return call from Dennis Lower, Jr., who asked him whether pouring could continue if the concrete supplier were changed. Hard stated he would pass this request on to the board.

Hard returned, at about 5:00 p.m., to the area where the board met. Most of the board members were still present. After explaining to board member Larry Hite that there may not have been a problem with the concrete, Hard presented Lower's proposal to change concrete suppliers to various board members, and got their assent. (Apparently, no formal motion was made, nor is there any indication of official action taken in the board minutes on this point). Hard then called Lower back and they agreed to proceed quickly with the new supplier. The new supplier began pouring the next day.

Century sued Lower, the general contractor, for breach of contract. It sued CCSD for intentional interference with contract, negligent hiring, defamation, and breach of contract. It sued Tom Barker d/b/a C.E. & M.T. for negligence, intentional interference with contract, and defamation. It sued Chris Hard, individually, and Hard & Rundquist, P.C., for negligence and malpractice in breach of their contractual duties to the other defendants. The surviving claims involved in this appeal are against CCSD, Tom Barker d/b/a C.E. & M.T., and Chris Hard and Rundquist & Hard, P.C.

DISCUSSION

Standard of Review

Summary judgment is properly granted only where there is no genuine issue of material fact and the prevailing party is entitled to judgment as a matter of law. State of Wyoming v. Homar, 798 P.2d 824, 826 (Wyo.1990); Teton Plumbing and Heating, Inc. v. Board of Trustees, Laramie County School District No. we review the judgment in the same light as the district court, using the same information. A party moving for summary judgment has the burden of proving the nonexistence of a genuine issue of material fact. Material fact has been defined as one which, if proved, would have the effect of establishing or refuting an essential element of the cause of action or defense asserted by the parties. Upon examination of a summary judgment, we view the record from the vantage point most favorable to the party opposing the motion, giving him all favorable inferences which may be drawn from the facts.

One, 763 P.2d 843, 847 (Wyo.1988). When reviewing a grant of summary judgment,

Doud v. First Interstate Bank of Gillette, 769 P.2d 927, 928 (Wyo.1989) (quoting Garner v. Hickman, 709 P.2d 407, 410 (Wyo.1985)).

If we can uphold summary judgment under the record presented under any proper legal theory, we will do so. Reeves v. Boatman, 769 P.2d 917, 918 (Wyo.1989).

Summary Judgment for Campbell County School District

Defamation

Century argues that issues of material fact remain concerning its defamation claim against the school district. The alleged defamatory statements were made during the school board meeting on February 10, 1987, and are contained in the minutes of that meeting:

A discussion ensued during which Mr. Barker explained that the concrete cores which are poured, cured and then broken vary unusually widely in the amount of stress they can handle. This is probably a mistake in the ingredients. The testing guidelines are set by the American Concrete Institute. Mr. Barker said his firm, C.E. & M.T., has been authorized to investigate everything that is going on at the site. The firm conducted an investigation as to procedure and is satisfied.

Later in the meeting, school board member Dr. Antrim asked, "If it is not a testing error, then is it a product error?" To which Mr. Barker responded, "That is what we hope, too."

Century claims Barker, the owner of C.E. & M.T., was acting as an "agent" of the school board when he made these statements, and others, at the meeting. Further, Century argues that the school district is vicariously liable for the statements. Century concedes that C.E. & M.T. "qualified as an independent contractor" on the project, but attempts to argue that C.E. & M.T. was nevertheless an agent of the school board for purposes of Barker's statements.

Establishing the existence of an agency relationship is the burden of the asserting party. Czapla v. Grieves, 549 P.2d 650, 653 (Wyo.1976). Here, Century provides no cogent argument as to why independent contractor C.E. & M.T. or its owner, Tom Barker, should be considered an agent of the school board. Century's claim that the school board is vicariously liable for statements made by Tom Barker is unsupported. We hold that no agency relationship has been demonstrated between either Barker or C.E. & M.T. and the school board or school district sufficient to make the latter liable for Barker's statements.

Nor, in our opinion, were the challenged statements defamatory. A defamatory statement is one which "tends to hold the plaintiff up to hatred, contempt, ridicule or scorn or which causes him to be shunned or avoided; one that tends to injure his reputation as to diminish the esteem, respect, goodwill or confidence in which he...