Excel Constr., Inc. v. Town of Lovell

Decision Date20 December 2011
Docket NumberNo. S–11–0001.,S–11–0001.
PartiesEXCEL CONSTRUCTION, INC., a Wyoming corporation, Appellant (Plaintiff), v. TOWN OF LOVELL, WYOMING, an incorporated municipality, Appellee (Defendant).
CourtWyoming Supreme Court

OPINION TEXT STARTS HERE

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

Representing Appellee: 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.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

GOLDEN, Justice.

[¶ 1] Excel Construction, Inc. (Excel) entered into a contract with the Town of Lovell to replace the Town's water and sewer system mains and service connections. Excel subsequently filed a complaint against the Town for breach of that contract and related claims. The district court dismissed Excel's claims for failure to submit a governmental notice of claim that met the itemization requirements of the Wyoming Constitution and the Wyoming Governmental Claims Act. We reverse.

ISSUES

[¶ 2] Excel presents its issues on appeal as follows:

A. Whether the District Court erred when it found that Excel Construction did not present an “Itemized Statement” in its Notice of Claim.

1. Did Excel Construction need to further categorize its $2,688,173.80 in claimed damages with the missing “Exhibit A Page?”

2. Did Excel Construction's Notice of Claim contain all the information required by the Constitution, the Wyoming Governmental Claims Act, and the Wyoming Supreme Court (even without the “Exhibit A Page?”)?

B. Should Excel's counsel's clerical mistake be corrected pursuant to Rule 60(a), W.R.Civ.P.?

C. Did Excel Construction timely present its First Amended Notice of Claim to the Town of Lovell on July 10, 2009?

D. Did Excel Construction properly present its Notice of Claim and First Amended Notice of Claim to the Town Mayor and Town Administrator (instead of to the Town Treasurer)?

E. Did the District Court somehow “lose” its subject matter jurisdiction when Excel Construction filed its Amended Complaint without the Beaulieu II averments (after filing its original Complaint with the Beaulieu II averments)?

FACTS

[¶ 3] On March 15, 2006, Excel and the Town of Lovell entered into a contract for Excel 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 Excel last performed work on the project, but they do agree that within the statutorily prescribed time, on January 24, 2008, Excel served a Notice of Claim on the Town.

[¶ 4] Excel served its Notice of Claim by certified mail with copies delivered to Town Mayor Bruce Morrison, Town Administrator Bart Grant, Town Attorney Sandra Kitchen, and Frank Page of HKM Engineering, the Town's project engineer. 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.”

[¶ 5] The “Compensation” paragraph of the Notice of Claim set forth the monetary damages that Excel sought from the Town and its officials. The paragraph detailed those damages as follows:

Lovell has failed to pay Excel the monies owed under the contract, including that for retainage, change orders, and affirmative claims, all in breach of the Construction Agreement. An itemized statement of the amount owed to Excel is attached hereto as Exhibit A. In sum, it shows that Lovell owes Excel at least $2,688,173.80. Excel seeks these $2,688,173.80 in damages for breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, and declaratory judgment.

[¶ 6] When Excel served its Notice of Claim on the Town of Lovell, its attorney inadvertently failed to attach the “Exhibit A” referred to in the paragraph detailing Excel's damages. “Exhibit A” broke down Excel's claimed damages as follows:

+--------------------------------------------------------------------------+
                ¦1. ¦Retainage                                            ¦$ 512,084.00    ¦
                +---+-----------------------------------------------------+----------------¦
                ¦2. ¦Additional work completed between 11/1/06 and 8/24/07¦$ 739,169.25    ¦
                +---+-----------------------------------------------------+----------------¦
                ¦3. ¦Additional Work Impacts Reports 1–90                 ¦$ 715,166.34    ¦
                +---+-----------------------------------------------------+----------------¦
                ¦4. ¦Additional Work Impact Report 91                     ¦$ 68,010.96     ¦
                +---+-----------------------------------------------------+----------------¦
                ¦5. ¦Additional Work Impact Report 92                     ¦$ 353,089.28    ¦
                +---+-----------------------------------------------------+----------------¦
                ¦6. ¦Additional Work Impact Report 93                     ¦$ 264,277.81    ¦
                +---+-----------------------------------------------------+----------------¦
                ¦7. ¦Additional Work Impact Reports MDU                   ¦$ 20,356.16     ¦
                +---+-----------------------------------------------------+----------------¦
                ¦8. ¦Excel Letter 344/HKM# 6 (4/24/06) re: Annodes        ¦$ 16,020.00     ¦
                +---+-----------------------------------------------------+----------------¦
                ¦   ¦                                                     ¦$2,688,173.80   ¦
                +--------------------------------------------------------------------------+
                

[¶ 7] Bruce Morrison, Town Mayor, and Bart Grant, 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. Mayor Morrison did not attempt to obtain a copy of the missing exhibit or seek to have the claim audited. He instead referred Excel's claim to the Town's attorney for further handling.

Q: You knew as mayor that you were going to quickly just turn it over to your lawyer for further handling?

A: That's—that's pretty much the way we do things. We'd been advised by our counsel to do that.

* * * *

Q: As the mayor and as the town, you never intended to do a review and/or audit of that Notice of Claim because you perceived that it was going into litigation very quickly?

A: I as the mayor did that, yes.

Q: Did anybody with the town suggest to you that the town should perform a review and/or audit of that Notice of Claim?

A: They did not.

Q: And you didn't ask anybody to?

A: I did not.

[¶ 8] On February 5, 2008, Excel filed its Complaint against the Town of Lovell. Paragraph 13 of Excel's Complaint alleged compliance with the signature and certification requirements of Article 16, Section 7 of the Wyoming Constitution and the filing requirements of the Wyoming Governmental Claims Act, as required by this Court's ruling in Beaulieu v. Florquist, 2004 WY 31, 86 P.3d 863 (Wyo.2004)( Beaulieu II), overruled on other grounds by Brown v. City of Casper, 2011 WY 35, 248 P.3d 1136 (Wyo.2011). On June 13, 2008, Excel filed its first Amended Complaint, in which it added HKM Engineering as a party. Due to a drafting oversight, Paragraph 13 of Excel's original Complaint was not included in Excel's first Amended Complaint.

[¶ 9] On July 10, 2009, Excel learned that the Notice of Claim it served on the Town of Lovell did not have the referenced “Exhibit A” attached to it. On that same date, Excel notified the Town of the omission and served on it a First Amended Notice of Claim that included the previously omitted “Exhibit A.”

[¶ 10] On June 17, 2010, the Town of Lovell filed a summary judgment motion. The Town alleged it was entitled to summary judgment on three separate grounds: 1) Excel failed to timely file with the Town a Notice of Claim with the required full itemization of damages; 2) Excel failed to serve its Notice of Claim on the proper town officer, specifically, the town treasurer; 3) Excel's first Amended Complaint failed to plead compliance with the Beaulieu II requirements. On July 8, 2010, Excel filed a Motion for Leave to File a Second Amended Complaint wherein it sought “leave to file its Second Amended Complaint to reassert (and to expound upon) allegations originally contained in its original Complaint, but that were accidently, inadvertently, unknowingly, and unintentionally deleted when plaintiff later filed its Amended Complaint.”

[¶ 11] The district court concluded that because Excel omitted “Exhibit A” from its original Notice of Claim, the Notice of Claim failed to provide a full itemization of Excel's damages as required by the Wyoming Constitution and the Governmental Claims Act. It further concluded that Excel'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 Excel's claim, as required by the Governmental Claims Act. The district court finally concluded that due to Excel'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 Excel's Motion for Leave to File a Second Amended Complaint. On these grounds, the district court granted the Town of Lovell's Motion to Dismiss and/or Motion for Summary Judgment and dismissed Excel's claims against the Town.

STANDARD OF REVIEW

[¶ 12] The district court ruled that the Town of Lovell was entitled to judgment as a matter of law because the court lacked subject matter jurisdiction. “The existence of subject matter jurisdiction is a question of law that we review de novo. Madsen v. Bd. of Trustees of Mem'l Hosp. of Sweetwater Cty., 2011 WY 36, ¶ 9, 248 P.3d 1151, 1153 (Wyo.2011).

DISCUSSION
Itemization of Excel's Claim

[¶ 13] The Town of Lovell contends that Excel's failure to attach its “Exhibit A” to its Notice of Claim rendered that notice...

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