Fagen, Inc. v. Rogerson Flats Wind Park, LLC

• Decision Date: 26 January 2016
• Docket Number: No. 42684–2014.,42684–2014.
• Citation: 159 Idaho 624,364 P.3d 1189
• Court: Idaho Supreme Court
• Parties: FAGEN, INC., a Minnesota corporation, Plaintiff–Respondent, v. ROGERSON FLATS WIND PARK, LLC; Cottonwood Wind Park, LLC; Salmon Creek Wind Park, LLC; Deep Creek Wind Park, LLC; Notch Butte Wind Park, LLC; Exergy Development Group of Idaho, LLC, Defendants–Appellants, and XRG Development Partners, LLC, Defendant.

159 Idaho 624

364 P.3d 1189

FAGEN, INC., a Minnesota corporation, Plaintiff–Respondent,

v. ROGERSON FLATS WIND PARK, LLC; Cottonwood Wind Park, LLC; Salmon Creek Wind Park, LLC; Deep Creek Wind Park, LLC; Notch Butte Wind Park, LLC; Exergy Development Group of Idaho, LLC, Defendants–Appellants,andXRG Development Partners, LLC, Defendant.

No. 42684–2014.

Supreme Court of Idaho, Boise, January 2016 Term.

Jan. 26, 2016.

Angelo L. Rosa, Marsh Rosa LLP, Boise argued for appellants.

John R. Goodell, Racine, Olsen, Nye, Budge & Bailey, Chtd., Boise, argued for respondent.

EISMANN, Justice.

This is an appeal out of Twin Falls County from an amended judgment awarding damages for breach of contract, court costs, and attorney fees in connection with a contract to construct five wind farms. Because the parties had stipulated to that portion of the judgment regarding the damages for breach of contract, those issues are not subject to appellate review. Because the only challenge to the award of attorney fees was raised for the first time on appeal, we do not consider it. We affirm the amended judgment and the award of costs and attorney fees on appeal.

I.Factual Background.

On February 8, 2013, Fagen, Inc. ("Plaintiff"), filed five separate lawsuits seeking to recover damages for work it had done in the construction of five wind parks, four of which were located in Twin Falls County and one of which was located in Lincoln County. Plaintiff had contracted with Exergy Development Group of Idaho, LLC ("Exergy Development") to construct the wind parks, but after about eight months Plaintiff stopped construction because Exergy Development was unable to obtain financing due to regulatory issues.

The lawsuit with respect to each wind park was filed in the county where the wind park was located, and all five lawsuits were subsequently consolidated into this case. On March 5, 2014, Plaintiff filed an amended complaint in each lawsuit. Insofar as is relevant to this appeal, the five lawsuits asserted claims against a total of six defendants (herein collectively called "Defendants"), which were Exergy Development and five limited liability companies, namely: the Rogerson Flats Wind Park, LLC; Cottonwood Wind Park, LLC; Salmon Creek Wind Park, LLC; Deep Creek Wind Park, LLC; and Notch Butte Wind Park, LLC. Plaintiff also sued XRG Development Partners, LLC, but Plaintiff's claims against it were ultimately dismissed.¹

On July 30, 2014, Plaintiff moved for summary judgment against Defendants. The motion was heard by the district court on September 2, 2014. During the oral argument, Defendants' counsel Angelo L. Rosa agreed that summary judgment should be granted against Defendants as to liability, with Defendants reserving the right to dispute some of the charges claimed by Plaintiff. The following dialogue occurred:

THE COURT: As to the merits of this case, Mr. Rosa, do you agree that subject to whatever offsets or disputes your client can raise with regard to the billings, that summary judgment for the plaintiff should be entered? Do you have any dispute about that?

MR. ROSA: So a partial summary judgment reserving on the issue of damages?

THE COURT: Right.

MR. ROSA: Your Honor, I have no—my client has no objections to that. You know, the damages, the circumstances, the facts that bear on a calculus of damages and defenses, I think, are properly sorted out in the damages phase of this.

The court ordered that Plaintiff was entitled to a judgment for the gross amount of its billings subject to the Defendants' ability to reduce the gross amount of damages by challenging specific invoices or line items in the invoice, including contending that the alleged work done had not been performed. The court also ordered that Defendants must provide a specific listing of each challenged item at the pretrial conference set on September 29, 2014, and that all discovery be completed by the pretrial conference.

On the morning of the pretrial conference, Defendants filed their pretrial statement in which they listed the specific items being challenged and stated that they also wanted to raise three new affirmative defenses that they alleged excused them from having to pay anything for the construction work done by Plaintiff. Those defenses were: (a) the action by the Public Utilities Commission, which made it impossible for Exergy Development to obtain financing, constituted an event of force majeure under the contract; (b) the doctrine of frustration of purpose, based upon the action of the Public Utilities Commission; and (c) the obtaining of adequate financing was a condition precedent to having to make any payments to Plaintiff.

During the pretrial conference, Mr. Rosa initially asserted that the affirmative defenses only related to the amount of damages. After being challenged by one of Plaintiff's counsel, Mr. Rosa admitted, "Counsel's correct, these defenses are primarily liability related; however, they are questions of law that this court could easily dispose of, and in light of discovery, I believe under Rule 15(b) we could amend the answer to conform to evidence."

Mr. Rosa sought to explain his lateness in raising these defenses by stating that evidence supporting them came out during his client's recent deposition "and some further digging into various issues." Ultimately, the court held that it would not reconsider the grant of summary judgment as to liability for two reasons: (a) Mr. Rosa had stipulated on September 2, 2014, that the only issue remaining was the amount of damages and (b) no good cause was shown for setting aside the order granting partial summary judgment because all of the information regarding those defenses was fully available to Defendants prior to the summary judgment motion. Therefore, the court also held that evidence as to these three affirmative defenses would not be admissible at trial.

On October 22, 2014, the parties filed a written stipulation asking that the court enter judgment in favor of Plaintiff and against Defendants as specified in the stipulation and that the court vacate the trial because there was no issue remaining to be tried. The stipulation was for judgments in the sum of $1,364,974.81 each against Rogerson Flats Wind Park, LLC; Cottonwood Wind Park, LLC; Salmon Creek Wind Park, LLC; Deep Creek Wind Park, LLC; and a judgment in the sum of $808,212.20 against Notch Butte Wind Park, LLC. In addition, the stipulation was for a judgment against Exergy Development Group of Idaho, LLC, in the sum of $6,268,111.44, which was the total of the judgments against each of the other Defendants. Finally, all judgments were to be exclusive of prejudgment interest, court costs, and attorney fees, which issues the stipulation expressly reserved for further proceedings. The court accepted the stipulation and entered judgment accordingly on October 23, 2014. The court later awarded Plaintiff prejudgment interest and court costs, including attorney fees. It entered an amended judgment on February 10, 2015, which included the award of damages as set forth in the prior judgment and the awards of prejudgment interest, court costs, and attorney fees. Defendants timely appealed.

II.Are Defendants' Challenges to Issues Resolved by the Stipulated Judgment Waived?

Defendants make two challenges to issues resolved by the stipulated judgment. First, they assert that the district court abused its discretion in denying Defendants an opportunity to amend their pleadings to conform to the evidence pursuant to Rule 15(b) of the Idaho Rules of Civil Procedure.² Second, they assert that the court abused its discretion in failing to set aside the grant of summary judgment.

We need not address either of those issues. The general rule is that a stipulated judgment is not subject to appellate review. Pac. Nat'l. Bank of Wash. v. Mount, 97 Idaho 887, 887, 556 P.2d 70, 70 (1976) ; 4 Am. Jur. 2d Appellate Review § 165 (2015). There is an exception to the general rule where the appellant(s) did not actually consent to the judgment, or the trial court lacked subject matter jurisdiction, or the judgment was obtained by fraud, or the judgment adversely affects the public interest. Pac. Nat'l. Bank of Wash., 97 Idaho at 888, 556 P.2d at 71. There is nothing in the record to support any of those...