Forshee v. Delaney, 04-126.
| Decision Date | 26 August 2005 |
| Docket Number | No. 04-126.,04-126. |
| Citation | 2005 WY 103,118 P.3d 445 |
| Parties | Frank N. FORSHEE and Nancy A. Forshee, husband and wife, Appellants (Defendants), v. Tom DELANEY and Deany Delaney, husband and wife, d/b/a Delaney Irrigation, Appellees (Plaintiffs). |
| Court | Wyoming Supreme Court |
Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.
[¶ 1] Appellees Tom and Deany Delaney, d/b/a Delaney Irrigation (Delaney), filed suit against Frank and Nancy Forshee (Forshee) seeking to be paid for Delaney's work installing a pivot irrigation system on farmland owned by Forshee. Forshee counterclaimed against Delaney, seeking damages for crop loss due to delays in the system becoming operational. The district court found in favor of Delaney on Delaney's claim, against Forshee on Forshee's counterclaim, and awarded Delaney attorneys fees. Forshee appeals the judgment on the issues of the initial claim and the award of attorneys fees. Forshee argues that the findings of fact by the district court contradict the weight of the evidence, and that the district court improperly awarded attorneys fees to Delaney. We affirm.
[¶ 2] Forshee presents the following issues:
Whether the record contains evidence to sustain a judgment for attorneys fees and if so, whether the District Court abuse [sic] its discretion in awarding attorneys fees to [Delaney] without distinguishing between the fees covered by the parties' contract and those fees not covered by the parties' contract.
Whether the court erred in failing to find that the parties agreed to use the old pipeline in the new system and that [Forshees] were responsible for the functionability of the old line in the new system.
Whether the court's specific findings of fact set forth in paragraphs Nos. 20, 23 and 28 are inconsistent with the evidence, clearly erroneous, or contrary to the great weight of the evidence.
Whether the District Court erred when determining damages for breach of contract by including in its damages the cost of repairs of the old existing line and the costs of replacing the old existing line?
Is there any other theory upon which [Forshee] could recover for the costs of repairs to the old existing line and the costs of replacing the old existing line other than breach of contract as stated by the court?
Delaney states the issues in this way:
Are the District Court's findings of fact supported by the record; are they clearly erroneous?
Did the District Court abuse its discretion in the award of legal fees to [Delaney]?
Are the District Court's findings relative to damages clearly erroneous?
[¶ 3] In May of 2001, Forshee and Delaney entered into an agreement for Delaney to install a pivot sprinkling irrigation system on Forshee's land. The specifics of the transaction were documented only by a quote prepared by Delaney and signed by Forshee. The quote contained a page of additional terms, two of which are relevant to this appeal: First, "No Agreements, representation, stipulations or conditions, verbal or otherwise not stated in this quotation will be recognized," and second, "The purchaser agrees to pay any legal fees involved in collecting and [sic] past due invoices."
[¶ 4] When Delaney's workmen began installation of the pipeline for the pivot system, they laid the pipeline out incorrectly, but in such a way that the new pipeline could connect to an existing pipeline on Forshee's property (referred to as the "red line" by the parties and throughout this opinion). Testimony of the parties diverges as to whether or not they agreed to change the original plan and use the red line, but, in the end, Delaney's workmen did install the pipeline for the pivot system using the red line. Almost immediately after the Delaney workmen completed the work, the pivot system developed problems. An existing electrical panel for the intake pump burned out, and Delaney replaced it with a new panel. On another day, a snake got into the pump, and Delaney's workmen came out to lift the pump out of the water source (the Nowood River) and remove the snake. Most relevant to this lawsuit, the red line developed leaks and after Delaney's workmen repaired the red line two times, the parties agreed that if the red line leaked again, it would need to be replaced with new pipe. A third leak did occur, Delaney's workmen replaced the red line, and the system became operational. However, a few days after the red line was replaced, Forshee was notified of a call on the water from the Nowood River and was not allowed to draw water for the rest of the irrigating season.
[¶ 5] Delaney is being or has been paid the original amount of the contract under a lease financing agreement. Delaney brought this suit against Forshee for additional amounts owed due to replacement of the electrical panel, the work of removing the snake out of the pump, and the repairs to and replacement of the red line with new pipe. Forshee brought a countersuit against Delaney for the loss of the crop planted on the land irrigated by the system. After a bench trial, the district court found in favor of Delaney on his claim, against Forhsee on his counterclaim, and awarded Delaney damages in the principal amount of $18,922.64 plus accrued interest and attorneys fees of $11,211.53. Forshee appeals this aspect of the judgment but not the finding against him on his counterclaim for crop loss.
[¶ 6] After a bench trial, our standard of review with respect to findings of fact made by the district court is well established:
The factual findings of a judge are not entitled to the limited review afforded a jury verdict. While the findings are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Due regard is given to the opportunity of the trial judge to assess the credibility of the witnesses, and our review does not entail weighing disputed evidence. Findings of fact will not be set aside unless the findings are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.
Springer v. Blue Cross and Blue Shield of Wyoming, 944 P.2d 1173, 1175-76 (Wyo.1997) (citations omitted).
[¶ 7] Our standard of review when a party appeals an award of attorneys fees is also well established:
Wyoming subscribes to the American rule regarding recovery of attorney fees. Under the American rule, each party is generally responsible for his own attorney fees. However, a prevailing party may be reimbursed for his attorney fees when express statutory or contractual authorization exists for such an award.
Alexander v. Meduna 2002 WY 83, ¶ 49, 47 P.3d 206, 220-21 (Wyo.2002) (citations omitted). In addition to following the American rule as to when attorneys fees may be awarded, Wyoming also has adopted the two-factor federal lodestar test to determine the reasonableness of the award:
To determine the reasonableness of the attorneys' fees award, Wyoming employs the two-factor federal lodestar test. These factors are: `(1) whether the fee charged represents the product of reasonable hours times a reasonable rate; and (2) whether other factors of discretionary application should be considered to adjust the fee either upward or downward.' It follows therefrom that the trial court's determination concerning attorney's fees is reviewed under an abuse of discretion standard.
Id. at 221 (citations omitted).
[¶ 8] After careful review of the record, we find that the district court's findings of fact cannot be set aside as clearly erroneous. The district court concluded that Delaney and Forshee did agree to change their written agreement and use the red line as part of the pipeline installation. Wyoming law recognizes that parties to a written contract can orally amend that contract, even when the language of the contract seeks to preclude that very thing. Ruby Drilling Company, Inc. v. Duncan Oil Company, Inc., 2002 WY 85, ¶ 11, 47 P.3d 964, 968-69 (Wyo.2002).
The party asserting that a written agreement was modified by the subsequent expressions of conduct of the parties must prove so by clear and convincing evidence. The question of whether modification of the written agreement has been proved by the required quantum of evidence is one to be decided by the trier of fact. We will not reverse the decision of the trier of fact unless that decision is clearly erroneous or contrary to the great weight of the evidence.
Clear and convincing evidence is the "kind of proof which would persuade a trier of fact that the truth of the contention is highly probable."
Id. at 968-69 (citations omitted).
[¶ 9] In this case, the...
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