Frieden Const., Inc. v. Lower & Co., No. 87-269

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore CARDINE; URBIGKIT; ROONEY
Citation766 P.2d 527
PartiesFRIEDEN CONSTRUCTION, INC., Appellant (Defendant), Neosho Construction Co., Inc. and the Western Railroad Properties, Inc., (Defendants), American Insurance Company and Fireman's Fund Insurance Company, (Third-Party Defendants), v. LOWER & COMPANY, Appellee (Plaintiff), Western Railroad Properties, Inc., (Third-Party Plaintiff).
Decision Date15 December 1988
Docket NumberNo. 87-269

Page 527

766 P.2d 527
FRIEDEN CONSTRUCTION, INC., Appellant (Defendant),
Neosho Construction Co., Inc. and the Western Railroad Properties, Inc., (Defendants),
American Insurance Company and Fireman's Fund Insurance Company, (Third-Party Defendants),
v.
LOWER & COMPANY, Appellee (Plaintiff),
Western Railroad Properties, Inc., (Third-Party Plaintiff).
No. 87-269.
Supreme Court of Wyoming.
Dec. 15, 1988.

Page 528

Douglas G. Madison and John E. Masters of Dray, Madison & Thomson, P.C., Cheyenne, for appellant.

Harold E. Meier of Schwartz, Bon, McCrary & Walker, Casper, for appellee.

Before CARDINE, C.J., and THOMAS and URBIGKIT, JJ., and BROWN, * and ROONEY, JJ., Retired.

URBIGKIT, Justice.

This appeal is a factually simple controversy involving compensation to appellee on a 1983 quantities dirt moving sub-contract for construction of a new railroad line for Western Railroad Properties, Inc. (Chicago and Northwestern Railroad) in the Lusk, Wyoming area. Summary judgment in the claimed amount plus interest was granted to the dirt contractor, and appeal is taken contesting both the amount allowed in judgment and right to accrued interest.

We affirm.

Stripped of the complexities of prior parties to the litigation and the panorama of changed attorneys, this court is invited to consider a contract entered into by Lower & Company (appellee) as an earth moving sub-sub-contractor for work completed in 1984 for Frieden Construction, Inc. (appellant), which served as a general sub-contractor on the railroad line construction project. Although appellant 1 presents a somewhat complex argument involving defenses to the judgment, the issue, simplistically stated, is whether the trial court erred in the grant of summary judgment in a defined amount for amounts due on the written contractual services agreement with interest. After a course of pleadings which had originally involved the owner, the general contractor and the sureties, the case came to the trial court for a pretrial pursuant to an order for pretrial conference filed April 17, 1986. The pretrial order required pretrial memoranda by the litigants, as well as a joint pretrial submission to be filed in advance. Appellee submitted a pretrial memorandum in proper detail and appellant failed to favor the trial court with any memoranda or other documentation required by the convening order. The file to that date indicated a quantities controversy.

With this state of the record, the trial court entered an order in lieu of pretrial conference which required appellant to produce contractual documents and a cross-section of the final survey so that a determination could be made of dirt quantities moved pursuant to the contract. In the event there was no final cross-section available, appellant's defense data pertaining to the amounts was requested in order for appellant to show errors, if any, in appellee's tally sheet.

Thereafter, pursuant to the order, appellant furnished cross-section details as contained within a May 16, 1986 letter from a surveyor. 2 Appellee promptly moved for summary judgment based upon the contractual documents and the newly furnished cross-section data which established the quantities covered in its roadbed construction activities. In support of the motion for summary judgment, an affidavit of Harold Lanham, as the treasurer and an officer of Lower & Company and who had been designated as a prospective witness in

Page 529

the prior pretrial memorandum, was submitted. A brief in support of summary judgment was also furnished as supported by an affidavit filed a few days later by another company employee. Appellant provided the trial court no affidavits to even contest its cross-section analysis, which established the balances due or the amount of those balances as had been computed in appellee's affidavits. Lacking resistive affidavits, the hearing, as convened on summary judgment, resulted in a summary judgment for the plaintiff as appellee and interest based in computation on the cross-section and prior billing for the amount claimed to be due since work completion in 1984. 3

In challenging the summary judgment, appellant essentially raises procedural contentions which fail by virtue of non-presentation to the trial court.

1. The affidavit of Warren Ash as not showing proper service. Our decision in the...

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2 practice notes
  • Estate of Reed, Matter of, No. 88-137
    • United States
    • United States State Supreme Court of Wyoming
    • January 31, 1989
    ...whom the motion was sought. See Matter of Estate of Newell, 765 P.2d 1353 (Wyo.1988); Frieden Construction, Inc. v. Lower & Company, 766 P.2d 527 (Wyo.1988); Matter of Estate of Obra, 749 P.2d 272 (Wyo.1988); and Cordova v. Gosar, 719 P.2d 625 (Wyo.1986). Thus, this case will be reviewe......
  • Bueno v. CF & I Steel Corp., No. 88-321
    • United States
    • United States State Supreme Court of Wyoming
    • May 15, 1989
    ...of the amount due itself. Mathematical computability is the criterium for a liquidated claim. See Frieden Const., Inc. v. Lower & Co., 766 P.2d 527, 530 (Wyo.1988); Horseshoe Estates v. 2M Co., Inc., 713 P.2d 776, 781 (Wyo.1986); Holst v. Guynn, 696 P.2d 632, 635 (Wyo.1985); Mountain Fu......
2 cases
  • Estate of Reed, Matter of, No. 88-137
    • United States
    • United States State Supreme Court of Wyoming
    • January 31, 1989
    ...whom the motion was sought. See Matter of Estate of Newell, 765 P.2d 1353 (Wyo.1988); Frieden Construction, Inc. v. Lower & Company, 766 P.2d 527 (Wyo.1988); Matter of Estate of Obra, 749 P.2d 272 (Wyo.1988); and Cordova v. Gosar, 719 P.2d 625 (Wyo.1986). Thus, this case will be reviewe......
  • Bueno v. CF & I Steel Corp., No. 88-321
    • United States
    • United States State Supreme Court of Wyoming
    • May 15, 1989
    ...of the amount due itself. Mathematical computability is the criterium for a liquidated claim. See Frieden Const., Inc. v. Lower & Co., 766 P.2d 527, 530 (Wyo.1988); Horseshoe Estates v. 2M Co., Inc., 713 P.2d 776, 781 (Wyo.1986); Holst v. Guynn, 696 P.2d 632, 635 (Wyo.1985); Mountain Fu......

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