Kemper Architects, P.C. v. McFall, Konkel & Kimball Consulting Engineers, Inc.

• Decision Date: 18 December 1992
• Docket Number: No. 91-231,91-231
• Citation: 843 P.2d 1178
• Parties: KEMPER ARCHITECTS, P.C., a Wyoming Corporation, Appellant (Defendant), v. McFALL, KONKEL & KIMBALL CONSULTING ENGINEERS, INC., a Colorado Corporation doing business in Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1178

843 P.2d 1178

KEMPER ARCHITECTS, P.C., a Wyoming Corporation, Appellant (Defendant), v. McFALL, KONKEL & KIMBALL CONSULTING ENGINEERS, INC., a Colorado Corporation doing business in Wyoming, Appellee (Plaintiff).

No. 91-231.

Supreme Court of Wyoming.

Dec. 18, 1992.

Jane A. Villemez and Charles E. Graves of Graves, Santini & Villemez, Cheyenne, for appellant (defendant).

William H. Knapp and Byrum C. Lee, Jr. of Knapp, Lee and Cardi, P.C., Denver, CO, for appellee (plaintiff).

Before MACY, C.J., THOMAS, CARDINE and GOLDEN, JJ., and PRICE, District Judge.

PRICE, District Judge.

In this appeal, we are asked to examine the standard of performance to be applied in an action for implied contractual indemnity. The issue concerns professional engineering services supplied under the terms of an oral contract between the engineer and the architect. The architect appeals what it terms the improper application of tort standards to a breach-of-contract action. Additionally, the architect challenges several evidentiary rulings dealing with the hearsay exception for public records, redactions, and expert testimony. Finding the instructions adequately advised the jury and finding no abuse of discretion in the evidentiary rulings, we affirm.

The architect frames these issues for this Court's consideration:

1. Whether the trial court erred in applying tort standards to this suit by the architect against its subcontractor for implied contractual indemnity.

2. Whether the trial court's improper exclusion of evidence prejudiced the architect's ability to prove breach of contract by its subcontractor.

A. Official records of the U.S. Army Corps of Engineers were admissible under the public records exception to the hearsay rule.

B. References to the subcontractor's wrongful conduct should not have been redacted from admitted records.

C. Testimony of the subcontractor's wrongful conduct, offered through a witness with first-hand knowledge, was admissible as lay opinion testimony.

The engineer rephrases:

1. The trial court applied the appropriate standards by which [the architect] was required to establish its claim against [the engineer] for implied contractual indemnity.

2. The evidentiary rulings by the trial court were proper.

A. The trial court properly excluded [the architect's] proposed Exhibits A and L-1 based on their lack of trustworthiness.

B. The redactions of portions of Exhibits L(2) and M were an appropriate exercise of the trial court's discretion.

C. The trial court properly excluded expert opinion testimony from Laurence Seeba because he failed to qualify as an expert under W.R.E. 702.

I. Facts

McFall, Konkel & Kimball Consulting Engineers, Inc. (the engineer) designed a building's heating, ventilation, and air conditioning system (the system), which is the focus of this litigation. As a specialist in mechanical systems designs, the engineer performed the work under an oral subcontract with Kemper Architects, P.C. (the architect). The architect incorporated the variable air volume system into the architectural plans for a training and instructional facility built for the United States Army Corps of Engineers at F.E. Warren Air Force Base in Cheyenne, Wyoming.

As constructed, the system could not be "balanced" to provide the appropriate volume and air flow; consequently, the system failed to meet specifications. The project's prime contractor spent approximately $135,000 in converting the system to a constant volume design which corrected the deficiencies. The Corps of Engineers notified the architect that it would be liable for the additional cost.

During the subsequent federal administrative process of assessing damages, the engineer offered to provide legal counsel and expert witnesses for the architect. This offer never resulted in a final written agreement for representation or for indemnification. However, on February 1, 1990, during the period of indemnification-agreement negotiations, the engineer filed an appeal on the architect's behalf with the Armed Services Board of Contract Appeals.

Concurrently, the architect withheld payment of approximately $45,000 in fees it owed to the engineer. On May 14, 1990, the engineer reacted by filing this action, seeking payment. The architect answered and counterclaimed for indemnification. As a result, the engineer withdrew the legal representation it had provided for the architect before the Board of Contract Appeals. Eventually, the architect paid $37,000 in damages in an agreed settlement of the government's claim, terminating the Board of Contract Appeals action.

Meanwhile, before the trial in the state proceeding, the district court granted a partial summary judgment in favor of the engineer, ordering the architect to pay a portion of the withheld engineering fees. At trial, the jury considered the remaining fee disputes and the counterclaim. The jury awarded the engineer its request of $8,627.60 for unpaid fees not covered by the partial summary judgment and found that the engineer had no duty to indemnify the architect. The architect appeals only the denial of indemnification.

II. Discussion

A. Negligence and the Standard of Performance

The architect maintains that the trial court committed reversible error by instructing the jury to apply a negligence standard to the engineer's performance. Two jury instructions are at issue:

INSTRUCTION NO. 6

Under the theory of implied indemnity, [the architect] must prove by a preponderance of the evidence that [the engineer] produced a design which was due to [its] negligence and which caused [the architect] to suffer damages as a result of such design.

INSTRUCTION NO. 7

In regard to the implied indemnity theory you are instructed that [in] performing professional services for a client, an engineer has the duty to have that degree of learning and skill ordinarily possessed by reputable engineers.

It is his further duty to use reasonable diligence and his best judgment in the exercise of his professional skill and in the application of his learning, in an effort to accomplish the purpose for which he was employed.

A failure to perform any such duty is negligence.

The degree of care, skill and judgment which is usually exercised by an engineer is not a matter within the common knowledge of jurors or lay persons. These standards are within the special knowledge of experts in the field of engineering and can only be established by their testimony. You may not speculate or guess what those standards of care, skill and judgment are but must attempt to determine[ ] this from the testimony of legal experts called for that purpose.

On review, this Court considers whether the instructions, taken as a whole, adequately and clearly advise the jury of the applicable law. L.U. Sheep Company v. Board of County Commissioners of County of Hot Springs, 790 P.2d 663, 672 (Wyo.1990). Reversible error from an improper instruction requires a showing on the record that substantial rights were affected. Condict v. Whitehead, Zunker, Gage, Davidson & Shotwell, P.C., 743 P.2d 880, 885 (Wyo.1987). Sufficient prejudice arises from a demonstration that the instruction confused or misled the jury with respect to the proper principles of law. DeJulio v. Foster, 715 P.2d 182, 186 (Wyo.1986). A number of factors may be considered in measuring the degree of prejudicial error, including:

"(1) the extent to which there is conflict in the evidence on critical issues; (2) whether or not the respondent's argument to the jury may have contributed to the instruction's misleading effect; (3) whether or not the jury requested a rereading of the erroneous instruction or of related evidence; (4) the closeness of the jury's verdict; and (5) the effect of other instructions in curing the error."

Condict, 743 P.2d at 886 (quoting 1 California Forms of Jury Instruction, Procedures and Instructions § 1.13 (1987) (footnotes omitted)).

Initially, the engineer contends that the architect's objections to Instruction Nos. 6 and 7 were procedurally inadequate since the architect did not supplement its oral objections with proposed alternative written instructions. In support of its argument, the engineer relies upon Runnion v. Kitts, 531 P.2d 1307 (Wyo.1975), Texas Gulf Sulphur Company v. Robles, 511 P.2d 963 (Wyo.1973), and Logan v. Pacific Intermountain Express Company, 400 P.2d 488 (Wyo.1965). While this Court has previously stated that waiver occurs when a litigant orally objects to the form or language of a jury instruction without submitting a proposed alternative written instruction, we have been less than consistent in our application of the alleged rule. See, e.g., Davis v. Consolidated Oil & Gas, Inc., 802 P.2d 840 (Wyo.1990); City of Cheyenne v. Simpson, 787 P.2d 580 (Wyo.1990); TG v. Department of Public Assistance and Social Services, Sheridan (In re CH), 783 P.2d 155 (Wyo.1989); Hashimoto v. Marathon Pipe Line Co., 767 P.2d 158 (Wyo.1989); Condict, 743 P.2d 880; Haley v. Dreesen, 532 P.2d 399 (Wyo.1975); Runnion, 531 P.2d 1307; Texas Gulf Sulphur Company, 511 P.2d 963; and Logan, 400 P.2d 488.

W.R.C.P. 51 ¹ provided in pertinent part: "No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." The purpose of W.R.C.P. 51 is to require litigants to timely inform the trial judge of contended errors in the jury instructions so that corrections or modifications may be made, if necessary. Davis, 802 P.2d at 843; Story v. State, 721 P.2d 1020, 1045 (Wyo.), cert. denied, 479 U.S. 962, 107 S.Ct. 459, 93 L.Ed.2d 405 (1986). Consistent with the plain language and purpose of W.R.C.P. 51, we now clarify that "[a]n objection stating distinctly the objectionable matter and the grounds for objection is sufficient" to preserve a jury instruction issue for...