Mountain View/Evergreen Imp. and Service Dist. v. Casper Concrete Co.
| Decision Date | 11 March 1996 |
| Docket Number | No. 95-143,95-143 |
| Citation | 912 P.2d 529 |
| Parties | MOUNTAIN VIEW/EVERGREEN IMPROVEMENT AND SERVICE DISTRICT, an Improvement and Service District formed under the laws of the State of Wyoming, Appellant (Plaintiff), v. CASPER CONCRETE COMPANY, a Wyoming Corporation, Appellee (Defendant). |
| Court | Wyoming Supreme Court |
Phillip T. Willoughby, Casper, for appellant.
Richard R. Wilking, Casper, Earl J. Hanson, Billings, for appellee.
Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.
Appellant, Mountain View/Evergreen Improvement and Service District (Mountain View), appeals the trial court's order which entered a judgment for Casper Concrete Company (Casper Concrete) in an action against Casper Concrete for negligence and breach of contract.
We affirm.
The issue in this case is:
Did the district court err in granting defendant's motion for directed verdict at the conclusion of the plaintiff's case?
Mountain View was formed to provide financing for sidewalks, curb gutters, street improvements and paving for two subdivisions in unincorporated Natrona County, Wyoming. Mountain View hired Civil Engineering Professionals, Inc. (CEPI) as the project engineer. CEPI developed the contract documents for the construction project and awarded the contract to Casper Concrete in July, 1990.
Casper Concrete substantially completed the project in December of 1990; however, because of problems with subsidence on the newly paved streets, final completion and payment did not take place until January, 1992. Six areas of subsidence were found in the spring of 1991. Casper Concrete fixed the first six areas of subsidence pursuant to a change order issued by Mountain View through CEPI. CEPI engineers did not believe the subsidence problems could be attributed to Casper Concrete's work; therefore, Casper Concrete was paid to fix the subsidence areas found in 1991. New areas of subsidence were found after 1991 which also required repair. However, neither CEPI nor Mountain View ever presented Casper Concrete with a claim for defective work pursuant to the contract.
On April 1, 1993, Mountain View filed a lawsuit against Brooks Water and Sewer District (the entity which placed sewer lines below the streets before the streets were paved), CEPI, and Casper Concrete seeking payment for damages for the cost of repairs to the subsidence areas. Claims against Brooks Water and Sewer District were dismissed after reaching this Court in Mountain View/Evergreen Improvement and Service District v. Brooks Water and Sewer District, 896 P.2d 1355 (Wyo.1995) (). CEPI was dismissed with prejudice after CEPI and Mountain View reached a settlement agreement. Mountain View claimed Casper Concrete breached the contract and negligently performed its work, causing the subsidence problems in the project.
After Mountain View presented its evidence to the district court during the bench trial, Casper Concrete moved for a non-suit or, in the alternative, a directed verdict. 1 Casper Concrete based its motion on defenses provided by two provisions of the contract. In one provision Mountain View and Casper Concrete waived all claims of both parties once final payment was made. The other provision granted Mountain View a one-year warranty period for claims against Casper Concrete for defective work. In its order granting Casper Concrete's motion, the trial court declared the waiver provision was enforceable and found that Mountain View failed to submit any claims under the one-year warranty clause before it expired. 2 Mountain View appeals from that order and judgment.
Our standard of review for an order granting a motion for judgment as a matter of law at the end of plaintiff's case in chief pursuant to WYO.R.CIV.P. 52(c) 3 requires this court to take the plaintiff's evidence as true and afford it all favorable and reasonable inferences. True Oil Co. v. Sinclair Oil Corp., 771 P.2d 781, 795 (Wyo.1989); Kaiser v. Farnsworth Drilling Co., Inc., 851 P.2d 1292, 1295 (Wyo.1993). "A motion for judgment at the close of the plaintiff's case is in the nature of a demurrer to the evidence, and admits its truth." True Oil, 771 P.2d at 795 (quoting Hawkey v. Williams, 72 Wyo. 20, 23, 261 P.2d 48, 55 (1953)).
WYO.R.CIV.P. 52(c) states, in pertinent part:
If during a trial without a jury a party has been fully heard on an issue and the court finds against the party on that issue, the court may enter judgment as a matter of law against that party with respect to a claim ... that cannot under the controlling law be maintained....
The trial court determined the waiver provision and the one-year warranty provision in the contract between Mountain View and Casper Concrete established a defense to Mountain View's claims as a matter of law.
The applicable sections of the contract between Mountain View and Casper Concrete provide:
13.12. If within one year after the date of final acceptance ... any Work is found to be defective, CONTRACTOR [Casper Concrete] shall promptly, without cost to OWNER [Mountain View] and in accordance with OWNER's written instructions, either correct such defective Work, or, if it has been rejected by OWNER, remove it from the site and replace it with nondefective Work.
The original contract was amended to provide the following:
Waiver of Claims:
14.16. The making and acceptance of final payment will constitute:
14.16.1 A waiver of claims by Owner against Contractor, concerning claims arising from unsettled liens, from defective work, from failure to comply with the Contract Documents or the terms of any special guarantees specified therein of any rights with respect to Contractor's continuing obligations under the Contract Documents; and
14.16.2 The nature and acceptance of direct payment will constitute a waiver of all claims by Contractor against Owner.
The contract defines "defective" as:
An adjective which when modifying the word Work refers to Work that is unsatisfactory, faulty or deficient, or does not conform to the Contract Documents, or does not meet the requirements of any inspection, reference standard, test or approval referred to in the Contract Documents, or has been damaged prior to ENGINEER's recommendation of final payment (unless responsibility for the protection thereof has been assumed by OWNER at Substantial Completion in accordance with paragraph 14.8 or 14.10).
As the trial court noted in its ruling, the contract's one-year warranty period lapsed before Mountain View made any claims against Casper Concrete. Mountain View made its final payment to Casper Concrete in January, 1992....
To continue reading
Request your trial
-
Ultra Res. Inc. A Wyo. Corp. v. Doyle
...regard the plaintiffs' evidence as true and afford it all favorable and reasonable inferences. Mountain View/Evergreen Improv. and Serv. Dist. v. Casper Concrete Co., 912 P.2d 529, 531 (Wyo.1996). When the plaintiffs' proof has failed in some aspect, the motion is properly granted; however,......
-
McIlravy v. Kerr-McGee Coal Corp.
...cf. Emulsified Asphalt, Inc. v. Transportation Comm'n, 970 P.2d 858, 864 (Wyo. 1998) (citing Mountain View/Evergreen Improvement and Serv. Dist. v. Casper Concrete Co., 912 P.2d 529, 532 (Wyo.1996)) ("Ambiguous contracts are construed against the drafter."); Goodman v. Kelly, 390 P.2d 244, ......
-
Strong Constr. Inc. v. City of Torrington
...Strong contends that our determination as to the effect of this provision is controlled by Mountain View/Evergreen Improvement and Service Dist. v. Casper Concrete Co., 912 P.2d 529 (Wyo.1996). In that case, Mountain View sought damages from the contractor, Casper Concrete, for the costs to......
-
Veile v. Bryant
...and reasonable inferences in addition to the arbitrary and capricious standard relying on Mountain View/Evergreen Improvement & Service District v. Casper Concrete Co., 912 P.2d 529, 531 (Wyo.1996) and Kaiser v. Farnsworth Drilling Co., Inc., 851 P.2d 1292, 1295 (Wyo.1993). However, those c......