Richardson Associates v. Lincoln-Devore, Inc.
| Decision Date | 11 February 1991 |
| Docket Number | No. 88-238,LINCOLN-DEVOR,INC,88-238 |
| Citation | 806 P.2d 790 |
| Parties | RICHARDSON ASSOCIATES and E.W. Allen & Associates, Inc., Appellants (Defendants and Third-Party Plaintiffs), v., a Colorado corporation, Appellee (Defendants and Third-Party Defendants). |
| Court | Wyoming Supreme Court |
Dennis W. Lancaster of Phillips, Lancaster and Thomas, P.C., Evanston and Craig C. Coburn, Salt Lake City, for appellants.
Richard G. Miller, Casper and Edwin Strand, Colorado Springs, Colo., for appellee.
Before CARDINE, C.J., * and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.
Appellants E.W. Allen & Associates, Inc. (Mechanical Engineer) and Richardson Associates (Architect) appeal to this court after the district court dismissed their three complaints against appellee Lincoln-DeVore, Inc. (Soil Lab). Issues tested by this pretrial disposition of the comprehensive defective library building construction litigation include governmental immunity, statute of limitations, discovery, real party in interest, assignment, third-party beneficiary, indemnity, contribution, principal party settlement, plus motions to dismiss from which "summary judgment" was granted and all claims and causes of action dismissed. 1
Architect was an original defendant and Mechanical Engineer was a third-party plaintiff in a complex civil action resulting from the faulty construction of the Sweetwater County, Wyoming library building which, soon after completion, started sinking into the ground and cracking up to the point of near non-habitability. In the latter stages of the litigation, Architect and Mechanical Engineer filed a Second Amended Complaint (Assigned Claim) "pursuant to an assignment to them from the Library [the original plaintiff] of any and all of the Library's right, title and interest in and to any claim(s) it has or may have against Lincoln-DeVore for [soil testing] services rendered by [Lincoln-DeVore]." The dismissal of that previously non-pleaded Assigned Claim became Architect's and Mechanical Engineer's first issue. This is the Assigned Claim group of causes of action where Architect and Mechanical Engineer sued Soil Lab on a contract breach claim obtained by assignment from Owner after Architect and Mechanical Engineer had settled with Owner for their own contractual liabilities resulting from the defective library building construction. 2
Architect and Mechanical Engineer had each earlier filed a third-party complaint (First Third-Party Claims) and later an amended third-party complaint (Amended Third-Party Claims) against Soil Lab based on the allegation of the breach by Soil Lab of its contract with the Owner and contention that the breach in faulty workmanship had resulted in damage to Architect and Mechanical Engineer by getting them sued by the Owner. The dismissal of the First Third-Party Claim becomes Architect's and Mechanical Engineer's second issue which was indemnity-contribution in nature. The third group of complaints in the Amended Third-Party Claim alleged litigants to be intended beneficiaries within the contracts for work done separately by Soil Lab for both Owner and Contractor.
We affirm the district court dismissal of all stated causes of action.
The first issue raised by Architect and Mechanical Engineer is "[w]hether the District Court erred in granting the dismissal of Appellants' Second Amended Complaint [assigned claim] against Appellee."
The particular arguments advanced in support of this issue are:
I. The assignment of claims executed between the Library Board and Appellants is valid under Wyoming law and Appellants have properly asserted in the Second Amendment Complaint the claims of the Library Board pursuant to a lawful assignment from the Library Board to Appellants.
II. The Library Board's power to assign is not limited under Wyoming Statute § 18-7-104 (1977 as amended).
III. Appellants have properly designated the parties which can be named as Plaintiffs in the Second Amended Complaint, in compliance with the express language of Rule 25 of the Wyoming Rules of Civil Procedure, and therefore the Second Amended Complaint has been properly filed in accordance with the Wyoming Rules of Civil Procedure.
IV. Appellee's arguments challenging the validity of the service of process on Appellee and the inability of Appellants to assert their claims presented in the Second Amended Complaint, are groundless and do not support the dismissal order of the District Court.
V. The Statute of Limitations is not a bar to this action as the Library Board is a governmental entity and therefore not subject to the defense of statutes of limitations.
VI. Even if the Library Board is subject to the statute of limitations claim, the relevant limitation period has not yet expired.
We resolve all of these arguments on a statute of limitations application.
The second issue raised by Architect and Mechanical Engineer is "[w]hether the District Court erred in granting the dismissal of Appellants' Amended Third-Party Complaint against Appellee [contribution-indemnity and third-party beneficiary actions]."
The particular arguments advanced in support of this issue are:
I. Appellants' Amendment to their Amended Third-Party Complaint, although not filed in strict compliance with Rule 15(a) of the Wyoming Rules of Civil Procedure, should not be barred as it is a well-established view that permission to amend should be freely granted and amendments are favored under the law [third party beneficiary claim].
II. The Settlement Agreement entered into and subsequent Order of Dismissal, expressly dismissing all of the litigants' claims except for those claims pending against Appellee, including: (1) Appellants' third-party complaints and claims against Appellee, and (2) The claims assigned to Appellants by the Library Board against Lincoln-DeVore in no way resulted in the deprivation and extinction of Appellants' claims asserted in Appellants' Amended Third-Party Complaint.
III. Appellants are entitled to recover contribution and/or indemnity under applicable Wyoming statutory law or pursuant to common law principles, and furthermore the acceptance of the assignment of claims assigned by the Library Board to Appellants, did not result in Appellants surrendering any direct claims or causes of action that they personally had or may have directly against Appellee [contribution-indemnity issue].
The claims were resolved by the dispositive district court orders from which the present appeal is taken:
1. Strict indemnity--Architect's claim against Soil Lab.
2. Strict indemnity--Mechanical Engineer's claim against Soil Lab.
3. Contribution--Architect's claim against Soil Lab.
4. Contribution--Mechanical Engineer's claim against Soil Lab.
5. Implied indemnity--Architect's claim against Soil Lab.
6. Implied indemnity--Mechanical Engineer's claim against Soil Lab.
7. Third-party beneficiary--Architect's claim against Soil Lab.
(a) based on work done for Owner; and
(b) based on work done for Contractor.
8. Third-party beneficiary--Mechanical Engineer's claim against Soil Lab.
(a) based on work done for Owner; and
(b) based on work done for Contractor.
9. Claim founded on the contractual relationship between Owner and Soil Lab with contended failure of performance, which claim was then assigned to Architect and Mechanical Engineer as part of the settlement by Contractor, Owner, Architect and Mechanical Engineer. This claim, as phrased, is not the amount paid in settlement to Owner since totalled in terms of the maximum damage for which the Library Trustees might have secured recovery if all of its claims had been paid instead of the discounted settlement.
The answers to the questions of "who became the real party in interest" and "did a statute of limitations run" are dispositive of Architect's and Mechanical Engineer's assigned claim. The answers to the questions regarding the application of third-party beneficiary and indemnity or contribution within the facts presented are dispositive of Architect's and Mechanical Engineer's first and amended third-party claims.
Library Trustees contracted with Soil Lab 3 to investigate the soil for a site upon which the Library Trustees planned to build a library. Owner later contracted with Architect 4 to provide architectural and construction administration services and Contractor 5 to construct the facility. Architect contracted with Mechanical Engineer to perform design and planning services as its subcontractor.
The library site had once been a cemetery which had been moved, for the most part, in the 1920's. During construction, the workers uncovered eight or nine unmoved graves. No sooner had the library been completed than the Library Trustees found the building haunted with structural problems. First, the front of the library began to crack. After repairs were completed, the bricks along the front wall began pulling away from roof beams. The library began to sink into the ground and disintegrate to the point of non-habitability. 6 Owner filed suit against Architect and Contractor in 1985.
Creation of complex pleadings centralized the litigation activities in which Contractor counterclaimed against Owner; Architect cross-claimed against Contractor; Owner amended the original complaint to also sue Mechanical Engineer; Mechanical Engineer counterclaimed against Owner, cross-claimed against Contractor and third-party complained against Soil Lab; Architect filed a third-party complaint against Soil Lab, cross-claimed against Contractor, and joined TransAmerica Insurance Company as a cross-claim defendant; Soil Lab counterclaimed against Mechanical Engineer and Architect; Architect cross-claimed against Mechanical Engineer; Mechanical Engineer cross-claimed against Architect; Architect amended its third-party complaint against Soil Lab; Mechanical Engineer amended its third-party complaint against Soil Lab; and...
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