Rissler & McMurry Co. v. Wyoming Highway Dept.

• Decision Date: 18 July 1978
• Docket Number: No. 4882,4882
• Citation: 582 P.2d 583
• Parties: RISSLER & McMURRY COMPANY, Appellant (Plaintiff below), v. WYOMING HIGHWAY DEPARTMENT, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 583

582 P.2d 583

RISSLER & McMURRY COMPANY, Appellant (Plaintiff below), v. WYOMING HIGHWAY DEPARTMENT, Appellee (Defendant below).

No. 4882.

Supreme Court of Wyoming.

July 18, 1978.

Harry E. Leimback and David B. Park, Casper, for appellant.

V. Frank Mendicino, Atty. Gen., and Glenn A. Williams, Senior Asst. Atty. Gen., Cheyenne, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

ROSE, Justice.

Rissler & McMurry Company, a road-building contractor, filed a claim with the Wyoming State Highway Department in compliance with that agency's published claims procedure. The petitioner maintained that additional money under a highway construction contract was due. Its theory was that after the letting, the State changed the contract conditions so materially that they could no longer be performed as the parties contemplated, with the result that the claimant suffered a $43,518.86 loss.

Negotiations ensued, culminating in a hearing before the Commission, which resulted in an adverse decision, whereupon Rissler & McMurry appealed to the district court. The appeal was dismissed upon the motion of the Highway Department grounded in the concept that the appellant's claim was not timely made under § 9-2-332, W.S.1977 (§ 9-71, W.S.1957). ¹ Rissler & McMurry's responsive position was that it had in the past followed the claim-making regulation of the State Highway Department and did so on this occasion that a claim upon a highway contract was not required to be filed with the State Auditor and, in any event, the statute had in fact been substantially complied with.

On appeal, the district court found, without benefit of any facts except an affidavit of the State Auditor to the effect that no claim had been filed by appellant in his office:

"1. That the decision of the Highway Commission (rejecting Rissler & McMurry's claim) was not without or in excess of the powers of the State Highway Commission of Wyoming; (parenthetical matter ours)

"2. That said decision was not procured by fraud;

"3. That said decision is in conformity with law;

"4. That the Court presumes that said decision was supported by substantial evidence;

"5. That said decision was not arbitrary or capricious and was not characterized by an abuse of discretion;

"6. That Petitioner's claim is barred by the provisions of W.S. 9-71 for the reason that a certified statement of said claim was not filed in the office of the State Auditor within one (1) year from the date said claim accrued."

The only issue with which this court will concern itself is as identified by the appellant:

"Whether claims under contracts with the Department for highway construction must be filed with the State Auditor or whether a filing with the Commission, the Director of the Department and/or the Department Auditor is sufficient in view of the constitution and the statutes of the State of Wyoming."

Our overriding concern is whether or not the court erred in holding the appellant's claim was barred by the provisions of § 9-2-332, W.S.1977 (§ 9-71, W.S.1957). We will reverse the trial court on this issue.

(a) Claims must be filed in contract disputes.

We have addressed the problem of whether or not § 9-2-332, supra, is applicable to actions on a contract in Utah Construction Co. v. State Highway Commission, 45 Wyo. 403, 19 P.2d 951 (1933), and the recent decision of Wyoming State Highway Department v. Frank D. Napolitano and Norma Napolitano, Wyo., 578 P.2d 1342.

In Utah Construction Co., supra, we said:

". . . The statute giving the right to sue the state highway commission on its contracts cannot be given a meaning that would permit an invasion of the mandatory constitutional provision (article 16, § 7) that prohibits the audit, allowance, or payment of a claim until it has been filed with the auditing officer. The statute authorizing suit does not purport to repeal or modify section 109-305, supra, requiring claims to be exhibited to the auditor within one year after they accrue 'and not afterward.' . . ." 19 P.2d, at 953.

We concluded in Utah Construction Co., supra, 19 P.2d, at 955, by saying:

"We are of opinion, therefore, that the filing of the plaintiff's claim with the auditing officer was a condition precedent that could not be waived, and, as the petition does not show that the condition had been performed, the demurrer was properly sustained."

The same rule prevails in tort actions. See Price v. State Highway Commission, 62 Wyo. 385, 167 P.2d 309, 312. We reaffirmed the rule of Utah Construction Co. and Price in Awe v. University of Wyoming, Wyo., 534 P.2d 97, 102. We reaffirmed all of them in Wyoming State Highway Department v. Napolitano, supra.

Yet, the appellant urges that this appeal should be distinguished from the rule of Utah Construction Co., Price, Awe, and Wyoming State Highway Department v. Napolitano. The finer questions here, then, are Is there a distinction? If so, is it viable? Should we adopt it if there is?

It is first the appellant's position that the State Auditor is not the Only officer who may receive and lawfully process a claim against the Wyoming State Highway Department. Secondly, if it Is the State Auditor with whom the claim must be filed, under the law and facts here, appellant argues that the claim Was constructively filed with the State Auditor through compliance with the procedural rules of the State Highway Department ², and, therefore, there was substantial compliance with § 9-2-332, W.S.1977.

(b) Is the State Auditor the only officer with whom the claim can be filed against the Wyoming State Highway Department?

The appellant argues that Article 16, § 7, of the Wyoming Constitution permits the filing with officers, other than the State Auditor. ³ It is urged that § 9-2-331(a)(i), W.S.1977, (§ 9-69 (First), W.S.1957) ⁴, the implementing statute, contemplates an audit by other than the State Auditor in certain instances. This being so, reasons the appellant, there is no statute which makes the filing of the claim with the Auditor a condition precedent to recovery. We said as much in Awe v. University of Wyoming, supra, when we said, at 534 P.2d 102:

". . . We recognize that the requirement as interpreted in those cases (Utah Construction Co., supra, and Price, supra ) was judicially created because No statute specifies that the claim is a condition precedent to suit, . . ." (Emphasis and parenthetical matter supplied)

We went on to say, however, that, even so, we would reaffirm the holdings of Utah Construction Co. and Price which, as we have said, held that the State Auditor was the only officer with whom claims against the State could be filed. See, also, Wyoming State Highway Department v. Napolitano, supra.

It must be concluded, then, that, even though the rule is not statutory, It is judicial and the claims against the State must be filed according to provisions and requirements of § 9-2-332, W.S.1977. Utah Construction Co. v. State Highway Commission; Price v. State Highway Commission; Awe v. University of Wyoming; and Wyoming State Highway Department v. Napolitano, supra.

(c) Was there substantial compliance with § 9-2-332, W.S.1977 (§ 9-71, W.S.1957)?

We assume, as under the condition of the record we believe we have a right to do, a formal claim was presented and processed in accord with the requirements promulgated by the Wyoming State Highway Department, as contained in that department's Rule 105.17, entitled, "Claims for Adjustments and Disputes," and implementing directives. (See, fn. 2)

In this case, Rissler & McMurry submitted the claim within the time and in the manner specified by Rule 105.17 of the Wyoming Highway Department's 1974 Specification Book, as it had done on other occasions without objection or indication that, so far as the Highway Department was concerned, this was anything but the proper procedure. The claim was submitted well within the period contemplated by § 9-2-332, supra. The parties negotiated Beyond the one-year period within which appellant could file with the State Auditor's office after which the Highway Commission denied the claim and raised § 9-2-332 as grounds for its motion to dismiss in the district court.

The Department and its Highway Commission cannot play these kinds of games to defeat the good-faith claims of contractors with whom they do business in circumstances such as these. Justice would not be served were we to condone a procedure whereby contractors are required to follow the claim procedure established under the rule-making or contracting authority of the Highway Department and then hold that contractors are denied access to the courts for having followed it.

None of the cases cited above, which are prominent with respect to § 9-2-332, Supra, indicate the filing of any claim whatsoever with the Highway Department, except Wyoming State Highway Department v. Napolitano, and we held that even if the claim therein had met the requisite formalities, it would have been untimely. As we observed in Awe v. University of Wyoming, supra, at 534 P.2d 100:

"In a lawsuit involving neglect to file a claim before initiating the case, this court held in Utah Construction Co. v. State Highway Commission, 1933, 45 Wyo. 403, 19 P.2d 951, that the failure of plaintiffs to present a claim to the state auditor or to the state highway superintendent was fatally defective. The court did not discuss the problem that might be raised as to whether or not the claim should be filed with the superintendent of the Wyoming state highway department or with the state auditor in the light of a statute requiring claims to be approved by the state highway superintendent and closed the subject by saying, ' * * * The point is probably immaterial, as the petition fails to show that the claim was presented to either the state auditor or the highway superintendent.' (Pp. 417-418 of the Wyoming Reports and p. 952 of the Pacific Second Reporter.) The situation is...