RYN, Inc. v. Platte County Memorial Hosp. Bd. of Trustees, 91-270

• Decision Date: 10 December 1992
• Docket Number: No. 91-270,91-270
• Parties: RYN, INC., Appellant (Plaintiff), v. PLATTE COUNTY MEMORIAL HOSPITAL BOARD OF TRUSTEES and Gertsch/Baker & Associates, Inc., Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1084

842 P.2d 1084

RYN, INC., Appellant (Plaintiff), v. PLATTE COUNTY MEMORIAL HOSPITAL BOARD OF TRUSTEES and Gertsch/Baker & Associates, Inc., Appellees (Defendants).

No. 91-270.

Supreme Court of Wyoming.

Dec. 10, 1992.

Don W. Riske (argued) of Riske & Arnold, Cheyenne, for appellant.

Frank J. Jones, Wheatland, for appellee Hospital Bd. of Trustees.

Patricia L. Simpson (argued), and Aron Henning Simpson, Laramie, for appellee Gertsch-Baker.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT ^* and GOLDEN, JJ.

CARDINE, Justice.

In this appeal, RYN, Inc. (RYN) challenges the amount of damages the jury awarded for wrongful termination of its construction contract with appellee Platte County Memorial Hospital Board of Trustees (Board). Specifically, RYN appeals from the trial court's orders which entered judgment on the jury's verdict and which denied its motion for amendment of judgment or a new trial on the issue of damages.

We affirm.

RYN states the issues as follows:

Issue I

Whether the trial court erred in denying Appellant's Motion for Amendment of Judgment or, in the Alternative, for a New Trial.

Issue II

Whether the jury was free to disregard the opinion of Appellant's damage expert in making its award of $2800.00 to Appellant for wrongful termination damages.

Issue III

Whether the Jury Verdict awarding Appellant $2800.00 in damages for the wrongful termination of the subject construction contract was contrary to the Instructions of the Court.

Issue IV

Whether the Jury Verdict awarding Appellant $2800.00 in damages for the wrongful termination of the subject construction contract was the result of improper considerations by the jury.

Appellee Board restates the issues in more concise form:

1. Was the jury justified in awarding the amount of damages it did to Appellant?

2. Was the trial judge justified in denying Appellant's Motion for Amendment of Judgment or, in the Alternative, for a New Trial?

Appellee Gertsch-Baker & Associates, Inc. (architect) presents no additional or supplemental issues for our review.

The litigation which resulted in this appeal arose out of the construction of an addition to Platte County Memorial Hospital in Wheatland. On March 18, 1988, the Board entered into a standard form agreement with RYN by which RYN was to construct the approximately 7,200 square foot addition for payment of $336,300.00. RYN was to begin construction on April 1, 1988, and to achieve substantial completion of the addition no later than July 25, 1988. Gertsch-Baker was to serve as the architect for the project.

RYN began construction early in April 1988. Beginning in June 1988, the Board notified the architect and RYN of numerous unacceptable and nonconforming conditions on the project. After the expected completion date for the project, July 25, 1988, passed without completion, the Board's attorney gave RYN seven-day notice that the contract would be terminated on November 14, 1988. Even after this deadline passed, both the Board and the architect attempted to work with RYN. On November 16, 1988, the architect issued a Certificate of Substantial Completion, albeit with an attached long list of items to be completed or corrected. Between January 4, 1989, and January 18, 1989, the Board also published notice of final settlement of the contract.

On February 16, 1989, the architect conducted an inspection of the project and found numerous items incomplete. He estimated that $2875.00 worth of work remained. On March 14, 1989, the Board voted to terminate the contract with RYN. The Board decided, based on the architect's advice, to withhold from RYN's payment between two and three times the approximate $2,800.00 needed to complete the project. The Board voted to pay RYN $23,000.00 from the contract money which remained, but to retain the balance to hire another contractor to complete the project.

On April 4, 1989, the Board accepted a bid of $6,462.00 to finish the work on the property. That same day, the Board's attorney wrote State Surety Company and notified them that the contract with RYN had been terminated due to nonperformance.

RYN filed a governmental claims act claim against the Board, alleging wrongful termination from the project. After the Board denied RYN's claim against it, RYN filed a complaint against the Board and the architect in district court. The complaint sought damages against the Board for breach of contract and wrongful termination, and against the architect for negligence, breach of the covenant of good faith and fair dealing, and intentional interference with contract. The Board responded with a counterclaim against RYN for liquidated damages for delay in constructing the addition and for alleged construction defects, and a cross-claim against the architect. The architect also cross-claimed against the Board.

A jury trial was held on all claims, beginning on August 5, 1991. Extensive testimony was elicited by all sides on responsibility for the delays and for the nonconforming conditions at the project. RYN introduced the testimony of its certified public accountant, who rendered an opinion that RYN had suffered a loss of $272,095.00 for the years 1989, 1990 and 1991 from failure to obtain bonding after being fired by the Board. On August 14, 1991, the jury rendered a verdict which may be summarized as follows:

The jury found that the Board breached the construction contract with RYN by failing to pay the remaining $10,446.00 of the total contract price. The Board was entitled, however, to withhold $5,980.66 from the total contract amount for its costs incurred in completing the work after termination of the contract.

RYN did not abandon the contract before March 14, 1989. The Board wrongfully terminated the contract. RYN suffered damages from wrongful termination of $2,800.00. The architect did not intentionally interfere with the contract between RYN and the Board.

RYN breached the contract by failing to perform in a timely manner. The Board sustained $2,805.00 in damages as the result of this breach. (The jury included a margin note that this figure was calculated by multiplying the liquidated damage amount contained in the contract, $55.00 per day, by 51 days.) RYN also breached the contract by failing to perform completely (however, the jury did not award any damages for this breach).

The trial court entered judgment on the jury's verdict. RYN moved for amendment of the jury's verdict of $2,800.00 for wrongful termination, or in the alternative, for a new trial on the issue of damages. RYN asserted it was entitled to wrongful termination damages in the amount testified to by its expert, $272,095.00. The trial court denied this motion. RYN thereafter took timely appeal to this court.

The only real issue to be decided is whether the trial court abused its discretion in refusing to amend the jury's award or to order a new trial on the issue of damages. In order to decide this issue, we necessarily consider whether the jury's damage award was so inadequate that it was not within the proper exercise of the trial court's discretion to uphold it.

We begin our analysis with W.R.C.P. 59, which provides in part:

(a) A new trial may be granted to all or any of the parties, and on all or part of the issues. * * * Subject to the provisions of Rule 61, a new trial may be granted for any of the following causes:

* * * * * *

(5) Error in the assessment of the amount of recovery, whether too large or too small[.]

* * * * * *

(e) A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.

A trial court has broad discretion when ruling upon a motion for new trial. We will not disturb its decision absent an abuse of that discretion. Coulthard v. Cossairt, 803 P.2d 86, 91 (Wyo.1990). The grant or denial of additur is also subject to an abuse of discretion standard. Carlson v. BMW Indus. Serv., Inc., 744 P.2d 1383, 1390 (Wyo.1987), citing McPike v. Scheuerman, 398 P.2d 71, 73 (Wyo.1965). An court abuses its discretion when it commits an error of law under the circumstances. Coulthard, 803 P.2d at 91.

The trial court has both the right and the duty to grant a new trial or modify a jury's award if it considers under the facts and circumstances disclosed at trial that the award was inadequate. Carlson, 744 P.2d at 1390. See also Cates v. Eddy, 669 P.2d 912, 922 (Wyo.1983). The proper measure of inadequacy of an award is whether that award is "so * * * inadequate as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, or other improper cause had invaded the trial." Coulthard, 803 P.2d at 92. Simply stated, once the trial court determines in its discretion that an award is inadequate, grant of the appropriate relief becomes mandatory.

Appellant advances several reasons why the trial court should have granted its motion for amendment of judgment or new trial. RYN claims, first, that the jury arbitrarily disregarded the uncontroverted testimony of its expert witness. Second, RYN argues that the jury arrived at a damage figure which is unsupported by the evidence. Finally, RYN contends that the jury's award was so low as to shock the conscience of the court. We consider each of these claims in turn.

Appellant argues that since the damage figure provided by its expert witness was uncontroverted, the jury could not disregard it in reaching its verdict. While we agree with the general rule that a jury is not free to arbitrarily disregard uncontroverted testimony from a disinterested witness, the expert testimony in this case was neither disinterested nor uncontroverted.

RYN's expert, a certified public accountant, was not a disinterested witness. He testified that his firm had been RYN's accountant since 1983. Nor was his testimony uncontroverted. It may be helpful to discuss the meaning of the term "uncontroverted" in this context.

"Where the testimony of a disinterested...