Tulsa Zoo Mgmt., Inc. v. Albers, Case No. 17-CV-644-GKF-FHM

Decision Date04 March 2019
Docket NumberCase No. 17-CV-644-GKF-FHM
CourtU.S. District Court — Northern District of Oklahoma
PartiesTULSA ZOO MANAGEMENT, INC., Plaintiff, v. PECKHAM GUYTON ALBERS & VIETS, INC., Defendant.
OPINION AND ORDER

Before the court is the Substitute Combined Motion for Summary Judgment and Opening Brief in Support [Doc. 53] of defendant Peckham Guyton Albers & Viets, Inc. (PGAV). For the reasons set forth below, the motion is granted in part and denied in part.

I. Background

This is a breach of contract and professional negligence case arising from a surveying error that occurred during the planning and construction of the Lost Kingdom project at the Tulsa Zoo. The Zoo is owned by the City of Tulsa and has been managed by plaintiff Tulsa Zoo Management Inc. (TZMI) since late 2010. In March of 2012, TZMI adopted a twenty-year master plan to build new exhibits and infrastructure and to improve guest experiences. In 2011, TZMI hired PGAV—an architectural and planning firm experienced in planning and designing zoo improvements—to perform design services related to the master plan. PGAV prepared the concept for the master plan, including five independent large-scale projects addressing different areas of the Tulsa Zoo.

The first of the five major projects was an Asian-inspired exhibit complex known as the Lost Kingdom. PGAV's design for the Lost Kingdom exhibit imitated an ancient temple structure overrun by nature, with various species of animals commonly found in Asia, including Malayan tigers, snow leopards, Komodo dragons, and various indigenous Asian birds housed in an aviary. Designs for the Lost Kingdom required construction of new animal enclosures and the integration of an existing concession stand, the Trunk Stop. Additionally, the plan included a new structure, the Special Events Pavilion, with a dining area view of an outdoor tiger enclosure.

TZMI hired White Surveying Co. to perform the survey of the Lost Kingdom site that PGAV used to create design drawings for the project. The White survey contained elevation errors, and, as a result, the foundation for the Special Events Pavilion was poured with finished floor elevations below the required elevation of new construction in a flood plain. Additionally, the finished floor elevation of the Trunk Stop was approximately 2.5 feet lower than the new improvements.

TZMI settled with White and subsequently filed this case against PGAV for breach of contract and professional negligence. TZMI claims PGAV breached its contract and professional tort duties in three ways: (1) failing to notify TZMI of an inconsistency between the White survey and 2011 elevation certificates obtained by the City of Tulsa and provided to PGAV; (2) failing to exercise due care in advising TZMI of an inconsistency between the White survey and the Trunk Stop's original design drawings, prepared by Imel & Graber; and (3) failing to select NAVD 88 reference datum on the survey requirements form PGAV submitted to TZMI.

PGAV now moves for summary judgment on TZMI's claims or, alternatively, for partial summary judgment on three of its affirmative defenses regarding damages.

II. Evidentiary Issues

Before considering PGAV's motion for summary judgment, the court must address five evidentiary issues associated with TZMI's response. PGAV raised the first issue in its reply [Doc. 70], and the remaining four issues in its Objections to Plaintiff's Evidence Submitted in Opposition to Summary Judgment [Doc. 71].

A. Compliance with LCvR 56.1(c)

PGAV argues in its reply that TZMI's response does not comply with Local Civil Rule 56.1, the local rule governing summary judgment procedure. [Doc. 70, pp. 1-2]. PGAV's motion for summary judgment offers seventy-nine (79) paragraphs of material facts which it asserts are undisputed. [Doc. 53, pp. 8-21]. The factual portion of TZMI's response has two parts: an eight-four (84) paragraph "Statement of Facts" section [Doc. 63, pp. 6-26], and an eight (8) paragraph "Disputed Facts" section [Doc. 63, pp. 26-27]. The "Statement of Facts" section does not state which of its paragraphs create a genuine issue of material fact or specify which of PGAV's material facts are in dispute. The "Disputed Facts" section identifies seven of PGAV's material facts that TZMI asserts are disputed—fact nos. 16 (fourth sentence), 29-30, 41, 69, 71, and 79—and states that TZMI disputes all of PGAV's material facts "to the extent they conflict" with TZMI's "Statement of Facts." [Doc. 63, p. 26, ¶¶ 85-92].

Local Civil Rule 56.1(c) provides that "[a]ll material facts set forth in the statement of the material facts of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of material facts of the opposing party." LCvR 56.1(c). It is well-established that respondent bears the burden of ensuring that a factual dispute is portrayed with particularity, and the court "is not required to comb through Plaintiff[']s[] evidence to determine the bases for a claim that a factual dispute exists." Bootenhoff v. Hormel Foods Corp., No. CIV-11-1368-D, 2014 WL 3810329, at *2 n.3 (W.D. Okla. Aug. 1, 2014) (citing Mitchell v. City of Moore, 218 F.3d 1190, 1199 (10th Cir. 2000)).

Under this rule, TZMI has "specifically controverted" only the seven facts identified as disputed in its "Disputed Facts" section—fact nos. 16 (fourth sentence), 29-30, 41, 69, 71, and 79. TZMI's statement that it disputes PGAV's material facts "to the extent they conflict" with its "Statement of Facts" would, as a practical matter, require the court to compare each of the 84paragraphs in TZMI's "Statement of Facts" with each of PGAV's 79 material facts to detect potential conflicts. Such a burdensome procedure does not satisfy the particularity requirements of LCvR 56.1(c). See Murphy, 2018 WL 4088071, at *3. The court will therefore consider all but the following of PGAV's material facts to be undisputed for summary judgment purposes: fact nos. 16 (fourth sentence), 29-30, 41, 69, 71, and 79.1

Turning to the objections, PGAV also argues in several places that evidence presented in TZMI's "Statement of Facts" section should be disregarded. PGAV objects to the following evidence cited in TZMI's "Statement of Facts": (1) Scott Shope's Declaration [Doc. 63-30]; (2) Scott Shope's Deposition Testimony [Doc. 63-5]; (3) Tom Hayne's Deposition Testimony [Doc. 63-3]; and (4) Terrie Correll's Declaration [Doc. 63-20]. The court separately considers each objection.

B. Scott Shope's Declaration [Doc. 63-30]

PGAV argues the court should disregard the declaration of TZMI vice president Scott Shope [Doc. 63-30] because it is an attempt to create a sham fact issue. [Doc. 71, pp. 1-7]. PGAV's material fact no. 79 states: "The new Trunk Stop has greater value than the old one."[Doc. 53, p. 21, ¶ 79]. In support, PGAV cites the following portion of Shope's deposition testimony:

Q: Do you have any understanding—do you have enough knowledge to say whether or not the new Trunk Stop is more valuable and better than the 20-year-old previous Trunk Stop?
MR. WILSON: Object to the form.
A: Can you repeat the question?
Q: (By Mr. Wilson) Yeah.
MR. WILSON: Could you restate it?
(Whereupon, the court reporter read back the previous question.)
A: I would say yes.

[Doc. 53-7, pp. 88:20 to 89:5]. The exchange continued:

Q: (By Mr. Wilson) Okay. How so?
A: Construction methods are more efficient now than they were back then. We could be saving money on utilities things like that.
Q: Was there any added improvements to the current Trunk Stop that were not part of the old Trunk Stop?
A: Still family restrooms on both sides still selling concessions.

[Doc. 53-7, p. 89:6-14].

As noted above, TZMI disputes PGAV's material fact no. 79. [Doc. 63, p. 27, ¶ 92]. In support, TZMI cites paragraph 8 of Shope's declaration:

The problems created by PGAV's reliance on the survey required TZMI to demolish the existing Trunk Stop and replace it with a substantially similar structure that was built at a higher elevation. The new Trunk Stop was not appreciably larger or built of better materials, and it did not have different functionality. The previous Trunk Stop building contained restrooms, a cooking area, and a service counter. The new Trunk Stop likewise consists of restrooms, a cooking area, and a service counter. Other than the potential for savings on utilities as a result of more modern construction methods, the new Trunk Stop was not an "improvement" over the existing Trunk Stop.

[Doc. 63-30, pp. 2-3, ¶ 8].

Under the sham affidavit rule, courts will disregard an affidavit that conflicts with the affiant's prior sworn statements if it "constitutes an attempt to create a sham fact issue." Wicks v. United States, 304 F. Supp. 3d 1079, 1090 (N.D. Okla. 2018) (quoting Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986)).

Factors relevant to the existence of a sham fact issue include whether the affiant was cross-examined during his earlier testimony, whether the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain.

Id. (quoting Franks, 796 F.2d at 1237). The sham affidavit rule "is generally not applied when there is independent evidence in the record to bolster an otherwise questionable affidavit." 11 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 56.94[5][c] (3d ed. 2014).

Here, PGAV has not shown that Shope's declaration is an attempt to create a sham fact issue. First, the sham affidavit rule does not apply because Shope's deposition is supported by independent evidence in the record. For instance, in contesting PGAV's material fact no. 79, TZMI also cites to deposition testimony from TZMI president Terrie Correll. [Doc. 63, p. 27, ¶ 92 (citing Doc. 63-7, 40:14-20, 42:1-25)]. Second, even if the rule did apply, Shope's declaration...

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