Jackman Construction, Inc., a Wyoming Corporation v. Rock Springs Winnelson Co., Inc. ( 2016 )

IN THE SUPREME COURT, STATE OF WYOMING
2016 WY 118OCTOBER TERM, A.D. 2016
December 13, 2016
JACKMAN CONSTRUCTION, INC., a
Wyoming Corporation,
Appellant
(Defendant),
v. S-16-0020
ROCK SPRINGS WINNELSON CO.,
INC.,
Appellee
(Plaintiff).
Appeal from the District Court of Sweetwater County
The Honorable Nena James, Judge
Representing Appellant:
Clark Stith, Rock Springs, Wyoming.
Representing Appellee:
Danielle M. Mathey of Mathey Law Office, P.C., Green River, Wyoming.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KAUTZ, Justice.
[¶1] Appellee Rock Springs Winnelson Co. (Winnelson) sued Appellant Jackman
Construction, Inc. (Jackman) for nonpayment of materials supplied for the Southside
Improvements Project in Green River, Wyoming (project). Jackman counterclaimed on
various legal theories, including promissory estoppel, to recover the amount it paid in
excess of Winnelson’s subcontractor bid. After a bench trial, the district court generally
found in favor of Winnelson and denied Jackman’s counterclaims.
[¶2] Jackman asserts the district court erred by rejecting its promissory estoppel claim.
The record contains ample evidence to support the district court’s factual determinations
and it did not commit any prejudicial errors of law. We, therefore, affirm.
ISSUES
[¶3] Jackman presents the following issues for our review:
1. Did the district court err by not conducting any analysis of
promissory estoppel?
2. Did the district court err by refusing to accept the
stipulation of the parties that [Jackman] paid Winnelson
$679,941.52 toward the [project]?
3. Was the district court’s finding that Jackman later agreed
to pay higher prices than those that appeared on
Winnelson’s bid clearly erroneous?
Winnelson counters with these issues, which we have restated:
1. Is Jackman barred from arguing that Winnelson’s freight charges were
fraudulent because the argument was not made below and/or the fraud claim was not pled
with particularity?
2. Is Jackman barred from arguing the bid expiration date was unreasonable
because the argument was not made below?
3. Did the district court err by deciding that Jackman had failed to prove the
elements of promissory estoppel?
4. Was any error in refusing to recognize the parties’ stipulation harmless?
1
5. Are W.R.A.P. 10.05 sanctions appropriate?
FACTS
[¶4] On May 4, 2010, Jackman was the successful bidder on a project to install new
water lines and a pump station for the City of Green River. Prior to the general contract
bid letting, Winnelson submitted a bid to supply plumbing materials for the job (Bid #1)
to several general contractors, including Jackman. There were several bid schedules
covering materials for different aspects of the project. Winnelson’s bid of $550,247.81
was for most of the materials, but it did not include materials for three of the bid
schedules. Winnelson’s fax cover sheet which accompanied Bid #1 notified the general
contractors that “All FBE fittings special order contractor to verify [quantities] & items
as most fittings are 4-6 weeks delivery. Nonreturnable after order, any questions please
call.” Winnelson’s bid also had a thirty day expiration date which, depending on the
particular bid schedule, was either May 16 or May 19, 2010.
[¶5] A couple of days before the bid letting, Jackman’s project manager, Heather
Glenn, requested that Winnelson prepare a separate quote just for the pipe to be used on
the project. That same pipe had been included in Winnelson’s Bid #1. Winnelson
provided the pipe bid which was $254,821.70 (Bid #2). That bid was conditioned for
“immediate acceptance” and the prices were applicable “only if all items listed [were]
ordered.”
[¶6] Jackman never executed a written contract with Winnelson to supply the materials
or specifically notified Winnelson that it was accepting Bid #1 or Bid #2. Jackman
owner, Lynn Jackman, testified that he accepted the bid for all of the project materials on
the day after the bid letting by telling Pete Frullo, the president of Winnelson, to “get
[his] submittals in order.” A submittal is a document in which the supplier provides
information about the specific materials it intends to provide to meet the project
specifications. For this project, submittals had to be approved by the project engineer
prior to the general contractor ordering the materials. Mr. Jackman did not indicate
whether Winnelson should get “submittals in order” for Bid #1 or Bid #2.
[¶7] Despite Mr. Jackman’s statement, the submittal process was not followed in an
orderly fashion. Mr. Jackman ordered the pipe (corresponding to Bid #2) on May 14,
2010, without first having a submittal approved by the project engineer. Mr. Jackman did
not comply with the condition in Bid #1 requiring it to verify the items and quantities of
fittings and parts. Without that information, Winnelson could not prepare submittals or
order the other materials. Instead, Ms. Glenn, on behalf of Jackman, ordered materials
piecemeal during the course of the project, long after Bid #1 had already expired, without
ever providing Winnelson a complete set of approved submittals.
2
[¶8] Winnelson honored its bid prices for the pipe, but on the other items it charged
Jackman the price in effect at the time of the order. Winnelson also added freight charges
to its invoices, often including charges for expedited delivery when Jackman needed the
items quickly. The freight charges were not always listed separately on the invoices, and
Mr. Frullo explained that Ms. Glenn agreed to pay additional freight but asked that it be
incorporated into the price of the materials.
[¶9] Toward the end of the job, Jackman had trouble paying Winnelson’s invoices.
Some large checks were returned for insufficient funds, and Winnelson began to require
payment before it would provide materials to Jackman. Eventually, Jackman stopped
paying altogether, and Winnelson refused to provide any more materials. Jackman
obtained the rest of the materials it needed for the job from another supplier.
[¶10] Winnelson filed suit in circuit court against Jackman1 for its failure to pay invoices
totaling $21,705.31, which included principal and service charges. Jackman
counterclaimed for breach of contract, promissory estoppel and negligent
misrepresentation2 and, in its amended counterclaim, requested damages of more than
$50,000. Jackman asserted that Bid #1 was enforceable based on promissory estoppel,
and that Winnelson breached the terms of Bid #1 by charging more for parts than the bid
prices. Because the amount claimed by Jackman exceeded the circuit court’s jurisdiction,
the matter was transferred to district court.
[¶11] The district court conducted a one-day bench trial and issued findings of fact and
conclusions of law under W.R.C.P. 52, granting judgment in favor of Winnelson on the
outstanding principal. The district court denied Winnelson’s claim for unpaid service
charges because the language on Winnelson’s invoice form indicated the charge was
discretionary and did not specify the amount to be charged or the method of calculating
it.
[¶12] The district court denied Jackman’s counterclaims. It ruled that, to be enforceable
under the statute of frauds, a contract for the project materials had to be in writing
because it involved a sale of goods for a price of $500 or more. See Wyo. Stat. Ann. §
34.1-2-201 (LexisNexis 2015). Given Jackman did not accept Bid #1 in writing prior to
the expiration dates, the court concluded no valid contract based upon the bid was
formed. Instead, the district court found that the parties contracted under Bid #2 when
Jackman ordered the pipe and entered into a series of smaller contracts when other
materials were ordered by Ms. Glenn. The district court also rejected Jackman’s
1
Jackman’s bonding company, North American Specialty Insurance Co., was also named as a defendant
in the lawsuit; however, it did not participate in this appeal.
2
After trial, Jackman moved to amend its counterclaim to conform to the trial evidence by adding a claim
for intentional misrepresentation. The district court stated in its decision that Jackman had provided no
evidence to prove that Winnelson committed negligent or intentional misrepresentation.
3
alternative claims based upon promissory estoppel, unjust enrichment and negligent or
intentional misrepresentation. Jackman filed a timely notice of appeal.
STANDARD OF REVIEW
[¶13] When the district court conducts a bench trial and issues findings of fact and
conclusion of law pursuant to Rule 52, we review its factual findings for clear error and
its conclusions of law de novo. Wimer v. Cook, 2016 WY 29, ¶ 9, 369 P.3d 210, 215
(Wyo. 2016).
The factual findings of a judge are not entitled to the
limited review afforded a jury verdict. While the
findings are presumptively correct, the appellate court
may examine all of the properly admissible evidence
in the record. Due regard is given to the opportunity of
the trial judge to assess the credibility of the witnesses,
and our review does not entail reweighing disputed
evidence. Findings of fact will not be set aside unless
they are clearly erroneous. A finding is clearly
erroneous when, although there is evidence to support
it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has
been committed.
“ ‘We assume that the evidence of the prevailing party below
is true and give that party every reasonable inference that can
fairly and reasonably be drawn from it.’ ”
Shriners Hospitals for Children v. First Northern Bank of Wyo., 2016 WY 51, ¶ 27, 373
P.3d 392, 403 (Wyo. 2016), quoting Wimer, ¶ 9, 369 P.3d at 215 (citations omitted).
DISCUSSION
1. Promissory Estoppel
[¶14] The primary issue in Jackman’s appeal is whether the district court erred by
denying its promissory estoppel claim. In its statement of the issues on appeal, Jackman
complains that the district court did not conduct “any analysis of promissory estoppel.”
That statement is clearly incorrect as the district court made the following conclusion of
law:
14. As an alternative theory of recovery available
only when no contract exists, Jackman’s counterclaim under
4
the equitable theory of promissory estoppel was not supported
by sufficient evidence to prove the existence of a clear and
definite promise which Winnelson should reasonably expect
to induce action by Jackman, nor was there sufficient
evidence to prove that Jackman acted to its detriment in
reasonable reliance on any such promise. Jackman’s
counterclaim based on promissory estoppel fails.
[¶15] Promissory estoppel is an equitable remedy that applies when a party
detrimentally relies upon a promise that does not rise to the level of a formal contract.
Michie v. Board of Trustees of Carbon County School Dist. No. 1, 847 P.2d 1006, 1009
(Wyo. 1993). Promissory estoppel may be applied in the construction context to make a
bid enforceable. See generally, Four Nines Gold, Inc. v. 71 Constr., Inc., 809 P.2d 236,
239 (Wyo. 1991). The principle also can be applied to enforce an oral promise for a sale
of goods over $500 even though the statute of frauds typically would make such an
agreement unenforceable. Section 34.1-2-201; B & W Glass, Inc. v. Weather Shield Mfg.,
Inc., 829 P.2d 809, 818-19 (Wyo. 1992).
[¶16] All of the elements of promissory estoppel have to be met to allow recovery.
The elements of promissory estoppel are:
“(1) the existence of a clear and definite promise which
the promisor should reasonably expect to induce action
by the promisee; (2) proof that the promisee acted to its
detriment in reasonable reliance on the promise; and (3)
a finding that injustice can be avoided only if the court
enforces the promise.”
City of Powell v. Busboom, 2002 WY 58, ¶ 8, 44 P.3d 63, 66
(Wyo.2002) (quoting Roussalis [v. Wyoming Med. Ctr., Inc.,
4 P.3d 209,] 253 [(Wyo.2000)]). The party asserting
promissory estoppel has the burden of establishing each
element under a burden of strict proof. Busboom, 2002 WY
58, ¶ 8, 44 P.3d at 66. The first two elements are questions of
fact for the fact-finder; the third element is a question of law
for the court. Id.; Loya v. Wyoming Partners of Jackson Hole,
Inc., 2001 WY 124, ¶ 22, 35 P.3d 1246, 1254 (Wyo.2001).
Birt v. Wells Fargo Home Mortg., Inc., 2003 WY 102, ¶ 26,
75 P.3d 640, 651 (Wyo.2003).
Singer v. Lajaunie, 2014 WY 159, ¶ 20, 339 P.3d 277, 283 (Wyo. 2014).
5
[¶17] The district court ruled that Jackman did not meet its burden of proving that
Winnelson’s Bid #1 was a clear and definite promise which it should have reasonably
expected to induce action by Jackman. It also concluded that Jackman did not prove it
acted to its detriment in reasonable reliance on any such promise. In other words, the
district court concluded that Jackman did not prove the first two elements of promissory
estoppel. Jackman claims that, when Winnelson submitted Bid #1, it made a clear and
definite promise to supply the materials at the prices included in the bid. It asserts that
Winnelson should have reasonably expected Jackman to rely upon those prices when
submitting its overall bid to the City of Green River, and it did rely on the promise to its
detriment by using those prices, which were lower than those actually charged by
Winnelson, in its bid.
[¶18] In the absence of a contract, a subcontractor may be bound, under promissory
estoppel, to honor his bid to a general contractor. However, a bid is only a “‘promise to
perform on such conditions as were stated expressly or by implication therein or
annexed thereto by operation of law.’” Alaska Bussell Elec. Co. v. Vern Hickel Constr.
Co., 688 P.2d 576, 580 (Alaska 1984), quoting Drennan v. Star Paving Co., 333 P.2d
757, 759 (Cal. 1958). Thus, the promise included in a subcontractor’s bid is expressly
subject to its conditions, and a general contractor cannot reasonably rely upon a
subcontractor’s bid if the general contractor does not satisfy those conditions. Drennan,
333 P.2d at 759 (stating that the court would recognize a condition expressly stated or
clearly implied by the bid).
[¶19] The district court found that Winnelson submitted two separate bids to Jackman.
Bid #1 was for all of the materials for the project (except those in the three missing bid
schedules). Bid #2, which Winnelson submitted at Ms. Glenn’s request, was for the pipe
only. Soon after Jackman found out it was the low bidder on the project, it ordered the
pipe. The parties, therefore, reached an agreement and performed in accordance with Bid
#2.
[¶20] With regard to Bid #1, however, the trial evidence supports the district court’s
determination that Winnelson did not make a clear and definite promise which Jackman
could have reasonably relied upon. That bid clearly expired on May 16 or 19, 2010,
depending upon the individual bid schedule, and Jackman did not, in any way or at any
time, manifest its intent to accept Winnelson’s Bid #1 in its entirety or otherwise comply
with the bid conditions. It did not provide a complete list of materials and quantities,
purchase orders, a subcontract, or a notice of intent to accept the bid.
[¶21] Jackman argues that the thirty day expiration dates were not enforceable because
the periods for acceptance were too short. Winnelson maintains that we should not
consider Jackman’s argument because it was not presented to the district court. Unless
an issue is so fundamental it must be considered or it concerns matters of jurisdiction, we
typically do not consider issues that were neither raised nor argued to the district court.
6
WW Enterprises, Inc. v. City of Cheyenne, 956 P.2d 353, 356 (Wyo. 1998), citing Epple
v. Clark, 804 P.2d 678, 681 (Wyo. 1991). Jackman insists that it did raise the issue when
it argued that the expiration date was not “commercially reasonable” and that enforcing
the expiration date would make Winnelson’s offer “illusory.” Jackman’s argument on
appeal is significantly different than its argument to the district court. It certainly did not
raise below the specific issue of whether the expiration dates were per se unenforceable
because of their short duration. However, for the sake of completeness, we will briefly
address Jackman’s argument.
[¶22] Jackman relies on Lyon Metal Products, Inc. v. Hagerman Constr. Corp., 181 Ind.
App. 336 (Ind. Ct. App. 1979), to support its claim that short expiration periods on bids
are unenforceable. Jackman’s argument, however, ignores the facts and the rationale of
that decision. In Lyon, an Indiana court of appeals held that a general contractor
reasonably relied upon the subcontractor’s bid for athletic lockers even though the
subcontractor’s bid form stated in fine print that it was subject to final approval by the
subcontractor’s home office and it could be withdrawn after fifteen days. Id. at 337. The
court held that the fifteen day expiration period did not prevent the general contractor
from reasonably relying on the bid for several reasons: 1) it was in fine print; 2) it was
contrary to the project specifications which required bidders to keep their bids open for
120 days; and 3) the general contractor issued a letter of intent to accept the
subcontractor’s bid shortly after the job was awarded to it and many months prior to the
subcontractor’s withdrawal of the bid. Id. at 342.
[¶23] In the case before us, Winnelson’s bid expiration dates were not in fine print; they
were clearly printed at the top of each bid schedule. There was no evidence that the
project specifications required bidders to keep their bids open beyond Winnelson’s
expiration dates, and Jackman did not issue a letter of intent or any other notice that it
intended to use Winnelson as its supplier for all of the items included in Bid #1. Given
the crucial differences between Lyon and the present case, that decision does not stand for
the broad general principle stated by Jackman that “[u]nreasonably early subcontractor
bid expiration dates are not enforceable by the subcontractor.”
[¶24] Jackman also argues that Double AA Builders, Ltd. v. Grand State Constr., LLC,
210 Ariz. 503, 114 P.3d 835 (Ariz. Ct. App. 2005), supports its promissory estoppel
claim. In Double AA a subcontractor submitted a bid with a thirty day price guarantee
and the general contractor used it in its total bid to the owner. The general contractor got
the job and, within the thirty day period, sent a subcontract for the subcontractor to
execute. The subcontractor refused to sign the subcontract or perform in accordance with
its bid, and the general contractor was required to obtain the services of another
subcontractor. Id. at 837. In a subsequent suit, the general contractor recovered, under
promissory estoppel, the difference it had to pay between the subcontractor’s bid and the
replacement. Id. at 844.
7
[¶25] Double AA addressed a much different situation than the case at bar. Unlike the
general contractor in Double AA, Jackman did not make any attempt to comply with the
terms of Bid #1 prior to the expiration of the bid. Indeed, by recognizing that a general
contractor can rely upon and enforce a bid only by meeting its conditions, Double AA
supports Winnelson’s position, not Jackman’s.
[¶26] Winnelson’s bid documents clearly stated that the prices would expire on May 16
and 19, 2010. Mr. Frullo testified that the expiration dates were necessary because prices
fluctuate. Winnelson based its expiration dates upon the time that the manufacturers
agreed to lock in prices for the materials. Jackman asserts that the expiration period was
too short because it did not receive official notice that it had been awarded the project
from the City of Green River until after Bid #1 expired. That argument is not persuasive
in light of the facts that Jackman knew it was the low bidder shortly after the bid letting,
it actually ordered the pipe prior to receiving the notice of award, and it made no effort to
secure the bid prices prior to the expiration dates.
[¶27] If Jackman wanted to secure the prices in Bid #1, it needed to comply with the bid
conditions. It did not provide a complete list of items or quantities as required by
Winnelson’s bid form or otherwise indicate that it intended to use Winnelson as its
supplier for all of the remaining bid materials at any time, much less before the bid
expired. Although Mr. Jackman testified that he accepted Bid #1 when he told Mr. Frullo
to “get his submittals together,” the company’s other actions were not consistent with that
intent. Jackman’s submittal process was disorganized and incomplete. In fact, Mr.
Jackman ordered the pipe without following the submittal process.3
[¶28] Jackman’s other actions in ordering materials from Winnelson did not indicate that
it intended to accept Bid #1 in accordance with its express conditions. Mr. Frullo
testified that, instead of coordinating with Winnelson to order materials for the whole
project, Ms. Glenn would order items piecemeal, often coming into the store “in a panic”
needing certain items right away. As Winnelson’s bid stated, many of the fittings were
special order so they typically would not be delivered for several weeks after they were
ordered. Mr. Frullo testified that, to expedite receipt of the items, Ms. Glenn agreed to
pay additional costs. Jackman’s conduct was entirely inconsistent with its argument that
it reasonably relied upon Bid #1. Consequently, the district court properly concluded that
Jackman did not meet its burden of proving the elements of promissory estoppel.
2. Fraud
3
Jackman makes a statement in its brief that we do not understand: “As Winnelson provided no
submittals at all for the pipe, . . . a reasonable person in Winnelson’s position would know that he should
prepare the submittals for the other items in the bid.” The fact that there were no submittals for the pipe
does not naturally lead to the conclusion that Winnelson reasonably should have known it should prepare
submittals for the other materials. To the contrary, it more likely leads to the opposite conclusion.
8
[¶29] Jackman asserts that the price increases and/or freight charges in Winnelson’s
invoices were intentionally false or fraudulent. Winnelson maintains that Jackman did
not properly present its fraud claim to the district court. “Actions sounding in fraud must
be pled with particularity and proved by clear and convincing evidence.” Bitker v. First
Nat’l Bank in Evanston, 2004 WY 114, ¶ 9, 98 P.3d 853, 855 (Wyo. 2004), citing Lee v.
LPP Mortgage, Ltd., 2003 WY 92, ¶ 11, 74 P.3d 152, 158 (Wyo. 2003). The pleading
requirement is found in W.R.C.P. 9: “In all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with particularity.” See, e.g.,
Excel Constr. Inc. v. HKM Engineering, Inc., 2010 WY 34, ¶¶ 33-36, 228 P.3d 40, 48-49
(Wyo. 2010). Jackman’s counterclaims did not plead fraud at all, much less with
particularity. Its failure to comply with Rule 9 is fatal to its fraud claim.
[¶30] Furthermore, Jackman did not prove by clear and convincing evidence that
Winnelson’s actions were intentionally false or fraudulent. As discussed above,
Winnelson conditioned its bid and Jackman did not satisfy the conditions; consequently,
Winnelson was not bound by the bid prices. When Ms. Glenn ordered the materials,
Winnelson charged the current prices for the materials and included the additional
shipping charges. The evidence does not show that Winnelson’s charges to Jackman
were different than the prices it charged to its other customers at that time. There is no
evidence, much less clear and convincing evidence, to support Jackman’s claim that
Winnelson’s charges were fraudulent or intentionally false.
3. District Court’s Rejection of Parties’ Stipulation
[¶31] Jackman maintains that the district court erred by rejecting the parties’ stipulation
as to the amount Jackman paid Winnelson. At the beginning of the trial, the parties stated
they had agreed that Jackman paid Winnelson $679,941.52 for the project materials and
were stipulating to that fact. Nevertheless, the district court found:
16. The parties stipulated that Jackman paid Winnelson
$679,941.52 for materials it ordered during the time period
encompassed by the South Side Project; however, due to
unexplained inaccuracies in exhibits D and H, the trial
evidence failed to establish this amount was exclusively for
the South Side Project.
[¶32] A stipulation is “an agreement, admission, or concession made in a judicial
proceeding by the parties or their attorneys, respecting some matter or incident thereto.”
73 Am. Jur. 2d Stipulations ¶ 1 (2016). Parties may stipulate to certain facts to avoid the
delay, trouble and expense associated with proving them, and courts encourage
stipulations to narrow issues to be proven at trial and promote judicial economy. Id. A
stipulation “prevents an independent examination by a judicial officer or body with
respect to the matters stipulated.” 73 Am. Jur. 2d Stipulations § 17 (2016). Consequently,
9
stipulations of facts are ordinarily “controlling and conclusive and courts are bound to
enforce them, and they have no power to make findings contrary to the terms of the
stipulation.” Id. See also Watkins v. Lake Charles Memorial Hosp., 144 So. 3d 944, 957
(La. 2014) (“A stipulation has the effect of a judicial admission or confession, which
binds all parties and the court.”). In Stringer v. Miller (In re Stringer’s Est.), 343 P.2d
508, 512 (Wyo. 1959), this Court admonished the trial court for ignoring a stipulation.
We stated that “[t]he court was not privileged to ignore the stipulation of the parties” as
to which will was valid. Id.[¶33] The district court was, therefore, obligated to accept the parties’ stipulation as to
the amount Jackman paid Winnelson on the Green River project, without proof of that
factual matter. Just as in Stringer, the trial court was not “privileged to ignore the
stipulation of the parties.” The trial court should not have considered whether the
evidence supported the stipulation, and should not have concluded that the stipulation
was not supported by the evidence.
[¶34] That error does not, however, change the outcome of this case. The district court
properly ruled that Jackman did not prove Winnelson was obligated to honor the prices in
Bid #1 under its promissory estoppel theory. It was, therefore, appropriate for Winnelson
to charge the current prices for the materials. The result of this case is not affected by the
fact that the amount paid by Jackman for the materials totaled more than the bid amount.
Consequently, the district court’s erroneous refusal to accept the parties’ stipulation was
harmless and we disregard it under W.R.C.P. 61 and W.R.A.P. 9.04.
4. District Court’s Finding that Jackman Agreed to Pay Current Prices of the
Materials
[¶35] Jackman claims the following district court finding was clearly erroneous:
45. When placing orders, Jackman agreed to pay prices in
effect at the time it ordered South Side Project materials even
though some of those prices differed from the original bid
prices.
Jackman’s argument relies upon a conclusion that Bid #1 was enforceable. As stated
above, we agree with the district court that Jackman did not satisfy the bid conditions and
Bid #1 was not, therefore, enforceable.
[¶36] When Jackman ordered materials after the bid expired, Winnelson invoiced them
at the current prices with additional freight charges when warranted. Jackman paid the
invoiced charges without complaint until late in the project. Mr. Frullo testified that Ms.
Glenn was aware that Winnelson was not charging in accordance with Bid #1 when she
ordered the materials:
10
Q. After that May 16th or May 19th [expiration]
date, what happens with the order in terms of pricing?
A. Then they are going to go to the current cost of
them.
Q. When that current cost includes emergency
shipping, what happens with the emergency shipping?
A. That would be added.
Q. Is that something that you informed Jackman
Construction of?
A. Heather [Glenn] was very well aware of it.
[¶37] Mr. Frullo also explained the disorganized nature of Ms. Glenn’s ordering process
and her directions with regard to the higher shipping costs:
Q. Who placed the orders?
A. Heather [Glenn].
Q. How did she place the orders?
A. She would call up and ask me if I had any of
these fittings, which on my cover sheet it states that they were
like four to six weeks out because they . . . had special
coatings on them. . . . We would have to order them, it would
take a time delay to get them to us, deliver them to the job
site. There was no way I had a complete list from what she
wanted me to order off of our quotes at any one time to order
the completed job.
Q. What did she give you?
A. She would just verbally come in, in a panic
usually, with a set of plans and tell me what she wanted to
order.
Q. How much time did you have to supply these
items?
A. That was part of the problem is they were all
special coated so it would take – it’s roughly three to four
weeks to get parts.
Q. Did that have an effect on anything else related
to the price like shipping[?]
A. . . . Yes, because if we did not make whatever. .
. [the manufacturers’] fitting or dollar volume was, we would
be responsible for freight.
Q. What do you [do] when you are responsible for
freight in terms of the prices?
11
A. What [Heather] told me on this is she told me
she would include it in the fittings and she would take care of
it.
....
Q. So Heather told you to include the price of the
freight into the fittings that were ordered and she would take
care of it?
A. Correct, yes. She did that on numerous
occasions.
[¶38] The reasonable inference from the trial evidence was that, when Ms. Glenn
ordered materials after the bid expired, she was aware that Jackman would have to pay
the current prices for the items and higher shipping charges. She specifically directed
Winnelson to include the additional shipping charges in the costs of the fittings. The
increased costs were clearly shown on Winnelson’s invoices, which Jackman paid
throughout most of the project without objection. On this record, the district court’s
finding that “Jackman agreed to pay prices in effect at the time it ordered [project]
materials even though some of those prices differed from the original bid prices” was not
clearly erroneous.
5. W.R.A.P. 10.05 Sanctions
[¶39] Winnelson requests that we sanction Jackman under W.R.A.P. 10.05(b) by
ordering it to pay Winnelson’s attorney fees. The rule states in relevant part:
If the court certifies, whether in the opinion or upon
motion, there was no reasonable cause for the appeal, a
reasonable amount for attorneys’ fees and damages to the
appellee shall be fixed by the appellate court and taxed as part
of the costs in the case.
Id. In general, we are reluctant to order sanctions under Rule 10.05 and will do so only in
rare circumstances. Grynberg v. L & R Exploration Venture, 2011 WY 134, ¶ 30, 261
P.3d 731, 739 (Wyo. 2011); Amen, Inc. v. Barnard, 938 P.2d 855, 858 (Wyo. 1997).
Jackman’s argument and brief certainly are wanting in several respects. However, given
it established that the district court’s refusal to accept the parties’ stipulation was
erroneous (though harmless), this is not one of those rare cases where this Court certifies
there was no reasonable cause for appeal. We, therefore, deny Winnelson’s request for
Rule 10.05 sanctions.
[¶40] Affirmed.
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