Big-D Signature Corp. v. Sterrett Properties, LLC
288 P.3d 72
Wyo.2012Background
- AIA contract to build a home on Lot 81 by Big-D and two LLCs; Sterrett owner of Lot 81.
- PCCOs: two signed amendments (Nos. 1 and 2) with a stated final contract value of $1,509,811; Nos. 3 and 4 unsigned (proposed later).
- Contract contains an integration clause (modification only by written change orders) and a provision for change orders.
- Big-D sued for breach of contract and unjust enrichment; LLCs and Sterrett counterclaimed for breach of contract.
- Initial partial summary adjudication barred consequential damages and certain lots claims; subsequent partial summary judgment upheld contract validity and amount under PCCOs 1–2; a sua sponte dismissal disposed of PCCOs 3–4 and related claims; final dismissal with prejudice followed, then this appeal.
- Court remands on PCCOs 3–4 issues, with liability to be determined if an oral modification is proven; court also sustains individual liability of Sterrett and enforces contractual waiver of consequential damages for delay damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over the partial summary judgment order | Big-D; order subsumed into final judgment | LLCs/Sterrett; need separate appeal | Order subsumed; appellate jurisdiction proper |
| Validity of summary judgment on the original contract and PCCO Nos. 1–2 | Big-D established enforceable contract and correct amount | No genuine issue; possible future credits | Correct; no material fact issue; Big-D entitled to judgment on these |
| Sterrett's individual liability | Affidavit/agency => Sterrett personally bound | Limited to LLCs | Sterrett personally liable under contract and PCCOs 1–2 |
| Modification of PCCO Nos. 3–4 (and related claims) | Oral/modification by mutual conduct possible; unsigned forms may still be valid | Modification required in writing per contract | Remand to prove mutual oral modification; require actions consistent with terms |
| Delay damages and consequential damages waiver | Delay damages not recoverable due to waiver; but escalation vs. consequential damages nuanced | Damages barred by waiver; may be addressable if not waived | Damages barred by contract waiver; delay damages affirmed as to waiver; remand on PCCO Nos. 3–4 to resolve escalation vs. consequential |
Key Cases Cited
- Kruckenberg v. Ding Masters, Inc., 180 P.3d 895 (Wy. 2008) (subsumption of interlocutory orders into final judgment; appeal from final order covers earlier orders)
- Aviat Aircraft, Inc. v. Saurenman, 213 P.3d 956 (Wy. 2009) (interpretation of contract modification rules; oral modifications require evidence and conduct)
- PBS Emterprises, Inc. v. CWCapital Asset Mgmt., LLC, 183 P.3d 1140 (Wy. 2008) (mutual oral modification and conduct can modify written contracts)
- Quin Blair Enterprises, Inc. v. Julien Construction Co., 597 P.2d 945 (Wy. 1979) (general rule on oral modification vs. written terms)
- Schuler v. Community First Nat'l Bank, 999 P.2d 1303 (Wy. 2000) (mutual conduct as modification under written contracts)
- State Farm Mut. Auto. Ins. Co. v. Shrader, 882 P.2d 813 (Wy. 1994) (interlocutory orders merge into final judgment; review of final judgment suffices)