Dehnert v. Arrow Sprinklers, Inc.

CARDINE, Justice,

dissenting, with whom BROWN, Justice, joins.

I dissent.

The question presented by this case was whether the defendants, in causing the cancellation of plaintiff’s contract, were merely negligent or had acted in bad faith. There was a trial to a jury. Numerous witnesses were called and testified. The jurors heard their testimony, judged their demeanor, determined their credibility and the weight to be given their testimony. There were no objections to instructions in this area, and it must be assumed that the trial judge correctly instructed the jury upon the law. The jury determined that the defendants had acted in bad faith in causing the termination of the contract and that plaintiff should recover the damages suffered. We have said that the trier of fact

“at the trial heard and saw the witnesses. [It] is in the best position to determine questions of credibility and weigh and judge the evidence, both expert and non-expert. Thus, on appeal, it is a firmly established and oft-stated rule that we must accept the evidence of the successful party as true, leave out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference that may fairly and reasonably be drawn from it. Considering the evidence in this case in the light of these rules, it is apparent that the findings and judgment of the trial court must be sustained unless clearly erroneous or contrary to the great weight of evidence.” Sowerwine v. Nielson, Wyo., 671 P.2d 295, 301 (1983). See also, Anderson v. Bauer, Wyo., 681 P.2d 1316 (1984), and Grosskopf v. Grosskopf Wyo., 677 P.2d 814 (1984).

Thus,

“as an appellate court, we must examine the evidence in a light most favorable to the prevailing party and resolve all conflicts in the testimony and exhibits in his favor. Unless clearly erroneous, we will not disturb the findings of the trial court on appeal.” Scott v. Fagan, Wyo., 684 P.2d 805, 809 (1984).

*853If the judgment is sustainable on any basis or valid ground appearing in the record, it must be affirmed. Valentine v. Ormsbee Exploration Corp., Wyo., 665 P.2d 452 (1983), and Agar v. Kysar, Wyo., 628 P.2d 1350 (1981).

Viewing the evidence in a light most favorable to plaintiff, as I must, I find that appellants contracted with the school board to provide full architectural services including landscaping and sprinkler design. Appellants employed an engineering firm as its agent to write the specifications for the sprinkler project. In its bid, because of an inadequate water supply, appellee specified a sprinkler head different from the specifications. At the bid opening, appellee’s bid was $55,000 lower than the next low bid. Appellants were concerned about the bid being so much below the next low bid. A school board member inquired and appellee advised, in appellants’ presence, that it had, in its bid, used sprinkler heads different than those specified. The bid was accepted. Appellee submitted five sets of detailed plans to appellants and their engineer. Appellants reviewed and approved the plans including specifically the plastic sprinkler heads. Appellee installed the sprinkler system according to the plans submitted and which were approved by appellants. Appellants reported to the school board that the system was substantially complete, authorized payment of all but ten percent retainage to be withheld for the one-year warranty period.

Ten days after approval, a school board trustee called appellants’ office inquiring why the different sprinkler heads had been installed. Appellants did not admit that they and their engineer had approved the initial bid, the sprinkler heads, the plans for installation, had inspected the installation and approved payment of ninety percent of the contract price, but instead stopped payment to appellee and advised the school board to terminate appellee’s contract. In the words of appellee:

“Appellant, rather than admit the prior approval and reveal to the School Board that he had exaggerated his familiarity with sprinkler work, embarked on a course of conduct deliberately calculated to shift the consequences of his mistake or lack of knowledge to Appellee. He succeeded in delaying the project, stopping payment to appellee for approximately two years thereby causing substantial damage to Appellee. His success in delaying the project was predicated, among other things, upon a blatant lie to an attorney to secure a legal opinion to present to his client bolstering his position to demand replacement of the installed sprinkler heads.”

Appellants’ counsel during oral arguments conceded that had it been established that appellants acted in bad faith in this controversy, appellee would be entitled to recover its damages. Upon the facts of this case, I see the question of bad faith as one for the jury’s determination. The jury, after hearing conflicting evidence, found that appellants acted in bad faith and awarded damages to appellee. There was substantial evidence to support the finding, and I would, therefore, affirm the jury’s verdict and the judgment of the trial court.