HomeMy Public PortalAboutBox 505 REK #1 OVER-LENGTH MEMORANDUM1
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RON T. BLEWETT
ISB NO. 2963
CLARK and FEENEY
The Train Station, Suite 201
13th and Main Streets
P. O. Drawer 285
Lewiston, Idaho 83501
Telephone: (208)743-9516
Facsimile: (208)746-9160
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
EMPLOYERS INSURANCE OF WAUSAU) U.S. District Court
A MUTUAL COMPANY, a Wisconsin ) Case No. CIV01-0629-S-BLW
mutual company, )
)
Plaintiff, )
)
vs. ) WAUSAU'S MOTION TO FILE
OVER -LENGTH MEMORANDUM
)
ST. CLAIR CONTRACTORS, INC., an )
Idaho corporation; ARLISS A. ST. CLAIR; )
RANDALL T. ST. CLAIR and )
CINDY M. ST. CLAIR, husband and wife; )
DENNIS RAY ST. CLAIR and )
KAREN ELAINE ST. CLAIR, husband )
and wife; THE CITY OF McCALL, an )
Idaho municipal corporation; )
INTERWEST SUPPLY, INC., an Idaho )
corporation; and DEVELOPERS SURETY )
& INDEMNITY CO., an Iowa corporation, )
)
Defendants. )
)
INTERWEST SUPPLY, INC., an Idaho
corporation,
)
)
)
Counterclaimant and Crossclaimant, )
WAUSAU'S MOTION TO FILE
OVER -LENGTH MEMORANDUM
LAW OFFICES OF
CLARK AND FEENEY
LEWISTON. IDAHO 63501
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VS.
EMPLOYERS INSURANCE OF
WAUSAU A MUTUAL COMPANY, a
Wisconsin Mutual Company,
Counterdefendant,
and
THE CITY OF McCALL, an Idaho
municipal corporation,
Crossdefendant.
ST. CLAIR CONTRACTORS, INC., an
Idaho corporation,
Crossclaimant,
vs.
THE CITY OF McCALL, an Idaho
municipal corporation,
Crossdefendant.
ST. CLAIR CONTRACTORS, INC. , an
Idaho corporation,
Third -Party Plaintiff,
vs.
OLDCASTLE PRECAST, INC., d/b/a
AMCOR PRECAST,
Third -Party Defendant.
WAUSAU'S MOTION TO FILE
OVER -LENGTH MEMORANDUM 2
LAW OFFICES OF
CLARK AND FEENEY
LEWISTON, IDAHO 89501
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COMES NOW the plaintiff, Employers Insurance of Wausau, and pursuant to D. Id. L. 7.1
respectfully moves this honorable court for leave to file a consolidated memorandum in support of
various motions for summary judgment. The consolidated memorandum exceeds twenty (20) pages
in length.
This motion is made upon the following grounds and for the following reasons:
1) Wausau has filed a consolidated summary judgment motion on four (4) separate
topics against the CityofMcCall, one (1) topic against St. Clair Contractors, Inc. and
the individual St. Clair defendants, and two (2) topics against Interwest Supply, Inc.
2) Rather than filing seven (7) separate motions and seven (7) separate briefs of up to
20-pages, Wausau seeks to file a single consolidated brief of 42 pages in length.
3) This is a complex construction dispute involving nine (9) separate parties and a
construction project which has been ongoing for some years, and the issues in dispute
are complicated.
4) A single memorandum will aid the court in understanding a complex record, and help
simplify complex issues in this case.
This motion is based upon the pleadings and records of the above -entitled action, upon the
summary judgment motion which has been filed with supporting pleadings, and upon the proposed
over -length Memorandum itself, an extra copy of which is attached as Exhibit "A" to this motion.
DATED this 161 day of April, 2003.
CLARK and FEENEY
By
Ron T. Blewett, a membei of the firm.
Attorneys for Plaintiff
WAUSAU'S MOTION TO FILE
OVER -LENGTH MEMORANDUM 3
LAW OFFICES OF
CLARK AND FEENEY
LEWISTON. IDAHO 83501
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I hereby certify on the / U
day of April, 2003, a true copy
of the foregoinstnunent
was: Mailed
Faxed
Hand delivered
Overnight mail to:
Ms. Susan E. Buxton
Moore, Smith, Buxton & Turcke, Chtd.
225 N. 9th Street, Suite 420
Boise, ID 83702
Mr. William A. McCurdy
Brassey, Wetherell, Crawford & McCurdy
1001 W. Idaho, 3'd Floor
P. O. Box 1009
Boise, ID 83701-1009
Mr. Geoffrey J. McConnell
Mr. Paul Boice
Meuleman & Miller, L.L.P.
960 Broadway Avenue, Suite 400
Boise, ID 83706
Mr. Kenneth D. Nyman, Esq.
Anderson, Julian & Hull
250 S. 5th, Suite 700
P. O. Box 7426
Boise, ID 83707
Mr. David Kerrick
David Kerrick & Associates
1001 Blaine Street
P. O. Box 44
Caldwell, ID 83606
CLARK and FEENEY 7
By 'I
Attorneys for Plaintiff
WAUSAU'S MOTION TO FILE
OVER -LENGTH MEMORANDUM 4
LAW OFFICES OF
CLARK AND FEENEY
LEWISTON. IDAHO 83501
EXHIBIT "A"
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RON T. BLEWETT
ISB NO. 2963
CLARK and FEENEY
The Train Station, Suite 201
13th and Main Streets
P. O. Drawer 285
Lewiston, Idaho 83501
Telephone: (208)743-9516
Facsimile: (208)746-9160
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
EMPLOYERS INSURANCE OF WAUSAU) U.S. District Court
A MUTUAL COMPANY, a Wisconsin ) Case No. CIV01-0629-S-BLW
mutual company,
Plaintiff,
vs.
ST. CLAIR CONTRACTORS, INC., an
Idaho corporation; ARLISS A. ST. CLAIR;
RANDALL T. ST. CLAIR and
CINDY M. ST. CLAIR, husband and wife;
DENNIS RAY ST. CLAIR and
KAREN ELAINE ST. CLAIR, husband
and wife; THE CITY OF McCALL, an
Idaho municipal corporation;
INTERWEST SUPPLY, INC., an Idaho
corporation; and DEVELOPERS SURETY
& INDEMNITY CO., an Iowa corporation,
Defendants.
INTERWEST SUPPLY, INC., an Idaho
corporation,
WAUSAU'S CONSOLIDATED BRIEF IN
SUPPORT OF MOTIONS FOR
PARTIAL SUMMARY JUDGMENT
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WAUSAU'S CONSOLIDATED BRIEF
IN SUPPORT OF MOTIONS FOR
PARTIAL SUMMARY JUDGMENT
LAW OFFICES OF
CLARK AND FEENEY
LEWISTON, IDAHO 83501
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Counterclaimant and Crossclaimant,
vs.
EMPLOYERS INSURANCE OF
WAUSAU A MUTUAL COMPANY, a
Wisconsin Mutual Company,
Counterdefendant,
and
THE CITY OF McCALL, an Idaho
municipal corporation,
Crossdefendant.
ST. CLAIR CONTRACTORS, INC., an
Idaho corporation,
Crossclaimant,
vs.
THE CITY OF McCALL, an Idaho
municipal corporation,
Crossdefendant.
ST. CLAIR CONTRACTORS, INC. , an
Idaho corporation,
Third -Party Plaintiff,
vs.
OLDCASTLE PRECAST, INC., d/b/a
AMCOR PRECAST,
Third -Party Defendant.
WAUSAU'S CONSOLIDATED BRIEF IN
SUPPORT OF MOTIONS FOR
PARTIAL SUMMARY JUDGMENT
2
LAW OFFICES OF
CLARK AND FEENEY
LEWISTON. IDAHO 83501
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I.
INTRODUCTION
Accompanying this Brief are Wausau' s Statement of Undisputed Fact, Wausau's Deposition
Excerpts, and the Affidavits of Randy St. Clair, Randy Rogers, Sam Wiggins, Jesse Prather, John
Eigler, Judith Rheinschmidt, and L. Neal Foxhall. Deposition Exhibits are referred to by exhibit
number, and are attached to the deposition excerpts. Affidavit Exhibits are referred to by exhibit
letter.
This matter is scheduled for a four -week jury trial in October. While the evaluation of this
motion will require some effort, the effort expended now will help to avoid or shorten a lengthy trial.
II.
ESTABLISHED FACTS
1) Background Facts.
A) The Consent Order.
An Amended Consent Order was executed between the City of McCall ("City") and the Idaho
Department of Health and Welfare in December, 1999. (Robert Strope Deposition, P. 34, L. 23
through P. 36, L. 1; Deposition Exhibit #2). The order itself contains a narrative history of a
requirement by the Environmental Protection Agency that the City stop discharging sewage effluent
into the Payette River. (Deposition Exhibit #2). Construction of a facility to store sewage effluent
and discharge the same to irrigators in summer months was required to be completed by November
2, 2000. (Strope Deposition, P. 34, L. 23 through P. 36, L. 1; Deposition Exhibit #2). The facility
to be constructed was known as "J-Ditch, Phase 2". Id.
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SUPPORT OF MOTIONS FOR
PARTIAL SUMMARY JUDGMENT
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B) The Contract Documents.
The City entered into a contract with J-U-B Engineers, Inc. ("JUB") to design and monitor
construction of J-Ditch Phase 2. (Strope Deposition, P. 32, L. 6 through P. 33, L. 21; Deposition
Exhibit #1). The J-U-B contract was signed by Mr. Eimers as Mayor on November 12, 1999.
(Deposition Exhibit #1; Bates #1006585).
Deposition Exhibit #3 is the Project Manual prepared by J-U-B, and contains the City's
agreement with defendant St. Clair Contractors, Inc. for the construction ofJ-Ditch Phase 2. (Strope
Deposition P. 36, L. 20 through P. 37, L. 16; Deposition Exhibit #3). The construction contract was
signed on or about May 11, 2000. Id. Among other things, the Project Manual contains St. Clair
Contractor's bid form with handwritten prices, the Standard Form Agreement Between Owners and
Contractor, payment and performance bonds naming Wausau as surety, and various contract General
Provisions, Supplementary Conditions, and Technical Specifications. (Deposition Exhibit #3).
C) The Parties and Their Representatives.
The organizational status of the parties is established by the pleadings. Employers Insurance
of Wausau a Mutual Company is a Wisconsin mutual company. St. Clair Contractors, Inc. is an
Idaho corporation. The City of McCall is an Idaho municipal corporation. Interwest Supply, Inc. is
an Idaho corporation, and its surety is defendant Developers Surety and Indemnity Company.
Robert Strope, the McCall City Manager, was the City's "designated representative" for the
J-Ditch Phase 2 Project. (Strope Deposition, P. 37, LL. 9-24). Prior to starting his job with the City
of McCall in May of 2000, Mr. Strope had no prior experience in design, construction, or
administration of public works projects. (Strope Deposition, P. 16, L. 7 through P. 17, L. 6). J-U-B
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SUPPORT OF MOTIONS FOR
PARTIAL SUMMARY JUDGMENT
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Engineers, Inc. (not a party to this suit) was designated by the Project Manual to be the "owner's
representative" on the project. (Strope Deposition, P. 52, L. 25 through P. 53, L. 14). Matt Uranga,
a J-U-B employee, received his P.E. (Professional Engineer) license in 1999. (Uranga Deposition,
P. 152, L. 3 through P. 153, L. 16). Mr. Uranga was J-U-B's primary engineer for the construction
phase of this project. (Wagner Deposition, P. 51, L. 24 through P. 52, L. 25). George Wagner lead
J-U-B's design team for the project. (Wagner Deposition, P. 29, L. 13 through P. 30, L. 10). Mr.
Wagner is the executive vice president of J-U-B Engineers, Inc. (Wagner Deposition, P. 15, L. 2
through P. 16, L. 3). Kirby Vickers was a J-U-B board member and became Chairman of the Board
in 2002. (Vickers Deposition, P. 18, L. 10 through P. 20, L. 19). Galen Cleverley was an employee
ofJ-U-B, and one of its resident project representatives for this project. (Wagner Deposition, P. 56,
L. 21 through P. 57, L. 3).
Randy St. Clair is the president and a stockholder of St. Clair Contractors, Inc. (Affidavit of
Randy St. Clair, ¶1). St. Clair Contractors, Inc. is a small business enterprise, owned for two
generations by the St. Clair family; the company is headquartered in Boise. Id. Randy Rogers and
Sam Wiggins were St. Clair employees on the project. Id.
Judith Rheinschmidt was a bond claim supervisor for Wausau, and had responsibility to
administer performance and payment bond demands on the J-Ditch Phase 2 project. (Affidavit of
Judith Rheinschmidt, ¶1). John Eigler is an independent construction consultant providing
investigation, advice and recommendations to Ms. Rheinschmidt. (Affidavit of John Eigler, ¶1).
Interwest Supply, Inc. is Wausau's completion contractor. (Affidavit ofJudithRheinschmidt,
¶8). Jesse Prather is Interwest Supply's representative. (Affidavit of Jesse Prather, 111).
WAUSAU'S CONSOLIDATED BRIEF IN
SUPPORT OF MOTIONS FOR
PARTIAL SUMMARY JUDGMENT
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D) A Description of the Project and Its Purpose.
The J-Ditch Phase 2 project was designed to bring the City within compliance with the
Consent Order by eliminating or significantly reducing the discharge of treated sewer effluent into
the Payette River. (Uranga Deposition, P. 177, L. 1 through P. 178, L. 4). The construction consisted
of a 277 million gallon storage lagoon to hold treated effluent, which would then during irrigation
season be discharged into a pipeline, mixed with irrigation water, and applied to irrigate fields.
(Strope Deposition, P. 24, L. 2 through P. 25, L. 10). The "purposes intended" for the project were
(a) to store treated effluent over the winter, (b) pump that treated effluent to irrigators in season, and
(c) to stop the discharge of effluent into the river. Id.
2) Excusable Events Delayed St. Clair's Work.
A) The Schedule was "Tight" to Complete Before Winter.
All parties agree that the project schedule was "tight", in that a lot of work had to be done
between May 11, 2000, and November 2, 2000. (Strope Deposition, P. 138, L. 5 through P. 140, L.
23; Affidavit of Randy St. Clair, ¶2). The court may note that McCall is a ski resort town of 5,000'
elevation. Bid quantities for earthwork embankment were 148,000 cubic yards. (Deposition Exhibit
#3, Bid Schedule). On August 2, 2000, Mr. Vickers ofJ-U-B advised Mr. Strope that the earthwork
embankment work must be done by the first week of September "in order to complete the project
this year". (Vickers Deposition, P. 178, L. 4 through P. 180, L. 11; Deposition Exhibit #5, excerpt
Bates No. 5525795).
Wausau's representative, Neal Foxhall, was first contacted by Mr. Strope and Mr. Wagner
on October 16, 2000, and was advised that the project was at 5,000' elevation, that normal winter
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SUPPORT OF MOTIONS FOR
PARTIAL SUMMARY JUDGMENT
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shutdown would be in November, and that unless the contractor accelerates, the work would need
to be put off until next spring. (Affidavit of Neal Foxhall, ¶2; Deposition Exhibit #9).
B) Excusable Delays are Admitted.
St. Clair's work was delayed by the City for numerous reasons not discussed for purposes
of summary judgment. However, entitlement for some particular delays, either obvious or otherwise
admitted of record, justify increases in contract time, and are identified here.
During excavation for the foundation of the dike of the effluent reservoir, St. Clair
encountered old "dumps" or "debris pits" under the ground, containing such things as logs, stumps,
asphalt, car bodies, and trash; these conditions were unusual and not generally recognized as inherent
in the work. (Affidavit of Randy St. Clair, ¶3). The contract contemplates time and price
adjustments when such conditions are encountered. (Deposition Exhibit #3; General Conditions,
§4.03, P. 11). Mr. Uranga admitted to Mr. St. Clair that these conditions delayed the contractor's
work. (Affidavit of Randy St. Clair, 13). Mr. Uranga admitted by deposition that the debris pits
delayed St. Clair's work. (Uranga Deposition, P. 300, L. 11 through P. 301, L. 24). The City
acknowledged that there should be a price adjustment for the debris encountered in the excavations.
(Strope Deposition, P. 197, L. 25 through P. 198, L. 9; (Affidavit of Randy St. Clair, ¶3).
The contract also contemplates that time increases are appropriate where the contractor has
to perform additional work by increases of over 20% in quantities of substantial items, such as
earthwork embankment. (Deposition Exhibit #3; Supplemental Conditions, §11.03.C.3). Earthwork
embankment includes building the earthen dike for the storage reservoir. Pay Application #6
(Deposition Exhibit #38) was signed and approved by Mr. Uranga. (Strope Deposition, P. 275, LL.
WAUSAU'S CONSOLIDATED BRIEF IN
SUPPORT OF MOTIONS FOR
PARTIAL SUMMARY JUDGMENT
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16-22). The application itself, as well as the Affidavit of Randy St. Clair, confirm that this
application was for work through November 2, 2000. (Deposition Exhibit #38; Affidavit of Randy
St. Clair, ¶4). The application shows that dike embankment quantities of work completed through
November 2, 2000, were at least 130% of original quantities. Id. The extra dike embankment work
was done in poor weather, and increased the time necessary to complete the work. Id.
Additionally, the contract contemplates that time extensions are warranted for conditions
beyond the contractor's control, such as "abnormal" weather. (Deposition Exhibit #3; General
Conditions, § 12.03). As St. Clair frantically tried to complete earthwork in September of 2000, it
was stricken with abnormally severe weather conditions readily demonstrable by reference to
National Climatic Data Center records. (Affidavit of Randy St. Clair, 15). Precipitation in
September of 2000 was over 250% greater than the 10-year average, impeding and delaying the
earthwork which remained. (Affidavit of Randy St. Clair, 15). "Abnormal" means "not normal; not
average; not typical...." Webster's 12th Century Dictionary of the English Language, P. 5 (1964).
Deposition Exhibits #13 through #23 are copies of various letters sent by Mr. St. Clair
notifying the City of contract time impacts for the foregoing reasons, as well as other reasons.
(Strope Deposition, P. 184, L. 17 through P. 187, L. 14; P. 188, L. 6 through P. 190, L. 16; P. 190,
L. 21 through P. 191, L. 3; Affidavit of Randy St. Clair, 16; Deposition Exhibits #13 through #23).
As is referred to below, the City would refuse any request for time extensions, whether or not
the contractor was entitled to one.
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PARTIAL SUMMARY JUDGMENT
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3) The City Improperly Refused Any Time Extension. Regardless of Contract
Entitlement by Reason of the Terms of the Consent Order.
Obviously, St. Clair was required to abide by its contract, but was not required to abide by
the Consent Order. (Strope Deposition, P. 119, LL. 14-19). Nonetheless, the City's designated
representative was under the impression as of November of 2000 that because of the limitations of
the Consent Order, he had no authority to extend St. Clair's project time. (Strope Deposition, P. 105,
L. 17 through P. 106, L. 21). City Manager Mr. Strope explained that while he would have given
justified time extensions on another project, but that "it is a very different situation...in terms of
regulatory agencies coming down and imposing fines." (Strope Deposition, P. 182, L. 3 through P.
184, L. 14). While Mr. Wagner of J-U-B admitted Mr. St. Clair was entitled to more time, he also
told Mr. St. Clair that there was no more time available to give him. (Affidavit of Randy St. Clair,
¶7).
The City relied on J-U-B Engineers to do the evaluation of whether the contractor was
entitled to more time. (Strope Deposition, P. 182, LL. 3-9). While a critical path schedule analysis
would be important to evaluation of delay, J-U-B Engineers had "no opportunity or reason to do
that". (Wagner Deposition, P. 138, L. 5 through P. 140, L. 22). Mr. Wagner acknowledges that you
have to know whether the critical path was effected by an event before you can determine whether
the contract completion was delayed. Id. Mr. Strope confirms that he knows of no such schedule
delay analysis for St. Clair's work, and that the City was not going to authorize more contract time,
regardless. (Strope Deposition, P. 199, L. 18 through P. 201, L. 12).
Prior to the termination of St. Clair's contract, Mr. Strope is not sure if he understood that
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SUPPORT OF MOTIONS FOR
PARTIAL SUMMARY JUDGMENT
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certain things beyond St. Clair's control may entitle them to a time extension. (Strope Deposition,
P. 174, L. 13 through P. 175, L. 4). Ironically, by November 21" of 2000, the City had received an
extension of completion time under the Amended Consent Order to June 1, 2001. (Strope
Deposition, P. 277, L. 22 through P. 279, L. 7; Exhibit 41).
4) The Citv Withheld Almost One Million Dollars in Previously Approved
Payments to St. Clair: St. Clair Stopped Work for Nonpayment.
A) Timely Payment was Necessary for St. Clair to Work.
The project record is replete with St. Clair's expressed need for timely payment for its work.
Deposition Exhibit #4 is a copy of the minutes of a preconstruction conference of May 18, 2000.
(Strope Deposition, P. 63, L. 18 through P. 64, L. 14). The preconstruction minutes make reference
to a goal of less than 30-day intervals to pay St. Clair. (Deposition Exhibit #4; Strope Deposition,
P. 71, L. 10 through P. 73, L. 11). Shortly after the preconstruction conference, Mr. Strope advised
the City Council the contractor's concern that if it takes more than 30-days to be paid, it may not be
able to continue to work. (Deposition Exhibit #7; Strope Deposition, P. 76, L. 7 through P. 77, L.
3). Mr. Strope advised the council that they have no problem paying in a timely manner. (Deposition
Exhibit #7; Bates Page 1000019-1000020).
B) Approved Pay Applications 5 & 6 Totaled over $1.1 million.
Mr. Strope reported to the City Council on October 13, 2000, by correspondence which is
Deposition Exhibit #36. (Strope Deposition, P. 260, LL. 2-19; Deposition Exhibit #36). Mr. Strope
reported that "...it is apparent the contractor will not meet the November 2, 2000, contract date."
(Deposition Exhibit #36; Bates No. 1002093). The four options Mr. Strope communicated to the
council included (1) continue to make payments, (2) plan for winter shutdown, (3) cause J-U-B to
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SUPPORT OF MOTIONS FOR
PARTIAL SUMMARY JUDGMENT
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withdraw its pay recommendation, or (4) terminate St. Clair's contract. (Deposition Exhibit #36;
Bates No. 1002093). Mr. Strope told the council that if the City withholds funds, it is "highly likely"
the contractor will cease work. Id.
As of December 1, 2000, St. Clair had not been paid for any work performed since
September 1. 2000. (Three months!) As of November 16, 2000, over $1.1 million had been
previously approved for payment by Mr. Uranga. (Strope Deposition, P. 276, L. 4 through P. 277,
L. 10). Approved Pay Application #5 in the amount of $385,946.02 and #6 in the amount of
$74.1,778.48 had been sent by Mr. Uranga to the City. Id. Pay Application #6 (Exhibit #38), by its
terms was for work done through November 2, 2000, and the contractor continued working and
expending his resources thereafter into December.
C) The City Withheld Payment.
On December 4, 2000, J-U-B revised its previously approved pay recommendation from
$1,127,724.50 to $294,233.35, and suggested that the City consider yet additional withholdings from
St. Clair's payment. (Deposition Exhibit #44; Strope Deposition, P. 280, L. 24 through P. 284, L.
24). Also on December 4, 2000, the City issued Exhibit #45, paying St. Clair $207,338.01, and
withholding $920,386.49 in previously approved Davments to St. Clair. (Deposition Exhibit #45;
Id.). The City told its funding agency, Bureau of Reclamation (BOR), they were sending the
$920,386.49 back to them. (Strope Deposition, P. 299, LL. 1-25; Deposition Exhibit #46). Mr.
Cleverley's December 4, 2000, diary provided in part that "Randy Rogers (St. Clair's man) says they
are shutting down because of City not releasing money." (Cleverley Deposition, P. 173, L. 17
through P. 174, L. 7). The entry goes on to say that "St. Clair may have got the message today when
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talking to Strope." (Cleverley Deposition, P. 183, L. 25 through P. 185, L. 16).
5) The Citv's Payment Withholding Violated Various Contract Provisions. and the
City was in Default.
A) Events Leading to the Pay Withholding are Established by the Record.
As of December 4, 2000, the interior of the sewage effluent reservoir was coated with over
20-acres of a black plastic -like substance known as "geomembrane liner" and described within
Deposition Exhibit #3 as Bid Item #19. (Affidavit of Randy St. Clair, ¶9; Deposition Exhibit #3).
Bid quantities for Item #19 were 925,090 square feet at $0.46 per foot for a bid price of $421,740
for this work. (Deposition Exhibit #3, Bid Item #19). By the end of November, 2000, the entire pond
was covered with the liner. (Affidavit of Randy St. Clair, ¶9). A review of the Project Manual
reveals that technical specifications for geomembrane liner are contained within TS02227; quality
control tests are described within Section 2.4, page 6 and Section 3.3, pages 9 and 10 of TS02227.
(Deposition Exhibit #3). J-U-B observed Serrot doing this quality control testing as the work was
being performed. (Cleverley Deposition, P. 193, L. 11 through P. 196, L. 7). Prior to withholding
payment from St. Clair, J-U-B's construction observer told Mr. Wagner and Mr. Uranga that the
quality control testing on the liner had been done all along. Id
On December 1, 2000, Mr. St. Clair advised Mr. Uranga and Mr. Strope that Serrot could not
do its "final inspection" because the liner was covered with snow and ice:
"...(Tlhe entire pond must be visually inspected and it is impossible to do
unless all snow and ice were removed from the entire liner system. Without final
inspection of the entire lining systems for damage and incomplete work, there would
be no way to assure final quality. The visual inspection of the entire liner surface and
seams is required per Specification Section 02227-3.3 A & B.
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Notwithstanding the personal safety issues, under the current conditions at the
site, Serrot can no longer assure the quality of any work to be performed.
Please inform us which way you would like us to proceed...."
(Deposition Exhibit #42; emphasis added; Affidavit of Randy St. Clair, ¶10; Strope
Deposition, P. 279, L. 15 through P. 280, L. 8).
Also on December 1, 2000, the City issued a letter to St. Clair and Wausau that it was
considering a contractor default. (Strope Deposition, P. 280, LL. 12-21). The reasons for the City
considering default were the same reasons for which St. Clair's contract was later terminated. Id.
As discussed in more detail below, the reasons purporting to support contract termination were
substantially all related to a failure to maintain the original schedule. (See pages 18-19 of this Brief).
As established above, however, St. Clair was acknowledged to be entitled to more time. (See pages
6-8 of this Brief).
B) Contract Documents and Course of Performance Establish that the
Contractor is Entitled to Payment for Partially Completed Work Based
on a Percentage of Completion.
A review of the Project Manual reveals that its measurement and payment section is
contained within Technical Specification 01025. (Deposition Exhibit #3). Section 1.4 of TS01025
contains a general description of measurement and payment. Among other things, this contract
section provides:
"1.4 GENERAL DESCRIPTION OF MEASUREMENT AND PAYMENT
* * *
D. Partial payment for unit price bid items and lump sum bid items only
partially completed at the end of monthly pay periods shall be made
based upon the Engineers interpretation of the percentage of work
completed. Partial payment for materials delivered and stored will be
considered, if said materials have been submitted to the Engineer, for
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review per Section 01300, and supporting invoices and
documentation have been provided."
The engineer's original interpretation of the foregoing measurement and payment section is
established of record. For example, payment for items such as pipe installation was paid based upon
a percentage of completion of installed pipe, even though that pipe had not been tested by quality
control testing. (Wagner Deposition, P. 413, L. 19 through P. 414, L. 5; Affidavit of Randy St. Clair,
¶11).
Furthermore, after Wausau took over the work, payment for liner installation was made based
on a percentage of completion as contemplated by TS01025, 1.4-D, even though all the repairs and
the final walk through inspection had not been completed. (Uranga Deposition, P. 295, L. 18 through
P. 299, L. 13; Deposition Exhibit #61; Affidavit of John Eigler, ¶3).
C) The Basis of and Calculations Behind J-U-B's Withdrawal of Its Pay
Recommendation is Established of Record.
As authenticated above, Deposition Exhibit #44 is J-U-B's letter withdrawing its pay
recommendation and Deposition Exhibit #45 is the City's letter withholding $920,000 from St.
Clair's payment. J-U-B's calculation behind the amount of the reduction of its pay recommendation
is set forth within Exhibit #94. Exhibit #94 was prepared by George Wagner and Matt Uranga
(Wagner Deposition, P. 301, LL. 13-25). Exhibit #94 is the original calculation supporting the
December 4, 2000, revision of Mr. Uranga's pay recommendation. (Uranga Deposition, P. 317, L.
19 through P. 322, L. 17). Exhibit #94 is the best copy we have of the original document. (Wagner
Deposition, P. 336, L. 17 through P. 337, L. 2). Other calculations were prepared by J-U-B after the
pay recommendation was withdrawn, but Exhibit #94 was the only calculation for revision of
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payment prepared before the pay recommendation was withdrawn in Exhibit #44. (Wagner
Deposition, P. 448, L. 25 through P. 449, L. 25).
Exhibit #94 is important as it shows the calculation behind the pay revision. The first page
of Exhibit #94 is notes of a meeting with Mr. Uranga and Mr. Wagner. (Wagner Deposition, P. 209,
LL. 18-21). The remainder ofExhibit #94 is Pay Estimate #6 (the last approved pay estimate), which
was used by Mr. Wagner and Mr. Uranga to determine a cost to complete. (Uranga Deposition, P.
318, L. 5 through P. 322, L. 10). The last page of Exhibit #94 contains a 150% increase in the total
of Mr. Uranga and Mr. Wagner's estimated cost to complete the various bid items, to account for
the cost of the work if it had to be performed in winter conditions. Id.
The increase in the $1,096,000 cost to complete is also shown on page one of Exhibit #94,
wherein the $1,096,000 cost to complete is increased by a 1.5 contingency to $1,644,000. (Wagner
Deposition, P. 219, L. 16 through P. 221, L. 21). The increased cost to complete of $1,644,000 is
then subtracted from the remaining unpaid contract price which the city held "available to complete"
to net a proposed "additional reduction in pay estimate" of $221,196. (Exhibit #94, P. 1).
The additional sum of $306,491 [the identical amount (less 5% retainage) previously
approved for payment for liner in Pay Estimate #6, Bid Item #19, Exhibit #38] is then added to the
$221,196 reduction to net a total pay reduction of $527,687, the same amount identified within the
pay revision letter Exhibit #44 (Exhibit #94, P.1; Exhibit #44; Wagner Deposition, P. 219, L. 16
through P. 221, L. 21; P. 225, L. 3 through P. 227, L. 3).
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D) J-U-B Did Not Pay for Liner Based on a Percentage of Completion, and
Withheld Multiple Times the Value of the Liner from St. Clair's
Payment.
In revising the pay recommendation, J-U-B improperly subtracted amounts for completion
of the geomembrane liner four different ways, resulting in multiple withholdings.
First, as described above, J-U-B included in its calculation of Exhibit #94 a cost to complete
the project (including liner) of $1,096,000.
Second, as described above, that cost to complete the liner was increased by a factor of 150%,
and used to reduce the amount of J-U-B's prior approval of Pay Applications #5 and #6.
Third, the previously approved payment for the liner (net of 5% retainage) of $306,491 was
included in a reduction of the pay recommendation totaling $527,687; this same amount was
included in Exhibit #44 as a reduction of $527,000 in the pay recommendation.
Fourth, Exhibits #44 and #45 showed yet another reduction of the same previously approved
liner amount of $306,491 (net of retainage).
In sum, J-U-B subtracted from St. Clair's payment a "cost to complete" the liner, an
additional markup contingency of 150% of the cost to complete, the previous payment authorized
of $306,491, and yet another identical amount of $306,491. The resulting amount held by the City
to pay for the liner would necessarily have been far more than the original bid price for the liner, and
this is so even though all the liner had been installed and nearly completed, and despite the fact that
a 100% performance bond existed, and despite 5% retainage already withheld in addition to these
sums.
Not only was the contractor deprived of payment for liner based on a percentage of
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completion, but the value of the liner was subtracted from the payment multiple times!
E) St. Clair Stopped Work for Nonpayment; the City Pays Another
$370,395.34.
When the City withheld $920,000 from St. Clair's payment, it couldn't pay its bills and
couldn't afford to continue working had that been possible through the McCall winter. (Affidavit
of Randy St. Clair, ¶13). Mr. St. Clair's entire business was in serious financial jeopardy. Id. St.
Clair representative, Randy Rogers, advised J-U-B that St. Clair was shutting down due to the City
not releasing money. (Cleverley Deposition, P. 173, L. 17 through P. 174, L. 7). Wausau received
and paid payment bond claims from Mr. St. Clair's unpaid subcontractors and suppliers ultimately
totaling over $1,182,000. (Affidavit of Judith Rheinschmidt, ¶5).
Even Mr. Strope acknowledges that good faith would require that the City not deduct the
same thing twice from the contractor's payment. (Strope Deposition, P. 158, LL. 3-9). Mr. Strope
expected St. Clair to stop work for nonpayment. (Strope Deposition, P. 297, L. 15 through P. 298,
L. 20).
By correspondence of January 31, 2001, the City ultimately acknowledged it had not paid St.
Clair what was due. The City paid St. Clair another $370,395.34 of the funds that had been
previously withheld. (Deposition Exhibit #51; Strope Deposition, P. 323, L. 17 through P. 328, L.
7). While reserving rights under the contract, Mr. Strope acknowledged that the sum of $370,395.34
was due and payable on January 31, 2001, and assumes it was due and payable prior to January 31,
2001. Id. This additional payment still did not include any payment based on any percentage of
completion for the liner. Id.
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6) The City Terminated St. Clair's Contract for Schedule Reasons and the City
was in Default.
When St. Clair received the payment of $370,395.34 sent to them on January 31, 2001, the
2
project was at least partially under snow. (Strope Deposition, P. 328, L. 8 through P. 330, L. 10).
3
4 Even if it had been good weather, Mr. Strope can't say whether it would have been reasonable to
5 expect them to remobilize their forces to the jobsite within the 5-days between the date of Mr.
6 Strope's payment letter and his subsequent termination letter. Id.
7 While Mr. Strope testified his additional payment of $370,395 was all that he thought was
8
due, he acknowledged in round numbers holding an additional $600,000 beyond what had previously
9
been approved for payment. (Strope Deposition, P. 330, L. 11 through P. 331, L. 7).
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11 The payment of $370,395 was issued on January 31, 2001, because of St. Clair's good faith
12 representation that it was willing to complete the project. (Deposition Exhibit #51; Strope
13 Deposition, P. 331, L. 8 through P. 332, L. 8). Mr. St. Clair responded with Exhibit #52, promising
14 to complete the project. (Deposition Exhibit #52; Strope Deposition, P. 326, LL. 8-111; Affidavit of
15
Randy St. Clair, 1114). Mr. Strope thought a letter of intended termination issued from the City
16
17 Attorney as early as February 2, 2001. (Strope Deposition, P. 331, L. 21 through P. 332, L. 8). When
18 asked what changed between the January 31 st date of payment of $370,395 and the termination
19 decision as little as two days later, Mr. Strope could only say "we made a decision...to terminate."
20 Id.
21
By correspondence from Mr. Strope dated February 5, 2001, the City terminated St. Clair's
22
rights under the contract, and with the required 7-day notice, the termination was effective on
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24 February 12, 2001. (Deposition Exhibit # 11; Strope Deposition, P. 158, L. 13 through P. 160, L. 19).
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The purported bases for the termination are admitted in the pleadings and acknowledged by
Mr. Strope. Paragraph 10 of the City of McCall's Answer and Counterclaim on page 3 admits that
the bases offered for the proposed termination were (1) a failure to adhere to the progress schedule,
(2) unauthorized stoppage of work, (3) failure to supply sufficient skilled workers and equipment,
(4) failure to complete within the time required by the contract, and (5) disregard of claim
procedures. (Answer and Counterclaim; Strope Deposition, P. 161, L. 24 through P. 168, L. 22).
Note that all of the foregoing justifications are schedule -based with the exception of #5,
failure to follow claims procedures. No one can seriously argue that a failure to follow claim
procedures, if it existed, is a substantial matter such as would justify termination. Even Mr. Strope,
the City's designated contract representative and the author of the termination letter (Deposition
Exhibit #11) cannot articulate any harm or loss by the failure to follow claim procedures. (Strope
Deposition, P. 166, L. 11 through P. 167, L. 20).
As to the schedule -based reasons for termination, recall that the City acknowledged St. Clair
was entitled to an extension of time, and that the work was delayed into a McCall winter. (See
discussion above at pages 7-8). Further, the City never did any schedule analysis to determine the
effect on St. Clair's schedule prior to termination. Id. St. Clair's contract was terminated for
schedule reasons without any schedule analysis of the effect of the acknowledged debris pits, the
acknowledged additional embankment, the abnormal September weather, or the delay of the project
into bad weather conditions.
As to stopping work, the City withheld almost $1,000,000 from St. Clair's payment! When
the City did so, they expected St. Clair to stop work. (Strope Deposition, P. 297, L. 15 through P.
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298, L. 20).
7) The Citv Tendered the Proiect to Wausau as Surety; Wausau Elected to
Complete Under Reservation of Rights.
After St. Clair's contract was terminated, the City Manager acknowledged that Wausau
elected to complete the work under a full reservation of rights. (Deposition Exhibits #56 and #57;
Strope Deposition, P. 344, L. 1 through P. 347, L. 17). Wausau reserved rights, giving the City
express notice that its principal St. Clair had claimed that the City was in default, and that Wausau
was thereby discharged from its performance bond obligations. (Deposition Exhibit #56).
The performance bond is contained within Exhibit #3 at page 00610-1 and 00610-2. Section
3 of the bond contemplates that the surety's obligations shall arise only "If there is no owner
default". The term "owner default" is defined within Section 12.4 of the bond as "Failure of the
Owner, which has never been remedied or waived, to pay the contractor as required by the contract,
or to perform or complete or comply with the other terms thereof." (Emphasis added).
Wausau's election to complete under reservation of rights was expressly made in reliance on
the City's resolution to pay Wausau in accordance with the terms of the contract. (Exhibit #57). That
resolution, contemplated by Section 3.3 of the performance bond, is Exhibit #60, and the City
recognized that Wausau's election to complete under reservation was expressly conditioned on the
agreement to pay. (Deposition Exhibit #60; Strope Deposition, P. 349, L. 14 through P. 350, L. 4).
8) The Proiect was Substantially Complete No Later Than June 11. 2001.
Without waiver of its other claims for time extension and breach by the City, it is established
that the project was substantially complete no later than June 11, 2001, when the project was put to
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use by the City. The issue is important in that the Article 4 of the Standard Form Agreement Between
Owner and Contractor (contained within the Project Manual Exhibit #3) contemplates liquidated
damages of $1,500 per day for every day that the project is not substantially complete. Thus far, the
City has charged liquidated damages since November 2, 2000, and still does not consider the project
substantially complete more than2 years later. (Strope Deposition, P. 350, LL. 15-25). The City used
the amounts withheld as liquidated damages to fund its construction. (Strope Deposition, P. 460, LL.
1-16).
Article 1 , § 1.01(43) of the General Conditions within the Project Manual (Deposition
Exhibit #3) defines substantial completion as follows:
"43. Substantial Completion - The time at which the Work (or a specified
part thereof) has progressed to the point where, in the opinion of ENGINEER, the
Work (or a specified part thereof) is sufficiently complete, in accordance with the
Contract Documents, so that the Work (or a specified part thereof) can be utilized for
the purposes for which it is intended. The terms "substantially complete" and
"substantially completed" as applied to all or part of the Work refer to Substantial
Completion thereof."
The "purposes intended" for the project were to (1) store treated effluent over the winter, (2) pump
that treated effluent to irrigators, and (3) stop the discharge of effluent into the river. (Strope
Deposition, P. 24, L. 2 through P. 25, L. 10). The "pumping to irrigators" contemplated the
construction of a 450 horsepower pump in a pump station, to pump the effluent out of the reservoir.
The original contract required substantial completion by November 2, 2000. (Wagner Deposition,
P. 184, L. 23 through P. 185, L. 8; Deposition Exhibit #3, Notice to Proceed).
The testing of the 450 hp pump was never originally intended to take place, however, until
the following year after scheduled substantial completion. (Deposition Exhibit #3, TS15160
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(3.5)(A)). As referenced above, Mr. Wagner lead the design team; he also was one of the engineers
who had the job of incorporating the General Conditions and modifying them with Supplementary
Conditions within the Project Manual. (Wagner Deposition, P. 112, L. 13 through P. 113, L. 13). Mr.
Wagner makes it very clear that the test work on the 450 hp pump originally contemplated in the year
2001 (the year after the originally scheduled substantial completion) would not be something for
which liquidated damages would have to be assessed. (Wagner Deposition, P. 186, L. 22 through
P. 191, L. 19). The project was originally intended to be ready for final payment on November 22,
2000, with the 450 hp pump test and liner test work to be done the next summer outside of any
liquidated damages deadline. Id.
As it happened, the project was not complete on November 2, 2000. Nonetheless, the City
of McCall put the project to beneficial use no later than June 11, 2001, and the acknowledged
"purposes intended" for the project were satisfied. (Strope Deposition, P. 378, L. 18 through P. 382,
L. 3; Deposition Exhibit #69). The reservoir received effluent as of June 1, 2000, and as of that date
the City stopped discharge of effluent into the river. Id. A 60 hp pump was used to pump water to
irrigators rather than the 450 hp pump designed. Id. Nonetheless, no liquidated damages were ever
associated with the testing of the 450 hp pump. Moreover, the City can articulate no damage or loss
by pumping with a 60 hp pump in lieu of a 450 hp pump in that irrigation season. (Strope
Deposition, P. 490, L. 9 through P. 491, L. 17). A 450 hp pump was installed later. It was not used
during that year because while testing the 450 hp pump, it sucked up a piece of hose; it was not
reasonably possible to test the pump to the full specification in 2001 anyway because of a lack of
effluent. (Affidavit of Jesse Prather, ¶4).
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9) The City Imurouerly Withheld Both Actual Delay Damages and Liquidated
Delav Damages from Wausau.
As referenced above, the City continues to charge liquidated damages to this date, despite
having beneficial use of the facilities. Deposition Exhibit #79, page 3, contains an accounting of
funds charged to Wausau in 2001. (Strope Deposition, P. 441, L. 4 through P. 449, L. 22). The
accounting within Exhibit #79 includes a charge to Wausau of all damages incurred by the City.
(Strope Deposition, P. 533, L. 20 through P. 535, L. 11).
As shown by Exhibit #79, the City charged both actual delay damages and liquidated delay
damages. The most glaring example is that the City charged $468,000 in liquidated damages, and
also charged $334,549.15 paid by the City to J-U-B Engineers for ongoing expense since the original
completion date. Note that at the time that Mr. Wagner originally prepared the general and
supplementary conditions for the construction contract (containing the liquidated damages clauses),
he anticipated that engineering and observation fees of J-U-B wold continue as an expense to the
City if the work was not timely completed. (Wagner Deposition, P. 281, L. 21 through P. 283, L. 16).
10) The Citv Caused or Contributed to Delay in Correction of Allegedly Defective
Work by Violation of the Contract Documents. and the Surety was Prejudiced.
A) A Description of the Primary Wet Well as Designed
The primary wet well is essentially a concrete pipe about 60 feet long and 8 feet in diameter,
turned on end so that it is placed vertically, and buried in the dike embankment; the bottom of the
wet well has a concrete floor which is approximately 60 feet deep in the ground, and the top of the
wet well is at the top of the dike embankment. (Affidavit of Randy St. Clair, ¶15). The wet well is
connected to the effluent storage reservoir by three inlet pipes of 24" diameter, one near the bottom
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of the wet well, one near the middle of the wet well, and one nearer the top of the wet well; the
intersection of each inlet pipe with the wet well is referred to as a "penetration"; (e.g. "lower
penetration"; "middle penetration"; "upper penetration"). Id. At each penetration on the exterior
of the well the design called for a "thrust restraint", which consists generally of a metal pipe collar
embedded in concrete. Id. The water from the reservoir passes through the inlet pipes into the wet
well, where a pump discharges the effluent to an irrigation facility. Id A drawing of the wet well
contained in the project plans is Exhibit "D" to the Affidavit of Randy St. Clair.
B) J-U-B Engineers, Inc. Observed and Photographed Underground
Construction Without Notice of Defective Work
i) Work on the lower penetration thrust restraint.
The lower penetration thrust restraint was constructed on September 16, 2000, in a location
now 60 feet underground. (Affidavit of Randy St. Clair, ¶15; Deposition Exhibits #104 and #105).
During construction, J-U-B's onsite representative, Galen Cleverley, communicated with J-U-B's
project engineer, Matt Uranga, who authorized verbal changes in the method of construction of the
thrust restraint. Mr. Uranga told Mr. Cleverley that it was acceptable to construct the thrust restraint
by attaching bolts to the "flange" or "thrust collar". (Uranga Deposition, P. 117, L.12 through P.
125, L. 7). Mr. Cleverley confirms that Mr. Uranga authorized the connection by bolts attached with
nuts to the cut -down flange. (Cleverley Deposition, P. 124, L. 16 through P. 126, L. 13). Mr.
Cleverley confirms he told the contractor that the use of the bolts was acceptable. (Cleverley
Deposition, P. 126, L. 14 through P. 128, L. 11).
The contractor made the attachment with the bolts, and Mr. Cleverley observed the
construction and took a nhotoeranh of it. (Deposition Exhibit #105; Cleverley Deposition, P. 128,
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L. 12 through P. 129, L. 4; P. 241, LL. 1-16). Mr. Cleverley saw what he thought was a deviation
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from what Mr. Uranga authorized in that there were welds where the bolt attached to the flange.
2 (Cleverley Deposition, P. 138, LL.10-22). Mr Cleverley does not know if there were nuts attached
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to the bolts. (Cleverly Deposition, P. 130, LL. 8-13). Mr. Cleverley did not notify the contractor he
thought the work was defective by reason of the welds or otherwise. (Affidavit of Randy Rogers, ¶2).
Mr. Cleverley did ask "why they did that" and was told they had to cut down the flange to fit
through the hole. (Cleverley Deposition, P. 133, L. 19 through P. 134, L. 23). Mr. Cleverley never
rejected any work that was thought to be defective. (Cleverley Deposition, P. 123, LL. 5-25). Not
until one year later (after the work had been encased in concrete and buried 60 feet deep) did Mr.
Cleverley advise the Project Engineer Mr. Uranga that he felt the work was done in violation of the
verbal authorization given by Mr. Uranga. (Cleverley Deposition, P. 135, L. 25 through P.137, L.
7). Mr. Cleverley had watched the contractor pour concrete around the assembly (Cleverley
Deposition, P. 144, LL. 11-25). The contractor thought he had complied with the instructions
verbally provided by Mr. Cleverley, and was never informed of any problem or alleged defective
work. (Affidavit of Randy Rogers, ¶2).
In any event, the work was not "defective" because the contractor did install nuts on the bolts.
(Affidavit of Sam Wiggins, ¶3). The assembly was encased in concrete and then buried 60 feet deep.
ii) Work on the middle penetration thrust restraint.
A thrust restraint was also constructed at the middle penetration of the primary wet well.
Photos of the work at the time it was being done were taken at the direction of Mr. Cleverley.
(Deposition Exhibits #99, #100 & #101; Cleverley Deposition, P. 236, L. 9 through P. 238, L. 8).
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No problem was noted with the work at the time it was done. (Affidavit of Randy Rogers, ¶ 2 & 3).
C) A Year Later the Engineer Reviewed Photos with a Magnifying Glass,
and Gave Notice that it Considered the Work Defective.
i) The lower penetration thrust restraint.
Although the work was photographed in the year 2000, Mr. Uranga discovered what he
thought was a problem with the lower penetration shortly prior to July 25, 2001, while examining
the previous year's project photos with a magnifying glass. (Uranga Deposition, P. 125, L. 21
through P. 126, L. 16; Deposition Exhibit #105). Mr Uranga's specific concern was that he thought
the bolts were welded and not attached with bolts. (Uranga Deposition, P. 125, LL. 10-20). This
is the same condition Mr. Cleverley observed and photographed on September 16, 2000. The photo
gave Mr. Uranga insufficient information to make a determination. (Uranga Deposition, P. 140, LL.
3-16). Upon inspection of the photos with a magnifying glass in July of 2001, Mr. Uranga
approached Mr. Cleverley and was informed that Mr. Cleverley's level of confidence with the welds
was "not high". (Uranga Deposition, P. 137, L. 11 through P. 140, L. 9).
ii) The middle penetration thrust restraint.
During the year after construction, and shortly prior to July 25, 2001, Mr. Uranga and Mr.
Wagner reviewed the photos of the middle penetration work taken the previous year (including
Deposition Exhibits #99, #115, and #107) to determine whether rebar required by specifications was
installed in the concrete thrust restraints which had been poured the previous year. (Uranga
Deposition, P. 336, L. 4 through P. 337, L. 25). They were not able to determine whether rebar was
installed, other than what the photos show. Id The work had been buried approximately 30 feet
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underground by the time the photos were reviewed.(Affidavit of Randy Rogers, ¶2). St. Clair had
not received any notice that the work was defective before the area was encased in concrete and
buried. Id.
In fact, St. Clair did install the required rebar in the concrete of the middle penetration.
(Affidavit of Sam Wiggins, ¶5).
iii) J-U-B directs additional work.
The City terminated St. Clair's contract in February 2001, and by March of 2001, Wausau
had elected to complete under a reservation of rights.
By correspondence of July 25, 2001, J-U-B Engineers declared the middle and lower
penetration thrust restraints defective and gave notice to Wausau of the alleged defective work.
(Deposition Exhibit #54; Wagner Deposition, P. 82, L. 21 through P. 84, L. 3). Mr. Wagner
testified these defects had just been identified when he sent the letters in 2001. Id. The alleged
defects were discovered by a review of photographs. Id. This was St. Clair Contractors and
Wausau's first notice of any such alleged defects. (Affidavit of John Eigler, ¶4; Deposition Exhibit
#9; Affidavit of Randy St. Clair, ¶15 & ¶16; Affidavit of Jesse Prather, ¶6). It wasn't possible to
view the thrust restraints because the work was wrapped in concrete and buried deep underground.
Id.
Five days later on July 30, 2001, George Wagner ofJ-U-B Engineers issued Directive 18 to
Wausau. (Wagner Deposition, P. 257, LL. 12-18). Among other things, Directive 18 required
Wausau to design and install supplemental thrust restraints because of the alleged defects discovered
by the photographs. (Wagner•Deposition, P. 265, L. 4 through P. 268, L. 4). It would have been
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a comparatively simple thing to address any alleged thrust restraint problems if prompt notice of
alleged defective work had been given at the time the work was at ground level on the exterior of
the wet well. (Affidavit of Randy St. Clair, ¶16; Affidavit of Randy Rogers, ¶3; Affidavit of John
Eigler, ¶4). Other completion work was delayed while the City of McCall constructed new thrust
restraints. (Affidavit of Jesse Prather, ¶6; Affidavit of John Eigler, ¶4). In the meantime, the City
purports to be charging liquidated damages to Wausau (St. Clair) for all the days of delay they
incurred, at the rate of $1,500 per day. The City also purports to charge Wausau (St. Clair) all the
expense of the work.
D) The City Representative Violated the Contract To the Prejudice of
Wausau.
None of the foregoing problems would have occurred if the City Representative had simply
followed the contract and given prompt notice of alleged defective work. (Affidavit of John Eigler,
¶4; Affidavit of Randy St. Clair, ¶15).
J-U-B Engineers was the owner's representative by contract. (Deposition Exhibit #3;
General Conditions, Section 9.01). J-U-B Engineers had contract authority to disprove or reject
work believed to be defective. (Deposition Exhibit #3; General Conditions, Section 9.06).
The Resident Project Representative (Mr. Cleverley) was required by contract to notify the
contractor whenever he believed the work to be defective. (Deposition Exhibit #3; Supplementary
Conditions, Section 9.03.C.5, p. 00810-6). More to the point here, the contract contained a timing
requirement for the giving of the notice of defective work. J-U-B Engineers, as the City's
representative, was required to give "prompt notice" to the contractor of work believed to be
defective. (Deposition Exhibit #3; General Conditions, Section 13.01). Prompt notice enables
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1
correction before underlying construction components are encased in concrete and buried.
Failure to provide prompt notice worked a prejudice to Wausau as surety.
11) Wausau Did Not Interfere with Interwest's Contract with St. Clair; Interwest
Ratified Its Completion Contract with Wausau.
After the City withheld payment from St. Clair, one of St. Clair's subcontractors who made
payment bond claims against Wausau was Interwest Supply. (Affidavit of Judith Rheinschmidt, ¶6).
Interwest's payment bond claim letter alleged that the City had defaulted in its obligations to St.
Clair, and in turn, St. Clair had defaulted in its payment obligations to Interwest Supply. (Id.; Exhibit
"0"). St. Clair Contractors later confirmed to Wausau that the sum of $292,743.23 was due to
Interwest Supply. (Affidavit of Judith Rheinschmidt, ¶5; Exhibit "E"). On March 15, 2001, Judith
Rheinschmidt sent payments totaling this amount to Interwest' s attorney (some of the payments were
made in two-party checks to Interwest and its sub -subcontractors). (Affidavit of Judith
Rheinschmidt, ¶6). Interwest provided a release of all payment claims to Wausau under the payment
bond. Id.
Wausau entered into a Completion Contract with Interwest on March 22, 2001. (Affidavit
of Judith Rheinschmidt, ¶8; Exhibit "S"). The Completion Contract required Interwest to provide
performance and payment bonds, which were provided without objection and signed by Interwest
April 1, 2001. (Affidavit of Judith Rheinschmidt, ¶9). Interwest began performance of the
Completion Contract, submitted payment applications under the Completion Contract to Wausau,
and Wausau paid Interwest well in excess of $1 million dollars for work under the Completion
Contract. (Affidavit of Judith Rheinschmidt, ¶10-12). Interwest never sought to avoid its contract,
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and the first notice Wausau had of any alleged interference or duress was when Interwest filed its
Answer and Counterclaim in this suit. Id.
ARGUMENT RELATED TO PARTIAL SUMMARY JUDGMENT
AGAINST THE CITY OF McCALL
(1) Wausau is discharged for nonpayment (a) under the terms of the bond, and (b)
by the City's breach of its underlying contract with St. Clair.
Section 3 of the performance bond provides that the surety's obligation under the bond arises
"[IN there is no owner default...." (Deposition Exhibit #3, Performance Bond, ¶3). Section 12.4 of
the bond expressly provides that the owner's failure to pay the contractor as required by the contract
is an act of owner default. (Deposition Exhibit #3, Performance Bond, ¶12.4). Wausau specifically
has no liability beyond the terms of the bond, and its liability may not be extended by construction.
Thompson v. United States Fidelity & Guaranty Co., 3 F.Supp. 756 (D. Idaho 1933). Subject to
additional suretyship defenses, the duties of a surety to an obligee are those arising out of the contract
creating the obligation (the bond). See Restatement 3rd Suretyship, §17(2) (1996).
Part of Wausau's bargained for consideration under the terms of the bond was that payment
would be made to its principal, St. Clair Contractors, under the terms of St. Clair's contract. Where
that consideration fails, Wausau is discharged. See. Andrus v. Zions First National Bank of Ogden,
99 Idaho 724, 588 P.2d 452 (1978). Additionally, a statutory bond such as this is governed by and
construed under the provisions of the statute. Bryant Motors. Inc. v. American States Insurance.
118 Idaho 796, 800 P.2d 683 (1990). In respect to the contractor payment, the statute requiring the
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bond (in this case, a bond of 100% of the contract price) expressly limits the ability of the City to
withhold retaina2e as security to 5% of contract price. Idaho Code §54-1926(3). "Retainage" is
"...security for protection against failure of completion." American Fire and Casualty Co. v. First
National Bank of N.Y.. 411 F.2nd 755, 758 (Pt Cir. 1969). The City's total payment withholding
in this case was closer to 38% of the earned portion contract price through Pay Estimate #6, despite
holding a 100% performance bond, and without accounting for the funds earned by St. Clair between
November 2, 2000, (the cut-off date of Pay Estimate #6 which is Exhibit #38) and December 4,
2000, (the date that St. Clair suspended work). [5% retainage was already held against the portion
of the contract price "completed and stored to date" under Pay Estimate #6, and the additional
$920,000 withholding increased the total to 38%.]
Wausau is not only discharged under the terms of the bond, but also by reason of the City's
material breach of the underlying contract with St. Clair. Obviously, a surety is authorized to assert
the defenses of its principal See, Restatement 3rd Suretvshin, §34(1). A discharge of the principal
contract discharges the surety. Twin Falls Livestock Commission Comnanv v. Mid-Century
Insurance Company, 117 Idaho 176, 786 P.2d 567 (Idaho App. 1989). A material breach by the
City will excuse St. Clair's contract performance. J.P. Stravens Planning Associates. Inc. v. City
of Wallace, 129 Idaho 542, 928 P.2d 46 (App. 1996). Ordinarily, materiality of a breach is a question
of fact. Tentinger v. McPheters, 132 Idaho 620, 977 P.2d 234 (App. 1999).
Substantial performance is the antithesis of material breach. UJDUR v. Thompson, 126
Idaho 6, 878 P.2d 180 (App. 1994). The question of whether performance is substantial is one of
degree, to be answered by the trier of fact if there is doubt, but "...if the inferences are certain, by
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Judges of the law." Supra at 126 Idaho 183, quoting Jacobs & Youngs v. Kent, 129 N.E. 889, 891
(1921) (Cardozo, J.). In UJDUR, supra, tender of only 90% of the full amount of the payment due
was a material breach.
"No other contract breach is more material to contractors...than unjustified nonpayment of
material amounts." Bruner & O'Connor, Construction Law, § 18:26, P. 959. "While it is true that
the addenda does not explicitly make the payment...a condition of performance, it goes without
saving that a construction contractor will not work without being raid." Martin Development Co.
v. Keeney Construction Co., 703 P.2d 143, 146 (Mont. 1985); (emphasis added). Failure to pay a
construction installment has been expressly ruled "...a constructive eviction of [the contractor] from
the premises and a material breach of the contract." Ervin Construction Co. v. Van Orden, 125
Idaho 695, 701, 874 P.2d 506, 512 (1993).
In this case, the City admitted numerous failures in its obligation to pay St. Clair. Those
failures are summarized as follows:
(A) The City's $920,000 withholding on December 4, 2000:
(i) Exceeded the 5% retainage limitation of I.C. §54-1926(3) by withholding a
total of 38%, despite the City's performance bond in an amount equal to
100% of the original contract price, despite the contractor's unpaid work
from November 2, 2000, to December 4, 2000, and despite the fact that most
of the project had already been constructed;
(ii) Included withholdings of multiple times the value of geomembrane liner
work which had nearly been completed;
(iii) Was done with the knowledge and expectation that St. Clair would not be
able to continue working; and
(iv) Included withholding of over $370,000 later acknowledged by the City to
have been due and payable.
(B) The City obviously paid nothing for the geomembrane liner based on a percentage
of completion as required by the contract.
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(C) The City paid nothing for the excavation of debris pits.
(2) Wausau is discharged by the City's (a) rejection of St. Clair's tender of
performance, and (b) termination of St. Clair's right to complete the contract.
As set out above, St. Clair suspended work for nonpayment on the City's withholding of
$920,000 on December 4, 2000. (St. Clair had not been paid for any of the work it had completed
since September 1, 2000). The City Manger later acknowledged that at least another $370,395 was
due and payable, and that sum was paid to St. Clair on January 31, 2001. St. Clair responded on
January 31, 2001, with a promise to complete the work prior to the new regulatory deadline of June
1, 2001. (Deposition Exhibit 52). The City replied as little as two days later with a notice that St.
Clair's contract would be terminated.
If St. Clair was justified in suspending work for nonpayment on December 4, 2000, (as might
clearly be inferred from the City's subsequent payment of over $370,000 acknowledged to have been
due), then the City's subsequent termination of this contract for failure to maintain the original
schedule must be equally unjustified. It requires no citation of authority that an unjustified contract
termination is a material breach and discharge. Similarly, it has long been established that a refusal
of a principal's tender of performance discharges both principal and surety. See, Restatement of
Surety, §116 (1941); see, Restatement 3'd Suretyship, §46 (1996).
(3) Acknowledged contributions to project delay by conduct not authorized under
the contract prohibits the City from assessing liquidated damages.
Even if the surety were not discharged, the City acknowledges that it failed to provide the
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contractually required "prompt" notice of observed alleged defects. J-U-B's belated notice of defects
the ensuing year, (based on a magnified review of photographs they took the preceding year) is
extraordinary! As a matter of law, the City cannot assess liquidated damages where it contributed
to the delay by the failure to perform some duty it agreed under the contract (such as providing
"prompt" notice of alleged observed defects). Citv of Idaho Falls v. Beco Const. Co., Inc., 123
Idaho 516, 850 P.2s 165 (1993). Certainly, to the extent delay damages are claimed, the City's
failure also worked a prejudice to Wausau as surety. See, Ore -Ida Products. Inc. v. United Pacific
Insurance Co.. 87 Idaho 185, 392 P.2d 191 (1964).
(4) In any event, substantial completion was achieved by June 11, 2001, and the
City could not charge liquidated damages thereafter for the alleged failure to
achieve substantial completion.
Even ifthe City could claim liquidated damages for failure to achieve substantial completion,
such damages could not be assessed after June 11, 2001. The City Manager (the City's contract
representative) admitted that the intended purpose ofthe project was achieved by that date, satisfying
the contractual definition of substantial completion. (Deposition Exhibit #3; General Conditions,
§1.01(43)). Although the 450 hp pump was not operating by June of 2001, Mr. Wagner of J-U-B
(the man who put together the Project Manual) admits that no liquidated damages were ever intended
to be associated with the 450 hp pump.
(5)
The City violated the law and its own contract by charging both actual and
liquidated delay damages.
Even if Wausau had an obligation under the performance bond, the City breached its
reciprocal obligation to pay Wausau. It is undisputed that the City assessed both actual and liquidated
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delay damages for the failure to substantially complete the contract by November 2, 2000, and
deducted both types of damages from Wausau's pay requests. It requires no citation of authority that
liquidated damages for delay are a substitute for actual damages for delay, and cannot be assessed
as a penalty in addition to actual damages. See, Graves v. Cuoic, 75 Idaho 451, 272 P.2d 1020
(1954). Section 6 of the performance bond, if applicable, does identity various damages for which
the surety may be responsible, but only "...without duplication." (Deposition Exhibit #3;
Performance Bond §6).
Iv.
ARGUMENT RELATED TO PARTIAL SUMMARY JUDGMENT
AGAINST ST. CLAIR CONTRACTORS. INC.
Wausau has pled various indemnity claims against its indemnitor, St. Clair Contractors, Inc.,
and various individual members of the St. Clair family. These indemnity claims include expense
incurred by Wausau in payments to payment bond claimants, expenses incurred under its Completion
Contract with Interwest Supply, and interest, costs, attorney fees and the like.
Wausau's motion for partial summary judgment against St. Clair Contractors addresses only
the principal amount paid by Wausau to St. Clair's subcontractors and suppliers who were payment
bond claimants. These claims arose when the City withheld almost one million dollars from amounts
previously approved for payment.
St. Clair Contractors has admitted paragraph 8 of Wausau's Complaint, which identifies the
Indemnity Agreement attached to Judith Rheinschmidt's Affidavit. St. Clair Contractors, Inc. and
the individual St. Clair defendants are signatory to the Indemnity Agreement. Among other things,
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the Indemnity Agreement entered into between St. Clair Contractors Inc. and Wausau provides as
follows:
"The indemnitors will indemnity the surety against any and all liability, loss,
cost, damages, fees of attorneys or other expenses which the surety may sustain or
incur by reason of or in consequence of the execution of such bonds or any renewal,
continuation, or successor thereof, including but not limited to, sums paid or
liabilities incurred in settlement of or expenses paid or incurred in connection with
claims, suits or judgments under such bonds...."
(Indemnity Agreement, ¶2, Exhibit "A" to Judith Rheinschmidt Affidavit; Exhibit A to Complaint).
As referenced in more detail in the Affidavit of Judith Rheinschmidt, it is undisputed that the
following amounts were paid, and that the following amounts were paid only after receiving written
confirmation of amounts due directly from St. Clair. (Affidavit of Judith Rheinschmidt,¶ 5, 6;
Exhibits D through N).
Gran Del Petroleum $50,093.01
CESCO $61,631.70
Modern Machinery $22,948.81
Western States Equipment $157,325.95
Serrot International, Inc. $423,745.28
Valley Paving & Asphalt $22,276.69
Water & Waste Water Equipment $64,440.64
Clearwater Contracting $54,756.00
Interwest (& Benchmark) $65,461.47
Interwest (& Custom Electric) $71,523.79
Interwest (& Layne of Idaho) $48,643.66
Interwest Supply, Inc. $107,114.31
Wheaton Equipment $12,223.37
Center Lane Construction $20.184.32
TOTAL $1,182,369.00
Clearly, Wausau is entitled to partial summary judgment in the amount of $1,182,369.00.
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Interest accruing on this amount, as well as other claims for indemnity, will be in amounts identified
at trial.
IV.
ARGUMENT RELATED TO PARTIAL SUMMARY JUDGMENT
AGAINST INTERWEST SUPPLY. INC.
(1) Interwest's claim of interference with contract fails as a matter of law.
Interwest cannot prove the requisite elements of its claim of interference with the contract
against Wausau; thereby compelling summary judgment. To successfully prove a claim of
interference with contract, Interwest must establish that, "1) there was a contract in existence; 2) the
defendant knew of the contract; 3) the defendant intentionally interfered with the contract, causing
a breach; and 4) injury to the plaintiff resulted from the breach. Magic Valley Truck Brokers. Inc.
v. Meyer. 133 Idaho 110, 116, 982 P.2d 945, 951 (Ct. App. 1999); Barlow v. International
Harvester Co.. 95 Idaho 881, 552 P.2d 1102, 1114 (1974). In the case at bar, Interwest alleges:
"Wausau's failure to pay Interwest the amounts due under the Subcontract unless and
until Interwest entered into the Completion Contract with Wausau constituted an
interference with Interwest's Subcontract with St. Clair."
Interwest's Answer, Counterclaim and Crossclaim of Interwest Supply and Developers
Surety, ¶13.
Although Wausau denies the foregoing allegation, summaryjudgment is appropriate. To be
actionable, Interwest must prove that Wausau intentionally interfered with the contract entered into
between Interwest and St. Clair Contractors, causing a breach of that contract. Ostrander v. Farm
Bureau Mut. Ins. Co. of Idaho. Inc., 123 Idaho 650, 654, 851 P.2d 946, 950 (1993); see also,
Thomas v. Medical Center Physicians, 61 P.3d 557, 564 (Idaho 2002); ["It is clearly established
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that a party cannot tortiously interfere with his own contract."]
Interwest does not assert that its contract with St. Clair Contractors was ever breached and
it has not pursued such a claim against St. Clair Contractors, Inc. Instead, it alleges that upon St.
Clair Contractor's termination from the project, St. Clair owed Interwest money on its subcontract
and, as St. Clair's surety, Wausau then became obligated to pay Interwest for said amounts. Interwest
then included a breach of contract action, in addition to the claim for interference with contract,
against Wausau for "failure to pay Interwest pursuant to the payment and performance bonds
procured by St. Clair. See, Interwest's Answer, Counterclaim and Crossclaim of Interwest Supply
and Developers Surety. However, a party cannot tortiously interfere with its own contract so any
allegations of Wausau failing to make payment bond payments as surety cannot equate to a claim
for interference with an underlying contract. See, Thomas v. Medical Center Physicians. 61 P.3d
557 (Idaho 2002). Without the element ofbreach of contract being established, the interference with
contract claim cannot survive and summary judgment on this issue should be granted.
In addition to the need for a breach of contract to exist between St. Clair and Interwest, it
must be Wausau's interference that caused the breach. Ostrander. 851 P.2d 946. . If a breach of
contract between Interwest and St. Clair Contractors did occur, then the only possible basis of the
breach was for St. Clair's failure to pay Interwest on its subcontract. Any such failure, however,
would have been the result of the City ofMcCall's withholding money from St. Clair and, ultimately
terminating St. Clair and would have nothing to do with any action taken by Wausau. (Affidavit
of Judith Rheinschmidt, ¶4, 5). This concept was admitted by Interwest in a letter dated January 22,
2001, which asserted:
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"This firm represents Interwest Supply, Inc., which has not been fully paid for the
labor and materials it has provided on the McCall J-Ditch Phase 2 Project (the
"Project"). You are hereby notified that the City of McCall, Idaho, for whom you
became surety under the above referenced Bond, had defaulted in the performance
of its obligation to St. Clair Contractors, Inc., the general contractor on the
Project, thereby causing the general contractor's default in the performance of
its obligations to Interwest Supply, Inc."
(Affidavit of Judith Rheinschmidt, Exhibit "O"); (emphasis added).
Since Wausau did not cause any breach of contract between Interwest and St. Clair
Contractors it cannot be liable for interference with contract. Furthermore, Interwest cannot prove
the requisite element of injury as Wausau paid Interwest the full amount it claimed was owed by St.
Clair prior to the time it entered into the completion contract with Wausau. (Affidavit of Judith
Rheinschmidt, ¶5, 6, 8). Accordingly, the undisputed facts establish that Interwest's claim of
interference with contract is without merit and that it fails as a matter of law.
(2) Interwest voluntarily entered into the Completion Contract with Wausau and
then reaped the benefits of the contract such that Interwest's claims of duress
are without merit and said claims should be dismissed.
In both its Answer and Counterclaim, Interwest asserts that the Completion Contract it
entered into with Wausau was executed under duress. It is well settled in Idaho that to establish
actionable duress, a party must prove by clear and convincing evidence that (1) it involuntarily
accepted the terms of another; (2) that circumstances permitted no other alternative; and (3) that said
circumstances were the result of coercive acts of the opposite party. Isaak v. Idaho First Nat'l Bank,
119 Idaho 988, 989, 812 P.2d 295, 296 (Ct. App. 1990), citing Lomas & Nettleton Co. v. Tiger
Enterprises, 99 Idaho 539, 585 P.2d 949 (1978). In the case at bar, the undisputed evidence
establishes that Interwest Supply actively pursued and voluntarily entered into the Completion
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Contract. Moreover, even if coercion existed, Interwest ratified the contract, and thus is prohibited
from pursuing a claim of duress.
i) Interwest had an available alternative to signing the contract.
Among the requisite elements of proving unlawful duress is the requirement that Interwest
must prove that it had no alternative to entering into the Completion Contract. Isaak, 812 P.2d at
296. Such an endeavor is impossible given the fact that Wausau paid Interwest the full amount
claimed under the payment bond prior to Interwest entering into the completion contract so that there
were no unpaid funds for which Wausau could threaten to withhold. (Affidavit of Judith
Rheinschmidt, ¶5, 6, 8). The elimination of the alleged threatened act removes any notion of duress
and certainly allowed Interwest to "just say no" to the Completion Contract. Given the viability of
this option, Interwest's claim of duress fails as a matter of law. Isaak, supra,119 Idaho at 989, 812
P.2d at 296.
Likewise, even if Wausau did withhold funds under its payment bond, Interwest could have
chosen to reject the Completion Contract and simply file suit. Although such a course of conduct
may not be an attractive option to Interwest, the exercise of this legal action is considered an
available alternative which extinguishes any future claim of duress. Isaak v Idaho First Nat'l
Bank, 119 Idaho 907, 811 P.2d 295 (1991); Clearwater Construction & Engineering. Inc. v.
Wickes Forest Industries, 108 Idaho 132, 134, 697 P.2d 1146, 1148 (1985). Since other alternatives
were available to Interwest, it cannot establish the requisite elements of duress. Accordingly,
summary judgment is appropriate.
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ii) Interwest ratified the terms of the Completion Contract and, thus is
precluded from claiming duress.
Interwest remained silent as to any claim of duress until after Wausau filed suit, performed
work under the terms of the Completion Contract, and received payment for those services.
(Affidavit of Judith Rheinschmidt, ¶10, 11, 12). This conduct equates to the ratification of the
allegedly coerced contract and prohibits the claim of duress. As noted by the Idaho Supreme Court:
"A contract entered into under duress is not void, but merely voidable, and may be
ratified by subsequent acts of the party claiming duress. Mountain Electric Company
v. Swartz, 87 Idaho 403, 411, 393 P.2d 724, 732 (1964). Ratification results where
the party entering into the contract under duress intentionally accepts its
benefits, remains silent, or acquiesces in it after an opportunity to avoid it, or
recognizes its validity by acting upon it. Id.; see Annot., 77 A.L.R. 2d 426, 428
(1961) and cases cited therein. See also Restatement (Second) of Contracts 380,
381 (1981); (emphasis added).
Clearwater Construction & Engineering. Inc. v. Wickes Forest Industries, 108 Idaho 132,
134, 697 P.2d 1146, 1148 (1985).
In Clearwater, the Idaho Supreme Court found ratification (as a matter of law) when the
defendant contractor executed a contract, moved onto the construction site and began work under
the contract, and failed to claim unlawful duress until the time it filed suit. Id.
Like the contractor in Clearwater, Interwest entered into the Completion Contract, performed
work under the terms of the contract, accepted payments for services performed under the contract,
and failed to allege duress until it filed its Answer and Counterclaim to Wausau's lawsuit. Such
action certainly qualifies as ratification as defined in Clearwater. Thus, even if Interwest was able
to prove all the elements of unlawful duress, its cause of action still fails as a matter of law since
Interwest ratified the Completion Contract.
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V.
CONCLUSION
For the above -stated reasons, Wausau respectfully requests this Court grant its motions for
partial summary judgment.
DATED this 16t day of April, 2003.
CLARK,e nd FEENEY
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PARTIAL SUMMARY JUDGMENT
By
Ron 1'. Illewett, a member of the firm.
Attorneys for Plaintiff
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I hereby certify on the l U
day of April, 2003, a true copy
of the foregoinstrument
was: Mailed
Faxed
Hand delivered
Overnight mail to:
Ms. Susan E. Buxton
Moore, Smith, Buxton & Turcke, Chtd.
225 N. 96 Street, Suite 420
Boise, ID 83702
Mr. William A. McCurdy
Brassey, Wetherell, Crawford & McCurdy
1001 W. Idaho, PI Floor
P. O. Box 1009
Boise, ID 83701-1009
Mr. Geoffrey J. McConnell
Mr. Paul Boice
Meuleman & Miller, L.L.P.
960 Broadway Avenue, Suite 400
Boise, ID 83706
Mr. Kenneth D. Nyman, Esq.
Anderson, Julian & Hull
250 S. 5`11, Suite 700
P. O. Box 7426
Boise, ID 83707
Mr. David Kerrick
David Kerrick & Associates
1001 Blaine Street
P. O. Box 44
Caldwell, ID 83606
CLARK and FEENEY
By
Attorneys for Plaintiff
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