BAIRD TREE CO., INC. v. City of Oak Ridge

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
March 10, 2010 Session

BAIRD TREE COMPANY, INC. v. CITY OF OAK RIDGE, ET AL.

Appeal from the Circuit Court for Anderson County
No. A7LA-0505 Donald R. Elledge, Judge

No. E2009-01094-COA-R3-CV - FILED APRIL 26, 2010

In 2004, Baird Tree Company, Inc. (“Baird Tree”) unsuccessfully bid on a tree trimming and
removal project with the City of Oak Ridge (“Oak Ridge”). Baird Tree filed a lawsuit
claiming, inter alia, that Oak Ridge’s bidding process violated the Tennessee Trade Practices
Act, Tenn. Code Ann. § 47-25-101. We affirmed the Trial Court’s grant of summary
judgment to the defendants because the contract at issue was a contract for services, not
goods, and, therefore, the Tennessee Trade Practices Act did not apply. We also concluded
that Baird Tree could not challenge the bidding process because it had failed to submit a
valid bid in the first place. See Baird Tree Co., Inc. v. City of Oak Ridge, No. E2007-01933-
COA-R3-CV, 2008 WL 2510581 (Tenn. Ct. App. June 24, 2008). When the same project
came up for bid in 2007, Baird Tree again submitted a fatally defective bid. When it was not
awarded the contract, Baird Tree filed the present lawsuit raising various challenges to Oak
Ridge’s bidding process. The Trial Court granted summary judgment to all defendants. We,
again, conclude that Baird Tree does not have standing to challenge the bidding process
because it submitted a fatally defective “bid” in the first place. The judgment of the Trial
Court is, therefore, affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
Circuit Court Affirmed; Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J., and C HARLES D. S USANO, J R., J., joined.

David H. Dunaway, LaFollette, Tennessee, for the Appellant, Baird Tree Company, Inc.
Benjamin K. Lauderback, Knoxville, Tennessee, for the Appellees, City of Oak Ridge and
Jerry Dover, individually and as Electric Operations Manager for the City of Oak Ridge.

Frank M. Fly, Murfreesboro, Tennessee, for the Appellee, Seelbach and Company, Inc.

William A. Blue, Jr., Nashville, Tennessee, for the Appellee, Environmental Consultants,
Inc.

OPINION

Background

This is the second occasion we have had to consider an appeal from two
different lawsuits involving the same primary parties and virtually identical subject matter.
The present lawsuit was filed in September 2007 by Baird Tree against several defendants,
including Oak Ridge. In a nutshell, Baird Tree claimed that it was improperly excluded from
bidding on a tree trimming and tree removal contract that was opened for bids by Oak Ridge
in 2007.

This is not the first time Baird Tree has made such a claim. In fact, Baird Tree
filed a previous lawsuit in 2004 when an earlier tree trimming and tree removal contract was
awarded by Oak Ridge to Seelbach and Company (“Seelbach”). Seelbach has been a
defendant in both lawsuits. In the first lawsuit, Baird Tree claimed, among other things, that
the defendants had violated the Tennessee Trade Practices Act, Tenn. Code Ann. § 47-25-
101, et seq., (the “TTPA”). The Trial Court granted summary judgment to the various
defendants after finding: (1) the TTPA did not apply to the tree trimming and removal
contract at issue because it was a contract for services, as opposed to goods; and (2) Baird
Tree lacked standing to pursue the claims set forth in the complaint because it never
submitted a valid bid in the first place.

Baird Tree appealed the Trial Court’s grant of summary judgment to the
defendants. In June 2008, this Court affirmed the judgment of the Trial Court in Baird Tree
Co., Inc. v. City of Oak Ridge, No. E2007-01933-COA-R3-CV, 2008 WL 2510581 (Tenn.
Ct. App. June 24, 2008), no appl. perm. appeal filed (“Baird I”). Due to the relevance of and
similarities between Baird I and the present appeal, we will quote heavily from our earlier
Opinion:

Oak Ridge began accepting bids in July of 2004 for a two
year project involving tree trimming, tree removal, brush and
limb chipping, etc. Plaintiff was one of three bidders on this

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project. The two other bidders were Wolf Tree Trimming
(“Wolf Tree”) and Seelbach and Company, Inc. (“Seelbach”).
After bidding was completed and the contract was awarded to
Seelbach, Plaintiff filed this lawsuit primarily alleging that the
bidding process was improper and Plaintiff was the lowest
bidder and should have been awarded the contract. Plaintiff also
claimed that Oak Ridge violated the Tennessee Trade Practices
Act, Tenn. Code Ann. § 47-25-101, et seq. (the “TTPA”).
Plaintiff sought compensatory damages in the amount of profit
it would have realized had it been awarded the contract.

Oak Ridge filed a motion for summary judgment
claiming, inter alia, that the undisputed material facts
established that it was entitled to a judgment as a matter of law
because: (1) Plaintiff’s bid failed to meet the necessary bidding
requirements; (2) even if Plaintiff’s bid did meet the necessary
requirements, Plaintiff's bid was not the lowest bid; and (3)
Plaintiff failed to state a claim upon which relief could be
granted under the TTPA.

Id., at * 1 (footnote omitted).

As stated, one of the issues in Baird I was whether Baird Tree even had
submitted a valid bid and, if not, whether that failure had any impact on the claims raised in
the complaint. The defendants argued that Baird Tree’s “bid” was woefully inadequate due
primarily to Baird Tree’s intentional refusal to provide much of the requested information.
There was a substantial amount of proof on this issue:

One of the exhibits is an August 20, 2004, letter from Jerry
Dover (“Dover”), the Electric Operations Manager for Oak
Ridge. This letter was sent to Mr. Bobby Baird, the owner and
president of plaintiff Baird Tree Company, Inc. Dover’s letter
concerned the bid that had been submitted by Plaintiff. In this
letter, Dover stated that Oak Ridge was “having difficulty
determining your firm’s qualifications and ability to perform the
work as outlined in the bid documents.” The letter then
provides a detailed description of additional information needed
by Oak Ridge. According to the letter, Plaintiff’s bid did not
provide three references for whom work similar to that being bid
on was performed. Next, the bid documents required Plaintiff

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to furnish a list of five “right of way and tree trimming/herbicide
application (spraying) contracts performed in the last twelve
months.” According to Dover, this information was not
supplied by Plaintiff. Finally, Dover stated that Plaintiff had not
complied with the requirement in the bid documents to furnish
a list of all contracts presently being performed. The letter then
states:

This letter is to advise you that the
information supplied with the bid is inadequate in
that the information requested under this item was
not supplied. Please supply a list of all such
similar contracts presently being performed along
with the names and telephone numbers of the
persons with whom the contractor has primary
contact. If your firm has no such contracts, so
state in your reply.

The City wishes to proceed with
summarizing of the bid responses to the
referenced contract as expeditiously as possible.
Please furnish the requested information and
clarifications in writing by the close of business
August 25 th , 2004.

On August 23, 2004, Mr. Baird sent a response to
Dover’s letter. In this letter, Mr. Baird flat out refused to supply
any additional information. Mr. Baird’s response states, in part,
as follows:

On August 23, 2004, I received a letter from you
in which you required a detailed response by
August 25, 2004. I find this to be an
unreasonable request and in the interest of time
and brevity this letter is hereby forwarded.

In response to your letter the following
information is submitted:

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A) This company has submitted to you
adequate information regarding the
references and evidence of outstanding
execution and workmanship.

B) Baird Tree Company, Inc. has all required
State Licenses for Tree Trimming and
Brush Control along overhead power lines.

It is my belief that your additional requirements
are onerous in that they are particularly prejudicial
to small, locally owned businesses.…

In your letter, you have placed tremendous
emphasis on requesting an in depth detailed
listing of erroneous requirements.…

In closing, we will follow up by submitting to you
a list of questions we would like answered
concerning the verification process utilized to
confirm your current contractors are meeting
contract specifications. (emphasis added)

Not surprisingly, Mr. Baird was questioned during his
deposition about the contents of his response. When he was
asked why Plaintiff did not send any additional information to
Oak Ridge as requested in the letter dated August 20, 2004, Mr.
Baird stated: “I guess we felt we’d give them all the
information that was necessary.” Mr. Baird admitted at his
deposition that Plaintiff was unable to furnish some of the
additional requested information. For example, Plaintiff did not
have five right of way and tree trimming/herbicide application
contracts in the past year. Mr. Baird also testified that Oak
Ridge’s requirement that a bidder have a certain number of
crews was “unreasonable.” When Oak Ridge pressed Mr. Baird
for an explanation as to why he felt the bidding requirements
were unreasonable, Mr. Baird stated that be believed it was
because Oak Ridge was trying to create bidding requirements
specifically to exclude Plaintiff from being able to successfully
bid on the contract. When asked why Oak Ridge would try to

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do that, Mr. Baird stated “I don’t know.” Mr. Baird admitted
that neither he nor his company ever had problems with anyone
in the past, with the possible exception of Dover whom Mr.
Baird claimed on one occasion spoke to him with a “tone of the
voice” that Mr. Baird did not like.

As to Mr. Baird’s assertion that the needed number of
crews was unreasonable, the documents created by Oak Ridge
when analyzing the bids provide as follows as to the crews
available for Plaintiff:

Bidder lacks depth in number of crews. There is
concern if a major storm event were to occur that
other utilities in the area would be affected and
would not release the contractor’s crews.

Plaintiff presented nothing in the record to indicate that Oak
Ridge’s concern about the number of crews Plaintiff had
available was anything less than legitimate.1

* * *

In addition to what is set forth above, there were other
components of Plaintiff’s bid that were incomplete or simply
unresponsive to the requirements contained in the bidding
documents. The following is an excerpt from Mr. Baird’s
deposition:

Q. Does Baird have a substance abuse policy
in writing?

A. Yes.

Q. Did you submit that to the City?

A. No.

1
There also were significant problems with the three references provided by Baird Tree. Baird I,
2008 WL 2510581, at *3. For the sake of brevity, we will not detail all of those problems.

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Q. Any reason why not?

A. [That is the way] we had always answered
before. We had never had any problems in the
past with it.…

Q. Do you have a formal, written employee-
training program?

A. Yes.

Q. Did you provide a list of the requirements
of that program for each class of worker as part of
your bid package?

A. No.

Q. Why not?

A. I probably just answered the questions
down through there like we normally had, you
know. . . .

Q. Is there any reason why you did not include
your safety manual with your bid?

A. We normally turn this stuff in like this, and
they accept it, and we just – we thought you all
would accept it like that.

The bidding contract also required the bidder to have a
full-time arborist on staff. Plaintiff did not have such an
employee, but instead used an arborist on a consulting basis.

Baird I, 2008 WL 2510581, at *1-4 (footnote added).

On appeal in Baird I, we initially concluded that the contract at issue was a
contract for services and, therefore, the TTPA was not applicable. Id., at *5-7. As to the
validity of Baird Tree’s underlying bid, we stated:

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The next issue is whether the Trial Court erred when it
determined that Plaintiff’s bid was invalid. The undisputed
material facts demonstrate that the bidding documents required
the bidder to have a full time arborist on staff, which Plaintiff
did not have. The undisputed material facts demonstrate that
there were numerous deficiencies in Plaintiff’s original bid.
Although not required to do so, Dover sent a letter to Plaintiff’s
owner and president requesting the additional necessary
information. Mr. Baird refused to supply any additional
information and even went so far as to inform Dover that he
(i.e., Mr. Baird) would be sending questions to Dover that he
wanted answered. The Trial Court correctly characterized this
response as being “in your face.” This Court is at a loss as to
how a company can send such a response to legitimate questions
that were raised about its bid, and then complain when it is not
awarded the bid.

Regardless of the propriety of Mr. Baird’s response, the
question on appeal is whether Oak Ridge successfully negated
an essential element of Plaintiff’s claims or conclusively
established an affirmative defense. See Blair v. West Town
Mall, 130 S.W.3d 761 (Tenn. 2004). Before Plaintiff can claim
it was entitled to be awarded the bid, it must begin by showing
its bid was valid and subject to being accepted. The undisputed
material facts demonstrate that Plaintiff’s bid was not valid for
the numerous reasons discussed above. Consequently, Oak
Ridge has successfully negated an essential element of
Plaintiff’s claim that it was entitled to be awarded the bid, and
the Trial Court correctly granted summary judgment to Oak
Ridge on that claim. . . .

Because Plaintiff did not submit a valid bid, the issue of
whether Plaintiff was the lowest bidder is moot. Likewise,
because Plaintiff was not a valid bidder, it has no standing to
attack the validity of Seelbach’s bid. Any remaining issues are
rendered moot.

Baird I, 2008 WL 2510581, at *7-8 (emphasis added).

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We now return to the present case. The contract at issue in Baird I had been
extended for one year and was set to expire on June 30, 2007. Before opening up the bidding
process for the new contract, Oak Ridge sought an independent review of its bidding process
on this project. According to Jerry Dover’s affidavit filed in the present case:

Prior to putting together the pre-qualification packet, a
decision was made by the City to ask for an independent third-
party review of the prior contract and bid documents by a
knowledgeable agency and to ask that third party to draft a pre-
qualification and bid package, based on their expertise, to help
streamline the process and to help the City find the most
qualified vendors.

The City had previously hired and worked with
Environmental Consultants, Inc. (ECI)2 to have them review the
trimming practices, development inspection forms, and to train
City inspectors on tree trimming inspection techniques. ECI
performed this work professionally and very well. While they
were engaged in those previous duties the City also learned that
ECI would also review tree pruning contracts, so inquiries were
made as to their ability and willingness to perform a review of
the City’s existing tree trimming contract and to suggest and
make changes to the pre-qualification packets in an effort to
streamline the bidding process and help the City locate vendors
who could most efficiently help the City with its needs. ECI
was hired and performed these services for the City. ECI
recommended a pre-qualification process to the City [which] the
City adopted in full.

Based on the specific suggestions and comments from
ECI the pre-qualification packages were put together and were
sent out to eight vendors, including Baird Tree. (original
paragraph numbering omitted; footnote added)

2
Environmental Consultants, Inc., also is a named defendant in the present case.

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As set forth in Dover’s affidavit, the pre-bid qualification package was sent to
Baird Tree and seven other companies.3 The seven other companies submitted complete
responses to the package. Baird Tree submitted the following response 4 :

The qualification requirements are as follows:

• Licensed to provide Utility Line Clearance Services in
the State of Tennessee.

#00021425 Unlimited s-Right of Way/Tree Trimming

• Acknowledgment that the company will name the City of
Oak Ridge as an additional insured on its insurance
policy for this project.

We Acknowledge

• Ability to comply with all applicable security
requirements and regulations of the U.S. Department of
Energy while performing work within secured areas of
the Oak Ridge National Laboratory, Y-12 Plant, K-25
Plant, and the City’s Waste Water Treatment Plant.

Accepted

• ISA Certified Arborist on staff, at management level.
Indicate the person with the certification by name and
title, length of employment with company, and copies of
certifications/licenses.

Certified Contractor will be available

• Tennessee Licensed pesticide applicator in the right-of-
way category.

Tennessee Charter #478

3
Three of these other companies apparently have the same parent company.
4
We have altered Baird Tree’s answers by putting them in bold type.

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• Documented experience performing similar services for
at least three (3) electric utilities in the Southeast.

Knoxville Utilities - Lenoir City Utilities - Rockwood
Utilities

• Documented safety program and provide a copy of the
company’s safety manual.

Available at our office - will provide if selected

• Documented substance abuse policy and any drug-
screening program.

Available at our office - will provide if selected

• Documented training program of proper tree pruning
practices following ANSI A-300 Guidelines to protect
the Health and Condition of Trees.

Will meet requirements if selected

• At least $20,000,000 in documented utility line clearance
business in each of the last five (5) years. Include Utility
name and Utility address. Provide full contact
information including name, address, phone and fax
numbers and email address.

Enormously unreasonable

• Inventory of equipment, including age, that will be
available for this project.

5 years or newer available

• Documented ability to provide assistance with storm
related restoration with references of utilities where these
services were provided. References shall include full
contact information including name, address, phone and
fax numbers and email address.

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Enormously unreasonable

• Acknowledgment that the company will obtain a
completion and performance bond, as well as a labor and
material bond, in the amount of one hundred percent
(100%) of the contract price with good and sufficient
surety acceptable to the City in connection with this
project.

Will provide

• Acknowledgment that no officer or employee of the City
of Oak Ridge has a financial interest in the company.

Acknowledged

• Acknowledgment that the company will comply with all
federal, state, county and local laws, ordinances, statutes,
and regulations applicable to this project. . . .

Acknowledged

• Completion of the attached Safety Experience Data
Sheet.

Attached

• City of Oak Ridge Business License

Will provide if awarded contract

Although Baird Tree indicated that it had completed the Safety Experience
Data Sheet, it had not. The first two questions on the Safety Experience Data Sheet asked
Baird Tree to list the company’s Interstate Modification Rate for the past three years, and to
indicate the number of employee injuries using last year’s TOSHA/OSHA report. Baird Tree
stated this information was “Unavailable at this time.” While Baird Tree indicated that it
conducts documented safety inspections and has a safety representative who visits and audits
the job sites, Baird Tree did not respond when asked the frequency that these events occur.
Finally, Baird Tree was asked to submit evidence of its present safety program and practices,

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including its safety manual. Baird Tree responded: “Available at our office - will provide
if selected.”

In the 2007 complaint, Baird Tree again claimed a violation of the TTPA, as
well as an illegal restraint of trade in violation of the common law. Baird Tree further
asserted claims for tortious interference with prospective economic advantage. Baird Tree
sued Oak Ridge, as well as Jerry Dover, its Electric Operations Manager. Dover was sued
in both his official and individual capacities. As noted earlier in this Opinion, Baird Tree
also sued ECI and Seelbach. Baird Tree sought compensatory damages not to exceed
$1,000,000, and punitive damages not to exceed $9,000,000.

In May of 2009, following extensive argument by counsel for all parties, the
Trial Court granted all of the defendants’ motions for summary judgment. The Trial Court
first acknowledged our holding in Baird I that the TTPA applied to tangible goods, not
intangible services, “[a]nd that is what this contract is for, it’s for services, tree pruning, tree
removal, et cetera, so that portion of the Motion should be granted.” The Trial Court then
stated, among other things:

“[I]n lieu of setting the parameters [of the contract] again, [the
City of Oak Ridge] hired a consultant to set the parameters and
they followed the consultant. That is an undisputed fact, they
followed the consultant’s . . . requests and advice, that’s what
they paid them for in terms of setting the qualifications for bid.

Filed as . . . Collective Exhibit H, there was a pre-bid
package. The City of Oak Ridge even submitted to Baird Tree
Company a request for proposal . . . and notified them of the
new bid that was coming out.

Again, bear in mind that this is while the previous case
was pending, and Mr. Baird, again, left off, one, two, three,
four, five, six, seven, eight, eight qualifications, those that were
listed in Exhibit H . . . .

Again, it’s kind of like an “in your face”, but the issue is
whether he would have had to submit a proposal at all because
his allegation is that it was a . . . [common law] unreasonable
restraint of trade for services.

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The undisputed fact is that the City of Oak Ridge acted
on the advice . . . of a retained consultant, Environmental
Consultant, a/k/a ECI, Inc. There was nothing to refute that. . . .
Regardless of the amount [of documented utility line clearance
business in each of the last five years that each bidder was
required to have], that is what their consultant advised in
response to that. . . . That is an undisputed fact. That is what
their consultant advised them to do, and that’s not an unlawful
restraint of trade. They acted on the recommendations of the
consultant that they hired to do this job.

* * *

Let me again make it very abundantly clear. Just as we
did in [Baird I,] in the pre-qualifications, Mr. Baird still to this
day has not filed anything that would even make him qualify. If
he had requested a – if he didn’t like the $20,000,000.00 and
requested a modification or whatever, but he still doesn’t have
an arborist. He still doesn’t have an arborist.

You know, again, it’s part of the “in your face” thing that
he has done . . . . Whether he bid or didn’t bid, he didn’t even
qualify. Not counting the $20,000,000.00, there are many
numerous things that I read off in this case. He didn’t qualify,
regardless. You can set aside the $20,000,000.00, he wouldn’t
have been valid to begin with. . . .

I don’t find that this in any way meets Trau-Med of
America v. Allstate Insurance Company, [71 S.W.3d 691 (Tenn.
2002)]. . . .

I specifically find that had the $20,000,000.00 not even
been in there, he wouldn’t have qualified anyway regardless of
the fact that he didn’t even bid on this case. So Motion is
granted . . . .

Following the hearing, the Trial Court adopted all of its rulings made from the
bench and entered an order stating as follows:

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1. That the State of Tennessee does not recognize a
common law restraint of trade civil action. This claim is
dismissed as a matter of law.

2. The Tennessee Trade Practices Act does not apply
to contracts for services, and this civil action concerns contracts
for services, as recognized by the Court of Appeals in
Baird I. . . . This claim is dismissed as a matter of law.

3. For reasons discussed at oral argument, including
the Defendant, Jerry Dover’s argument that he is immune from
prosecution on the Plaintiff’s claim for intentional interference
with business relationships under the Tennessee Governmental
[Tort] Liability Act, the Court grants the Defendant, Jerry
Dover’s Motion for Summary Judgment. Further, the claim for
punitive damages against the Defendants, City of Oak Ridge and
Jerry Dover, are also dismissed as a matter of law.

4. The Defendants, City of Oak Ridge, Jerry Dover
and Environmental Consultants, Inc., successfully have negated
essential elements of plaintiff’s claims alleging intentional
interference with business relationships or shown plaintiff
cannot prove essential elements of these claims at trial, for the
reasons set forth in the Court’s ruling from the bench. These
claims are dismissed.

5. The Court finds that the Plaintiff has not stated a
cause of action against Defendant Seelbach directly and that the
Defendant Seelbach was made a party because the Defendant
Seelbach was the successful bidder. The Court finds that the
Defendant Seelbach is, therefore, not directly liable for any
claim the Plaintiff may have in this lawsuit. Furthermore, as the
claims against the Defendants, City of Oak Ridge, Jerry Dover
and ECI, have been dismissed, the Defendant Seelbach is also
dismissed as a Defendant in this lawsuit.

6. That because the Defendants, City of Oak Ridge,
Jerry Dover, and . . . ECI have been dismissed, the Defendant
Seelbach is also dismissed as a matter of law.

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7. Since all parties answered the Plaintiff’s Motion
for Partial Summary Judgment, the Plaintiff’s Motion
concerning shortening the time for response to Plaintiff’s
Motion is therefore moot. Additionally, because this Court has
dismissed this cause of action, the Plaintiff’s Motion concerning
requiring the Defendant, ECI, to furnish additional discovery is
also now moot.

Plaintiff appeals raising numerous issues. Initially, Plaintiff claims the Trial
Court erred when it granted any and all of the defendants’ motions for summary judgment.
Plaintiff then claims that the Trial Court erred when it dismissed his claims for a violation
of the TTPA, a common law violation of restraint of trade, and for interference with
prospective economic advantage.

Discussion

Our Supreme Court reiterated the standard of review in summary judgment
cases as follows:

The scope of review of a grant of summary judgment is
well established. Because our inquiry involves a question of
law, no presumption of correctness attaches to the judgment, and
our task is to review the record to determine whether the
requirements of Rule 56 of the Tennessee Rules of Civil
Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d
49, 50-51 (Tenn. 1997); Cowden v. Sovran Bank/Cent. S., 816
S.W.2d 741, 744 (Tenn. 1991).

A summary judgment may be granted only when there is
no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v.
Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The party seeking the
summary judgment has the ultimate burden of persuasion “that
there are no disputed, material facts creating a genuine issue for
trial . . . and that he is entitled to judgment as a matter of law.”
Id. at 215. If that motion is properly supported, the burden to
establish a genuine issue of material fact shifts to the
non-moving party. In order to shift the burden, the movant must
either affirmatively negate an essential element of the
nonmovant’s claim or demonstrate that the nonmoving party

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cannot establish an essential element of his case. Id. at 215 n.5;
Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008).
“[C]onclusory assertion[s]” are not sufficient to shift the burden
to the non-moving party. Byrd, 847 S.W.2d at 215; see also
Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our
state does not apply the federal standard for summary judgment.
The standard established in McCarley v. West Quality Food
Service, 960 S.W.2d 585, 588 (Tenn. 1998), sets out, in the
words of one authority, “a reasonable, predictable summary
judgment jurisprudence for our state.” Judy M. Cornett, The
Legacy of Byrd v. Hall: Gossiping About Summary Judgment
in Tennessee, 69 Tenn. L. Rev. 175, 220 (2001).

Courts must view the evidence and all reasonable
inferences therefrom in the light most favorable to the
non-moving party. Robinson v. Omer, 952 S.W.2d 423, 426
(Tenn. 1997). A grant of summary judgment is appropriate only
when the facts and the reasonable inferences from those facts
would permit a reasonable person to reach only one conclusion.
Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000).
In making that assessment, this Court must discard all
countervailing evidence. Byrd, 847 S.W.2d at 210-11.
Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).

We affirm the Trial Court’s judgment in the present case for one of the same
reasons we affirmed its judgment in Baird I. Specifically, Baird Tree never submitted a valid
bid and, therefore, lacks standing to challenge the validity of the bidding process. With
respect to the 2007 bidding process, the “bid” submitted by Baird Tree was deficient in many
ways: (1) Baird Tree (still) did not have a certified arborist on staff, as required by the
express terms of the pre-qualification package; (2) Baird Tree refused to provide a copy of
its safety manual unless it was the winning bidder; (3) Baird Tree refused to provide a copy
of its substance abuse policy unless it was the winning bidder; (4) Baird Tree refused to
document its “ability to provide assistance with storm related restoration with references of
utilities where these services were provided,” choosing instead to simply refer to this
requirement as “Enormously unreasonable”; (5) Baird Tree failed to complete the Safety
Experience Data Sheet; (6) Baird Tree refused to furnish a copy of its Oak Ridge business
license; and (7) Baird Tree failed to demonstrate that it had “[a]t least $20,000,000 in
documented utility line clearance business in each of the last five (5) years,” again referring

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to this requirement as “Enormously unreasonable.”5 We think Baird Tree’s bid was properly
characterized by counsel for ECI at oral argument on the motion for summary judgment
wherein counsel stated: “Quite frankly, Your Honor, what they did is they flipped them off.”
Counsel correctly added that Baird Tree then refused to answer many questions, including
the question requesting $20,000,000 in documented utility line clearance business in each of
the last five years.

As we stated in Baird I:

The Trial Court correctly characterized [Baird Tree’s response
to Oak Ridge’s request for additional information] as being “in
your face.” This Court is at a loss as to how a company can
send such a response to legitimate questions that were raised
about its bid, and then complain when it is not awarded the bid.

5
Baird Tree’s challenge to the pre-qualification package centers around the requirement that it have
“[a]t least $20,000,000 in documented utility line clearance business in each of the last five (5) years.” Baird
Tree claims that it was this requirement that was improperly added for the sole purpose of excluding smaller
companies such as Baird Tree from consideration. Had this been the only requirement in the pre-
qualification package that Baird Tree failed to meet, then our conclusion as to whether Baird Tree had
standing likely would be different. If we held that the failure to meet a challenged requirement, in and of
itself, resulted in a lack of standing, then someone illegally excluded would never be able to challenge the
propriety of the bid’s requirements. That is not our holding here because Baird Tree’s failures with respect
to the bid it actually submitted far exceeded simply failing to have “[a]t least $20,000,000 in documented
utility line clearance business in each of the last five (5) years.”

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Baird I, 2008 WL 2510581, at * 7.

We now face that same issue once more. We, again, are at a loss as to how a
company can submit an altogether inadequate and incomplete bid on a project, and then
complain when it is not awarded that project. “Before [Baird Tree] can claim it was entitled
to be awarded the bid, it must begin by showing its bid was valid and subject to being
accepted.” Id. To hold otherwise, literally, would allow anybody with a chainsaw, even
though he did not complete the bid documents, to mount an attack to Oak Ridge’s bidding
process simply by claiming they were improperly excluded. This is an untenable result and
would significantly disrupt a legitimate bidding process.

We conclude, as we did in Baird I, that Oak Ridge successfully negated an
essential element of Baird Tree’s claim that it was entitled to be awarded the bid, and the
Trial Court correctly granted summary judgment on that claim. Because Baird Tree never
submitted a valid bid in the first place and lacks standing to challenge the bidding process,
all remaining issues as to all defendants are moot.6

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the
Anderson County Circuit Court solely for collection of the costs below. Costs on appeal are
taxed to the Appellant, Baird Tree Company, Inc., and its surety, for which execution may
issue, if necessary.

_________________________________
D. MICHAEL SWINEY, JUDGE

6
Because Baird Tree never submitted a valid bid in the first place, this failure, likewise, would
negate any claim for damages allegedly resulting from Baird Tree not being awarded the contract.

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BAIRD TREE CO., INC. v. City of Oak Ridge

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