Angus v. City of Jackson

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON

HAL ANGUS, d/b/a )
HAL ANGUS DEMOLITION, )
)
Plaintiff/Appellant, ) Madison Law No. C-94-072
)
vs. )
) Appeal No. 02A01-9509-CV-00208
CITY OF JACKSON, )

Defendant/Appellee.
)
) FILED
August 1, 1997

Cecil Crowson, Jr.
Appellate C ourt Clerk
APPEAL FROM THE CIRCUIT COURT MADISON COUNTY
AT JACKSON, TENNESSEE

THE HONORABLE WHIT LAFON, JUDGE

For the Plaintiff/Appellant: For the Defendant/Appellee:

Phillip L. Davidson Sidney W. Spragins
Nashville, Tennessee Jonathon O. Steen
Jackson, Tennessee

AFFIRMED

HOLLY KIRBY LILLARD, J.

CONCUR:

ALAN E. HIGHERS, J.

DAVID R. FARMER, J.
 OPINION

In this case, a demolition company filed a lawsuit against the City of Jackson for breaching

an alleged implied contract between the two parties by failing to mail the plaintiff demolition

company invitations to bid on demolition projects. The trial court granted the City’s motion for

summary judgment, and the plaintiff appealed. We affirm.

The basic facts are not in dispute. Hal Angus is the sole owner of Hal Angus Demolition

(“Angus”), which has operated for over twenty years in Madison County and specializes in the

demolition of buildings. Angus’ principle client over that twenty year period was the City of

Jackson, Tennessee (“City”). Angus performed a number of jobs for the City, demolishing various

buildings in Jackson. Angus obtained the majority of these jobs by submitting bids on the City’s

projects. Prior to the submission of bids the City would normally send “invitations to bid” to a

number of persons or entities qualified to perform the job, including Angus.

In October, 1992, Angus was involved in a controversy regarding the demolition of a railroad

trestle; Angus asserts that he was cleared of any wrongdoing. Subsequently, Angus contends that

the City stopped its prior practice of sending him invitations to bid on all demolition jobs for which

he was qualified, and sent him bids only on small projects. Angus contends that, from this point

forward, he was awarded far fewer jobs and that this had a significant adverse financial impact on

his business. As a result, Angus filed this lawsuit against the City.

Under Tennessee Code Annotated § 6-56-304, local government entities are required to

publicly advertise and accept competitive bids on most purchases of services over $2,500. The City

enacted an ordinance similar to this statute, City Ordinance No. 1991-28. This ordinance provided

that City purchases of less than $4,000 but more than $1,000 should, when possible, be based on at

least three competitive bids. The demolition projects at issue in this case were valued at greater than

$4,000; consequently, the City Ordinance is inapplicable.

Angus originally alleged that the City violated Tennessee Code Annotated § 6-56-304 and

City Ordinance No.1991-28 by failing to send him invitations to bid on certain demolition projects.

He later amended his complaint to allege that the City had violated the statute and ordinance by not

accepting certain bids that he submitted. Angus also contended that the City’s failure to mail him

invitations to bid violated an implied contract that resulted from a “pattern of dealings” developed

by the parties over the years.

The City filed a Motion to Dismiss alleging that it had complied with Tennessee Code
Annotated § 6-56-304 and City Ordinance No.1991-28 by placing notice of the upcoming demolition

jobs in the local newspaper in the form of advertisements. The trial court treated the City’s motion

to dismiss as a motion for summary judgment, and held a hearing on the motion. In response to the

motion, Angus presented no proof in the record that the City failed to advertise the prospective

demolition projects in the local newspaper, or that the City limited the bidding on demolition

projects only to contractors who received invitations to bid.

After the hearing on the City’s motion, the trial court made several findings of fact,

including the following:

4. The City of Jackson is required to publish a Notice of invitation to bid,
pursuant to T.C.A. § 6-56-304 and City of Jackson Ordinance No.1991-28, but is not
required to mail invitations to bid to particular individuals;
5. Defendant has in all instances regarding demolition projects fully complied
with the bidding procedures set forth in T.C.A. § 6-56-304 and City of Jackson
Ordinance No. 1991-28.

The trial court found that the parties’ course of conduct did not establish an implied contract. It

concluded that there was no genuine issue as to any material fact and granted summary judgment

to the City.

Angus then filed a motion to alter or amend the judgment under Rule 59.04 of the Tennessee

Rules of Civil Procedure, asserting that newly discovered documents raised a genuine issue of

material fact as to whether plaintiff had received an invitation to bid on various demolition projects

and whether the City had followed its normal procedures in accepting contractors’ bids. The “newly

discovered evidence” consisted of the affidavits of Angus and Charles McBride, a former City

worker. McBride’s affidavit stated in part:

3. The procedure employed by the City for at least twenty years was as follows: (1)
a contractor sent a letter to the City and requested to be put on a list of approved
bidders. Without being on this list, no one could receive an invitation to bid, (2) once
a project was identified, it was put in the [news]paper. However, this was a
formality. Nothing in the paper notice described the necessary requirements for the
bid, (3) invitations to bid were sent by the City to the persons on the approved list.
If you were not on the list you did not receive an invitation to bid, and (4) the bids
came in and the lowest bidder, in most cases, got the job.
4. This procedure was followed in every instance by the City. It was not deviated
from. Every person on the list knew the procedure and depended on it.
5. Only persons on the list bid, no one else did.

The “newly discovered evidence” also included the transcript of the deposition of Susan White, the

City purchaser who was familiar with the procedures employed by City in awarding demolition

contracts. White’s deposition was taken prior to the hearing on the City’s motion, but not

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transcribed until after judgment was entered. Her deposition described the bidding process and

stated in part that, to be put on the City’s “bid list,” a demolition company need only write a letter

with such a request.

In response to Angus’ motion to alter or amend, the City maintained that the alleged “newly

discovered evidence” was available to Angus prior to entry of summary judgment. The City also

contended that the evidence did not create any genuine issue of fact as to whether the City was

required to continue sending Angus invitations to bid on projects, or whether the City had complied

with the statutory requirements. The trial court subsequently denied Angus’ motion to alter or

amend the judgment. Angus then filed this appeal.

On appeal, Angus argues that the “newly discovered evidence” proffered with his motion to

alter or amend the judgment created a genuine issue of material fact. He asserts further that the trial

court erred in holding that the City was not required to continue the bidding procedure it had

followed, which included mailing invitations to bid to Angus. Consequently, he asks this Court to

reverse the trial court’s grant of summary judgment to the City and to remand the case for a trial on

the merits.

A motion for summary judgment should be granted when the movant demonstrates that there

are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter

of law. Tenn. R. Civ. P. 56.03. The party moving for summary judgment bears the burden of

demonstrating that no genuine issue of material fact exists. Byrd v. Hall, 847 S.W.2d 208, 211

(Tenn. 1993). On a motion for summary judgment, the court must take the strongest legitimate view

of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that

party, and discard all countervailing evidence. Id. at 210-11. Summary judgment is only

appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only

one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of law

are involved, there is no presumption of correctness regarding a trial court's grant of summary

judgment. Id. Therefore, our review of the trial court’s grant of summary judgment is de novo on

the record before this Court. Id.

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 Angus alleges that the trial court erred in failing to consider the additional evidence

submitted with his motion to alter or amend the judgment. For purposes of this appeal, we shall

consider all of the evidence submitted by Angus, including the “newly discovered evidence,” to

determine whether the City was entitled to a grant of summary judgment.

The central issue is whether the City was under a legal duty to continue mailing to Angus an

invitation to bid on each upcoming demolition project. Tennessee Code Annotated § 6-56-304 sets

forth the City’s duty to publicly advertise an invitation to bid on an upcoming demolition project.

This was done by placing a notice as advertising such in the local newspaper. Angus concedes that

the City did not violate the requirements of Tennessee Code Annotated § 6-56-3041. Thus, the City

is entitled to summary judgment unless Angus can show that there existed an implied contract

between Angus and the City, under which the City was required to mail Angus invitations to bid.

Angus insists that the City’s practice of sending him invitations to bid on demolition projects

over a period of years created an implied contract between the two parties. He contends that the

City’s failure to provide him with invitations to bid on certain demolition projects constituted a

breach of that implied contract.

Tennessee recognizes two distinct types of implied contracts; namely, contracts implied in

fact and contracts implied in law, commonly referred to as quasi contracts. Paschall’s, Inc. v.

Dozier, 219 Tenn. 45, 53-54, 407 S.W.2d 150, 154 (1966).

Contracts implied in fact arise under circumstances which show mutual intent or assent to

contract. Weatherly v. American Agric. Chem. Co., 16 Tenn. App. 613, 65 S.W.2d 592 (1933).

Mutual assent and a meeting of the minds cannot be accomplished by the unilateral action of one

party. See Batson v. Pleasant View Util. Dist., 592 S.W.2d 578, 582 (Tenn .App. 1979). Here, the

City’s unilateral action in mailing invitations to bid to Angus does not establish mutual assent. No

contract between the parties existed until Angus submitted a bid on a project which was accepted

by the City. Angus submitted no proof in the record that an invitation to bid constituted mutual

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City Ordinance No. 1991-28 is discussed by the trial court and argued on appeal.
However, Angus concedes that the City did not violate City Ordinance No. 1991-28, and as
noted in his brief, it is inapplicable in this case because the demolition projects at issue are
valued in an amount greater than $4,000.

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assent that Angus would contract with City for the performance on a demolition project. Therefore,

Angus failed to present evidence creating a genuine issue regarding a contract implied in fact.

Contracts implied in law are created by law without the assent of the party bound, on the

basis that they are dictated by reason and justice. Weatherly v. American Agr. Chemical Co., 16

Tenn. App. 613, 65 S.W.2d 592 (1933). A party seeking to recover on an implied in law or quasi

contract theory must prove the following:

A benefit conferred upon the defendant by the plaintiff, appreciation by the
defendant of such benefit, and acceptance of such benefit under such circumstances
that it would be inequitable for him to retain the benefit without payment of the value
thereof.

Paschall’s, Inc., 219 Tenn. at 57, 407 S.W.2d at 155.

In this case, Angus failed to submit any proof in the record of the first element, a benefit

received by the City which would created a legal duty for the City to provide Angus with invitations

to bid on all upcoming demolition projects. Consequently, Angus failed to present evidence

creating a genuine issue as to whether there existed a contract implied by law. Therefore, the grant

of summary judgment to the City must be affirmed.

The decision of the trial court is affirmed. Costs on appeal are taxed to Appellant, for which

execution may issue if necessary.

HOLLY KIRBY LILLARD, J.

CONCUR:

ALAN E. HIGHERS, J.

DAVID R. FARMER, J.

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