439 F.3d 468 (8th Cir. 2006), 05-1800, City of St. Joseph, Missouri v. Southwestern Bell Telephone

Docket Nº05-1800.
Citation439 F.3d 468
Party NameCITY OF ST. JOSEPH, MISSOURI, Appellant, v. SOUTHWESTERN BELL TELEPHONE, formerly known as Southwestern Bell Telephone Company, L.P., Appellee, Olsson Associates, Inc., Defendant.
Case DateFebruary 24, 2006
CourtUnited States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 468

439 F.3d 468 (8th Cir. 2006)

CITY OF ST. JOSEPH, MISSOURI, Appellant,

v.

SOUTHWESTERN BELL TELEPHONE, formerly known as Southwestern Bell Telephone Company, L.P., Appellee,

Olsson Associates, Inc., Defendant.

No. 05-1800.

United States Court of Appeals, Eighth Circuit.

February 24, 2006

Submitted: Nov. 18, 2005.

Appeal from the United States District Court for the Western District of Missouri.

Page 469

[Copyrighted Material Omitted]

Page 470

[Copyrighted Material Omitted]

Page 471

Paul G. Schepers, argued, Kansas City, MO (Gregory S. Gerstner and James R. Lloyd II, Kansas City, on the brief), for appellant.

John Francis Medler, argued, St. Louis, MO (Spencer J. Brown and Mimi E. Doherty, Kansas City, MO, on the brief), for appellee.

Before SMITH, HEANEY, and BENTON, Circuit Judges.

SMITH, Circuit Judge.

This case stems from a road-widening and reconstruction project on Faraon Street in St. Joseph, Missouri ("the Faraon Project"). The City of St. Joseph ("the City") sued Southwestern Bell Telephone, L.P. ("SWBT"), claiming that the City incurred additional contractor costs because SWBT failed to move its underground telephone lines for the Faraon Project. SWBT moved for summary judgment on all claims and asked the district court1 to strike the affidavit of Roger Sparks, the Engineer of Streets and Sewers

Page 472

for the City. The district court granted summary judgment to SWBT and struck Sparks's affidavit, concluding that it was a "sham" affidavit. The City appeals, arguing that the district court erred in striking Sparks's affidavit; determining that the City failed to establish a claim for promissory estoppel against SWBT; and determining that the City failed to establish a claim for negligent misrepresentation against SWBT. We affirm.

I. Background

In 1999, the City announced its plans to make improvements on Faraon Street. The City hired Olsson Associates ("Olsson") to provide design services and construction-phase services to the City and to act as the City's representative on the Faraon Project. On May 14, 1999, Olsson informed the affected utility companies by letter. In addition, Olsson sent plan sheets to the utilities and requested that they review the locations of their facilities and return the plan sheets to Olsson. SWBT received a copy of the letter and the request to return the plan sheet.

By June 1999, SWBT knew that it would have to move its lines and facilities for the Faraon Project. Sometime between May 1999 and November 1999, SWBT decided to replace the existing lines and install new lines throughout the entire length of the Faraon Project. However, Comco Designs ("Comco"), SWBT's contractor, did no work on designing the placement of the new lines during this time period.

On November 3, 1999, Olsson sent SWBT a letter stating that the Faraon Project would commence in May or June of 2000. On November 30, 1999, the City held a utility coordination meeting to ensure that the parties involved with the Faraon Project were not delayed in their work. SWBT employee Bill Hansen, Manager of Engineering Design, attended the meeting. At that time, Hansen thought SWBT's existing line would only minimally interfere with the Faraon Project.

On February 28, 2000, Olsson mailed SWBT a 90% final design plan for the first phase of the Faraon Project. In the accompanying letter, Olsson informed SWBT that the City would begin construction of the Faraon Project in June or July of 2000. SWBT did not object to this schedule.

On April 4, 2000, pursuant to SWBT's work request on January 26, 2000, Comco provided work prints to SWBT for the abandonment of the existing lines and the installation of new lines in connection with the Faraon Project. None of Comco's plans showed a temporary relocation of existing SWBT telephone lines and facilities. To implement Comco's prints, SWBT needed to review the drawings to ensure that they coincided with SWBT's overall plan to relocate its existing telephone lines and facilities; obtain a price from a contractor to implement the drawings; and obtain the approval of Lloyd Baskett, Director of Engineering Construction for SWBT. However, prior to the end of May, no one at SWBT had reviewed the work prints.

In April 2000, Roger Sparks, City Engineer for Streets and Sewers and the Project Manager for the Faraon Project, became concerned that SWBT would impede road construction. The City's April 25 meeting for prospective bidders confirmed Sparks's concerns. At the meeting, Chip Cocoran of Olsson recorded in a section of his notes entitled "utility relocation" that " [t]elephone is the most significant conflict, design of relocation underway, no work yet. Two fibers and 500 pari in Phase 1."

Subsequently, Olsson's Kent Evans inquired of SWBT about the time frame for SWBT moving its cables. Kraig Arthur, Manager of Engineering Design for

Page 473

SWBT, took the call from Evans because he was filling in for Hansen while he was on medical disability leave. During the phone conversation, Evans indicated to Arthur that Olsson would like to have SWBT's work finished by the end of June 2000. Arthur said that would "probably be possible." Arthur was aware that the City planned to start construction on the Faraon Project in July 2000. Arthur told Evans that he would discuss SWBT's time frame with John P. Garrett, SWBT's Construction Manager, and get back to him.

When Arthur asked Garrett whether SWBT could have its lines moved by the end of June 2000, Garrett told Arthur that SWBT could have its lines moved by that time. Arthur also reviewed SWBT's prints to install the new telephone lines and facilities. Pursuant to Evans's request, Arthur sent a letter to Evans on May 1, 2000, which stated: "Southwestern Bell Telephone plans to have the telephone cables moved to the South by the end of June. We will start work in the next few weeks. If you have any questions, please call (815) 271 -2447" (emphasis added). Arthur did not have his letter to Evans reviewed or approved by his supervisors at SWBT before he sent it. Arthur testified that when he sent the letter, he had no reason to believe that SWBT could not move its cables by the end of June.

On May 3, 2000, the City attached Arthur's letter, along with letters from other utilities, to an addendum to its bid documents. The City, however, failed to inform Arthur or anyone else at SWBT that it would provide Arthur's letter to bidders on the Faraon Project. On May 9, 2000, the City selected Loch Sand and Construction Company ("Loch Sand") as the lowest bidder. SWBT never received a copy of the contract between the City and Loch Sand.

At the beginning of May 2000, Sparks did not know what methods SWBT would use to relocate its facilities on Faraon Street. Sparks testified that the City "didn't have a commitment from [SWBT] in any way that they [sic] would be done." Then, on May 25, 2000, three and a half weeks after the City received Arthur's letter, Sparks spoke with Hansen, who had returned from medical leave, about Arthur's letter. When asked what he recalled about his conversation with Hansen, Sparks stated that what he recalled was in the e-mail he sent to Cocoran about his conversation with Hansen. In the e-mail, Sparks stated:

Talked with the telephone company today (SW Bell). The lead engineering guy, Bill Hansen, was surprised to here [sic] that we have a letter from them stating that they would be clear of the construction by July 1. He thought they might be started by then. This leaves us in a slight predicament. I never could figure out how they were going to relocate before the contractor completed the cuts and fills anyway.... I have asked Bill to get his people together for a meeting with us and perhaps the contractor to figure out how this can be done ....

When questioned about the e-mail during his deposition, Sparks stated that Hansen told him that SWBT would not have its lines and cables moved prior to June 30, 2000, and that SWBT might start with the relocation by July 1, 2000, but that SWBT would not be finished by that time. Sparks testified that the "slight predicament" he referred to in his e-mail was Loch Sand wanting to commence work at the same time that SWBT would be relocating; therefore, they would have to "work together or around each other."

Despite Sparks's deposition testimony, the City relies on Sparks's post-deposition

Page 474

affidavit2 —which Sparks signed the same day that the City's Suggestions in Opposition to the Defendant's Motion for Summary Judgment was due to the court—in which Sparks claims that Hansen told him that SWBT would start work before the end of June and that SWBT was committed to "working ahead of the City's contractor" so that SWBT would not interfere with the contractor's work.

The City's legal troubles arise because Loch Sand encountered delays in the performance of its contract with the City due to SWBT's and other utilities' relocation or replacement of their utility lines. The City issued Loch Sand a Notice to Proceed ("Notice") despite having no firm dates for completion of the utility work. Sparks testified in his deposition that on June 20, 2000, he assumed Loch Sand would have some interference from SWBT of an undetermined extent.

SWBT claims that it could not relocate its cables before the City completed its process of obtaining right-of-ways from adjacent landowners through eminent domain proceedings. Neither party disputes, however, that in the first stage of the Faraon Project, no right-of-way issues existed as of April 4, 2000, that would have prevented SWBT's contractor from replacing SWBT's lines. The City contends that at all times during the Faraon Project, sufficient room existed in the right-of-way for SWBT to install its new telephone lines and facilities. The City asserts that within the first 3,500 feet of the project, SWBT had 20 to 25 feet of existing right-of-way in...

To continue reading

FREE SIGN UP
74 practice notes
  • 883 F.Supp.2d 797 (E.D.Mo. 2012), 4:10CV623SNLJ, Ariel Preferred Retail Group, LLC v. CWCapital Asset Management
    • United States
    • Federal Cases United States District Courts 8th Circuit Eastern District of Missouri
    • August 1, 2012
    ...The 1861 Group, LLC v. Wild Oats Markets, Inc., 728 F.Supp.2d 1052, 1059 (E.D.Mo.2010) ( citing City of St. Joseph v. SW Bell Tel., 439 F.3d 468, 477 (8th Cir.2006)). Promissory estoppel requires: 1) a promise; 2) on which a party relies to his or her detriment; 3) in a way the promisor exp......
  • 767 S.E.2d 451 (S.C.App. 2014), 5282, McMaster v. Dewitt
    • United States
    • South Carolina Court of Appeals of South Carolina
    • December 3, 2014
    ...McMaster was attempting to create an issue of fact for purposes of summary judgment. See City of St. Joseph, Mo. v. Sw. Bell Tel., 439 F.3d 468, 476 (8th Cir. 2006) (" The timing of the affidavit . . . indicate[s] that the [plaintiff] engaged in a last-minute effort to create a genuine......
  • 728 F.Supp.2d 1052 (E.D.Mo. 2010), 4:09CV435-DJS, 1861 Group, L.L.C. v. Wild Oats Markets, Inc.
    • United States
    • Federal Cases United States District Courts 8th Circuit Eastern District of Missouri
    • July 26, 2010
    ...to enforce a promise on equitable grounds, even where parties did not enter into a contract. City of St. Joseph, Mo. v. Sw. Bell Tel., 439 F.3d 468, 477 (8th Cir.2006). The doctrine of promissory estoppel is to be applied " with caution, sparingly and only in extreme cases to avoid unj......
  • Student Assistance General Provisions, Federal Family Education Loan Program, and William D. Ford Federal Direct Loan Program
    • United States
    • Education Department
    • Invalid date
    ...LLC v. Wal-Mart Stores, Inc., 199 F.Supp. 2d 1114, 1122 (D.Kan. 2002); City of St. Joseph, Mo. v. Southwestern Bell Telephone, 439 F.3d 468, 478 (8th Cir. 2006); Redmond v. State Farm Ins. Co., 728 A.2d 1202, 1207 (D.C. \46\ Sundberg, 109 A.3d at 1131. \47\ Stevens v. JPMorgan Chase Bank, N......
  • Free signup to view additional results
73 cases
  • 883 F.Supp.2d 797 (E.D.Mo. 2012), 4:10CV623SNLJ, Ariel Preferred Retail Group, LLC v. CWCapital Asset Management
    • United States
    • Federal Cases United States District Courts 8th Circuit Eastern District of Missouri
    • August 1, 2012
    ...The 1861 Group, LLC v. Wild Oats Markets, Inc., 728 F.Supp.2d 1052, 1059 (E.D.Mo.2010) ( citing City of St. Joseph v. SW Bell Tel., 439 F.3d 468, 477 (8th Cir.2006)). Promissory estoppel requires: 1) a promise; 2) on which a party relies to his or her detriment; 3) in a way the promisor exp......
  • 767 S.E.2d 451 (S.C.App. 2014), 5282, McMaster v. Dewitt
    • United States
    • South Carolina Court of Appeals of South Carolina
    • December 3, 2014
    ...McMaster was attempting to create an issue of fact for purposes of summary judgment. See City of St. Joseph, Mo. v. Sw. Bell Tel., 439 F.3d 468, 476 (8th Cir. 2006) (" The timing of the affidavit . . . indicate[s] that the [plaintiff] engaged in a last-minute effort to create a genuine......
  • 728 F.Supp.2d 1052 (E.D.Mo. 2010), 4:09CV435-DJS, 1861 Group, L.L.C. v. Wild Oats Markets, Inc.
    • United States
    • Federal Cases United States District Courts 8th Circuit Eastern District of Missouri
    • July 26, 2010
    ...to enforce a promise on equitable grounds, even where parties did not enter into a contract. City of St. Joseph, Mo. v. Sw. Bell Tel., 439 F.3d 468, 477 (8th Cir.2006). The doctrine of promissory estoppel is to be applied " with caution, sparingly and only in extreme cases to avoid unj......
  • Shim v. ADT LLC, 111320 MOEDC, 4:20-cv-01009 SRC
    • United States
    • Federal Cases United States District Courts 8th Circuit Eastern District of Missouri
    • November 13, 2020
    ...LLC, No. 211CV00081ERW, 2012 WL 1745543, at *3 (E.D. Mo. May 16, 2012) (quoting City of St. Joseph, Mo. v. Sw. Bell Tel., 439 F.3d 468, 478 (8th Cir. 2006)). “However, if a ‘statement is a representation of the speaker's present intention or concerns matters within ......
  • Free signup to view additional results
1 provisions