All American Movers, Inc. v. Kentucky ex rel. Hancock, ALL-AMERICAN
| Decision Date | 20 May 1977 |
| Docket Number | ALL-AMERICAN |
| Citation | 552 S.W.2d 679 |
| Parties | MOVERS, INC., Jimmy Creech, and Glen D. Creech, Appellants, v. Commonwealth of KENTUCKY, ex rel. Ed W. HANCOCK, Attorney General, Appellee. |
| Court | Kentucky Court of Appeals |
Rose & Martin, Williamsburg, for appellants.
Ed W. Hancock, Atty. Gen., Kenneth A. Howe, Jr., Asst. Deputy Atty. Gen., William W. Pollard, Asst. Atty. Gen., Frankfort, for appellee.
Before WHITE, HOWARD and COOPER, JJ.
This action arose when the Attorney General of the Commonwealth of Kentucky filed suit pursuant to Ky.Rev.Stat. § 15.060 (hereinafter cited as KRS) to recover monies paid to appellants. However, before discussing the issues in this case, it is appropriate to describe the factual background.
During the last half of 1971, the Commonwealth of Kentucky was preparing for occupancy of the then new Capitol Plaza Office Building in Frankfort, Kentucky. Competitive bids were solicited via invitations to bid pursuant to KRS 45.360 for the moving of certain effects of state agencies from their present locations to the Capitol Plaza Building. Among the recipients of these invitations was Glen D. Creech, president of All-American Moving and Storage d/b/a Hulette Transfer.
All-American Moving and Storage did submit a bid and as a result, on November 17, 1971, the Division of Purchases, Department of Finance, Commonwealth of Kentucky, awarded Price Contract No. PCT 532-1272 to All-American Moving and Storage for ". . . moving services of various state agencies from their present location to the Capitol Plaza Building." (emphasis added)
Jimmy Creech, who is the son of Glen D. Creech, testified in his January 9, 1974 deposition that in February of 1972 he contacted then Governor Wendell Ford and discussed with him the movement of some two million dollars worth of new furniture from storage in the Capitol Plaza basement parking area into the Plaza Building. Creech testified that following this conversation, he then agreed orally with Commissioner of Finance Donald Bradshaw that the Creech organization would proceed to move the new furniture into the Capitol Plaza Building at the rate of $28.00 an hour per four-man crew. This rate of compensation was roughly twice that contained in PCT No. 532-1272. In their depositions, both Governor Ford and Donald Bradshaw denied the substance of Creech's testimony.
On March 13, 1972, the appellants actually began to move the furniture within the Capitol Plaza Building. Soon thereafter, questions arose between certain union personnel and the Creech organization over jurisdiction concerning moving of the furniture. This dispute was amicably resolved and has no bearing on the alleged oral contract before us now.
In order to receive payment under this alleged oral contract, it was necessary to prepare purchase orders (DP's) which would be rejected unless they contained a contract number. It is unclear from the record as to how it was done, but the purchase orders submitted for payment bore the contract number PCT 532-1272. The listed number of hours worked had also been increased in order to compensate for the lower rate of pay under PCT 532-1272.
This contract was modified twice, once on July 19, 1972, when the name of the vendor was changed to All-American Movers, Inc., and again on December 21, 1972, when it was extended to cover the calendar year 1973 and also to cover all state agency moves in the Frankfort, Kentucky area. However, contract number PCT 532-1272 was never intended to and did not cover the moving of furniture within the Capitol Plaza. It is undisputed that the Creech organization did in fact render extensive moving services within the Capitol Plaza Building.
Appellee, Commonwealth of Kentucky, tendered and appellants, Glen D. Creech and All-American Movers, Inc., accepted payments nominally pursuant to PCT 532-1272 as follows:
1. Check No. 1,481,922
All American Moving & Storage ....... $ 5,264.00
2. Check No. 1,484,345
All American Moving & Storage, dba
Hulette Transfer ....................... 5,264.00
3. Check No. 1,550,467
Hullette (sic) Transfer ............... 25,344.00
4. Check No. 1,561,499
All American Moving & Storage, dba
Hulette Transfer ....................... 3,472.00
5. Check No. 1,575,000
Hulette Transfer ....................... 3,360.00
6. Check No. 1,581,868
Hulette Transfer ...................... 27,052.30
7. Check No. 1,626,040
All American Moving (sic),Inc........... 4,256.00
8. Check No. 1,637,189
All American Movers, Inc............... 81,668.00
9. Check No. 1,732,813
All American Movers ................... 14,112.00
10. Check No. 1,795,130
All American Movers .................... 7,168.00
11. Check No. 1,824,223
All American Movers .................. 139,852.60
12. Check No. 1,973,153
All American Movers ................... 60,488.15
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TOTAL ............................... $377,301.15
Appellant Jimmy Creech returned to appellee Commonwealth of Kentucky.$9,808.00 as an admitted overcharge on DP 121393, thus making the net amount of payments made to appellants nominally pursuant to PCT 532-1272 total $367,493.05 ($377,301.05 minus.$9,808.00).
Lloyd Price, accountant for appellants Glen D. Creech, Jimmy Creech, and All-American Movers, Inc.,...
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