Attlin Const., Inc. v. Muncie Community Schools

• Decision Date: 08 December 1980
• Docket Number: No. 2-178A4,2-178A4
• Citation: 413 N.E.2d 281
• Parties: ATTLIN CONSTRUCTION, INC., Plaintiff-Appellant, v. MUNCIE COMMUNITY SCHOOLS and Board of Trustee of Muncie Community Schools: J. Richard Marshall, President, John Wesley Wray, Vice-President, Joan Murray, Secretary, Hurley Goodall and Jack Donati, Members, Jacobs-Maze and Associates, and Dale L. Jacobs and Ronald G. Maze, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 281

413 N.E.2d 281

ATTLIN CONSTRUCTION, INC., Plaintiff-Appellant, v. MUNCIE COMMUNITY SCHOOLS and Board of Trustee of Muncie Community Schools: J. Richard Marshall, President, John Wesley Wray, Vice-President, Joan Murray, Secretary, Hurley Goodall and Jack Donati, Members, Jacobs-Maze and Associates, and Dale L. Jacobs and Ronald G. Maze Defendants-Appellees.

No. 2-178A4.

Court of Appeals of Indiana, Fourth District.

Dec. 8, 1980.

Rehearing Denied Dec. 24, 1980.

John T. Cook, Winchester, Wayne J. Lennington, Muncie, Frank E. Spencer, Indianapolis, for plaintiff-appellant.

Alan H. Lobley, Ice, Miller, Donadio & Ryan, Indianapolis, for Geupal Demars, Inc., as amicus curiae.

Frank E. Gilkison, White, Beasley, Gilkison, Retherford & Buckles, Samuel L. Reed, DeFur, Voran, Hanley, Radcliff & Reed, Muncie, for defendants-appellees.

MILLER, Judge.

Plaintiff-appellant Attlin Construction, Inc. (Attlin) appeals the judgment of the Delaware Circuit Court in favor of the defendants-appellees, Muncie Community Schools and the Board of Trustees of Muncie Community Schools (Muncie Schools), Jacobs-Maze and Associates (Jacobs-Maze), Dale L. Jacobs and Ronald G. Maze (the individual partners), entered upon the appellees' motions for an involuntary dismissal pursuant to Ind.Rules of Procedure, Trial Rule 41(B).

After Muncie Schools rejected all of Attlin's bids on 23 of 27 different construction projects at each addition to the Garfield and Sutton Elementary Schools in Muncie, Attlin sued Muncie Schools alleging it had violated the bidding statute in effect at that time, Ind.Code 5-16-1-1 (1976), by failing to let for bid the construction management contract it awarded Jacobs-Maze of Richmond, Indiana. Rather than let this contract for bid, in late 1975 Muncie Schools conducted a series of interviews with various architectural and engineering firms before contracting the engineering firm of Jacobs-Maze to serve as the "construction manager" supervising the design and construction of the two additions. Under the terms of its contract Jacobs-Maze received a fee of 4% of the total construction contracts for the 27 individual projects at each addition.

On appeal, Attlin seeks reversal of the trial court's judgment presenting for our consideration the sole question of whether the trial court erred in finding that Muncie Schools possessed the power to enter into a construction manager contract without submitting it for bids pursuant to IC 5-16-1-1 which required that all public construction contracts in excess of $5,000 be let for public competitive bids. For the reasons stated

below we affirm the decision of the trial court.

DECISION AND DISCUSSION

At the bench trial of Attlin's complaint, Attlin did not present any evidence but relied on the evidence it had introduced previously at a hearing on its unsuccessful request for a temporary injunction. Neither at the hearing nor the trial did the defendants present any evidence; rather, they each moved for an involuntary dismissal of the complaint pursuant to T.R. 41(B). ¹ The trial court granted these motions and entered judgment accordingly. Attlin appeals, arguing the court's ruling was contrary to the law as the evidence demonstrated that Muncie Schools hired Jacobs-Maze as the construction manager of the two additions despite lacking the power to do so without submitting the construction manager contract to public competitive bidding. Appellees argue that Attlin failed to establish a prima facie case that Muncie Schools lacked such power.

Building Systems, Inc. v. Rochester Metal Prods., Inc. (1976), 168 Ind.App. 12, 340 N.E.2d 791, enunciates our scope of review for deciding the issue presented in this appeal.

"The language of (T.R. 41(B)) requires the trial court to consider only the evidence and inferences most favorable to the non-moving party in ruling upon such a motion. The trial court may not weigh the testimony of one witness against the conflicting testimony of another witness, nor may it weigh conflicting portions of the testimony of the same witness. Ohio Casualty Ins. Co. v. Verzele et al. (1971), 148 Ind.App. 429, 267 N.E.2d 193. Thus, our Trial Rule 41(B), supra, differs from Federal Rule 41(b) in that under the Federal Rule the trial court need not consider only the evidence and reasonable inferences therefrom most favorable to the non-moving party, but is free to determine whether the plaintiff (or party with the burden of proof) has established a right to recovery by a preponderance of the evidence during his case-in-chief. Emerson Electric Co. v. Farmer, (5th Cir., 1970), 427 F.2d 1082; Ellis v. Carter (9th Cir., 1964), 328 F.2d 573, 577; Motorola, Inc. v. Fairchild Camera and Instrument Corp. (D.C.Ariz., 1973), 366 F.Supp. 1173, 1176. See also; 9 Wright and Miller Federal Practice and Procedure, § 2371, at 224-225; Moore's Federal Practice, Vol. 5, § 41.13(4), 1155-60.

Because the trial court may consider only the evidence and inferences favorable to the non-moving party in ruling upon a motion for involuntary dismissal, this Court must determine whether there was evidence introduced which could have been sufficient to support a recovery by such party when the granting or denial of such a motion is an issue on appeal. In the case at bar, then, the issue is whether the trial court properly found that there was no substantial evidence of probative value which would have supported the material allegations of the contractor."

168 Ind.App. at 13-14; 340 N.E.2d at 703.

The facts most favorable to Attlin contained in the record of this cause, derived from its witnesses and exhibits, are as follows ² Recognizing the need to construct additions to the Garfield and Sutton Elementary Schools, in November, 1975 Muncie Schools began interviewing architectural and engineering firms to design and oversee the construction of these additions. On December 9, 1975 Muncie Schools signed the Muncie firm of Graham, Love & Taylor (Graham, Love) as the architect for both additions. Rather than employ a general contractor, Muncie Schools contracted Jacobs-Maze, an engineering firm, as the construction manager for both additions on January 9, 1976. ³ Utilization of the construction manager process saved Muncie Schools 4-5% in professional fees since Jacobs-Maze charged only 4% of the construction cost as its fee while the testimony at the trial revealed that a general contractor would have realized a profit equal to 8-9% of the construction cost. Over the next four months information concerning the specifications for all 27 projects on each addition was made available to prospective contractors. This information included Muncie Schools' intention to utilize the construction manager method rather than the general contractor method for building the additions. Attlin's president testified that by the end of April, 1976 he knew the construction manager method was going to be utilized by Munice Schools. Attlin, a general contractor, bid on 23 of the 27 projects at each elementary school; however in May, 1976 all their bids were rejected and other contractors were awarded those jobs. Construction began shortly thereafter in early June, 1976.

Attlin introduced into evidence the construction manager contract between Jacobs-Maze and Muncie Schools. This contract required Jacobs-Maze to perform services in two different phases: (1) the design phase; and (2) the construction phase. ⁴ Jacobs-Maze did not have to actually construct any part of either addition. Rather, through coordinating the solicitation and acceptance of bids for the 27 projects at each school during the design phase and sharing with the architect general supervisory authority over the work performed in the construction phase, Jacobs-Maze synchronized the entire construction package.

IC 5-16-1-1 required a public body to submit for competitive bidding any contract for construction in excess of $5,000. ⁵ This statute must be read in conjunction with Ind.Code 20-5-2-2 which specifies the powers possessed by the governing bodies of school corporations in Indiana. Specifically, Muncie Schools possessed the power:

"(1) ... to enter into contracts in matters permitted by applicable law.

(2) ... to establish, locate and provide the necessary schools, ... other buildings, facilities, property and equipment therefor.

(3) To acquire, construct, erect, maintain, hold, and to contract for such construction, erection or maintenance, of such real estate, or real estate improvements, or any interest in either, as the governing body deems necessary for school purposes, including but not limited to buildings, parts of buildings, (and) additions to buildings, ....

(7) To employ, contract for and discharge superintendents, supervisors, principals, teachers, librarians, business managers, superintendents of buildings and grounds, janitors, engineers, architects, physicians, dentists, nurses, accountants, teacher aides performing non-instructional duties, educational and other professional consultants, data processing and computer service for school purposes, ..., and such other personnel or services, all as the governing body considers necessary for school purposes ; ....

(19) To exercise any other power and make any expenditure in carrying out its general powers and purposes provided in sec. 201 or in carrying out the powers delineated in this sec. 202 which is reasonable from a business or educational standpoint in carrying out school purposes of the school corporation, including but not limited to the acquisition of property or the employment or contracting for services, even though such power or expenditure shall not be specifically set out herein; and the specific powers set out in this section shall not be construed to limit the general grant of powers provided in sec. 201 except where a limitation is set out in this act by specific language or by reference to other law." (Emphasis added)

On appeal, Attlin...