Bigley v. MSD of Wayne Township Schools

• Decision Date: 09 December 2004
• Docket Number: No. 49A02-0310-CV-893.,49A02-0310-CV-893.
• Citation: 823 N.E.2d 278
• Parties: Lisa R. BIGLEY, as a Taxpayer within the MSD of Wayne Township, and for All Other Similarly-Situated Citizens and Taxpayers, Appellant-Plaintiff, v. MSD OF WAYNE TOWNSHIP SCHOOLS, Acting by and through its School Board, Appellee-Defendant.
• Court: Indiana Appellate Court

823 N.E.2d 278

Lisa R. BIGLEY, as a Taxpayer within the MSD of Wayne Township, and for All Other Similarly-Situated Citizens and Taxpayers, Appellant-Plaintiff, v. MSD OF WAYNE TOWNSHIP SCHOOLS, Acting by and through its School Board, Appellee-Defendant.

No. 49A02-0310-CV-893.

Court of Appeals of Indiana.

December 9, 2004.

Publication Ordered February 25, 2005.

Transfer Denied March 31, 2005.

Thomas A. Pastore, Pastore & Gooden, Indianapolis, IN, Attorney for Appellant.

V. Samuel Laurin, III, Theresa M. Ringle, Bose McKinney & Evans LLP, Indianapolis, IN, Attorneys for Appellee.

OPINION

KIRSCH, Chief Judge.

Lisa R. Bigley, as a taxpayer within the Metropolitan School District of Wayne Township, and for all similarly-situated citizens and taxpayers, brings this appeal alleging that the trial court erred when it denied her motion for a preliminary injunction on the basis that Bigley failed to show a reasonable likelihood of success on the merits. She argues that she has a reasonable likelihood of success on the merits because the bidding process for the construction of a public works project was not open to competition, the Wayne Township School Board ("Board") improperly determined that the bid of R.L. Turner Corporation ("Turner") was the lowest responsive bid, and the Board improperly determined that Turner was a responsible bidder, all in violation of statute.

We affirm.

FACTS AND PROCEDURAL HISTORY

In 2002, the Board entered into an agreement with Schmidt and Associates ("Schmidt") to design the Lynhurst Project, a seventh and eighth grade center that included a pool for student and community use. Schmidt was also charged with preparing a set of plans and specifications, assisting Wayne Township in conducting a bid letting and the award of contracts, and assisting in overseeing the construction of the project. Geupel Demars Hagerman ("GDH") was employed as the construction manager for the project.

Schmidt employed L & W Construction Co. ("L & W") as a pool consultant for the pool portion of the Lynhurst Project ("Pool Project.") L & W's role was to prepare plans and specifications for the Pool Project, prepare a budget for the project, obtain necessary permits and approvals, assist with the determination of whether equipment or supplies other than those specified were of equal quality and status to those specified, and oversee the work of the successful bidder on the project.

L & W prepared the specifications for the Pool Project, which included descriptions of filters, gutters, and other equipment. L & W specified components manufactured by Paddock Pool Equipment Company, Inc. ("Paddock"), but provided that bidders could request approval for substitutions that were of equal quality to those specified.

After the specifications were made public, Turner requested approval to substitute a number of components specified for those made by a different manufacturer. L & W recommended the approval of all of the substitutions requested, except for a fiberglass filter. However, it noted that the same filter made of stainless steel would be acceptable. Ultimately, two bidders submitted bids for the Pool Project. J.C. Ripberger Construction ("J.C.Ripberger") submitted a bid that relied upon a subcontract bid from L & W for the pool components. Similarly, Turner submitted a bid that relied upon a subcontract bid from Spear Corporation ("Spear") to supply and install the pool system components.

On September 23, 2003, Bigley filed suit to enjoin the award of the Pool Project on the basis that it was designed, bid, and awarded in violation of statute. On that same date, the trial court granted Bigley's request for a temporary restraining order. Three days later, the trial court dissolved the temporary restraining order. On September 30, 2003, GDH recommended to the Board that the Pool Project be awarded to Turner, which it determined had submitted the lowest responsive bid from a responsible bidder.

On October 2 and October 8, 2003, the trial court conducted a hearing on Bigley's complaint. Thereafter, the trial court issued findings and conclusions denying Bigley's request for a preliminary injunction. The Board awarded the Pool Project to Turner, and Turner began construction of the pool. Bigley now appeals.

DISCUSSION AND DECISION

Bigley argues that the trial court erred in denying her petition for a preliminary injunction. The grant or denial of a preliminary injunction is within the sound discretion of the trial court, and the scope of appellate review is limited to deciding whether there has been a clear abuse of discretion. Robert's Hair Designers, Inc. v. Pearson, 780 N.E.2d 858, 863 (Ind.Ct.App.2002); Daugherty v. Allen, 729 N.E.2d 228, 232 (Ind.Ct.App.2000),trans. dismissed; Union Twp. Sch. Corp. v. State ex rel. Joyce, 706 N.E.2d 183, 189 (Ind.Ct.App.1998),trans. denied (1999); City of Gary v. Stream Pollution Control Bd. of State of Ind., 422 N.E.2d 312, 315 (Ind.Ct.App.1981). When determining whether or not to grant a preliminary injunction, the trial court is required to make special findings of fact and state its conclusions thereon. Robert's Hair Designers,780 N.E.2d at 863; Daugherty, 729 N.E.2d at 232. When findings and conclusions are made, the reviewing court must determine if the trial court's findings support the judgment. Robert's Hair Designers,780 N.E.2d at 863; Daugherty, 729 N.E.2d at 232. The trial court's judgment will be reversed only when clearly erroneous. Robert's Hair Designers,780 N.E.2d at 863; Daugherty, 729 N.E.2d at 232. Findings of fact are clearly erroneous when the record lacks evidence or reasonable inferences from the evidence to support them. Robert's Hair Designers,780 N.E.2d at 863; Daugherty, 729 N.E.2d at 232. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made. Robert's Hair Designers,780 N.E.2d at 863. We consider the evidence only in the light most favorable to the judgment and construe findings together liberally in favor of the judgment. Id.; Daugherty, 729 N.E.2d at 232.

The power to issue a preliminary injunction should be used sparingly, and such relief should not be granted except in rare instances in which the law and facts are clearly within the moving party's favor. Robert's Hair Designers, 780 N.E.2d at 863; Daugherty, 729 N.E.2d at 233; Union Twp. Sch. Corp., 706 N.E.2d at 189. To obtain a preliminary injunction, the moving party has the burden of showing by a preponderance of the evidence that: 1) its remedies at law are inadequate, thus causing irreparable harm pending resolution of the substantive action; 2) it has at least a reasonable likelihood of success at trial by establishing a prima facie case; 3) its threatened injury outweighs the potential harm resulting from the granting of an injunction; and 4) the public interest would not be disserved.¹ Hughes v. City of Gary, 741 N.E.2d 1168, 1175 (Ind.2001); Dicen v. New Sesco, Inc., 806 N.E.2d 833, 841-42 (Ind.Ct.App.2004); Robert's Hair Designers, 780 N.E.2d at 863; Daugherty, 729 N.E.2d at 232-33; Union Twp. Sch. Corp., 706 N.E.2d at 189.

In this case, Bigley argues that the Board has not followed the statutory procedures in receiving bids for the Pool Project. IC XX-X-XX-X specifies the procedure for obtaining bids for public works projects that exceed the specified size. The purpose behind competitive bidding statutes is to safeguard the public against fraud, favoritism, graft, extravagance, improvidence, and corruption and to insure honest competition for the best work or supplies at the lowest reasonable cost. Schindler Elevator Corp. v. Metro. Dev. Comm'n, 641 N.E.2d 653, 657 (Ind.Ct.App.1994).

Bigley first argues that the specifications adopted by the Board precluded competition by limiting which companies could meet the requirements. IC XX-X-XX-X(b)(1) requires the Board to prepare general plans and specifications describing the kind of public work required and avoid specifications that might unduly limit competition. Bigley asserts that L & W specified products that it had an exclusive franchise or right to sell in the area. She compares the Pool Project specifications to those in Monaghan v. City of Indianapolis, 37 Ind.App. 280, 291-92, 76 N.E. 424, 428 (1905), where a plaintiff challenged the award of a paving project to a bidder. There, the plaintiff complained that the paving product specified was a patented process. Because the patentee had absolute control over the price at which it would supply the paving, the plaintiff argued that the competitive bidding process was undermined. We agreed, and explained that if a party holds the exclusive right to use and to sell a patented process, the choice of the patented improvement amounts practically to a choice of the contractor. We concluded that so long as the patentee may sell or may refuse to sell to anyone the right to use the article, there can be no competition where the patentee owns and controls the process and other potential bidders can only procure the process from the patentee. Id.

Here, the trial court concluded that the essence of Bigley's complaint was that the project was not competitively bid, but that because both J.C. Ripberger and Turner submitted bids, her contention was without merit. Further, it concluded that Turner did not gain a material advantage over J.C. Ripberger in the bidding process. These conclusions were supported by its findings that L & W, the pool consultant on the Pool Project, prepared the pool specifications and drawings. The trial court also found that L & W does not manufacture its own pool equipment, but is an authorized, though not exclusive, dealer for Paddock, which is a pool equipment supplier/manufacturer that also sells its equipment directly. These findings were supported by the testimony of Gary Richard Smith, senior project manager for GDH, and John Wisel, president of L & W. Smith testified that L...