City of Gary v. Enterprise Truck. & Waste
| Decision Date | 17 February 2006 |
| Docket Number | No. 45A03-0506-CV-251.,45A03-0506-CV-251. |
| Citation | 846 N.E.2d 234 |
| Parties | CITY OF GARY, et. al., Appellants, v. ENTERPRISE TRUCKING & WASTE HAULING, Appellee. |
| Court | Indiana Appellate Court |
Gilbert King, Jr., Rebecca L. Wyatt, Meyer & Wyatt, Gary, for Appellant.
On February 17, 2006, the Court handed down its opinion in this appeal marked Memorandum Decision, Not for Publication. The Appellant, by counsel, filed a Petition to Publish Memorandum Decision. On April 5, 2006, this Court issued an order granting Appellant's petition. However, due to a scrivener's error, the order entered on our Clerk's docket indicates that Appellant's petition was denied.
Having reviewed the matter, the Court FINDS AND ORDERS AS FOLLOWS:
(1) Appellant's Petition to Publish Memorandum Decision is GRANTED, and this Court's opinion heretofore handed down in this cause on February 17, 2006, marked Memorandum Decision, Not for Publication, is now ORDERED PUBLISHED.
(2) The Clerk of the Court is DIRECTED to correct the docket to show that Appellant's petition is granted, and that the entry indicating that Appellant's petition was denied was entered in error.
All panel members concur.
The City of Gary ("City") appeals the trial court's grant of a motion by Enterprise Trucking & Waste Hauling, Inc. ("Enterprise") for a preliminary injunction and a permanent injunction against the City. The City raises four issues, which we consolidate and restate as:
I. Whether the trial court had jurisdiction to issue a permanent injunction after it granted the City's motion for change of venue from the judge; and
II. Whether the trial court's grant of a preliminary injunction was clearly erroneous.1
We reverse and remand.2
In November 2004, the City invited bids for "hauling and disposal of demolition debris (not to include garbage or other solid waste), commonly known as C & D (wood, glass, metals, concrete, bricks, dirt, etc.), resulting from the building demolition activity of the City's demolition crew." Exhibit 1 at 1. Enterprise placed a bid with the City, and in January 2005, the City and Enterprise entered into a contract, which states:
This AGREEMENT is effective as of January 26, 2005, by and between the CITY OF GARY, INDIANA, a Municipal Corporation (the "City"), and Enterprise Trucking and Waste Hauling, Inc., 15 West 6th Avenue, Gary, Indiana 46402 (the "CONTRACTOR").
* * * * * *
NOW, THEREFORE, for and in the consideration of the mutual promises, covenants and benefits set forth in this AGREEMENT, and other good and valuable consideration, the receipt of which are hereby acknowledged by the parties, CITY and CONTRACTOR agree as follows:
1. SCOPE OF SERVICES
The services to be performed by the contractor on behalf of the CITY are as follows:
1.1 (a) Demolition Debris Disposal Services, commonly known as C & D; and
(b) Demolition Debris Hauling and Disposal Services ("C & D")
as provided for in City's Invitation to Bid and Project Specifications, which are incorporated herein by reference.
The City assisted the Hope VI housing development with site preparation at Seventh Avenue and Washington Street (the "site"). At some point, the City entered into a contract with Bucko Construction Company, Inc., ("Bucko"), in which Bucko would "[h]andle the concrete, or the foundational material around any structure or construction site."3 Transcript at 102. At the site, Bucko began hauling away or disposing of concrete, asphalt, sand, and dirt. The City authorized Bucko to perform these services "based on the work that was being done at the site" and because "asphalt would be more closely related to concrete." Id. at 79. The City discovered a buried structure at the site and called Enterprise to remove "house brick that was discovered below grade where a structure was obviously demolished and buried." Id. at 92.
On March 28, 2005, an attorney for Enterprise sent a letter to an attorney for the City, which stated:
* * * * * *
Recently, there has been some activity at, or near, the 7th Avenue and Washington Street site where the City is preparing the grounds for a residential development. In its preparation of the site, the City is excavating C & D material, including asphalt from the parking lots. On or about March 24, 2005, my client took photographs of this material being excavated from the site and transported to the business location of Bucko Construction. The disposal of this material at Bucko Construction, which continues even today, raises several concerns that the City is in breach of its contract with Enterprise.
The City's contract with Enterprise for C & D hauling and disposal services only excludes concrete. Enterprise does not dispute the disposal of concrete with Bucko. Enterprise does, and will continue to, vigorously challenge the City's failure to strictly adhere to the contract at issue. The improper disposal of the asphalt, which includes dirt, sand and other miscellaneous C & D material, results in a financial loss to my client. These losses will not be absorbed by my client and therefore, we request that you advise the City, and its Redevelopment Department, to immediately comply with the terms of the contract. If the City does not immediately comply with the contract, we will be forced to seek injunctive relief.
* * * * * *
Exhibit B.
On March 30, 2005, Enterprise filed a complaint, which stated:
* * * * * *
II. Factual Allegations
7. The plaintiff is the only company that has been awarded a publicly bid contract to perform C & D hauling and disposal services to the City of Gary, excluding concrete; this contract is dated January 26, 2005. See Exhibit A.
8. Plaintiff's contract to perform C & D hauling and disposal services was the result of a public bid process which invited other qualified companies to bid on the C & D work, as well as, the hauling and disposal of concrete.
9. Bucko Construction Company, Inc. ("Bucko") was awarded the contract to haul and dispose of concrete.
10. By virtue of the fact that the plaintiff is the only company which was awarded the C & D work and that Bucko was the only company awarded the concrete work, no other company is authorized to perform these services as no other company has a valid contract to perform these respective services for the City of Gary or any of its subsidiaries, subdivisions or departments.
11. By virtue of the specific nature in which the bid specifications were drafted, the City of Gary intended to have the successful bidders to specifically perform the services related to C & D and concrete as two distinctly different products. See Exhibit A (Addendum # 3).
12. Beginning on, or about, March 24, 2005, the City of Gary began using the services of Bucko to remove C & D from a construction site located at approximately 7th Avenue and Washington Street in Gary, Indiana.
13. On, or about, March 24, 2005, the plaintiff contacted Vanesse Dabney to complain of the City's failure to adhere to the terms and conditions of the plaintiff's contract with the City; no corrective action was taken and the project continued.
14. On, or about, March 25, 2005, the plaintiff, by counsel, contacted James Meyer, counsel for the City of Gary, regarding the City's breach of contract with the Plaintiff; no corrective action was taken and the project continued.
15. On March 28, 2005, the plaintiff, by counsel, issued a letter to the City of Gary's corporation counsel, Hamilton Carmouche, requesting that the City take action to adhere to the terms of its contract with the plaintiff and to cease its current operations at the 7th Avenue and Washington Street construction site. This letter was also sent to city attorney, James Meyer, Vanesse Dabney, Redevelopment Commission counsel, Gil King, and Bucko Construction Company. See Exhibit B.
16. The defendants continue to cause C & D material to be hauled and disposed of, by Bucko, from the 7th Avenue and Washington Street site without utilizing the services of the plaintiff who has the only valid contract to perform the services. See Exhibit C.
17. As a result of the City of Gary's failure to adhere to the terms of its contract with plaintiff, and the continued activities of Bucko, the plaintiff is suffering irreparable harm to its business. Unless the challenged actions of the defendants are enjoined immediately, the conduct of the defendants will continue and the plaintiff will be irreparably harmed.
III. Legal Claims
18. By ordering Bucko, and not the plaintiff, to haul and dispose of C & D at the 7th Avenue and Washington Street construction site, the City breached its contract with the plaintiff dated January 26, 2005.
IV. Relief
WHEREFORE, the plaintiff requests the following relief:
a. Pursuant to Rule 65, IRTP, temporary, preliminary and permanent injunctive relief enjoining the defendants from continuing to haul and dispose of C & D material at the 7th Avenue and Washington Street site in Gary, Indiana unless, the City of Gary adheres to the terms of its contract for these services with the plaintiff;
b. A declaratory judgment, based upon the detail provided in the City of Gary's bid documents and common knowledge, defining C & D as all material that is produced from a construction and demolition site, excluding concrete.
c. A declaratory judgment determining that the plaintiff is the only company contractually authorized to haul and dispose of C & D material from City of Gary construction projects for the duration of its contract with the City of Gary;
d. Order the City of Gary to notify the plaintiff of each instance in which any projects which involve the hauling and disposal of C & D are scheduled;
e. Order the City of Gary to provide an accounting of all C & D material hauled from the site and disposed of; including weigh tickets from Bucko Construction and any invoices submitted to the City of Gary by Bucko...
To continue reading
Request your trial
-
Plaza Group Prop. v. Spencer County Plan
...while an action in pending, whereas a permanent injunction is issued upon a final determination. City of Gary v. Enter. Trucking & Waste Hauling, 846 N.E.2d 234, 242 (Ind. Ct.App.2006). Generally, the trial court considers four factors when determining whether to grant injunctive relief: (1......
-
Lake Cnty. v. House
...agree. A preliminary injunction is an interlocutory order issued while an action is pending. City of Gary v. Enterprise Trucking & Waste Hauling , 846 N.E.2d 234, 242 (Ind. Ct. App. 2006). The purpose of a preliminary injunction is to preserve the status quo pending an adjudication of a cas......
-
Johnson Cty Rural Elec. v. South Cent. in
...filed under Trial Rule 76 and, therefore, the trial court had no discretion to deny it. See, e.g., City of Gary v. Enterprise Trucking & Waste Hauling, 846 N.E.2d 234, 241 (Ind.Ct.App.2006). SCI contends that the motion was not timely filed and that we should review its denial for an abuse ......
-
C.M. v. J.J. (In re M.J.)
...filed, the trial court is divested of jurisdiction to take further action except to grant the motion. City of Gary v. Enter. Trucking & Waste Hauling, 846 N.E.2d 234 (Ind.Ct.App.2006). T.R. 76(C), however, imposes a number of time limitations on the filing of such motions. One relevant time......