City-Wide Asphalt Co., Inc. v. City of Independence
| Decision Date | 27 December 1976 |
| Docket Number | CITY-WIDE,No. KCD,KCD |
| Citation | 546 S.W.2d 493 |
| Parties | ASPHALT CO., INC., Appellant, v. CITY OF INDEPENDENCE, Missouri, et al., Respondents. 27604. |
| Court | Missouri Court of Appeals |
John S. Newhouse, J. Samuel Newhouse, Independence, for appellant.
James S. Cottingham, John M. Gibson, James L. Gillham, Independence, for respondents.
Before TURNAGE, P.J., and WELBORN and HIGGINS, Special Judges.
City-Wide Asphalt Company filed suit against the City of Independence, its city manager, and the members of the city council, (1) to obtain a declaratory judgment that City-Wide had a contract with the City to supply all of its hot asphaltic concrete requirements for the year May 1, 1969, to April 30, 1970; (2) for judgment for $40,766.63 for balance due for asphalt, paver and roller use, and (3) for $154,099.98 for loss of profits on the sale of asphaltic concrete because of the purchase by the City from another supplier. The City filed a counterclaim alleging it had paid City-Wide $333,057.40 for asphaltic concrete improperly because the City's agreement to purchase such asphalt was made in violation of its own ordinances and of § 432.070, RSMo 1969, and because the City only obligated itself to purchase 5,000 tons of asphaltic concrete and the City, in fact, paid City-Wide about $300,000 in excess of the cost of 5,000 tons.
Trial was to the court without a jury and the court entered judgment in favor of the City on City-Wide's petition and in favor of the City on the City's counterclaim, and entered judgment against City-Wide for $55,868.25. City-Wide has appealed.
City-Wide asserts the court erred in the following respects: (1) The City was not entitled to recover on its counterclaim; (2) City-Wide was prejudiced by the delay between the date of the trial and the date of the decision; (3) City-Wide had a contract to supply all of the City's asphaltic concrete for one year; (4) City-Wide is entitled to payment for the balance due on asphalt supplied for patchwork; and (5) City-Wide is entitled to recover for paver with operators and for the use of rollers as extras to the contract it did have. Judgment for the City on City-Wide's petition affirmed. Judgment for the City on its counterclaim reversed.
At the threshold is a motion by the City to dismiss the appeal or to affirm the judgment because the brief filed by City-Wide fails to comply with rule 84.04, and because City-Wide failed to preserve the matters it attempts to raise on this appeal by presenting the same to the court in a motion for a new trial.
The brief of City-Wide is not in compliance with Rule 84.04. It is unduly lengthy because counsel has failed to frame the very few questions involved into concise points. Instead, most of the points are disjointed and stated in such fashion as to obscure the precise complaint as to the court's ruling. This brief illustrates one of the biggest problems appellate courts face, i.e., to determine the exact point raised. Counsel will be well advised to take the time necessary to analyze each case to distill the few problems generally involved so that these may be concisely stated. Rule 84.04(d) requires this, and when it is properly done it greatly expedites the disposition of the appeal.
The statement of facts in this brief also fails to comply with the rules. Rule 84.04(c) requires a fair and concise statement of facts. As is the case with the points relied on, compliance with this rule facilitates the handling of an appeal.
Despite the failure of this brief to comply with the rules, its deficiency is not so great as to warrant the drastic remedy of dismissal. However, counsel should expect the courts to exact compliance with the rules with increasing vigor as the case loads mount.
City-Wide has attempted to raise many errors which will not be noticed because of the failure to properly raise them, and because the points heretofore set out fairly raise the viable points which dispose of the controversy between these parties.
The City contends City-Wide was required to file a motion for a new trial in this court tried case in order to preserve any of its points for review. Although there may be statements in some of the cases to the contrary, the Supreme Court has held there is no requirement to file a motion for a new trial in a court tried case. March v. Gerstenschlager, 436 S.W.2d 6 (Mo.1969). See also Hyde, Appellate Review of Cases Tried By the Court Without a Jury, Journal of the Missouri Bar, Vol. 26, No. 2 (Feb. 1970), and Rule 73.01 effective January 1, 1975.
The trial court entered extensive findings of fact and conclusions of law which have proved to be quite helpful. The facts as found by the trial court, and which find substantial support in the evidence, are as follows: The City is a constitutional charter city and City-Wide is a Missouri corporation. In early 1969, the City advertised for bids and then circulated to various companies a 'request for quotation' for the City's requirement of hot mix asphaltic concrete for a period of one year with a total requirement estimated at 5,000 tons. The asphalt was to be f.o.b. the plant of the supplier.
The asphalt to be obtained under this request was stated to be for street patching, repair materials, and for the use of the park department and for miscellaneous city use.
Pursuant to this request, City-Wide submitted a bid of $6.25 a ton. At a regular meeting of the City Council, a journal entry was made in which it was stated 'Council approval is requested to purchase our requirement of hot mix asphalt for the period of one year from the City-Wide Asphalt Company at a cost of $6.25 per ton.' The entry showed this motion passed with Councilman Roberts not voting.
The City purchasing agent notified City-Wide of the acceptance of this bid and thereafter between May 1, 1969, and August 1, 1969, the City purchased 5.047.70 tons of asphalt from City-Wide pursuant to such council action. The court found none of the asphalt supplied under this arrangement was intended by either the City or City-Wide to include asphalt to be supplied to the City for a comprehensive overlay program on the city streets.
Subsequent to the City's notification to City-Wide that its bid for the estimated 5,000 tons of asphalt had been accepted, the City advertised for bids for 'the furnishing, placing and finishing of 16,250 tons of asphaltic concrete surface mix for the purpose of resurfacing certain streets in District 3 of the City.' District 3 referred to councilmanic district 3 of the City. Similar invitations for bids were made for each of the other councilmanic districts of the City. City-Wide submitted a bid to supply the asphalt for District 3 only. Other bids were received for all of the districts.
After the City had opened the bids for all of the districts, and prior to the Memorial Day weekend in 1969, the City public works director conceived a plan for the City to use its own work force to overlay its streets. The public works director made an agreement with City-Wide for City-Wide to supply asphaltic concrete to the job site for a pilot project on two miles of the City's streets. This plan was designed to determine if the overlay program could be conducted at less cost to the City by using city labor with the asphalt delivered to the site by an outside supplier. Subsequent to this pilot project, the city council passed a motion to 'authorize the city manager to move immediately to rent a Barber-Green paver and operator to contract with the low bidder on asphaltic material at $6.25 per ton and to rent the ten ton roller and whatever is deemed necessary to fix the streets at once.'
The city council again met two weeks later and voted to purchase hot mix asphalt from City-Wide on a delivered basis of $6.65 per ton. No bidding procedures were conducted prior to the passage of this motion. Thereafter, City-Wide supplied asphalt to the City under both the arrangement for asphalt to be delivered f.o.b. City-Wide's plant at $6.25 a ton and for asphalt f.o.b. the job site for the overlay program at $6.65 a ton. City-Wide also furnished a paver with operator at $125 per day and rollers at a cost of $35 per day each for the overlay program.
No contract was entered into between the City and City-Wide for the overlay program. The public works department would request City-Wide to supply a certain amount of asphalt at a certain point and would thereafter send City-Wide a purchase order. City-Wide then sent an invoice to the City for the amount of asphalt supplied together with the cost of the paver and rollers.
The above arrangement existed until August 1, 1969, when a City employee discovered the City was paying for asphalt without a contract and without bids having been taken. Up to that the City-Wide had furnished 49,325.03 tons of asphalt. After terminating the purchase of asphalt from City-Wide, the City contracted with another asphalt supplier for its asphalt requirements on the overlay program.
The plant operated by City-Wide in which it manufactured asphaltic concrete is located on land owned by Paul Roberts, who was a member of the city council between May 1, and August 1, 1969. Russell Buehler, the principal owner of City-Wide, stated his company did not pay Mr. Roberts any rent, but purchased rock from Mr. Roberts. He stated this was the inducement which led Roberts to allow City-Wide to occupy his land rent free. Mr. Buehler further testified he purchased rock from other companies for the requirements needed to supply the City. He did not purchase any rock from Mr. Roberts to fill any City order.
In its conclusions of law the court found:
'That it would not be equitable to allow the City to recover the entire cost of the money paid for asphalt and pavers as clear and convincing proof of a fraud was not...
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