Envirologix Corp. v. City of Waukesha
| Decision Date | 01 March 1995 |
| Docket Number | No. 93-2096,93-2096 |
| Citation | 192 Wis.2d 277,531 N.W.2d 357 |
| Parties | ENVIROLOGIX CORPORATION, a Foreign Corporation, Plaintiff-Appellant, v. CITY OF WAUKESHA, Wisconsin, a Municipal Corporation, SEC Donohue, Inc., f/k/a Donohue & Associates, Inc., a Wisconsin Corporation, C.D. Smith Construction, Inc., a Wisconsin Corporation, Applied Technologies, Inc., a Wisconsin Corporation, and J.F. Ahern Co., a Wisconsin Corporation, Defendants-Respondents. d |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Paul M. Erspamer, of Jastroch & LaBarge, of Waukesha.
On behalf of the defendant-respondent, City of Waukesha, the cause was submitted on the brief of John P. Higgins, of Stilp and Wells of Milwaukee.
On behalf of the defendant-respondent, SEC Donohue, Inc., the cause was submitted on the brief of Hugh N. Anderson, of Wickwire Gavin P.C. of Madison.
On behalf of the defendant-respondent, Applied Technologies, Inc., the cause was submitted on the brief of Donald P. Gallo and Thomas J. Basting, Jr. of Michael, Best & Friedrich of Milwaukee.
Before BROWN, NETTESHEIM and SNYDER, JJ.
Envirologix Corporation appeals from a summary judgment dismissing its complaint against the City of Waukesha, SEC Donohue, Inc. and Applied Technologies, Inc. (ATI). In its complaint, Envirologix challenged the City's award of a contract for the providing of waste water treatment equipment to another party which had submitted a higher bid. The trial court held that the City, Donohue and ATI were immune from suit pursuant to the governmental immunity provisions of § 893.80(4), STATS.
We affirm the trial court's dismissal of Envirologix's action against the City. However, we conclude that the summary judgment evidentiary record does not support the trial court's further holding that Donohue and ATI were "agents" of the City within the meaning of § 893.80(4), STATS. We therefore reverse the dismissal of Envirologix's claims against Donohue and ATI. We remand for further proceedings consistent with this decision.
The facts underlying this case are not in dispute. Envirologix manufactures waste water treatment equipment. In 1991, the City formally solicited bids for the expansion of its waste water treatment plant at a projected cost of $36.5 million dollars. The City retained Donohue as its consulting engineer regarding the project. Donohue, in turn, retained ATI as its subconsultant. In due course, the City selected C.D. Smith Construction, Inc. as the general contractor for the project. J.F. Ahern Co. was selected as the mechanical subcontractor. 1
Donohue prepared the specifications for the project. The general construction contract between the City and C.D. Smith, the general contractor, provided that substitute "or equal" equipment could be accepted only if the contractor provided sufficient information for Donohue to determine that the equipment was equivalent or equal to that specified. The contract gave Donohue sole authority to approve or reject proposed substitute equipment, and it gave the City the right to require the contractor to furnish a bond or surety with respect to any such substituted equipment.
Donohue's specifications included the use of a digester gas mixing system manufactured by Infilco Degremont, Inc. or an "equal" product. Envirologix and Infilco each submitted a bid for this equipment. Envirologix's bid was $150,000 lower than Infilco's. J.F. Ahern, the mechanical subcontractor, and C.D. Smith, the general contractor, proposed that Donohue approve Envirologix's bid as substitute "or equal" equipment for the Infilco equipment specified. After evaluation, ATI recommended to Donohue that Envirologix's proposal be rejected. Donohue did so, stating that Envirologix's equipment did not conform to the specifications and that Envirologix had not submitted test data regarding the experience of the proposed equipment. On August 31, 1992, the City and Donohue formally advised C.D. Smith that the Envirologix substitution request was rejected. They instructed C.D. Smith to proceed with the project using Infilco's equipment instead of Envirologix's.
On September 2, 1992, C.D. Smith asked Donohue to reconsider the substitution request. In a letter to C.D. Smith dated September 11, 1992, Donohue again denied the request, explaining that Envirologix's equipment was not "equal" to that designated in the specification. Specifically, Donohue advised that Envirologix's proposal: (1) did not conform to the technical specifications for the project, and (2) did not include sufficient information demonstrating that Envirologix had relevant operating experience in providing the specified equipment.
On September 14, 1992, Envirologix filed this action against the City, Donohue and ATI alleging tortious violations of state and federal procurement regulations, tortious interference with contract and defamation to its business reputation. 2 Envirologix sought declaratory judgment, injunctive relief and monetary damages. The next day, the court granted Envirologix an ex parte temporary restraining order barring the defendants from continuing with any further installation of the gas mixing equipment. The order also scheduled a future hearing as to whether Envirologix should be granted a temporary injunction pending further proceedings in the case.
Before the temporary injunction hearing was held, the City filed a motion for dismissal and a supporting memorandum of law contending that Envirologix's complaint failed to state a claim upon which relief could be granted. Specifically, the City alleged that Envirologix had failed to comply with the notice and claim procedures of § 893.80, STATS. In conjunction with this motion, the City also filed an affidavit of the City's record custodian stating that Envirologix had not previously filed any notice of claim pursuant to the statute.
On October 5, 1992, the trial court conducted the temporary injunction hearing. At the conclusion of this hearing, the court denied Envirologix's request for a temporary injunction and dissolved the temporary restraining order. The court then ordered the parties to file briefs regarding the City's pending motion to dismiss.
In response, the City filed a supplemental brief, raising, for the first time, an immunity defense pursuant to § 893.80(4), STATS. Donohue and ATI joined in this theory of defense, filing a joint motion to dismiss and supporting brief claiming that they were "agents" of the City within the meaning of the immunity statute. Envirologix filed its brief responding to the various issues, including the immunity defense. In addition, Envirologix filed an affidavit bearing on the immunity issue and cited to the affidavit in its brief.
Relying solely on the immunity defense, the trial court dismissed Envirologix's claims against the City, Donohue and ATI. Envirologix moved for reconsideration, renewing certain arguments it had already made and raising new issues. After reconsidering its decision, the court confirmed its original decision granting summary judgment to the City, Donohue and ATI. 3
Envirologix appealed from both the original summary judgment and the later order confirming the summary judgment. By a prior order, we ruled that Envirologix's appeal from the summary judgment was not timely and we dismissed that portion of the appeal. However, we further ruled that the issues which Envirologix presented to the trial court via its reconsideration motion were "new issues" pursuant to Ver Hagen v. Gibbons, 55 Wis.2d 21, 26, 197 N.W.2d 752, 755 (1972). Therefore, we ruled that Envirologix's appeal from the trial court's order confirming the summary judgment was properly before us. The matters which we now address are those which Envirologix raised in its reconsideration motion.
Envirologix first argues that the trial court improperly considered matters beyond the complaint when addressing the motions to dismiss interposed by the City, Donohue and ATI.
However, § 802.06(2), STATS., permits a trial court to treat a motion to dismiss a complaint for failure to state a claim as one for summary judgment where matters outside of the pleadings are presented to the court. 4 Here, the respondents properly point out that Envirologix itself provided the affidavit of its vice president, Irwin Hess, in response to the various motions to dismiss. Moreover, Envirologix alluded to this affidavit in resisting the City's immunity argument that its actions were discretionary, not ministerial, pursuant to § 893.80(4), STATS. 5 Thus, Envirologix contributed to the trial court's decision to use the summary judgment methodology contemplated by § 802.06 in a motion to dismiss setting. We hold that the court properly converted the motion to dismiss into one for summary judgment.
Here, the trial court decided to substantively reconsider its prior decision. The respondents do not argue that the court misused its discretion by choosing to do so. See State v. Brady, 130 Wis.2d 443, 447-48, 388 N.W.2d 151, 153-54 (1986). Therefore, we do not review the court's substantive ruling on reconsideration under the standard for misuse of discretion. Rather, since the court substantively reconsidered its original grant of summary judgment, we conclude that our standard of review is that which we would apply on direct review of the summary judgment.
We review a motion for summary judgment de novo, using the same methodology as the trial court. Old Tuckaway Assocs. Ltd. Partnership v. City of Greenfield, 180 Wis.2d 254, 278, 509 N.W.2d 323, 332 (Ct.App.1993). Summary judgment "shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file,...
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