John D. Stephens, Inc. v. Gwinnett County

• Decision Date: 28 June 1985
• Docket Number: No. 70180,70180
• Citation: 175 Ga.App. 379,333 S.E.2d 396
• Parties: JOHN D. STEPHENS, INC. v. GWINNETT COUNTY et al.
• Court: Georgia Court of Appeals

Page 396

333 S.E.2d 396

175 Ga.App. 379

JOHN D. STEPHENS, INC. v. GWINNETT COUNTY et al.

No. 70180.

Court of Appeals of Georgia.

June 28, 1985.

Rehearing Denied July 10, 1985.

Certiorari Denied Sept. 12, 1985.

Robert H. Hishon, M. Jerome Elmore, Atlanta, for appellant.

Julia Bennett Jagger, Alan F. Herman, Atlanta, G. Gibson Dean, Buford, for appellees.

POPE, Judge.

Appellant John D. Stephens, Inc. brought suit against appellees Gwinnett County and Charles W. Ashworth, individually and as Chairman of the Board of Commissioners, seeking damages for breach of contract by re-bidding and re-letting five public improvement projects. The contract in question, entitled "Yearly Contract for the Construction, Maintenance and Repair of Small Gravity Sewers, Force Mains and Small Water Mains for the Gwinnett County Water & Sewage Systems," (Yearly Contract) was duly advertised and awarded by unanimous vote of the Gwinnett County Board of Commissioners to appellant Stephens as low bidder in the amount of $3,667,067 at its regular meeting on June 22, 1982. The contract as executed by appellant contained an addendum which had been submitted by appellee Ashworth at the previous meeting of the commission on June 15, 1982, which provided as follows: "When the construction cost for a particular project has been estimated based on the unit prices received under this Contract and the estimated total construction cost exceeds $50,000, the Board of County Commissioners shall have the option to (1) give notice to proceed based on the annual contract prices in effect or (2) re-bid the project on an individual basis." According to the minutes of the June 22 meeting of the Board of Commissioners, when the motion was made that the bid for the Yearly Contract be awarded to appellant as low bidder, Commissioner Maron Buice requested to include in this motion awarding the contract to appellant that when the amount of $3,667,067 was reached, "the Board review any other work that might be given in this amount." The motion was so amended, seconded and unanimously approved by vote of the Commission.

On February 1, 1983 the Commission advertised for bids for five projects involving water main and sewer construction for the county which were the type of work awarded to appellant under the Yearly Contract, and subsequently awarded those five projects to various bidders other than appellant, which declined to bid on the ground that it had already been awarded these projects under the Yearly Contract. Appellant then filed the instant suit, alleging in Count I that the five projects had been awarded to it under the Yearly Contract; and that the addendum which authorized the Commission to award them was an absolute nullity because Ashworth as Chairman of the Board of Commissioners had promulgated it in direct contravention of the resolution adopted by the Commission. Count III sought damages for one of the five projects involving relocation of ground water lines along U.S. Highway 29, alleging that appellant was entitled to damages on this project even if the addendum were valid because it had been given notice to proceed with the work. Count V was for damages against Ashworth for tortious interference with appellant's contract with the county and conspiracy. The remaining counts of the complaint are now moot.

Appellees filed a motion for summary judgment on grounds that the contract as executed included the addendum and the parol evidence rule prohibited the introduction of evidence of enactment of the resolution or any evidence clarifying its meaning and limitation on the effect of the addendum to appellant's rights under the contract. Appellant's counter motion for summary judgment based on the ground that the addendum was a nullity, or would be valid only if it were reformed so as not to violate the resolution, was denied, and appellees' motion for summary judgment was granted.

In its judgment the trial court found as fact that appellant was the recipient of the 1982-83 Yearly Contract, including the addendum allowing the Commission to rebid projects on an individual basis which exceeded a cost of $50,000; that appellant received proper notice of the addendum and acknowledged that he (John D. Stephens) read and understood it when he executed the Yearly Contract; and that appellant had the right to accept or walk away from the contract at any time but was bound by the contract as executed, as an experienced businessman who had contracted with counties and municipalities since 1968. The trial court concluded as a matter of law that the Yearly Contract, including the addendum, was approved by the Board of Commissioners and constituted a legally binding and enforceable contract since the minutes of the June 15, 1982 meeting "reflect" that Chairman Ashworth "asked that [the addendum] be added to the contract documents and that it was added ..."; that the contract was awarded to appellant as low bidder at the June 22 meeting; that the minutes of that meeting did "provide some evidence" as contended by appellant that the addendum "was not to go into effect until [appellant] had received work in the amount of its bid"; but that because appellant had executed the Yearly Contract including the addendum, even though he had the right to accept or walk away from it at any time, and proceeded to perform under the contract, both appellant and appellees were legally bound thereunder. The court noted "in passing that the Motion of Commissioner Buice made at the Commission meeting of June 22, 1982, [was] not a part of the Annual Contract as it [did] not comply with the 'written and entered' mandate of OCGA § 36-10-1." The trial court further found that even assuming the Yearly Contract did not reflect the true agreement of the parties with respect to the addendum, the Commission ratified the contract and specifically the addendum by its action in February of 1983 of advertising for bids on the five projects; that the requirements for the equitable remedy of reformation had not been met and no showing of fraud so as to justify reformation had been made; that by virtue of its silence appellant was "estopped from asserting that [appellees] had no authority to enter into the contract or to introduce parol evidence to support such an assertion," and that allowing parol evidence would violate public policy and "the public's right to rely on the validity of contracts entered into by its governing authority."

In regard to the Highway 29 project, the court found that the letter from W.T. Bush, the general manager of the county water system, authorizing appellant to perform certain work thereon "was an unauthorized attempt to assume authority belonging properly to the county governing authority"; that even assuming these actions were within his apparent authority, Bush's action was not ratified by the Commission and was immediately repudiated upon learning of it; and that there was no showing that appellant acted to his detriment in reliance thereon. Having found that the contract was legally binding and enforceable, the court concluded that appellant's claims for conspiracy and tortious interference with contract relations against Ashworth had no merit, as "one cannot be held liable for doing that which he had a right to do," that Ashworth did not act without the scope of his authority or in a wilful or malicious manner and thus could not be liable in either his official or individual capacity; and that the appellees did not act in bad faith or in a stubbornly litigious manner by acting under the contract. Appeal is taken from this judgment and order dismissing the complaint in its entirety.

1. "Summary judgment may be granted only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law, OCGA § 9-11-56(c) ... In deciding a motion for summary judgment, the evidence is construed most favorably to the party opposing the motion, who is to be given the benefit of all reasonable doubts and all reasonable inferences. [Cit.]" Blount v. Seckinger Realty Co., 167 Ga.App. 778, 779, 307 S.E.2d 683 (1983). " 'The cardinal rule in the summary judgment procedure is that the court can neither resolve the facts nor reconcile the issues, but only look to ascertain if there is an issue of fact. (Cit.) The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact and if the trial court is presented with a choice of inferences to be drawn from the facts, all inferences of fact from the proofs proffered at the hearing must be drawn against the movant and in favor of the party opposing the motion. (Cits.)' Jonesboro Tool &c. Corp. v. Ga. Power Co., 158 Ga.App. 755, 758 (282 S.E.2d 211) (1981)." Key Professional Systems v. Citicorp Ind. Credit, 170 Ga.App. 94, 316 S.E.2d 495 (1984).

Since a number of the court's factual findings in the instant case are contradicted by the evidence, we can only conclude that the proper burden of proof was not considered or that it was applied incorrectly. The controlling finding of fact made by the trial court was that at the June 15 meeting the Commission approved the addendum allowing projects over a cost of $50,000 to be re-bid. The minutes which the court quoted in reaching this conclusion state merely that Chairman Ashworth read the addendum and that it was added to the Yearly Contract; there is no report of a motion being made and seconded or of a vote being taken. Moreover, the depositions of two commissioners admit that no favorable action was taken in regard to the addendum.

Further, as noted by the trial court, the minutes of the June 22 meeting did "provide some evidence" that the addendum was not to go into effect until appellant had received work in the total amount of its bid. In this instance the minutes clearly show that the motion was made, seconded and unanimously passed, and there was also deposition testimony...