Kenneth E. Curran, Inc. v. Auclair Transp., Inc.

• Decision Date: 05 December 1986
• Docket Number: No. 85-425,85-425
• Citation: 519 A.2d 280,128 N.H. 743
• Parties: , 1986-2 Trade Cases P 67,395 KENNETH E. CURRAN, INC. v. AUCLAIR TRANSPORTATION, INC. et al.
• Court: New Hampshire Supreme Court

Page 280

519 A.2d 280

128 N.H. 743, 1986-2 Trade Cases P 67,395

KENNETH E. CURRAN, INC. v. AUCLAIR TRANSPORTATION, INC. et al.

No. 85-425.

Supreme Court of New Hampshire.

Dec. 5, 1986.

Law Offices of Alexander J. Kalinski, Manchester (Alexander J. Kalinski on the brief and orally, Daniel J. Kalinski on the reply brief), for plaintiff.

Sheehan, Phinney, Bass & Green P.A., Manchester (Edward A. Haffer on the brief and orally), for Auclair Transportation, Inc. and Granite State Distributors, Inc.

Stephen E. Merrill, Atty. Gen. (James A. Sweeney, Asst. Atty. Gen., on the brief, and Daniel Mullen, Asst. Atty. Gen., orally), for the State.

PER CURIAM.

The plaintiff has brought this appeal from the decision in two consolidated suits challenging the practices of the State and two bidders who responded to requests for proposals to provide transportation services for the liquor commission. In the first suit, begun in 1980 and described in a prior appeal, Kenneth E. Curran, Inc. v. Auclair Transp., Inc., 121 N.H. 451, 431 A.2d 124 (1981), the plaintiff seeks equitable relief against Auclair Transportation, Inc., and Granite State Distributors, Inc., to redress a violation of the State anti-trust statute, RSA 356:2, II(e), allegedly committed when each of the two corporations submitted a bid to provide liquor transportation from 1980 to 1982. In the second suit, also begun in 1980, against the State and the same two corporate defendants, the plaintiff alleges both a further violation of the statute by the two corporations and an abuse of discretion by the State in considering the bids; the plaintiff seeks to enjoin the performance of the ensuing contract between the State and Granite State, which originally provided for the transportation of liquor from 1980 to 1982, and which was later extended to cover a period ending in 1985. In 1985, the plaintiff moved to amend the pleadings in the second suit in order to challenge the legality of the contract extensions and to seek damages in addition to equitable relief. The Superior Court (DiClerico, J., acting on the recommendation of a Master, Robert A. Carignan, Esq.) denied the motion to amend and ordered summary judgment for the private defendants in each suit and for the State in the second. We affirm.

At all relevant times, Auclair was a trucking company wholly owned by Alfred L. Sicotte. Although the record is not entirely clear about the ownership of the second defendant trucker, Granite State was wholly owned either by Sicotte or by a third corporation, which Sicotte wholly owned. Auclair was unionized; Granite State was not. In the spring of 1980, Auclair and Granite State each submitted a bid to the State to provide liquor transportation, see Kenneth E. Curran, Inc. v. Auclair Transp., Inc., supra at 452, 431 A.2d at 125; Granite State's lower bid reflected its lower labor costs. Although the State rejected all the bids, id. at 453, 431 A.2d at 125, the plaintiff brought suit charging that the bids from the sister corporations Auclair and Granite State reflected an unlawful conspiracy or combination having the purpose or effect of "submitting sham or complementary bids," in violation of RSA 356:2, II(e). This court upheld the trial court's dismissal of the suit as against the commission and its denial of motions to dismiss the suit as against the corporate defendants. Id. at 454, 431 A.2d at 126.

In the meantime, the State had put the liquor transportation contract out for bid again. The new request for proposals set a deadline of 2:00 p.m., May 9, 1980, for the submission of bids to a designated State office and reserved the "right to waive any informality" in the bids submitted.

Shortly before 2:00 p.m. on May 9, Donald Sweeney arrived at the office designated, carrying separate bids from Auclair and Granite State. The director of purchase and property, Richard Peale, directed Mr. Sweeney to the room where bids would be opened, and he waited there until approximately 2:00 p.m., when Mr. Peale entered with the purchasing officer, Francis Gardner. Mr. Gardner announced that bidding was closed and stated that he had two bids that had been time-stamped before 2:00 p.m. From his briefcase, Mr. Sweeney removed two sealed envelopes, and stated that he had two bids to deliver. Mr. Peale told Mr. Gardner to accept the bids from Mr. Sweeney, because he had arrived before 2:00 p.m. Mr. Gardner did so. Ultimately the State officials decided that Granite State was the lowest responsible bidder and accepted its bid.

The plaintiff then filed the second suit, seeking to enjoin performance of the contract with Granite State. The pleadings alleged that the State had acted both arbitrarily and illegally in awarding the contract, and further alleged specific illegality in the acceptance of a late bid, and in the acceptance of a bid submitted in violation of RSA 356:2 (illegal contracts, combinations and conspiracies), and :3 (prohibited monopolies).

Auclair and Granite State filed both an answer and a motion to dismiss each suit, and the State moved to dismiss the second. In 1981 Granite State and Auclair answered interrogatories, which apparently comprised the total discovery in both cases. In 1983 Auclair and Granite State filed motions for summary judgment in each suit, and the State did the same in the second. In 1984 Auclair and Granite State moved to dismiss each suit because of the plaintiff's failure to prosecute, and they moved to dismiss the first suit for mootness. The superior court denied all motions.

Nothing further happened for approximately nine months, until the defendants filed new motions for summary judgment in 1985. The plaintiff allegedly learned from these motions that the term of the contract had been extended several times by agreement of the parties and was due to expire in 1985. It then moved to amend the second suit to charge that the extensions were illegal, and to seek damages in addition to the equitable relief sought originally. In August 1985, the motion to amend was denied and the motions for summary judgment were granted, whereupon the plaintiff brought this appeal.

We will begin by considering the order denying the plaintiff's motion to amend in the second suit. A motion to amend raises an issue subject to the trial court's discretion. Community Oil Co. v. Welch, 105 N.H. 320, 323, 199 A.2d 107, 109 (1964) (motion to amend affidavit). While the general rule in this jurisdiction favors such requests, its liberality "applies only if the amendment [would] not change the cause of action or call for substantially different evidence." V.S.H. Realty, Inc. v. City of Rochester, 118 N.H. 778, 781, 394 A.2d 317, 319 (1978) (citing Pearson v. Smith, 54 N.H. 65 (1873)). The amendment requested here sought to do both.

The plaintiff's petition in the second suit did not attack the clause of the contract that provided for extensions of the contract term by agreement of the parties. The extension clause had nothing to do with the illegality alleged in the commission's acceptance of Granite State's bid, and neither that clause nor the extension fell within the subject of the allegedly illegal agreement between Auclair and Granite State. A decision disposing of the issues raised in the plaintiff's petition would not have reached the claimed illegality that the plaintiff sought to raise in the motion to amend. The challenge to the extension was an entirely new subject of litigation and, therefore, a new cause of action as that term is used in V.S.H. Realty. Just as obviously, the new claim would have called for additional evidence in support of the requested damage remedy, which was entirely different from the equitable relief sought in the original pleadings. The trial court was clearly within the bounds of reasonable discretion in refusing to permit the five-year-old pleadings to become the vehicle of such a new action at the eleventh hour. It is unnecessary, therefore, to reach the corporate defendants' argument that a claim for damages was barred by RSA 356:12, II, because the plaintiff had failed to raise it within four years of its accrual.

Because the substantive issues in this appeal are thus limited by the original pleadings, we believe that the defendants are correct in claiming that the cases are entirely moot at this point. Although the plaintiff has questioned whether the record conclusively shows that the term of the contract expired at the end of the last extension, counsel for the State has so represented and the plaintiff does not deny it. If, then, there was a violation of the anti-trust statute or of the legal standards for competitive bidding, it related only to a contract that has been fully performed. With nothing left to enjoin or to reform, the exercise of equity powers as requested by the plaintiff would be meaningless. See Littlefield v. N.H. Interscholastic...