Porsh Builders, Inc. v. City of Winston-Salem

• Decision Date: 19 April 1983
• Docket Number: WINSTON-SALEM,No. 8221SC288,8221SC288
• Citation: 301 S.E.2d 530,61 N.C.App. 682
• Court: North Carolina Court of Appeals
• Parties: PORSH BUILDERS, INC. v. CITY OF, a North Carolina municipal corporation, Wayne A. Corpening, Mayor; John B. DeVries; Eugene F. Groce; Ernestine Wilson; Virginia H. Newell; Jon J. Cavanagh; Robert S. Northington, Jr.; Vivian K. Burke; Larry D. Little, members of the Board of Aldermen for the City of Winston-Salem and the Redevelopment Commission of Winston-Salem, a Political Subdivision of the City of Winston-Salem.

Page 530

301 S.E.2d 530

61 N.C.App. 682

PORSH BUILDERS, INC. v. CITY OF WINSTON-SALEM, a North Carolina municipal corporation, Wayne A. Corpening, Mayor; John B. DeVries Eugene F. Groce; Ernestine Wilson; Virginia H. Newell Jon J. Cavanagh; Robert S. Northington, Jr.; Vivian K Burke; Larry D. Little, members of the Board of Aldermen for the City of Winston-Salem and the Redevelopment Commission of Winston-Salem, a Political Subdivision of the City of Winston-Salem.

No. 8221SC288.

Court of Appeals of North Carolina.

April 19, 1983.

Frye, Booth & Porter by Leslie G. Frye and John P. Van Zandt, III, Winston-Salem, for plaintiff-appellant.

Womble, Carlyle, Sandridge & Rice by Roddey M. Ligon, Jr., and Ronald G. Seeber, Winston-Salem, for defendants-appellees.

JOHNSON, Judge.

The sole question presented by this appeal is whether the trial court's order properly effectuates the opinion and mandate of the Supreme Court in this case. For the reasons stated below, we find that the trial court correctly interpreted the Supreme Court's opinion and hold that the order entered by Judge Cornelius conforms to the decision rendered therein.

Upon appeal from the Superior Court, the mandate of the Supreme Court is binding and must be strictly followed without variation or departure. "No judgment other than that directed or permitted by the appellate court may be entered." D & W, Inc., v. Charlotte, 268 N.C. 720, 722, 152 S.E.2d 199, 202 (1966). Plaintiff Porsh contends that the decision of the Supreme Court in this case commanded the Board of Aldermen of the City of Winston-Salem to convey the property in question to Porsh Builders. The City of Winston-Salem maintains that the Supreme Court went no further than to hold that the City could not convey the property to Mr. Ozmun, but that the City could either convey the property to Porsh or reject all bids. Thus, the issue revolves around the intent of the Supreme Court in its decision affirming the decision of this Court and remanding the matter to the Superior Court for judgment consistent with its opinion.

In its amended complaint the plaintiff sought injunctive relief, an order directing the defendants to accept plaintiff's bid and convey the property to it or, in the alternative, that the bidding process be started anew. The trial court erroneously interpreted the language of G.S. 160A-514(c) and (d) as permitting defendants to consider factors other than the monetary amount of the bid in passing upon the bids offered, and therefore, entered summary judgment for defendants. This Court reversed the summary judgment and remanded the case to the Superior Court on the grounds that the statute permitted the defendants to either reject all bids or accept plaintiff's highest responsible bid. This opinion was affirmed and elaborated upon by the Supreme Court. Noticeably absent from either appellate opinion is language indicating, as plaintiff now argues, that the Board lost its option to reject all bids once it elected to proceed with one of the two bids submitted.

G.S. 160A-514(d) clearly states, "All bids may be rejected." The Board's approval of the lower Ozmun bid has been determined by the Supreme Court to be erroneous, but there is nothing in the statute, or in the opinion of this Court or in the opinion of the Supreme Court to suggest that the erroneous acceptance of the Ozmun bid made the rejection of the Porsh bid unlawful. Nor is there any affirmative indication in either opinion that the City must now accept the Porsh bid. All of the relevant language is clearly to the contrary.

This Court's interpretation of the statute as allowing defendants to either reject all bids or accept plaintiff's highest responsible bid, and reversal of summary judgment entered in favor of defendant was upheld. 302 N.C. at 552, 276 S.E.2d at 444. The Supreme Court then stated, "[t]he clear meaning of the language of subsection (d) is that although the municipality may reject all bids, if any bid is accepted, it must be the 'highest...