Sloan v. Department of Transp.

• Decision Date: 25 August 2008
• Docket Number: No. 26534.,26534.
• Citation: 379 S.C. 160,666 S.E.2d 236
• Parties: Edward D. SLOAN, Jr., individually and on behalf of all others similarly situated, Appellant, v. The DEPARTMENT OF TRANSPORTATION, an agency of the State of South Carolina and the Commission of the Department of Transportation, Tee Hooper, Jr., Robert W. Harrell, John N. Hardee, Marion P. Carnell, William C. Turner, Bobby T. Jones, and J.M. Truluck, in their official capacities as Commissioners thereof, Respondents.
• Court: South Carolina Supreme Court

666 S.E.2d 236

379 S.C. 160

Edward D. SLOAN, Jr., individually and on behalf of all others similarly situated, Appellant, v. The DEPARTMENT OF TRANSPORTATION, an agency of the State of South Carolina and the Commission of the Department of Transportation, Tee Hooper, Jr., Robert W. Harrell, John N. Hardee, Marion P. Carnell, William C. Turner, Bobby T. Jones, and J.M. Truluck, in their official capacities as Commissioners thereof, Respondents.

No. 26534.

Supreme Court of South Carolina.

Heard April 15, 2008.

Decided August 25, 2008.

James G. Carpenter and Jennifer J. Miller, of The Carpenter Law Firm, of Greenville, for Appellant.

Charles E. Carpenter, Jr., and Carmen V. Ganjehsani, of Carpenter Appeals and Trial Support, of Columbia, for Respondents.

Justice WALLER.

Appellant, Edward D. Sloan, Jr., filed a declaratory judgment action challenging respondents'¹ decision to authorize an emergency procurement on a construction project in Charleston County. This is a direct appeal from the trial court's grant of summary judgment in favor of the DOT.² We reverse and remand.

FACTS

In 2000, the DOT procured construction on Ladson Road in Charleston County from Eagle Construction Company (Eagle). The Ladson Road Project involved the widening of the road from two lanes to five lanes.

The DOT's director of construction, Dan Shealy, testified at deposition that Eagle consistently got behind on the project and the department granted Eagle time extensions. On February 19, 2004, there was a public meeting held between the DOT, Eagle, and the community.³ Several milestones were set for Eagle at this meeting; however, these milestones were never met.

On August 31, 2004, Shealy wrote a letter to Eagle which noted that the completion date on the contract was August 16, 2004, but as of that date, only 73% of the project was complete. The letter also stated the following: "Based on Eagle's repeated failure to provide sufficient labor and equipment to perform the work with the project schedule ..., Eagle Construction is hereby declared to be in default on this contract." The letter further advised that Eagle had 15 days to cure the default, otherwise the contract would be terminated.

On September 2, 2004, however, the DOT rescinded the default letter and terminated the contract with Eagle based on "convenience." Shealy explained that if Eagle had been placed in default, the contract would have been turned over to the bonding company. The bonding company would then have been responsible for the process of bringing in another contractor to complete the project for the originally-contracted price. Shealy estimated this process would have taken the bonding company six months. If the DOT had itself performed a competitive bidding process for a replacement contractor, Shealy estimated this would have taken four months.

Instead, approximately two weeks after the DOT terminated Eagle from the project, Sanders Brothers Construction Company (Sanders) — an existing subcontractor on the Ladson Road Project — began working on the project.⁴ Although approximately five to six million dollars remained unpaid on the Eagle contract, the DOT directly negotiated a contract with Sanders for just under eight million dollars.⁵ In other words, the DOT did not solicit for bids to complete the project.

On September 27, 2004, Shealy wrote a memorandum to the DOT's Executive Director, Elizabeth Mabry, which included the following language:

Due to the significant delays on this project and enormous inconvenience to the public because of these delays, I am requesting that we be allowed to procure a replacement contractor through the emergency procurement provisions provided by S.C.Code Ann. § 57-7-5-1620....

An emergency procurement is justified in this case based on public safety and convenience.... A large number of residences and commercial businesses have been and are continuing to be adversely impacted by the construction. Traffic control devices are in place throughout the majority of the project and at many high volume intersections. These conditions are an ongoing safety concern and also cause significant inconvenience for residences and business owners. Procurement of a replacement contract through the standard bidding procedures would cause an unacceptable delay and increase frustration among the already frustrated public that live and conduct business in the area. In order to minimize safety concerns and disruption to the public and to prevent further delays to the completion of the project, I recommend that we procure a replacement contractor utilizing a negotiated contract method as allowed under our emergency provisions.

(Emphasis added). The Executive Director approved this request. Thereafter, the DOT Commission approved the emergency procurement at its November 18, 2004, meeting.

At his deposition, Shealy explained that the emergency conditions were "[j]ust the safety of the individuals getting in and out of their driveways; the businesses; the entrance and exits for the business; and just a general traveling through that work zone was a hazard." Yet, he conceded there is "always a hazard in a work zone, from beginning to end."

When asked what other circumstances had prompted the DOT to authorize emergency procurements, Shealy noted that Hurricane Hugo and Hurricane Floyd had both necessitated emergency procurements, for debris removal and flood prevention, respectively.

Prior to Sanders signing the contract with the DOT, Sloan had read in the newspaper about a negotiated contract between the DOT and Sanders. In a conversation with Sloan, Sanders' vice president denied any intention to sign a negotiated contract.

On October 28, 2004, Sloan sent a letter to the chairman of the DOT Commission requesting the following materials pursuant to the South Carolina Freedom of Information Act (FOIA): (1) the document terminating Eagle's contract; (2) the contract between the DOT and Sanders; and (3) the minutes of the Commission meetings during which these actions were authorized. The DOT responded to the FOIA request on November 30, 2004. Sloan filed a follow-up FOIA request on December 1, 2004, which the DOT responded to on December 16, 2004.

On January 6, 2005, Sloan filed this declaratory judgment action against the DOT. He alleged that no emergency existed to justify the DOT's procurement without a published invitation for bids. Sloan sought an injunction prohibiting respondents from paying for the construction and a declaratory judgment that the procurement was illegal, invalid, and ultra vires.

Sanders completed the construction work by the March 31, 2005, deadline set in the contract.

The parties filed cross-motions for summary judgment in 2006. In an order filed May 22, 2006, the trial court granted summary judgment in favor of the DOT. The trial court found that Sloan did not have standing, the action was moot, and, on the merits, the DOT complied with the emergency procurement provisions. This appeal follows.

ISSUES

1. Does an exception to the mootness doctrine apply to permit appellate review?

2. Does Sloan have standing to maintain this action?

3. Was the DOT's use of an emergency procurement proper?

4. Does the doctrine of laches bar Sloan's claim?

DISCUSSION

This Court reviews the grant of a summary judgment motion under the same standard as the trial court pursuant to Rule 56(c), SCRCP: summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. E.g., Burriss v. Anderson County Bd. of Educ., 369 S.C. 443, 451, 633 S.E.2d 482, 486 (2006).

In this case, the parties agree there are no material factual disputes. Thus, the matter turns only on legal issues.

1. Mootness

The DOT argues that because the construction project has been completed, the trial court correctly found that the instant case is moot. We disagree.

This Court "will not pass on moot and academic questions or make an adjudication where there remains no actual controversy." E.g., Curtis v. State, 345 S.C. 557, 567, 549 S.E.2d 591, 596 (2001); accord Sloan v. Greenville County, 356 S.C. 531, 552, 590 S.E.2d 338, 349 (Ct.App.2003) (Greenville County I) ("cases or issues which have become moot or academic in nature are not a proper subject of review").

There are, however, three exceptions to the mootness doctrine. Curtis v. State, 345 S.C. at 568, 549 S.E.2d at 596. First, if the issue raised is capable of repetition but generally will evade review, the appellate court can take jurisdiction. E.g., id.; Sloan v. Department of Transp., 365 S.C. 299, 303, 618 S.E.2d 876, 878 (2005); Byrd v. Irmo High Sch., 321 S.C. 426, 468 S.E.2d 861 (1996). "Second, an appellate court may decide questions of imperative and manifest urgency to establish a rule for future conduct in matters of important public interest." Curtis v. State, 345 S.C. at 568, 549 S.E.2d at 596. Third, "if a decision by the trial court may affect future events, or have collateral consequences for the parties, an appeal from that decision is not moot, even though the appellate court cannot give effective relief in the present case." Id.; accord Sloan v. Department of Transp., 365 S.C. at 303, 618 S.E.2d at 878.

We find the issue of whether the DOT properly authorized the emergency procurement is one that is capable of repetition, yet will usually evade review.⁶ For example, here an emergency procurement came four years into the construction project, which was then completed within about six months. The project was completed only a few months after Sloan filed suit and well before the parties filed motions for summary judgment. Therefore, the "capable of repetition but evading review" exception to mootness applies here. See Greenville County I, 356 S.C. at 555, 590 S.E.2d at 351 (where the Court of Appeals found that Sloan's case, which presented an issue related to the procurement code's design-build...