Trident Const. Co., Inc. v. Austin Co.

• Decision Date: 16 July 2003
• Docket Number: No. CIV.A. 2:02-0702-18.,CIV.A. 2:02-0702-18.
• Citation: 272 F.Supp.2d 566
• Parties: TRIDENT CONSTRUCTION COMPANY, INC., Plaintiff, v. The AUSTIN COMPANY, Defendant.
• Court: U.S. District Court — District of South Carolina

272 F.Supp.2d 566

TRIDENT CONSTRUCTION COMPANY, INC., Plaintiff, v. The AUSTIN COMPANY, Defendant.

No. CIV.A. 2:02-0702-18.

United States District Court, D. South Carolina, Charleston Division.

July 16, 2003.

COPYRIGHT MATERIAL OMITTED

Andrew K. Epting, Jr., Sean K. Trundy, Charleston, SC, for Plaintiff.

William G. Lyles, III, Charleston, SC, Keith Leon Baker, McLean, VA, for Defendant.

MEMORANDUM OPINION AND ORDER

NORTON, District Judge.

This matter is before the court on the defendant's motion for summary judgment pursuant to Rule 59 of the Federal Rules of Civil Procedure.¹ For the reasons set forth below, defendant's motion is granted.

I. Background²

The Austin Company ("Austin") is a global company that designs and constructs industrial facilities. (Lockwood Depo. at 11-12.) Trident Construction Company, Inc. ("Trident") is a construction contractor in Charleston. In 1999, Austin identified a notice published by the Naval Facilities Engineering Command ("the Navy") in the Commerce Business Daily notifying potential contractors that the Navy intended to solicit proposals for the design and construction of a Corrosion Control Facility (i.e. an airplane hangar) to be built at the Charleston Air Force Base. (Niksch Aff. ¶ 3.) On June 11, 1999, the Navy issued Solicitation N62467-98-R-1049 requesting proposals to supply the Corrosion Control Facility. (Niksch Aff. ¶ 6.)

Austin had been the general contractor for a similar project at Tinker Air Force Base in Oklahoma in 1998. (Niksch Aff. ¶ 4.) In the Tinker A.F.B. project, Austin contracted with American Buildings Company ("American") to supply the steel hangar.³ (Lockwood Depo. at 15.) It contracted separately with Ranger Erectors to perform the erection services. (Lockwood Depo. at 15.) Because of this previous experience, Austin contacted American about the possibility of its submitting a proposal to Austin to supply and erect the hangar for the Corrosion Control Facility. (Niksch Aff. ¶ 5; Breitenback Aff. ¶ 6.) Rather than using separate subcontractors as it had in the Tinker A.F.B. project, Austin was seeking a single sub-contractor whose duties would consist of "furnishing the steel and cladding, and then erecting the steel and applying the cladding." (Niksch Depo. at 10.) American informed Austin that if the proposal included the erection of the hangar, Austin should contact a local dealer .... (Niksch Aff. ¶ 5.) American then contacted Trident⁴ to ask whether it was interested in submitting a proposal to Austin to supply and erect the hangar. (Fairey Depo. at 13-14.) Trident sent a letter to Austin dated October 19, 1999, providing information about Trident and its qualifications for the job. (D's Ex. 3.) The letter, written by Robert Fairey, President of Trident, to Bill Niksch, General Manager of the Austin's Southwest District Office, stated that "[w]e understand you are seeking a qualified erector/subcontractor to provide the steel package for the C-17 Corrosion Hangar proposed to be built at the Charleston Air Force Base." (D's Ex. 3.)

Fairey traveled to Houston on October 27, 1999, and toured American's Heavy Fabrication Division. On that trip, Fairey attended a meeting on October 28, 1999, at Austin's offices in Houston with representatives of American and Austin. Trident alleges that an agreement was forged at this meeting whereby Austin, Trident, and American agreed to work together exclusively as a team to pursue the Corrosion Control Facility project in Charleston against other teams competing for the project. (Fairey Depo. at 16.) Fairey testified that Austin agreed that if it received the prime contract from the Navy, Trident would receive the subcontract, subject to receiving certain information on Trident's qualifications. (Fairey Depo. at 24.) "The agreement was that if the Austin Company w[ere] successful in getting a contract, then we would also be given a contract to complete the erection and fabrication." (Fairey Depo. at 23.) Under this alleged agreement, Trident was to be the subcontractor and American was to be the material supplier. (Fairey Depo. at 26.) From January to April 2000, Austin, Trident, and American engaged in a series of communications in which Trident submitted several proposals and Austin requested various changes and deductions. (D's Ex. 9.)

On June 13, 2000, Austin was awarded the prime contract for the Corrosion Control Facility, under which the Navy agreed to pay a total price of $18,117,000.00. (Pl's Ex. 8.) This was the figure in Austin's price estimate prepared on May 1, 2000. (Pl's Ex. 9.) Also included in Austin's price estimate was Trident's proposal to supply and erect the hangar for $5.2 million less deductions. (Pl's Ex. 9 at 8.) Thus, in submitting its bid to the Navy for the prime contract, Austin presumably used Trident's proposal as its cost estimate for supplying and erecting the hangar. (Niksch Depo. at 24-25.) Austin did not seek a cost estimate from anyone else before submitting its bid to the Navy. (Lockwood Depo. at 82-83.) Although Austin used Trident's cost estimate in submitting its bid to the Navy, it intended all along to put the subcontract for the supply and erection of the hangar up for competitive bidding with the hope of paying less than the $5.2 million proposed by Trident. (Niksch Depo. at 29.)

After Austin was awarded the prime contract, it continued to negotiate with Trident and sent Trident a proposed written contract on September 25, 2000. (Pl's Ex. 13; Fairey Depo. at 140, 142.) At the same time, Austin also began soliciting other bids for the erection of the hangar. On September 22, 2000, Austin issued a bid solicitation for bids to be submitted by October 27, 2000. (Pl's Ex. 14.) Trident contends that it did not know about Austin's solicitation of other bids for the subcontract. Fairey testified that in September or October 2000, when he heard rumors that Austin was soliciting other bids, he called Bill Lockwood, an executive at Austin, who "denied that and confirmed that we were still a team. We were still the deal. They were just working through some final negotiations with the [Navy]." (Fairey Depo. at 45, 146.)⁵ On November 9, 2000, Fairey wrote a letter to Lockwood apologizing for questioning Lockwood about the rumors and telling him "[t]hanks for your reassurance; we are glad to be part of your team." (Pl's Ex. 21.) Austin did not respond to this letter. After receiving several bids, Austin signed a lumpsum subcontract with Hightower Construction Co. on December 12, 2000, to supply and erect the hangar. (Pl's Ex. 20.)

Trident filed this action in state court alleging four causes of action: (1) breach of contract; (2) promissory estoppel; (3) breach of contract accompanied by a fraudulent act; (4) unjust enrichment. Austin removed the case to this court and filed this motion for summary judgment.

II. Summary Judgment Standard

Summary judgment shall be granted when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). There is no requirement that the trial judge make findings of fact. Id. at 250, 106 S.Ct. 2505. Rather, the threshold inquiry is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. In other words, "to grant summary judgment the court must determine that no reasonable jury could find for the nonmoving party on the evidence before it." Perini Corp. v. Perini Const., Inc., 915 F.2d 121, 124 (4th Cir.1990). An issue of fact concerns material facts only if establishment of the fact might affect the outcome of the lawsuit under governing substantive law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. All facts and reasonable inferences therefrom are viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

"[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed. R.Civ.P. 56(c)). Once this burden has been met, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. (quoting Fed.R.Civ.P. 56(e)); see also Pleasurecraft Marine Engine Co. v. Thermo Power Corp., 272 F.3d 654, 658 (4th Cir.2001).

III. Legal Analysis

A. Breach of Contract

The issue is whether an enforceable contract was formed between Austin and Trident. Trident does not allege that it had a formal written contract with Austin. (Fairey Depo. at 44.) Rather, Trident alleges that it entered into an oral contract with Austin.

1. Statute of Frauds

South Carolina has enacted the Uniform Commercial Code's ("UCC") provision that "a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom...