Continental Electric Co., Inc. v. Gary Community School Corporation ( 2012 )

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
MICHAEL J. RAPPA TRACY A. COLEMAN
Johnson, Rappa & Ivancevich, LLC Robert L. Lewis & Associates
Merrillville, Indiana Gary, Indiana
FILED
Feb 06 2012, 9:11 am
IN THE CLERK
of the supreme court,
COURT OF APPEALS OF INDIANA court of appeals and
tax court
CONTINENTAL ELECTRIC CO., INC., )
)
Appellant-Plaintiff, )
)
vs. ) No. 45A05-1105-PL-247
)
GARY COMMUNITY SCHOOL )
CORPORATION, )
)
Appellee-Defendant. )
)
INTERLOCUTORY APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable William E. Davis, Judge
Cause No. 45D05-1103-PL-20
February 6, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Continental Electric appeals the trial court’s denial of a preliminary injunction
after it claims Gary Community School Corporation (GCSC) improperly awarded a
public works contract to Great Lakes Electrical Maintenance, Inc. (GLEM). Finding that
the trial court did not abuse its discretion in holding that Continental Electric failed to
show a prima facie case, irreparable harm, or that the public interest would be better
served by the granting of the preliminary injunction, we affirm.
Facts and Procedural History
The GCSC was commencing a construction project on Locke Elementary School
and announced on January 25, 2011, that it would accept sealed bids for, among other
things, an electrical contract. Continental Electric and GLEM both submitted bids for the
project. The bidding requirements for this project were set forth in the bidding
documents and required a statement from a surety company that it would issue a
performance bond and a payment bond within three days of being awarded the contract.
However, the documents also explicitly stated that GCSC encouraged incremental
bonding and that GCSC was free to waive any bidding formalities. Appellant’s App. p.
36, 186.
After reviewing the bids, GCSC awarded the contract to GLEM, the lowest bidder.
GLEM did not provide a statement from a surety company, but instead provided GCSC
with a certified check in the amount of $85,000 and a proposal that an incremental bond
would be used. Continental Electric filed a Verified Complaint for Injunctive Relief,
2
claiming that GCSC had violated Indiana statute by awarding the contract to GLEM,
whose bid was nonresponsive to the bidding requirements.
On March 21, 2011, a hearing was held on Continental Electric’s motion for
preliminary injunction. On March 28, 2011, GLEM obtained and filed a performance
bond with the court. A telephonic conference was held and Continental Electric was
given five days in which to respond to the filing of the performance bond. No such
response was filed as of April 15, 2011. On April 18, 2011, the trial court denied
Continental Electric’s motion for a preliminary injunction for failure to establish a prima
facie case, show irreparable harm, and show that the public interest would be better
served by granting the preliminary injunction.
Continental Electric now appeals.
Discussion and Decision
The grant or denial of a request for a preliminary injunction rests within the sound
discretion of the trial court, and our review is limited to whether there was a clear abuse
of that discretion. Gleeson v. Preferred Sourcing, LLC, 883 N.E.2d 164, 171-72 (Ind. Ct.
App. 2008) (citing Cent. Ind. Podiatry, P.C. v. Krueger, 882 N.E.2d 723, 727 (Ind.
2008)). When determining whether to grant a preliminary injunction, the trial court is
required to make special findings of fact and state its conclusions thereon. Id. at 172.
When findings and conclusions thereon are made, we must determine if the trial court’s
findings support the judgment. Id. We will reverse the trial court’s judgment only when
it is clearly erroneous. Id. A judgment is clearly erroneous when a review of the record
leaves us with a firm conviction that a mistake has been made. Id. We consider the
3
evidence only in the light most favorable to the judgment and construe findings together
liberally in favor of the judgment. Id. Moreover, “[t]he power to issue a preliminary
injunction should be used sparingly, and such relief should not be granted except in rare
instances in which the law and facts are clearly within the moving party’s favor.” Id.
(quotation omitted).
To obtain a preliminary injunction, the moving party has the burden of showing by
a preponderance of the evidence the following: (1) a reasonable likelihood of success at
trial; (2) the remedies at law are inadequate; (3) the threatened injury to the movant
outweighs the potential harm to the nonmoving party from the granting of an injunction;
and (4) the public interest would not be disserved by granting the requested injunction.
Id. (citing Krueger, 882 N.E.2d at 727). If the movant fails to prove any of these
requirements, the trial court’s grant of an injunction is an abuse of discretion. Id. (citing
Ind. Family & Soc. Servs. Admin. v. Walgreen Co., 769 N.E.2d 158, 161 (Ind. 2002)).
Continental Electric contends that GLEM’s bid was nonresponsive to the bidding
requirements and that the trial court therefore abused its discretion in denying the
preliminary injunction by finding that Continental Electric failed to show a prima facie
case, irreparable harm, or that the public interest would be better served by the granting
of the preliminary injunction. Viewing the evidence in the light most favorable to the
judgment, we disagree.
Along with its bid, GLEM provided a certified check in the amount of $85,000.00
and a proposal for incremental bonding rather than providing a statement from a surety
company that it would issue a performance bond and a payment bond within three days
4
of being awarded the contract, as the bid book requested. Appellant’s App. p. 20, 31-32.
Continental Electric argues that this makes the bid nonresponsive to GCSC’s bidding
requirements. Indiana Code section 36-1-12-4 requires the awarding of public works
projects to the lowest responsive and responsible bidder. However, in the front-end bid
documents, it was explicitly stated that GCSC “promotes incremental bonding and other
appropriate strategies designed to assist Gary businesses and to increase local
employment opportunities,” id. at 36, and GCSC represented that it “reserve[d] the right
to reject any and all bids and to waive any formalities in the bidding.” Id. at 186
(emphasis added). Therefore, we find that it was not an abuse of the trial court’s
discretion to find that this bid was responsive to the bid requirements.
Additionally, at the preliminary injunction hearing, it was said that payment and
performance bonds do not need to be acquired before work on the project begins and
GLEM had yet to begin work. Tr. p. 35-36. Also, after the hearing, GLEM obtained and
filed a performance bond with the court. A telephone conference was held, and
Continental Electric had five days in which to file a response to the filing of the
performance bond, which they failed to do. Appellant’s App. p. 4.
Construing these findings in favor of the judgment, we find that the trial court did
not abuse its discretion in finding that GLEM’s bid was responsive to the bid request.
Continental Electric failed to show that it had a prima facie case, had suffered irreparable
harm, or that the public interest would be better served by the granting of the preliminary
injunction. We therefore affirm.
5
Affirmed.
ROBB, C.J., and NAJAM, J., concur.
6