# FILED
Au gust 1, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTI ON AT JACKS ON
HAL ANGUS,

d/b/a ) HAL ANGUS DEMOLITION, ) ) Plaintiff /Appella nt, ) Madison Law No. C-94-072

) vs. ) ) Appeal No. 02A01-9509-CV-00208 CITY OF JACKSON, ) ) Defendant/Appellee. )

APPEAL FROM THE CIRCUIT COURT MADISON COUNTY

AT JACKSON, TENNESSEE

THE HONORABLE WHIT LAFON, JUDGE

For the Plaintiff/Appellant : For the Defendant/Appellee : Phillip L. Davidson Sidney W. Spragins Nashville, Tennessee Jonathon O. Steen Jackson, Tennessee

AFFIRMED

HOLLY KI

RBY LILLA

RD, J.
CONCUR:
ALAN E. H

IGHERS, J. DAVID R. FARMER, J.OPINION

In this case, a demolition company filed a lawsuit against the City of Jackson for breac hing
an alleged

implied co ntract b etween the two pa

rties b y failin g to mail the plaintiff demolition company invitations to bid on demolition projects. The t rial cou rt granted the City’s motion for summary ju dgment, a

nd the pla intiff ap pealed. We aff

irm. T he b asic facts are not in dispute. Hal Angus is the sole owner of Ha l Angus Demolition (“ A ngus”), which has operated for over twenty yea rs in Madison County and specializes in the d emolition of buildings. Angus’ principle client over that twenty year period was the City o f Jackson, Tennessee (“City”). Angus performed a number of jobs for the City, demolishing various buildings in

Jackson. Angus obtained the majority of these jobs by submitting bids on the City’s project s. Prior to the submission of bids the Ci ty would normally send “invitations to bid” to a number of persons or entities qualified to perform the job, including Angus. In October, 1992, Angus was involved in a controversy regarding the demolition of a railroad trestle; Angus asserts that he was cleared of a ny wrongdoing. Subsequently, Angus contends that the City stopped its prior practice of sending him invitations to bid on all demolition jobs for which he was qualified, and sent him bids only on small pr ojects. Ang us contends that, from this point forward, he was awarded far fewe r jobs and that this had a significant adverse financial impact on his business. As a result, Angus filed this lawsuit against the City. Under Tennessee Code Annotated § 6-56-304, loca l g overnme

nt entitie s are required to publicly adverti se and accept

competiti ve bids on m

ost purch ases of s ervice s over $2, 500. The C ity enacted an ordinance similar to this statute, City Ordinance No. 1991-28. This ordinance provided that City purch ases of l ess than $4,000 but more than $1,000 should, when possible, be based on at least three competitive bids. The demolition projects at issue in this case were valued at greate r than $4,000; consequently, the City Ordinance is inapplicable. Angus originally alleged that the City violated Tennessee Code Annotated § 6-56-304and City Ordinan ce No.19 91-28 by f ailing to send him invitat

ions to bid o n certa

in demoliti on projects. He later amended his complaint to allege that the City had violated the statute and ordinance by not accepting certain bids that he submitted. Angus also contended that the City’s failureto mail him invitations to bid violated an implied contract that resulted from a “pattern of dealings” developed by the par ties over the year s. The City f

iled a Motion to Dismiss alleging that it had complied with Tennessee Cod e2

Annotated § 6-56-30

4 and City Ordinanc e No.1991 -28 by pla cin g notice of the upco ming demolition jobs in the local newspaper in the form of adverti sements. The trial court treated the City’s motion to dismiss as a motion for summary judgment, and held a hearing on the motion. In respo nse to the motion, Angus presented no proof in the record that the City failed to adver t ise th e prospective demolition projects in the local newspaper, or that the City limited the bidding o n demolition projects only to contractors who received invitations to bid. A fter th e heari ng on the City’s motion , the tria l court ma

de sever al finding s of fac t, including the following: 4. The City of Jackson is requi red to pub li sh a Notice of invitation to bid, pursuant to T.C.A. § 6-56-304 and City of Jackson Ordinance No.1991-28, but is not require d to mail invitations to bid to par

ticular i ndividual s; 5. Defendant

has in all i

nstance s regar

ding demol

ition projects fully

complied withthe bidding procedures set for th in T.C.A. § 6-56-304 and City of Jackson Ordinance No. 1991-28. The trial court found that the parties’ course of conduct did not establish an implied contrac t. It concluded

that there was no genuine issue as to any material fact and granted summar y judg ment to the City. Angus then filed a motion to alter or amend the judgment under Rule 59.04 of the Tennessee Rul es of Civil Procedure, asserting that newly discovered documents raised a genuine i ssue o f material fact as to whethe r plaintif f had re ceived a

n invitatio n to bid

on variou s demolitio n projec ts and whether

the City ha

d followe d its norma

l proced ures in a cceptin g contra

ctors’ b ids. The “ newly discovered

evidenc e” consi sted of the affid avits of A ngus and Ch arles Mc Bride, a f ormer City worker . McBride ’s affid avit state d in part: 3. The procedure employed by the City for at least twenty yea rs was as follows: (1) a contractor sent a letter to the City an d requested to be put on a list of approved bidders. Without being on this list, no one could receive an invitation to bid, (2) once a project was identified, it was put in the [news]pape r. Howev er, this w as a formality. Nothing in the paper notice described the necessary requirements for the bid, (3) invitations to bid were sent by the City to the p ersons on the appr oved list. If you were not on the list you did not receive an invitation to bid, and (4) the bids came in and the lowest bidder, in most cases, got the job. 4. This procedure was followed in every instance by the City. It was not deviated from. Eve

ry perso n on the lis t knew the procedu re and de pended o n it. 5. Only persons on the list bid, no one else did. The “newly discovered evidence” a lso included the transcript of the deposition of Susan White, the Cit y purchaser who was familiar with the procedur es employed by City in awarding demol itio n contrac ts. White’s deposition was taken prior to the hear ing on the City’s motion, but not3

transcribed

until after judgment was entered. H er deposition described the bidding process and stated in part tha

t, to be put on the City’s “bid list,” a demolition company need only write a letter with such a

request . In response to Angus’ motion to alter or amend, the City ma intained that the a lleged “ newly discovered

evidence” was available to Angus prior to entry of summary j ud gment. The City also
c ontended that the evidence did not create any genuine issue of fact as to whether the City wa s required to continue sending Angus invitations to bid on projects, or whether the City had complied withthe statutory requirements. The trial court subsequently denied Angus’ motion to a lter or amend the judgment. Angus then filed this appeal. On appeal, Angus argues t hat the “ newly disc overed e vidence ” proff

ered wit h his motion to alter or amend the judgment

created a genuine issue of material fa ct. He asserts further that the trial court erred in ho lding t hat the City was not required to continue the bidding procedure it had followed, which included mailing invitations to bid to Angus. Consequently, he asks this Courtto
revers e the trial court’s grant of summary judgment to the City and to remand the case for a trial on the merits. A motion for summary judgment should be granted when the movant demonstrates that there
are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of la w. Tenn. R. Civ. P. 56.03. The party moving for summary judgment bears the burden o f demonstrating that no genuine issue of material fact exists. Byrd v. Ha ll , 847 S.W.2d 208, 21 1 (Tenn. 1993). On

a motion fo

r summary

judgment, the cour

t must take

the stron gest

legitimate

view of the evide nce in fa vor of the nonmoving p arty, al low all r easo nable inferences in favor of that party, and discard all countervailing evidence. Id. at 210-11 . Summa ry j udgment is only appropr iatewhen the

facts a nd the leg al concl

usions dra

wn from th

e facts reasona

bly permit

only
one conclusion. Carvell v . Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of law
are involved, there is no presumption of correctness regarding a trial co urt's gr ant of summary judgment. Id. Therefore, our review of the tr ial court’s grant of summary judgment is de novo on the record before this Court. Id.1 City Ordinance No. 1991-28 is discussed by the trial court and argued on appe al.

However, Angus concedes that the City did not violate City Ordinance No. 1991-28, and a s noted in his brief, it is inapplicable in this case because the demolition projects at issue are valued in an amount greater than $4,000. 4 Angus alleges that the trial court erred in failing to consider the additiona l ev idence sub mitted with his motion to alter or amend the judgment. For purposes of this appeal, w e shal l consider all of the evidence submitted by Angus, including the “newly discovered e vidence ,” to determine whethe

r the City w as entitle d to a gra nt of summa

ry judgme

nt. The central issue is whether the City wa s under a

legal dut y to continue mailing to Angus an invitation to bid on each upcoming demolition project. Tennessee Code Annotated § 6-56-30

4 sets forth the City’s duty to publ

icly advertise an invitation to bid on an upcoming demolition project
. This was done by placing a notice as advertising such in the local newspa per. Angus concedes that the City did not violate the requirements of Tennessee Code Annotated § 6-56- 304 1 . Thus, the City is entitled t

o summary

judgment u

nless Angus can sho w that the re existed an implie d contr ac t between Angus and the City, under which the City was required to mail Angus invitations to bid. Angus insists that the City’s practice of sendin g him invita tions to bid o n demolitio n projec ts
over a period

of year s creat

ed an implied contr

act betw een the t

wo partie s. He con

te nds that th e City’s failure to provide him with i nvitations to bid on certain demolition projects constituted a breach of that imp lied cont

ract. Tennessee recogni zes two d istinct typ es of impli ed contr acts; na mely, con tracts implied in fact and contracts implied in law, commonly ref erred to as qu asi contr

acts. Paschall’s, Inc. v. Dozier , 219 Tenn. 45, 53-54, 407 S.W.2d 150, 154 (1966). Contract s implied in f

act aris e under c ircumsta

nces whi ch show mu

tual inten t or asse nt to contract . W

eatherly v. American Agric. Chem. Co. , 16 Tenn. App. 613, 65 S.W.2d 592 (1933). Mut ual assent and a meeting of the minds cannot be accomplished by the unilatera l act ion of on e party. See Batson v. Pl

easant View Util. Dist. , 592 S.W.2d 578, 582 (Tenn .App. 1979). Here, the City’s unilateral action in mailing invitations to bid to Angus does not establish mutual assent. No contract between the parties existed until Angus subm itted a bid on a project which was accepted by the City. Angus subm itted no pr

oof in the record that an in vitation to

bid constituted mutua

l5

assent that Angus would contract with City for the performance on a de molition project. Therefore, Angus fa iled to pre sent evid

ence cr eating a genuine i ssue reg arding a contrac t implied in

fact. Con tracts implied in law are created by law without the assent of the pa rty bound, on t

h e ba sis th at they are dictated by reason and justice. Weatherly v. American Agr. Chemical Co. , 16 Tenn. App. 613, 65 S.W.2d 592 (1933). A party seeking to recover on a n implied in

la w or quas i contract theory must prove the following: A be nefit c onferred upon the defendant by the plaintiff, appr eciation by the defendant of such benefit, and acceptance of such benefit under such circumstances that it would be

inequita ble for him to r

etain the benefit without payment of the value thereof. Paschall’s, Inc. , 219 Tenn. at 57, 407 S.W.2d at 155. In this case, Angus fa il ed to submit any proo f in the record of t he first e lement, a benefit received by the City

which wou

ld crea ted a leg al duty fo

r the City to provide Angus with invitations to bid on all u

pcoming de

molit ion projects. Consequently, Angus failed to present evidence creating a genuine issue as to whether there existed a contract implied by law. Therefore, the grant of summary judgment to the City must be affirmed. The decision of the trial court is affirmed. Costs on appeal are taxed to Appellant, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J.
CONCUR:
ALAN E. HIGHERS, J.

DAVID R. FARMER, J.