Preview:

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.

FILED
Mar 29 2012, 9:20 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: PATRICK STERN Indianapolis, Indiana

ATTORNEY FOR APPELLEE: THOMAS A. PASTORE Thomas Pastore, P.C. Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
STANDARD COATING SERVICE, INC., Appellant-Plaintiff, vs. WALSH CONSTRUCTION COMPANY, Appellee-Defendant. ) ) ) ) ) ) ) ) )

No. 49A02-1109-CT-922

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Heather A. Welch, Judge Cause No. 49D12-1005-CT-23989

March 29, 2012 MEMORANDUM DECISION - NOT FOR PUBLICATION BAILEY, Judge

Case Summary Standard Coating Service, Inc. ("Standard") appeals from the trial courts order granting Walsh Construction Companys ("Walsh") motion for summary judgment on Standards claims for breach of contract and for damages as a third-party beneficiary to a contract between Walsh and the City of Indianapolis ("the City"). We affirm. Issue Standard presents two issues for our review, which we consolidate and restate as whether the trial court erred when it granted summary judgment in favor of Walsh on Standards claims. Facts and Procedural History Walsh provides prime contracting services on, among others, large public works projects. Standard provides painting, coating, and waterproofing services. In late 2009, the Citys Department of Public Works ("DPW") solicited bids for Project BE-28-002A, Wet Weather Secondary Treatment Expansion, Belmont Advanced Wastewater Treatment (AWT) Facility ("the Project"). (Walsh App. 14.) Walsh planned to submit a bid to serve as prime contractor on the Project. Prime contractors for such projects, which draw money from the Clean Water and Drinking Water State Revolving Fund, are often required to seek out as subcontractors businesses that have been certified as Minority Business Enterprises ("MBEs") and Womens Business Enterprises ("WBEs"); such was the case here. To that end, on December 4, 2009,

2

Walsh placed a classified ad in the Indianapolis Star newspaper and on the newspapers website seeking bids from certified MBEs and WBEs. Walsh also directly contacted a number of businesses certified as MBEs and WBEs. Among the MBEs that submitted a bid to Walsh was Standard. On December 8, 2009, Standard submitted a bid to perform waterproofing, water repellent, and coating work for $1,759,132.00. (Standard App. 33-34; Walsh App. 11-12, 44.) On December 10, 2009, Walsh submitted its bid to the city, in which it offered to serve as the prime contractor on the Project for a total cost of $53,600,000. (Walsh. App. 3233.) Along with its bid, Walsh included U.S. Environmental Protection Agency ("EPA") forms 6100-3 and 6100-4. The EPA uses these forms to identify MBEs and WBEs that a prime contractor has engaged as subcontractors. The forms Walsh submitted to the City identified Standard as a provider of waterproofing, water repellents, and coating services. On January 4, 2010, Patrick Stern ("Stern"), counsel for Standard, sent a letter to Walsh observing that Walsh was the lowest bidder on the Project and that Walsh had submitted with the bid EPA forms that designated Standard as providing waterproofing, water repellent, and coating on the Project. Stern opined that it seemed likely that the City would engage Walsh as prime contractor sometime in the middle of January 2010, and went on to request that Walsh contact Standard to arrange for the completion of a purchase order so that Standard could start work on the project. At some point, Walsh decided not to use Standards services and selected a different subcontractor for the project. On January 13, 2010, Stern appeared on Standards behalf at a meeting of the Citys

3

Commission of Public Works ("the Commission") to request that the City delay approval of Walshs bid on the Project. Stern told the Commission that he had learned that day that Walsh did not intend to use Standards services. He went on to note that EPA form 6100-4 requires the prime contractor to designate its subcontractors under penalty of perjury, and opined that Walshs decision to use someone other than Standard should have raised concerns with the Commission regarding Walshs claimed proportions of MBE and WBE use on the Project. After hearing from representatives of Walsh, who confirmed that they would not use Standard on the Project, and from DPW staff, the Commission went on to approve Walshs bid. On March 1, 2010, the City and Walsh entered into an agreement designating Walsh as the prime contractor for the Project. On May 28, 2010, Standard filed suit against Walsh, alleging breach of contract and seeking damages as a third-party beneficiary of Walshs agreement with the City. After several enlargements of time, Walsh answered the complaint on August 30, 2010. On March 15, 2011, Walsh moved for summary judgment, seeking dismissal of the suit. After the trial court granted an enlargement of time in which to respond to the summary judgment motion, Standard filed its response on May 16, 2011. On July 14, 2011, Walsh replied to Standard and moved to strike numerous paragraphs of the affidavit of Arun Das ("Das"), Standards President, which Standard submitted in support of its opposition to the summary judgment motion. On July 18, 2011, the trial court conducted oral argument on the motions and granted

4

Standard additional time in which to respond to Walshs motion to strike certain of Standards designated materials. Standard filed its response on July 27, 2011, and further moved to strike certain materials Walsh had designated in support of its motion for summary judgment and in its reply to Standard. On August 18, 2011, the trial court granted Walshs motion to strike, denied Standards motion to strike, and went on to grant summary judgment in favor of Walsh. This appeal followed. Discussion and Decision Standard of Review Standard appeals the trial courts order granting summary judgment to Walsh. We review a summary judgment order de novo, Murphy v. Curtis, 930 N.E.2d 1228, 1232 (Ind. Ct. App. 2010), trans. denied, and we are bound by the same standard as the trial court. Coca-Cola Co. v. Babybacks Intern., Inc., 841 N.E.2d 557, 561 (Ind. 2006). Summary judgment is appropriate only where "the designated evidentiary matter shows 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." Ind. Trial Rule 56(C). We consider only those materials the parties designated in support of their submissions to the trial court. Gunkel v. Renovations, Inc., 822 N.E.2d 150, 152 (Ind. 2005). We construe all factual inferences in favor of the non-movant, and likewise resolve any question as to the existence of a material issue in the non-movants favor. Murphy, 930 N.E.2d at 1228. The moving party bears the burden of making a prima facie showing that there is no

5

genuine issue of material fact and that it is entitled to judgment as a matter of law. Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind. 2009). Once the movant satisfies that burden, the burden shifts to the non-movant to designate and produce evidence showing the existence of a genuine issue of material fact. Id. We may affirm a grant of summary judgment on any legal basis supported by the materials submitted to the trial court. Melton v. Ousley, 925 N.E.2d 430, 437 (Ind. Ct. App. 2010).
Standard's Breach of Contract Claim

Standard first contends that the trial court erred because it improperly concluded that there was no contract between it and Walsh. Whether a contract exists is a question of law. Fiederlein v. Boutselis, 952 N.E.2d 847, 856 (Ind. Ct. App. 2011). The basic requirements for a contract are offer, acceptance, consideration, and a meeting of the minds between the contracting parties "on all essential elements or terms" of the transaction. Id. (quoting DiMizio v. Romo, 756 N.E.2d 1018, 1022 (Ind. Ct. App. 2001) (quotation marks and citations omitted), trans. denied). "[A] meeting of the minds of the contracting parties, having the same intent, is essential to the formation of a contract." Ochoa v. Ford, 641 N.E.2d 1042, 1044 (Ind. Ct. App. 1994). Whether the parties intended to contract is a question of fact "to be determined from all the circumstances." Id. Walsh concedes that Standards bid was an offer for waterproofing, water repellent, and coating services on the Project. Thus, we turn to whether Walsh accepted Standards offer. On this point, Standard contends that while Walsh did not communicate directly its acceptance of Standards offer, Walsh nonetheless accepted Standards offer by naming

6

Standard in the EPA forms that accompanied Walshs bid to the City. This court has previously addressed a situation in which an offeror sought to bind a party that did not communicate acceptance of an offer in Mueller v. Karns, 873 N.E.2d 652 (Ind. Ct. App. 2007). In Mueller, Karns provided consulting services and later extended an offer by letter setting forth payment terms, which the offeree conservatorship rejected in a telephone conversation one week after Karnss letters designated start date for the agreement. Id. at 655-56. Karns argued, and the trial court agreed, that the conservatorship had accepted Karnss offer by remaining silent until after the designated effective date. Id. at 656. We reversed, observing that "Karns did not tell the Conservatorship that it could manifest acceptance ... by remaining silent, nor did he provide a clear and timely mechanism for rejecting the offer or his services," and that, indeed, Karns had already rendered his services before tendering the letter. Id. at 658. In reaching our decision in Mueller, we relied upon the Restatement (Second) of Contracts, which states in relevant part: Where an offeree fails to reply to an offer, his silence and inaction operate as an acceptance in the following cases only: (a) Where an offeree takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation. (b) Where the offeror has stated or given the offeree reason to understand that assent may be manifested by silence or inaction, and the offeree in remaining silent and inactive intends to accept the offer. (c) Where because of previous dealings or otherwise, it is reasonable that the offeree should notify the offeror if he does not intend to accept.

7

Restatement (Second) of Contracts

Download Standard Coating Service, Inc. v. Walsh Construction Company.pdf

Indiana Law