W.G. Yates & Sons Construction Co. v. City of Waveland

168 So. 3d 963, 2012 WL 2896207, 2012 Miss. App. LEXIS 441
CourtCourt of Appeals of Mississippi
DecidedJuly 17, 2012
DocketNo. 2010-CA-01799-COA
StatusPublished
Cited by3 cases

This text of 168 So. 3d 963 (W.G. Yates & Sons Construction Co. v. City of Waveland) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
W.G. Yates & Sons Construction Co. v. City of Waveland, 168 So. 3d 963, 2012 WL 2896207, 2012 Miss. App. LEXIS 441 (Mich. Ct. App. 2012).

Opinion

GRIFFIS, P.J.,

for the Court:

¶ 1. W.G. Yates and Sons Construction Company (“Yates”) appeals the City of Waveland, Mississippi’s award of the “Sewer Reconstruction Project North of Railroad Tracks” to Reynolds, Inc. (“Reynolds”), an Indiana corporation. On appeal, Yates asserts the circuit court erred by: (1) finding Reynolds was a “resident contractor” under Mississippi Code Annotated section 31-3-21(3) (Rev.2010); (2) finding Waveland was not required to reject Reynolds’s bid for failure to use bid addenda in Waveland’s instructions to bidders in the bid documents; and (3) finding Waveland’s decision to award the sewer project to Reynolds was not arbitrary, capricious, discriminatory, or without substantial evi-dentiary basis. Yates seeks remand to the circuit court for a hearing on damages. Finding error, we reverse and remand to the circuit court for a hearing on compensatory damages.

FACTS AND PROCEDURAL HISTORY

. ¶ 2. Waveland advertised for competitive sealed bids under Mississippi Code Annotated section 31-7-3 (Rev.2010) for the sewer project. Seven contractors submitted sealed bids for the project. On May 14, 2009, Waveland opened the sealed bids. Reynolds’s revised bid was $9,356,601, and Yates’s revised bid was $9,471,859.1

¶ 3. Reynolds and Yates submitted the two lowest bids. Waveland published the agenda for its regularly scheduled May 20, 2009 Board of Aldermen meeting. Item 21 on the meeting agenda was a motion to approve Yates as the next lowest and best bidder for the sewer project, issue notice of the award, authorize the mayor to sign the construction contract, and issue notice to proceed, pending approval by the city attorney.

¶ 4. According to Yates, item 21 on the meeting agenda was based on the project engineer’s recommendation that Waveland reject Reynolds’s bid and award the sewer project to Yates. While the record does not show a reason, agenda item 21 on the May 20, 2009 Board meeting relating to the award of the sewer project to Yates was tabled, and no vote was taken by the Board on the proposed award to Yates.

[965]*965¶ 5. On May 26, 2009, Dodds Dehmer, Vice President and General Counsel for Yates, sent a letter to Zach Butterworth, City Attorney for Waveland. In this letter, Dehmer asserted Reynolds was a nonresident contractor based in Indiana. Yates objected to the award of the sewer project to Reynolds because Reynolds did not attach a copy of Indiana’s current law pertaining to that state’s treatment of nonresident contractors as required by section 31-3-21(3). Dehemer’s letter also argued that Reynolds failed to use revised bid forms in submitting its bid and that Reynolds’s bid should have been rejected by Waveland under section 12.4 of the instruction to bidders contained in the bidding documents.

¶ 6. On May 28, 2009, Reynolds’s attorney sent a letter to Butterworth about Reynolds’s bid. Reynolds provided But-terworth a certifícate of fact from the Secretary of State of Indiana regarding a merger between Reynolds and Layne Merger Sub 2, Inc., or Layne Christensen, Co. (“Layne Christensen”), and other corporate documents showing Layne Christensen’s acquisition of Reynolds in 2005.

¶ 7. Reynolds is incorporated and has its principal place of business in Indiana. Reynolds is a wholly owned affiliate of Layne Christensen, which is a Delaware corporation. According to Waveland, Layne Christensen and its predecessor companies, Layne-Central, Co. and Layne-Western, Co., have conducted business and had offices in Mississippi since 1976.

¶ 8. On June 1, 2009, L. Bruce Newton, the project engineer for Waveland’s sewer project, sent a letter to John T. Longo, Mayor of Waveland, and recommended the sewer project be awarded to Reynolds as the lowest and best base bid. The June 2, 2009 agenda for the regularly scheduled Waveland Board of Aldermen meeting included a motion to approve Reynolds as the lowest and best bidder and approving the contracts, pending approval by the city attorney and notice to proceed with the sewer project.

¶ 9. At the June 2, 2009 meeting, representatives from Yates were in attendance. When the sewer project item was called on the agenda, William R. Purdy, an attorney for Yates, sought to be recognized on behalf of Yates. Purdy’s request to speak before the Board was denied. The Board, without discussion, voted to award the sewer- project to Reynolds. After the Board completed its agenda, Purdy was permitted to speak off the record during the public comments portion of the Board meeting.

¶ 10. Purdy asserted the following points on behalf of Yates: (1) Reynolds did not attach a copy of its resident state’s current bid-preference law as required by statute; (2) Reynolds did not use the correct bid form as revised by Waveland’s pre-bid addendum; (3) Reynolds’s bid was corrected by the project engineer to conform to the revised bid sheets; and (4) Waveland’s award of the sewer project to Reynolds exceeded Waveland’s powers and was illegal.

¶ 11. Aggrieved by Waveland’s award of the sewer project to Reynolds, Yates appealed the decision to the Hancock County Circuit Court on June 11, 2009, pursuant to Mississippi Code Annotated section 11-51-75 (Rev.2002). On August 8, 2009, Yates filed a motion to stay construction of the sewer project pending a ruling on its appeal. Yates argued' in the motion to stay that it would suffer continued harm if Reynolds was allowed to proceed with the construction of the sewer project prior to the circuit court’s ruling on its bill of exceptions. On September 27, 2009, the circuit court entered an order affirming the decision of Waveland to [966]*966award the sewer project to Reynolds. On December 18, 2009, the circuit court entered an order denying Yates’s motion to stay the sewer project.

STANDARD OF REVIEW

¶ 12. In Precision Communications, Inc. v. Hinds County, Mississippi, 74 So.3d 366, 369 (¶ 9) (Miss.Ct.App.2011), we reiterated the long-standing jurisprudence relating to our review of the decision of a municipal board:

The scope of review is limited when examining the actions of a municipal board. For questions of law, a municipal board’s decision is reviewed de novo. Furthermore, we apply a de novo standard of review to issues of statutory interpretation. Otherwise, we will not set aside the action of the governing body of a municipality unless such action is clearly shown to be arbitrary, capricious, or discriminatory or is illegal or without substantial evidentiary basis. An act is arbitrary and capricious when it is done at pleasure, without reasoned judgment or with disregard for the surrounding facts and circumstances. Substantial evidence is such relevant evidence as reasonable minds might accept as adequate to support a conclusion or more than a mere scintilla of evidence.

Id. (citing Nelson v. City of Horn Lake ex. rel. Bd. of Aldermen, 968 So.2d 938, 942 (¶ 10) (Miss.2007)) (internal citations and quotations omitted).

ANALYSIS

1. Whether the circuit court erred in finding Reynolds to be a resident contractor under Mississippi Code Annotated section 31-8-21(3).

¶ 13. We review this portion of the circuit court’s decision de novo because it involves the interpretation of a statute. Nelson, 968 So.2d at 942 (¶ 10). Yates contends the circuit court erred in finding Reynolds was a resident contractor under section 31-3-21(3), which reads in part:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
168 So. 3d 963, 2012 WL 2896207, 2012 Miss. App. LEXIS 441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wg-yates-sons-construction-co-v-city-of-waveland-missctapp-2012.