BAIRD TREE CO., INC. v. City of Oak Ridge

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

March 10, 2010 Session

BAIRD TREE COMPANY, INC. v. CITY OF OAK RIDGE, ET AL.

Appeal from the Circuit Court for Anderson County

No. A7LA-0505 Donald R. Elledge, Judge

No. E2009-01094-COA-R3-CV - FILED APRIL 26, 2010

In 2004, Baird Tree Company, Inc. (“Baird Tree”) unsuccessfully bid on a tree trimming and

removal project with the City of Oak Ridge (“Oak Ridge”). Baird Tree filed a lawsuit

claiming, inter alia, that Oak Ridge’s bidding process violated the Tennessee Trade Practices

Act, Tenn. Code Ann. § 47-25-101. We affirmed the Trial Court’s grant of summary

judgment to the defendants because the contract at issue was a contract for services, not

goods, and, therefore, the Tennessee Trade Practices Act did not apply. We also concluded

that Baird Tree could not challenge the bidding process because it had failed to submit a

valid bid in the first place. See Baird Tree Co., Inc. v. City of Oak Ridge, No. E2007-01933-

COA-R3-CV, 2008 WL 2510581 (Tenn. Ct. App. June 24, 2008). When the same project

came up for bid in 2007, Baird Tree again submitted a fatally defective bid. When it was not

awarded the contract, Baird Tree filed the present lawsuit raising various challenges to Oak

Ridge’s bidding process. The Trial Court granted summary judgment to all defendants. We,

again, conclude that Baird Tree does not have standing to challenge the bidding process

because it submitted a fatally defective “bid” in the first place. The judgment of the Trial

Court is, therefore, affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the

Circuit Court Affirmed; Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,

P.J., and C HARLES D. S USANO, J R., J., joined.

David H. Dunaway, LaFollette, Tennessee, for the Appellant, Baird Tree Company, Inc.

Benjamin K. Lauderback, Knoxville, Tennessee, for the Appellees, City of Oak Ridge and

Jerry Dover, individually and as Electric Operations Manager for the City of Oak Ridge.

Frank M. Fly, Murfreesboro, Tennessee, for the Appellee, Seelbach and Company, Inc.

William A. Blue, Jr., Nashville, Tennessee, for the Appellee, Environmental Consultants,

Inc.

OPINION

Background

This is the second occasion we have had to consider an appeal from two

different lawsuits involving the same primary parties and virtually identical subject matter.

The present lawsuit was filed in September 2007 by Baird Tree against several defendants,

including Oak Ridge. In a nutshell, Baird Tree claimed that it was improperly excluded from

bidding on a tree trimming and tree removal contract that was opened for bids by Oak Ridge

in 2007.

This is not the first time Baird Tree has made such a claim. In fact, Baird Tree

filed a previous lawsuit in 2004 when an earlier tree trimming and tree removal contract was

awarded by Oak Ridge to Seelbach and Company (“Seelbach”). Seelbach has been a

defendant in both lawsuits. In the first lawsuit, Baird Tree claimed, among other things, that

the defendants had violated the Tennessee Trade Practices Act, Tenn. Code Ann. § 47-25-

101, et seq., (the “TTPA”). The Trial Court granted summary judgment to the various

defendants after finding: (1) the TTPA did not apply to the tree trimming and removal

contract at issue because it was a contract for services, as opposed to goods; and (2) Baird

Tree lacked standing to pursue the claims set forth in the complaint because it never

submitted a valid bid in the first place.

Baird Tree appealed the Trial Court’s grant of summary judgment to the

defendants. In June 2008, this Court affirmed the judgment of the Trial Court in Baird Tree

Co., Inc. v. City of Oak Ridge, No. E2007-01933-COA-R3-CV, 2008 WL 2510581 (Tenn.

Ct. App. June 24, 2008), no appl. perm. appeal filed (“Baird I”). Due to the relevance of and

similarities between Baird I and the present appeal, we will quote heavily from our earlier

Opinion:

Oak Ridge began accepting bids in July of 2004 for a two

year project involving tree trimming, tree removal, brush and

limb chipping, etc. Plaintiff was one of three bidders on this

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project. The two other bidders were Wolf Tree Trimming

(“Wolf Tree”) and Seelbach and Company, Inc. (“Seelbach”).

After bidding was completed and the contract was awarded to

Seelbach, Plaintiff filed this lawsuit primarily alleging that the

bidding process was improper and Plaintiff was the lowest

bidder and should have been awarded the contract. Plaintiff also

claimed that Oak Ridge violated the Tennessee Trade Practices

Act, Tenn. Code Ann. § 47-25-101, et seq. (the “TTPA”).

Plaintiff sought compensatory damages in the amount of profit

it would have realized had it been awarded the contract.

Oak Ridge filed a motion for summary judgment

claiming, inter alia, that the undisputed material facts

established that it was entitled to a judgment as a matter of law

because: (1) Plaintiff’s bid failed to meet the necessary bidding

requirements; (2) even if Plaintiff’s bid did meet the necessary

requirements, Plaintiff's bid was not the lowest bid; and (3)

Plaintiff failed to state a claim upon which relief could be

granted under the TTPA.

Id., at * 1 (footnote omitted).

As stated, one of the issues in Baird I was whether Baird Tree even had

submitted a valid bid and, if not, whether that failure had any impact on the claims raised in

the complaint. The defendants argued that Baird Tree’s “bid” was woefully inadequate due

primarily to Baird Tree’s intentional refusal to provide much of the requested information.

There was a substantial amount of proof on this issue:

One of the exhibits is an August 20, 2004, letter from Jerry

Dover (“Dover”), the Electric Operations Manager for Oak

Ridge. This letter was sent to Mr. Bobby Baird, the owner and

president of plaintiff Baird Tree Company, Inc. Dover’s letter

concerned the bid that had been submitted by Plaintiff. In this

letter, Dover stated that Oak Ridge was “having difficulty

determining your firm’s qualifications and ability to perform the

work as outlined in the bid documents.” The letter then

provides a detailed description of additional information needed

by Oak Ridge. According to the letter, Plaintiff’s bid did not

provide three references for whom work similar to that being bid

on was performed. Next, the bid documents required Plaintiff

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to furnish a list of five “right of way and tree trimming/herbicide

application (spraying) contracts performed in the last twelve

months.” According to Dover, this information was not

supplied by Plaintiff. Finally, Dover stated that Plaintiff had not

complied with the requirement in the bid documents to furnish

a list of all contracts presently being performed. The letter then

states:

This letter is to advise you that the

information supplied with the bid is inadequate in

that the information requested under this item was

not supplied. Please supply a list of all such

similar contracts presently being performed along

with the names and telephone numbers of the

persons with whom the contractor has primary

contact. If your firm has no such contracts, so

state in your reply.

The City wishes to proceed with

summarizing of the bid responses to the

referenced contract as expeditiously as possible.

Please furnish the requested information and

clarifications in writing by the close of business

August 25 th , 2004.

On August 23, 2004, Mr. Baird sent a response to

Dover’s letter. In this letter, Mr. Baird flat out refused to supply

any additional information. Mr. Baird’s response states, in part,

as follows:

On August 23, 2004, I received a letter from you

in which you required a detailed response by

August 25, 2004. I find this to be an

unreasonable request and in the interest of time

and brevity this letter is hereby forwarded.

In response to your letter the following

information is submitted:

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A) This company has submitted to you

adequate information regarding the

references and evidence of outstanding

execution and workmanship.

B) Baird Tree Company, Inc. has all required

State Licenses for Tree Trimming and

Brush Control along overhead power lines.

It is my belief that your additional requirements

are onerous in that they are particularly prejudicial

to small, locally owned businesses.…

In your letter, you have placed tremendous

emphasis on requesting an in depth detailed

listing of erroneous requirements.…

In closing, we will follow up by submitting to you

a list of questions we would like answered

concerning the verification process utilized to

confirm your current contractors are meeting

contract specifications. (emphasis added)

Not surprisingly, Mr. Baird was questioned during his

deposition about the contents of his response. When he was

asked why Plaintiff did not send any additional information to

Oak Ridge as requested in the letter dated August 20, 2004, Mr.

Baird stated: “I guess we felt we’d give them all the

information that was necessary.” Mr. Baird admitted at his

deposition that Plaintiff was unable to furnish some of the

additional requested information. For example, Plaintiff did not

have five right of way and tree trimming/herbicide application

contracts in the past year. Mr. Baird also testified that Oak

Ridge’s requirement that a bidder have a certain number of

crews was “unreasonable.” When Oak Ridge pressed Mr. Baird

for an explanation as to why he felt the bidding requirements

were unreasonable, Mr. Baird stated that be believed it was

because Oak Ridge was trying to create bidding requirements

specifically to exclude Plaintiff from being able to successfully

bid on the contract. When asked why Oak Ridge would try to

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do that, Mr. Baird stated “I don’t know.” Mr. Baird admitted

that neither he nor his company ever had problems with anyone

in the past, with the possible exception of Dover whom Mr.

Baird claimed on one occasion spoke to him with a “tone of the

voice” that Mr. Baird did not like.

As to Mr. Baird’s assertion that the needed number of

crews was unreasonable, the documents created by Oak Ridge

when analyzing the bids provide as follows as to the crews

available for Plaintiff:

Bidder lacks depth in number of crews. There is

concern if a major storm event were to occur that

other utilities in the area would be affected and

would not release the contractor’s crews.

Plaintiff presented nothing in the record to indicate that Oak

Ridge’s concern about the number of crews Plaintiff had

available was anything less than legitimate.1

* * *

In addition to what is set forth above, there were other

components of Plaintiff’s bid that were incomplete or simply

unresponsive to the requirements contained in the bidding

documents. The following is an excerpt from Mr. Baird’s

deposition:

Q. Does Baird have a substance abuse policy

in writing?

A. Yes.

Q. Did you submit that to the City?

A. No.

1

There also were significant problems with the three references provided by Baird Tree. Baird I,

2008 WL 2510581, at *3. For the sake of brevity, we will not detail all of those problems.

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Q. Any reason why not?

A. [That is the way] we had always answered

before. We had never had any problems in the

past with it.…

Q. Do you have a formal, written employee-

training program?

A. Yes.

Q. Did you provide a list of the requirements

of that program for each class of worker as part of

your bid package?

A. No.

Q. Why not?

A. I probably just answered the questions

down through there like we normally had, you

know. . . .

Q. Is there any reason why you did not include

your safety manual with your bid?

A. We normally turn this stuff in like this, and

they accept it, and we just – we thought you all

would accept it like that.

The bidding contract also required the bidder to have a

full-time arborist on staff. Plaintiff did not have such an

employee, but instead used an arborist on a consulting basis.

Baird I, 2008 WL 2510581, at *1-4 (footnote added).

On appeal in Baird I, we initially concluded that the contract at issue was a

contract for services and, therefore, the TTPA was not applicable. Id., at *5-7. As to the

validity of Baird Tree’s underlying bid, we stated:

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The next issue is whether the Trial Court erred when it

determined that Plaintiff’s bid was invalid. The undisputed

material facts demonstrate that the bidding documents required

the bidder to have a full time arborist on staff, which Plaintiff

did not have. The undisputed material facts demonstrate that

there were numerous deficiencies in Plaintiff’s original bid.

Although not required to do so, Dover sent a letter to Plaintiff’s

owner and president requesting the additional necessary

information. Mr. Baird refused to supply any additional

information and even went so far as to inform Dover that he

(i.e., Mr. Baird) would be sending questions to Dover that he

wanted answered. The Trial Court correctly characterized this

response as being “in your face.” This Court is at a loss as to

how a company can send such a response to legitimate questions

that were raised about its bid, and then complain when it is not

awarded the bid.

Regardless of the propriety of Mr. Baird’s response, the

question on appeal is whether Oak Ridge successfully negated

an essential element of Plaintiff’s claims or conclusively

established an affirmative defense. See Blair v. West Town

Mall, 130 S.W.3d 761 (Tenn. 2004). Before Plaintiff can claim

it was entitled to be awarded the bid, it must begin by showing

its bid was valid and subject to being accepted. The undisputed

material facts demonstrate that Plaintiff’s bid was not valid for

the numerous reasons discussed above. Consequently, Oak

Ridge has successfully negated an essential element of

Plaintiff’s claim that it was entitled to be awarded the bid, and

the Trial Court correctly granted summary judgment to Oak

Ridge on that claim. . . .

Because Plaintiff did not submit a valid bid, the issue of

whether Plaintiff was the lowest bidder is moot. Likewise,

because Plaintiff was not a valid bidder, it has no standing to

attack the validity of Seelbach’s bid. Any remaining issues are

rendered moot.

Baird I, 2008 WL 2510581, at *7-8 (emphasis added).

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We now return to the present case. The contract at issue in Baird I had been

extended for one year and was set to expire on June 30, 2007. Before opening up the bidding

process for the new contract, Oak Ridge sought an independent review of its bidding process

on this project. According to Jerry Dover’s affidavit filed in the present case:

Prior to putting together the pre-qualification packet, a

decision was made by the City to ask for an independent third-

party review of the prior contract and bid documents by a

knowledgeable agency and to ask that third party to draft a pre-

qualification and bid package, based on their expertise, to help

streamline the process and to help the City find the most

qualified vendors.

The City had previously hired and worked with

Environmental Consultants, Inc. (ECI)2 to have them review the

trimming practices, development inspection forms, and to train

City inspectors on tree trimming inspection techniques. ECI

performed this work professionally and very well. While they

were engaged in those previous duties the City also learned that

ECI would also review tree pruning contracts, so inquiries were

made as to their ability and willingness to perform a review of

the City’s existing tree trimming contract and to suggest and

make changes to the pre-qualification packets in an effort to

streamline the bidding process and help the City locate vendors

who could most efficiently help the City with its needs. ECI

was hired and performed these services for the City. ECI

recommended a pre-qualification process to the City [which] the

City adopted in full.

Based on the specific suggestions and comments from

ECI the pre-qualification packages were put together and were

sent out to eight vendors, including Baird Tree. (original

paragraph numbering omitted; footnote added)

2

Environmental Consultants, Inc., also is a named defendant in the present case.

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As set forth in Dover’s affidavit, the pre-bid qualification package was sent to

Baird Tree and seven other companies.3 The seven other companies submitted complete

responses to the package. Baird Tree submitted the following response 4 :

The qualification requirements are as follows:

• Licensed to provide Utility Line Clearance Services in

the State of Tennessee.

#00021425 Unlimited s-Right of Way/Tree Trimming

• Acknowledgment that the company will name the City of

Oak Ridge as an additional insured on its insurance

policy for this project.

We Acknowledge

• Ability to comply with all applicable security

requirements and regulations of the U.S. Department of

Energy while performing work within secured areas of

the Oak Ridge National Laboratory, Y-12 Plant, K-25

Plant, and the City’s Waste Water Treatment Plant.

Accepted

• ISA Certified Arborist on staff, at management level.

Indicate the person with the certification by name and

title, length of employment with company, and copies of

certifications/licenses.

Certified Contractor will be available

• Tennessee Licensed pesticide applicator in the right-of-

way category.

Tennessee Charter #478

3

Three of these other companies apparently have the same parent company.

4

We have altered Baird Tree’s answers by putting them in bold type.

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• Documented experience performing similar services for

at least three (3) electric utilities in the Southeast.

Knoxville Utilities - Lenoir City Utilities - Rockwood

Utilities

• Documented safety program and provide a copy of the

company’s safety manual.

Available at our office - will provide if selected

• Documented substance abuse policy and any drug-

screening program.

Available at our office - will provide if selected

• Documented training program of proper tree pruning

practices following ANSI A-300 Guidelines to protect

the Health and Condition of Trees.

Will meet requirements if selected

• At least $20,000,000 in documented utility line clearance

business in each of the last five (5) years. Include Utility

name and Utility address. Provide full contact

information including name, address, phone and fax

numbers and email address.

Enormously unreasonable

• Inventory of equipment, including age, that will be

available for this project.

5 years or newer available

• Documented ability to provide assistance with storm

related restoration with references of utilities where these

services were provided. References shall include full

contact information including name, address, phone and

fax numbers and email address.

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Enormously unreasonable

• Acknowledgment that the company will obtain a

completion and performance bond, as well as a labor and

material bond, in the amount of one hundred percent

(100%) of the contract price with good and sufficient

surety acceptable to the City in connection with this

project.

Will provide

• Acknowledgment that no officer or employee of the City

of Oak Ridge has a financial interest in the company.

Acknowledged

• Acknowledgment that the company will comply with all

federal, state, county and local laws, ordinances, statutes,

and regulations applicable to this project. . . .

Acknowledged

• Completion of the attached Safety Experience Data

Sheet.

Attached

• City of Oak Ridge Business License

Will provide if awarded contract

Although Baird Tree indicated that it had completed the Safety Experience

Data Sheet, it had not. The first two questions on the Safety Experience Data Sheet asked

Baird Tree to list the company’s Interstate Modification Rate for the past three years, and to

indicate the number of employee injuries using last year’s TOSHA/OSHA report. Baird Tree

stated this information was “Unavailable at this time.” While Baird Tree indicated that it

conducts documented safety inspections and has a safety representative who visits and audits

the job sites, Baird Tree did not respond when asked the frequency that these events occur.

Finally, Baird Tree was asked to submit evidence of its present safety program and practices,

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including its safety manual. Baird Tree responded: “Available at our office - will provide

if selected.”

In the 2007 complaint, Baird Tree again claimed a violation of the TTPA, as

well as an illegal restraint of trade in violation of the common law. Baird Tree further

asserted claims for tortious interference with prospective economic advantage. Baird Tree

sued Oak Ridge, as well as Jerry Dover, its Electric Operations Manager. Dover was sued

in both his official and individual capacities. As noted earlier in this Opinion, Baird Tree

also sued ECI and Seelbach. Baird Tree sought compensatory damages not to exceed

$1,000,000, and punitive damages not to exceed $9,000,000.

In May of 2009, following extensive argument by counsel for all parties, the

Trial Court granted all of the defendants’ motions for summary judgment. The Trial Court

first acknowledged our holding in Baird I that the TTPA applied to tangible goods, not

intangible services, “[a]nd that is what this contract is for, it’s for services, tree pruning, tree

removal, et cetera, so that portion of the Motion should be granted.” The Trial Court then

stated, among other things:

“[I]n lieu of setting the parameters [of the contract] again, [the

City of Oak Ridge] hired a consultant to set the parameters and

they followed the consultant. That is an undisputed fact, they

followed the consultant’s . . . requests and advice, that’s what

they paid them for in terms of setting the qualifications for bid.

Filed as . . . Collective Exhibit H, there was a pre-bid

package. The City of Oak Ridge even submitted to Baird Tree

Company a request for proposal . . . and notified them of the

new bid that was coming out.

Again, bear in mind that this is while the previous case

was pending, and Mr. Baird, again, left off, one, two, three,

four, five, six, seven, eight, eight qualifications, those that were

listed in Exhibit H . . . .

Again, it’s kind of like an “in your face”, but the issue is

whether he would have had to submit a proposal at all because

his allegation is that it was a . . . [common law] unreasonable

restraint of trade for services.

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The undisputed fact is that the City of Oak Ridge acted

on the advice . . . of a retained consultant, Environmental

Consultant, a/k/a ECI, Inc. There was nothing to refute that. . . .

Regardless of the amount [of documented utility line clearance

business in each of the last five years that each bidder was

required to have], that is what their consultant advised in

response to that. . . . That is an undisputed fact. That is what

their consultant advised them to do, and that’s not an unlawful

restraint of trade. They acted on the recommendations of the

consultant that they hired to do this job.

* * *

Let me again make it very abundantly clear. Just as we

did in [Baird I,] in the pre-qualifications, Mr. Baird still to this

day has not filed anything that would even make him qualify. If

he had requested a – if he didn’t like the $20,000,000.00 and

requested a modification or whatever, but he still doesn’t have

an arborist. He still doesn’t have an arborist.

You know, again, it’s part of the “in your face” thing that

he has done . . . . Whether he bid or didn’t bid, he didn’t even

qualify. Not counting the $20,000,000.00, there are many

numerous things that I read off in this case. He didn’t qualify,

regardless. You can set aside the $20,000,000.00, he wouldn’t

have been valid to begin with. . . .

I don’t find that this in any way meets Trau-Med of

America v. Allstate Insurance Company, [71 S.W.3d 691 (Tenn.

2002)]. . . .

I specifically find that had the $20,000,000.00 not even

been in there, he wouldn’t have qualified anyway regardless of

the fact that he didn’t even bid on this case. So Motion is

granted . . . .

Following the hearing, the Trial Court adopted all of its rulings made from the

bench and entered an order stating as follows:

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1. That the State of Tennessee does not recognize a

common law restraint of trade civil action. This claim is

dismissed as a matter of law.

2. The Tennessee Trade Practices Act does not apply

to contracts for services, and this civil action concerns contracts

for services, as recognized by the Court of Appeals in

Baird I. . . . This claim is dismissed as a matter of law.

3. For reasons discussed at oral argument, including

the Defendant, Jerry Dover’s argument that he is immune from

prosecution on the Plaintiff’s claim for intentional interference

with business relationships under the Tennessee Governmental

[Tort] Liability Act, the Court grants the Defendant, Jerry

Dover’s Motion for Summary Judgment. Further, the claim for

punitive damages against the Defendants, City of Oak Ridge and

Jerry Dover, are also dismissed as a matter of law.

4. The Defendants, City of Oak Ridge, Jerry Dover

and Environmental Consultants, Inc., successfully have negated

essential elements of plaintiff’s claims alleging intentional

interference with business relationships or shown plaintiff

cannot prove essential elements of these claims at trial, for the

reasons set forth in the Court’s ruling from the bench. These

claims are dismissed.

5. The Court finds that the Plaintiff has not stated a

cause of action against Defendant Seelbach directly and that the

Defendant Seelbach was made a party because the Defendant

Seelbach was the successful bidder. The Court finds that the

Defendant Seelbach is, therefore, not directly liable for any

claim the Plaintiff may have in this lawsuit. Furthermore, as the

claims against the Defendants, City of Oak Ridge, Jerry Dover

and ECI, have been dismissed, the Defendant Seelbach is also

dismissed as a Defendant in this lawsuit.

6. That because the Defendants, City of Oak Ridge,

Jerry Dover, and . . . ECI have been dismissed, the Defendant

Seelbach is also dismissed as a matter of law.

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7. Since all parties answered the Plaintiff’s Motion

for Partial Summary Judgment, the Plaintiff’s Motion

concerning shortening the time for response to Plaintiff’s

Motion is therefore moot. Additionally, because this Court has

dismissed this cause of action, the Plaintiff’s Motion concerning

requiring the Defendant, ECI, to furnish additional discovery is

also now moot.

Plaintiff appeals raising numerous issues. Initially, Plaintiff claims the Trial

Court erred when it granted any and all of the defendants’ motions for summary judgment.

Plaintiff then claims that the Trial Court erred when it dismissed his claims for a violation

of the TTPA, a common law violation of restraint of trade, and for interference with

prospective economic advantage.

Discussion

Our Supreme Court reiterated the standard of review in summary judgment

cases as follows:

The scope of review of a grant of summary judgment is

well established. Because our inquiry involves a question of

law, no presumption of correctness attaches to the judgment, and

our task is to review the record to determine whether the

requirements of Rule 56 of the Tennessee Rules of Civil

Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d

49, 50-51 (Tenn. 1997); Cowden v. Sovran Bank/Cent. S., 816

S.W.2d 741, 744 (Tenn. 1991).

A summary judgment may be granted only when there is

no genuine issue of material fact and the moving party is entitled

to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v.

Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The party seeking the

summary judgment has the ultimate burden of persuasion “that

there are no disputed, material facts creating a genuine issue for

trial . . . and that he is entitled to judgment as a matter of law.”

Id. at 215. If that motion is properly supported, the burden to

establish a genuine issue of material fact shifts to the

non-moving party. In order to shift the burden, the movant must

either affirmatively negate an essential element of the

nonmovant’s claim or demonstrate that the nonmoving party

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cannot establish an essential element of his case. Id. at 215 n.5;

Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008).

“[C]onclusory assertion[s]” are not sufficient to shift the burden

to the non-moving party. Byrd, 847 S.W.2d at 215; see also

Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our

state does not apply the federal standard for summary judgment.

The standard established in McCarley v. West Quality Food

Service, 960 S.W.2d 585, 588 (Tenn. 1998), sets out, in the

words of one authority, “a reasonable, predictable summary

judgment jurisprudence for our state.” Judy M. Cornett, The

Legacy of Byrd v. Hall: Gossiping About Summary Judgment

in Tennessee, 69 Tenn. L. Rev. 175, 220 (2001).

Courts must view the evidence and all reasonable

inferences therefrom in the light most favorable to the

non-moving party. Robinson v. Omer, 952 S.W.2d 423, 426

(Tenn. 1997). A grant of summary judgment is appropriate only

when the facts and the reasonable inferences from those facts

would permit a reasonable person to reach only one conclusion.

Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000).

In making that assessment, this Court must discard all

countervailing evidence. Byrd, 847 S.W.2d at 210-11.

Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).

We affirm the Trial Court’s judgment in the present case for one of the same

reasons we affirmed its judgment in Baird I. Specifically, Baird Tree never submitted a valid

bid and, therefore, lacks standing to challenge the validity of the bidding process. With

respect to the 2007 bidding process, the “bid” submitted by Baird Tree was deficient in many

ways: (1) Baird Tree (still) did not have a certified arborist on staff, as required by the

express terms of the pre-qualification package; (2) Baird Tree refused to provide a copy of

its safety manual unless it was the winning bidder; (3) Baird Tree refused to provide a copy

of its substance abuse policy unless it was the winning bidder; (4) Baird Tree refused to

document its “ability to provide assistance with storm related restoration with references of

utilities where these services were provided,” choosing instead to simply refer to this

requirement as “Enormously unreasonable”; (5) Baird Tree failed to complete the Safety

Experience Data Sheet; (6) Baird Tree refused to furnish a copy of its Oak Ridge business

license; and (7) Baird Tree failed to demonstrate that it had “[a]t least $20,000,000 in

documented utility line clearance business in each of the last five (5) years,” again referring

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to this requirement as “Enormously unreasonable.”5 We think Baird Tree’s bid was properly

characterized by counsel for ECI at oral argument on the motion for summary judgment

wherein counsel stated: “Quite frankly, Your Honor, what they did is they flipped them off.”

Counsel correctly added that Baird Tree then refused to answer many questions, including

the question requesting $20,000,000 in documented utility line clearance business in each of

the last five years.

As we stated in Baird I:

The Trial Court correctly characterized [Baird Tree’s response

to Oak Ridge’s request for additional information] as being “in

your face.” This Court is at a loss as to how a company can

send such a response to legitimate questions that were raised

about its bid, and then complain when it is not awarded the bid.

Regardless of the propriety of Mr. Baird’s response, the

question on appeal is whether Oak Ridge successfully negated

an essential element of Plaintiff’s claims or conclusively

established an affirmative defense. See Blair v. West Town

Mall, 130 S.W.3d 761 (Tenn. 2004). Before Plaintiff can claim

it was entitled to be awarded the bid, it must begin by showing

its bid was valid and subject to being accepted. The undisputed

material facts demonstrate that Plaintiff’s bid was not valid for

the numerous reasons discussed above. Consequently, Oak

Ridge has successfully negated an essential element of

Plaintiff’s claim that it was entitled to be awarded the bid, and

the Trial Court correctly granted summary judgment to Oak

Ridge on that claim.

5

Baird Tree’s challenge to the pre-qualification package centers around the requirement that it have

“[a]t least $20,000,000 in documented utility line clearance business in each of the last five (5) years.” Baird

Tree claims that it was this requirement that was improperly added for the sole purpose of excluding smaller

companies such as Baird Tree from consideration. Had this been the only requirement in the pre-

qualification package that Baird Tree failed to meet, then our conclusion as to whether Baird Tree had

standing likely would be different. If we held that the failure to meet a challenged requirement, in and of

itself, resulted in a lack of standing, then someone illegally excluded would never be able to challenge the

propriety of the bid’s requirements. That is not our holding here because Baird Tree’s failures with respect

to the bid it actually submitted far exceeded simply failing to have “[a]t least $20,000,000 in documented

utility line clearance business in each of the last five (5) years.”

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Baird I, 2008 WL 2510581, at * 7.

We now face that same issue once more. We, again, are at a loss as to how a

company can submit an altogether inadequate and incomplete bid on a project, and then

complain when it is not awarded that project. “Before [Baird Tree] can claim it was entitled

to be awarded the bid, it must begin by showing its bid was valid and subject to being

accepted.” Id. To hold otherwise, literally, would allow anybody with a chainsaw, even

though he did not complete the bid documents, to mount an attack to Oak Ridge’s bidding

process simply by claiming they were improperly excluded. This is an untenable result and

would significantly disrupt a legitimate bidding process.

We conclude, as we did in Baird I, that Oak Ridge successfully negated an

essential element of Baird Tree’s claim that it was entitled to be awarded the bid, and the

Trial Court correctly granted summary judgment on that claim. Because Baird Tree never

submitted a valid bid in the first place and lacks standing to challenge the bidding process,

all remaining issues as to all defendants are moot.6

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the

Anderson County Circuit Court solely for collection of the costs below. Costs on appeal are

taxed to the Appellant, Baird Tree Company, Inc., and its surety, for which execution may

issue, if necessary.

_________________________________

D. MICHAEL SWINEY, JUDGE

6

Because Baird Tree never submitted a valid bid in the first place, this failure, likewise, would

negate any claim for damages allegedly resulting from Baird Tree not being awarded the contract.

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