Opinion
DOCKET NO. A-3214-12T1
05-22-2014
INFOBID CORPORATION, Plaintiff-Appellant, v. MERCER COUNTY, NJ, Defendant-Respondent.
Bernstein & Manahan, LLC, attorney for appellant (James P. Manahan, on the brief). Arthur R. Sypek, Jr., Mercer County Counsel, attorney for respondent (Sarah G. Crowley, Deputy County Counsel, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Nugent and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Mercer County, Docket No. DC-5927-11
Bernstein & Manahan, LLC, attorney for appellant (James P. Manahan, on the brief).
Arthur R. Sypek, Jr., Mercer County Counsel, attorney for respondent (Sarah G. Crowley, Deputy County Counsel, on the brief). PER CURIAM
In this Special Civil Part matter, plaintiff Infobid Corporation (Infobid) appeals from the grant of defendant Mercer County's motion to dismiss at the conclusion of plaintiff's case. We affirm.
The essential facts are easily summarized. In 2009, plaintiff provided the County with a proposal for an E-Bid Publishing System designed to automate the County's bid buying operations. The system promised to publish selected bids to a website from which vendors could download copies to a flash drive. The vendors would return the drives to the County and the system would import the vendor's bid information automatically. Following continued discussions with Infobid, the County finally issued a purchase order for the E-bid Publishing System in 2011.
By the time the County issued its purchase order, however, Infobid had developed a more sophisticated electronic bidding software program, approved by the Department of Community Affairs, which would allow the County to accept bids and quotes on-line. It was apparently the advent of this new system that caused the dispute between the parties. Shortly after receiving the purchase order, Infobid communicated with the County about installation of a server, certain license agreements, and personnel to service the system. The County's purchasing agent complained to Infobid that the County had not anticipated needing a server and the costs for such were not included in the budget for the project. The County told Infobid that as a result of these costs the project was being put "on hold."
The County eventually cancelled the purchase order and Infobid filed suit in the Special Civil Part. The parties attended mediation and entered into a negotiated settlement in which they agreed that Infobid would provide services consistent with its purchase order at the same cost. The agreement specifically provided that "No new server is required by Mercer. Infobid will facilitate vendor registration." Shortly thereafter, however, a dispute again arose over installation of a server. The County again cancelled the contract and Infobid moved to enforce the agreement. The motion was denied and the matter restored to the trial list.
The County subsequently moved for summary judgment dismissing the complaint on the basis that there was no meeting of the minds and thus no enforceable contract. Infobid was of the view that the County's unwillingness to proceed with the contract was a breach of its obligation of good faith and fair dealing as Infobid had allowed the County to purchase its electronic bidding system at the same cost quoted for the E-Bid Publishing System. The County maintained that it was not prepared and was also without the resources to transition to an entirely electronic bidding system and did not wish to house the program on its own servers. Judge McManimon declined to decide the motion in favor of hearing testimony on the nature of the dispute.
The judge granted the County's in limine motion to bar testimony by Infobid's expert because his report had been served only three weeks before trial and was not relevant to the central issue of the dispute. Specifically, the testimony was to the effect that Infobid's bidding system could run on the County's existing servers without technical or security concerns. The County, however, was not asserting that the program was not capable of running on its servers. The County's position was that it did not want to house such a program on its servers and that the E-bid Publishing System it purchased was to run on Infobid's servers, not the County's.
Because the judge had barred Infobid's expert from testifying, Infobid presented only the testimony of its president, Bernard Upshur. Upshur testified that because of the County's expressed concern about increased costs of the newer electronic bidding system, Infobid had agreed to absorb such costs. Upshar was forced to admit on cross-examination, however, that there was nothing in the contract documents or the parties voluminous exchange of emails suggesting that the County had agreed to have the more sophisticated system installed.
He testified that when the County rejected electronic bidding, Infobid agreed, pursuant to the settlement, to install the E-Publishing System quoted in 2009, "even though we had stopped supporting it some time ago." Upshur testified that the term of the settlement agreement that no new server was required meant that the County did not have to buy a new server because it could "put it on [its] existing server." Although acknowledging receipt of an email from the County purchasing agent that "[t]he agreement stipulated that the server is your responsibility," Upshur responded that "we always explained . . . that we do not provide the type of service where we house a project for . . . the customer." He stated that "we won't do it because we're not authorized by the State to do that first of all and secondly[,] even if we were[,] we wouldn't do it, it's against our policy. Our whole objective, the whole purpose for being is to provide to the contracting agency the ability to process their own bids" as opposed to "having to contract it out to a third party."
After hearing that testimony, the judge granted the County's motion to dismiss at the conclusion of Infobid's case on the basis that there had never been a meeting of the minds between the parties and thus no enforceable contract. Specifically, Judge McManimon found:
Mercer County had concerns and issues with respect to the security of its own server . . . if this electronic bidding system was implemented using their servers and the concerns they had for the security of all the other information that's being generated or goes through those servers even though [plaintiff's expert] said he thought he could isolate it or build what would be a wall by implementing some kind of system so that any outside bidders . . . would only have access to a part of that server, whatever was created to serve this particular interest. That wasn't enough to satisfy the County's concern about security.
And the server issue is raised from the very beginning going back to 2009. And in this Court's mind there's never been . . . [a] meeting of the minds and that's what led to the attempted settlement . . . .
. . . .
There were issues about costs, what was or wasn't quoted, there were various e-mails going back and forth to try and clarify that. It's clear the County never wanted the original system [if] it was going to have to use its current or existing server at the time. It was going to be a separate dedicated server for this particular system I believe and the County wasn't going to put that in and serve it and have the people that it was going to have to train and use to serve that system or to allow that system to work properly and they were concerned about public access to their own system.
So it's clear in my mind. I reviewed the summary judgment motions and I really felt that it was important to at least get testimony with respect to it and that's why I didn't grant or deny either of the motions up front . . . .
And it's clear in my mind after hearing all the testimony from the plaintiff that it's not an enforceable contract because there was no meeting of the minds as to what that contract even was supposed to include and therefore I can't enforce it.
Infobid argues on appeal that the trial court abused its discretion by excluding the testimony of Infobid's expert and granting the County's motion to dismiss, thereby denying Infobid's claims under the original contract as well as under the settlement agreement. We disagree.
We review a decision of whether to admit or exclude expert testimony for abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). The interpretation of contract language is generally a question of law unless its meaning is unclear and turns on conflicting testimony. Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 92 (App. Div. 2001). Here, the judge reviewed the County's claims on summary judgment and determined that testimony was necessary in order to fully comprehend the parties' dispute. Having heard the testimony of Infobid's president regarding the two distinct software programs and listened to his responses to the County's questions on cross-examination, the judge concluded that the parties had a fundamental misunderstanding about the service the County would be purchasing and which of them would be hosting the software to support the system.
Final determinations of the trial court in a non-jury case are subject to a limited and well-established scope of review. We will "'not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (quoting In re Trust Created by Agreement Dated Dec. 20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008)).
Applying those standards here, we are satisfied that Judge McManimon carefully reviewed Infobid's claims, that his conclusions as to the admissibility of the testimony of Infobid's expert were correct, and that his factual findings regarding the nature of the parties' dispute and legal conclusion that there was no meeting of the minds so as to allow enforcement of the contract were supported by substantial, credible evidence in the record.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION