Summary
In Akin v. Kewaskum Community Schools, 64 Wis.2d 154; 159, 160, 218 N.W.2d 494 (1974), the court held: "`The writ [temporary injunction] is to a great extent a preventative remedy; and where the parties are in dispute concerning their legal rights, it will not ordinarily be granted until the right is established....'" Quoting from Mogen David Wine Corp. v. Borenstein, 267 Wis. 503, 509, 66 N.W.2d 157 (1954).
Summary of this case from Werner v. A. L. Grootemaat Sons, Inc.Opinion
No. 512.
Argued May 6, 1974. —
Decided June 17, 1974.
APPEAL from orders of the circuit court for Washington county: FERDINAND H. SCHLICHTING, Reserve Circuit Judge, Presiding. Affirmed.
For the appellants there were briefs by Goldberg, Previant Uelmen, attorneys, and Walter F. Kelly, of counsel, all of Milwaukee, and oral argument by Mr. Kelly.
For the respondents there was a brief by McKenna Law Office of Kewaskum, attorneys for respondents Kewaskum Community Schools, Joint School District No. 2, Thomas Gundrum, and Floyd Brenholt; Flanagan, Steinhilber Chaney of Oshkosh, attorneys for respondent Thern Associates, Inc.; and Melli, Shiels, Walker Pease, S.C., of Madison, attorneys for respondent Westra Construction, Inc.; and Aldwin H. Seefeldt and Schloemer, Schlaefer Alderson, S.C., all of West Bend, of counsel; and oral argument by James K. Pease.
The trial court denied a motion for a temporary injunction.
The action is brought by four taxpayers and residents of Kewaskum School District No. 2 against the school district, the members of the school board, the district school administrator and two companies with whom the district had entered school building planning and construction contracts. The complaint seeks (1) a declaratory judgment declaring the course of conduct of the defendants in entering into the contracts is arbitrary and capricious, (2) temporary and permanent injunctions prohibiting the school board and the engineering and construction companies from entering into the building or remodeling contracts or performing under such contracts, and (3) a mandatory injunction requiring the school district to enter into a contract with the lowest responsible competitive bidder.
On March 6, 1973, the electors of the Kewaskum Community Schools, Joint School District No. 2, passed a referendum authorizing the district to borrow $1.6 million for the construction and remodeling of various school buildings within the district.
Following the passage of the referendum, Floyd Brenholt, the school district administrator, at the direction of the school board, prepared documents called, "Notice to Developers and Instructions to Developers," describing generally the buildings to be built and remodeled and which solicited "turn-key" building proposals from developers. These documents were approved by the school board and notices were inserted in four local newspapers.
". . . a turn-key approach is [where] a developer offers to build a set of buildings or projects for a sum of money and assumes complete responsibilities for the project until it's done."
The date (as amended) for submitting the proposals was June 4, 1973. The board received nine building program proposals from nine different developers. These proposals were reviewed by two committees and Brenholt decided that six of the proposals were too costly to be susceptible to negotiation.
On June 11, 1973, the school board decided to interview three developers as to the best alternatives available on a cost-per-square-foot basis and as to metal or concrete construction. After three interviews had been conducted the school board decided not to hold any more interviews and to negotiate separate contracts with Thern Associates, Inc., and Westra Construction, Inc., for a project contract rather than any individual units. These procedures by the school board were approved by school district electors at the annual school district meeting on July 23, 1973. The electors defeated a motion by the plaintiff, Gene Akin, 65 to 9, which would have required a new competitive bidding procedure.
After continued negotiations, on September 24, 1973, the school board entered into a contract with Thern Associates, Inc., for $67,000 for the engineering. On October 8, 1973, the board entered into a contract for the construction and remodeling for a maximum amount of $1,528,000. The maximum amount of both contracts is $1,595,000 and the construction and remodeling is to include all construction and remodeling called for in the notice to developers except two projects designated 4C and 4D.
On November 16, 1973, the trial court heard the motion for a temporary injunction. This motion was denied and the plaintiffs then moved for a stay order pending appeal pursuant to sec. 274.25, Stats. This motion was also denied and the construction has gone forward.
The plaintiffs appeal from both orders.
Although the plaintiffs-appellants state this issue in a much more detailed manner, we believe the issue to be whether the trial court abused its discretion in refusing to grant the plaintiffs' motion for a temporary injunction.
This action has not been tried. The trial court had before it only the motion supported by extensive affidavits, the complaint and arguments of counsel. The issues, both factual and legal, must await a trial and should not be disposed of upon the record as it now stands.
Sec. 268.02(1), Stats., provides that the trial court may grant a temporary injunction during the litigation if it appears from the pleadings that a party is entitled to a judgment and the commission or continuance of the acts sought to be restrained would injure him.
"When it appears from his pleading that a party is entitled to judgment and any part thereof consists in restraining some act, the commission or continuance of which during the litigation would injure him, or when during the litigation it shall appear that a party is doing or threatens or is about to do, or is procuring or suffering some act to be done in violation of the rights of another party and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act."
This court has stated:
"It is an elementary rule of law that the granting or refusal of a temporary injunction is a matter lying within the discretion of the trial court, and its determination in regard thereto will not be upset on appeal unless an abuse of discretion is shown. Fassbender v. Peters (1923), 179 Wis. 587, 588, 191 N.W. 973; Culligan, Inc. v. Rheaume (1955), 269 Wis. 242, 248, 68 N.W.2d 810. The merits of the case are not before this court on the instant appeal; the only question is whether the trial court abused its discretion. Bartell Broadcasters v. Milwaukee Broadcasting Co. (1961), 13 Wis.2d 165, 171, 108 N.W.2d 129." Codept, Inc. v. More-Way North Corp. (1964), 23 Wis.2d 165, 171, 127 N.W.2d 29.
Boerschinger v. Elkay Enterprises, Inc. (1965), 26 Wis.2d 102, 122, 132 N.W.2d 258, 133 N.W.2d 333; Shearer v. Congdon (1964), 25 Wis.2d 663, 665, 131 N.W.2d 377; Culligan, Inc. v. Rheaume (1955), 269 Wis. 242, 247, 68 N.W.2d 810; Mogen David Wine Corp. v. Borenstein (1954), 267 Wis. 503, 507, 66 N.W.2d 157.
One of the reasons given by the trial court for denying the motion for a temporary injunction was that the plaintiffs had not established a reasonable probability that they would ultimately prevail in a trial of the issues. In Mogen David Wine Corp. v. Borenstein, supra, page 509, we held:
"We approve of the following statement appearing in the opinion of the Iowa supreme court in the case of Beidenkopf v. Des Moines Life Ins. Co. (1913), 160. Iowa 629, 639, 142 N.W. 434, 437, 46 L.R.A. (NS) 290:
"`The writ [temporary injunction] is to a great extent a preventive remedy; and where the parties are in dispute concerning their legal rights, it will not ordinarily be granted until the right is established, especially if the legal or equitable claims asserted raise questions of a doubtful or unsettled character.'" See also: Codept, Inc. v. More-Way North Corp., supra, page 172.
The plaintiffs concede that a common school district, under the statutory law of Wisconsin and the cases construing it, is not required to advertise and accept the lowest responsible competitive bid in construction projects.
Consolidated School Dist. v. Frey (1960), 11 Wis.2d 434, 439, 105 N.W.2d 841, states:
". . . The letting of a construction contract by the school district, however, was not governed by sec. 66.29 in any other sense. Sec. 66.29 does not apply to contracts by a public body for public work unless that body is charged by some other statute with the duty of advertising for, and receiving, proposals for such public work. Cullen v. Rock County (1943), 244 Wis. 237, 12 N.W.2d 38 . . . ."
And in Menzl v. Milwaukee (1966), 32 Wis.2d 266, 271, 145 N.W.2d 198, we held:
"If the contract in question is not subject to the provisions of the bid section, the city is not bound by that type of procedure and even, after determining to invite bids, may reject any or all bids and ask for new bids, or may contract on the basis of reasonable business judgment with one who is not the low bidder. Cullen v. Rock (1943), 244 Wis. 237, 240, 12 N.W.2d 38; 10 McQuillin, Mun. Corp. (3d ed.), pp. 272-274, sec. 29.31."
The main thrust of the plaintiffs' argument is that the law in Wisconsin should be changed. They contend that if a municipality is not obligated to advertise for competitive bids by statute, but has in fact done so, it must pursue that course to finality. In support of this argument they cite and quote a Minnesota case, Griswold v. County of Ramsey (1954), 242 Minn. 529, 65 N.W.2d 647. That case, in the main, does support their argument.
The trial court acknowledged the Griswold decision and the plaintiffs' argument in support of adopting the Griswold rationale. However, the trial court concluded that to adopt Griswold would be inconsistent with our prior cases construing the statutes as to the necessity of competitive bidding by specified municipalities, and that it was not proper to do so in ruling upon a motion for a temporary injunction. The trial court concludes, in effect, that it would not predict whether this court would change the law.
This reasoning is supported by Culligan, Inc. v. Rheaume, supra, at page 250:
"`Where an issue of law is raised by the defendant, it is discretionary with the trial court whether to pass on the question of law at the time of the application for temporary injunction or to defer so doing until the trial on the merits.
"` Mogen David Wine: Corp. v. Borenstein, 267 Wis. 503.
"`As we interpret the language of the court in the case of Mogen David Wine Carp. v. Borenstein, 267 Wis. 503, the trial court may pass on the questions of law raised and grant the temporary injunction if the questions of law are decided adversely to the defendant or he may deny the request for temporary injunction and pass on the legal questions at the time of the trial, . . .'"
The plaintiffs contend that the actions of the school board were arbitrary and capricious and that this would entitle them to the injunction. Support for this theory can be found in Menzl, supra, page 271, where this court said that:
"If the contract in question is not subject to the provisions of the bid section, the city is not bound by that type of procedure and even, after determining to invite bids, may reject any or all bids and ask for new bids, or may contract on the basis of reasonable business judgment with one who is not the low bidder. Cullen v. Rock County (1943), 244 Wis. 237, 240, 12 N.W.2d 38 10 McQuillin, Mun. Corp. (3d ed.), pp. 272-274, sec. 29.31."
The board's actions cannot be arbitrary and capricious and must be based on "reasonable business judgment." However, the trial court stated that the determination of arbitrariness or capriciousness were questions of fact which it could not decide without a trial. That opinion is again within the trial court's realm of discretion.
The trial court did conclude that the appellants did have the necessary standing as taxpayers under S. D. Realty Co. v. Sewerage Comm. (1961), 15 Wis.2d 15, 112 N.W.2d 177, and that the appellants could establish the necessary permanent and irreparable injury as required by Reed v. Jones (1857), 6 Wis. 655 (*680). However, the trial court further stated that in spite of this, the granting of a temporary injunction is discretionary and that weighing the effect on the appellants as taxpayers against the effect on the children in the schools who would be forced to continue to attend on split shifts and in inadequate facilities, the court could not exercise its discretion in favor of granting the injunction.
We are of the opinion that the trial court thoroughly considered the matter, both factually and legally, and did not abuse its discretion in denying the plaintiffs' motion for a temporary injunction.
By the Court. — Orders affirmed.