Porsh Builders, Inc. v. City of Winston-Salem

JOHNSON, Judge. The sole question presented by this appeal is whether the trial court’s order properly effectuates the opinion and mandate of the Supreme Court in this case. For the reasons stated below, [686] we find that the trial court correctly interpreted the Supreme Court’s opinion and hold that the order entered by Judge Cornelius conforms to the decision rendered therein. Upon appeal from the Superior Court, the mandate of the Supreme Court is binding and must be strictly followed without variation or departure. “No judgment other than that directed or permitted by the appellate court may be entered.” D & W, Inc. v. Charlotte, 268 N.C. 720, 722, 152 S.E. 2d 199, 202 (1966). Plaintiff Porsh contends that the decision of the Supreme Court in this case commanded the Board of Aldermen of the City of Winston-Salem to convey the property in question to Porsh Builders. The City of Winston-Salem maintains that the Supreme Court went no further than to hold that the City could not convey the property of Mr. Ozmun, but that the City could either convey the property to Porsh or reject all bids. Thus, the issue revolves around the intent of the Supreme Court in its decision affirming the decision of this Court and remanding the matter to the Superior Court for judgment consistent with its opinion. In its amended complaint the plaintiff sought injunctive relief, an order directing the defendants to accept plaintiffs bid and convey the property to it or, in the alternative, that the bidding process be started anew. The trial court erroneously interpreted the language of G.S. 160A-514(c) and (d) as permitting defendants to consider factors other than the monetary amount of the bid in passing upon the bids offered, and therefore, entered summary judgment for defendants. This Court reversed the summary judgment and remanded the case to the Superior Court on the grounds that the statute permitted the defendants to either reject all bids or accept plaintiffs highest responsible bid. This opinion was affirmed and elaborated upon by the Supreme Court. Noticeably absent from either appellate opinion is language indicating, as plaintiff now argues, that the Board lost its option to reject all bids once it elected to proceed with one of the two bids submitted. G.S. 160A-514(d) clearly states, “All bids may be rejected.” The Board’s approval of the lower Ozmun bid has been determined by the Supreme Court to be erroneous, but there is nothing in the statute, or in the opinion of this Court or in the opinion of the Supreme Court to suggest that the erroneous ac [687] ceptance of the Ozmun bid made the rejection of the Porsh bid unlawful. Nor is there any affirmative indication in either opinion that the City must now accept the Porsh bid. All of the relevant language is clearly to the contrary. This Court’s interpretation of the statute as allowing defendants to either reject all bids or accept plaintiffs highest responsible bid, and reversal of summary judgment entered in favor of defendant was upheld. 302 N.C. at 552, 276 S.E. 2d at 444. The Supreme Court then stated, “[t]he clear meaning of the language of subsection (d) is that although the municipality may reject all bids, if any bid is accepted, it must be the “highest responsible bid.” Id. at 555, 276 S.E. 2d at 446 (emphasis added). And further, that “use of the term ‘shall’ renders the procedural requirement mandatory, if the governing body of the municipality decides to accept any bid. ” Id. (Emphasis added.) It is thus evident that the Supreme Court intended the matter ultimately to be placed before the Board of Aldermen to determine whether they now desire to reject all bids or accept the Porsh bid. Given the Supreme Court’s interpretation of G.S. 160A-514(c) and (d), the final judicial determination of the rights of the parties could only be that plaintiff is entitled to have its bid accepted, if, and only if, defendants choose to accept either of the two bids submitted. However, the Board retains the ultimate authority, under the statute and the Supreme Court’s ruling, to decide to reject all bids. The summary judgment in defendants’ favor, in practical terms, would have allowed the City’s acceptance of the lower Oz-mun bid and rejection of Porsh’s higher bid to stand. The Supreme Court’s decision reversing the summary judgment, in practical terms, held that the City could not accept the lower Oz-mun bid on the non-monetary grounds that it “more nearly” complied with the Development Plan. The net effect of the order entered 10 November 1981 was to reverse that erroneously-granted summary judgment, and to enter a judgment that plaintiff was entitled to have its bid accepted unless the Board chose to reject all bids. We find this portion of the order to be in full accordance with the decision of the Supreme Court. For the trial court to have ordered the Board to accept the Porsh bid, as Porsh requested in its motion, would have impermissibly enlarged upon [688] the mandate directed by the Supreme Court in this case. D & W, Inc. v. Charlotte, supra. Plaintiff next takes issue with that portion of the order which purports to “remand” the matter to the Board of Aldermen, and argues that such a “remand” is not included in the Supreme Court’s mandate. It is true that the case technically was not taken to the Superior Court “on appeal” from a decision by the Board of Aldermen, and therefore, it is technically incorrect to use the term “remand” in the order. However, as we stated earlier, the Supreme Court clearly intended the matter to be placed again before the Board for consideration. The order directs the Board as to what its options are pursuant to that appellate decision. In this context we consider the term “remand” mere surplusage. The order entered by the trial court is a reasonable means by which the opinion and mandate of the Supreme Court in Builders, Inc. v. City of Winston-Salem could be put into practical effect. The order of the trial court is Affirmed. Judges Hedrick and Eagles concur.