Skyline Roofing & Sheet Metal Company, Inc., Appellant-Plaintiff,
Ziolkowski Construction, Inc. and United Union Roofers, Waterproofers and Allied Workers Local #26, Appellees-Defendants
Appeal from the St. Joseph Circuit Court. The Honorable Michael G. Gotsch, Judge. Cause No. 71C01-1009-PL-183.
ATTORNEYS FOR APPELLANT: Jason D. May, Indianapolis, Indiana; Troy M. Miller, V. Samuel Laurin, III, Bryan H. Babb, Bose McKinney & Evans, LLP, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEES: Beverly J. Mack, Huelat Mack & Kreppein, P.C., Michigan City, Indiana; Edward B. Keidan, Conway & Mrowiec, Chicago, Illinois.
Riley, Judge. Vaidik, C. J. and Baker, J. concur.
STATEMENT OF THE CASE
[¶1] Appellant-Plaintiff, Skyline Roofing & Sheet Metal Company, Inc. (Skyline), appeals the trial court's summary judgment in favor of Appellees-Defendants, Ziolkowski Construction, Inc. (Ziolkowski) and United Union Roofers Waterproofers and Allied Workers Local #26 (Local #26)(collectively, Appellees), concluding that Skyline failed to establish a genuine issue of material fact that Appellees violated Indiana's Antitrust Act.
[¶2] We reverse and remand for further proceedings.
[¶3] Skyline raises two issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court properly concluded that Skyline failed to establish a genuine issue of material fact that Ziolkowski violated Indiana's Antitrust Act by unlawfully restraining open and free competition in bidding for a public project to build a new middle school.
FACTS AND PROCEDURAL HISTORY
[¶4] At some time prior to August 2009, the Kankakee Valley School Corporation (Kankakee Valley) planned to construct a new middle school in Wheatfield, Indiana.
To that end, Kankakee Valley mapped out a campaign that included enlisting the unions to help pass a referendum that would eventually fund the new middle school project (the Project). The unions placed union members at voting sites to show their support for the referendum and the Project. The referendum passed. See Skyline Roofing & Sheet Metal Co. v. Ziolkowski Constr., Inc.., 957 N.E.2d 176, 180 (Ind.Ct.App. 2011) ( Skyline I ).
[¶5] In August 2009, Kankakee Valley issued an advertisement requesting bids for the Project and setting September 17, 2009, as the deadline for submission of such bids. During a pre-bid meeting on September 8, 2009, which was attended by Ziolkowski, it was clarified that any submitted bid must include a list of the proposed sub-contractors. At the same time, Glenn Krueger (Krueger), the superintendent of Kankakee Valley, specified that he " did not want to see non-union contractors." (Appellant's App. p. 222).
[¶6] On September 17, 2009, Ziolkowski timely submitted its bid to Kankakee Valley. After bids were opened, Kankakee Valley notified Ziolkowski that it was the successful bidder for the Project. In turn, Ziolkowski notified Skyline, a non-union subcontractor, that it had " submitted the low bid" for the roofing system of the Project and that Ziolkowski had listed Skyline " on the subcontractor list" submitted to Kankakee Valley. (Appellant's App. p. 303). At Ziolkowski's request, Skyline sent it a detailed list of " customer references for projects currently in progress, projects that are constantly ongoing[,] and completed projects." (Appellant's App. p. 189). On September 23, 2009, the Project Architect, Steven Park (Architect Park), emailed Krueger with a comparison of different roofing systems and identified Skyline as a non-union contractor.
[¶7] On September 30, 2009, Kankakee Valley notified Ziolkowski of its intent to enter into a contract with the company. That same day, Kankakee Valley received a public records request from Local #26 asking for copies of Ziolkowski's bid documents, including Ziolkowski's subcontractor list. Local #26 subsequently discovered that Ziolkowski was " using Skyline." (Appellant's App. p. 239).
[¶8] On October 5, 2009, Ziolkowski and Kankakee Valley entered into a contract for the construction of the Project. Meanwhile, Krueger received complaints from representatives of the Local #26 who expressed their concern that Skyline was a " nonunion roofer and that they would love to have the job." (Appellant's App. p. 312). On October 16, 2009, Ziolkowski emailed its subcontractor list for the Project to Krueger, and listed Skyline as the subcontractor for the roofing system. Three days later, at 7:39 a.m. on October 19, 2009, Krueger replied, " I have the Ziolkowski Contract on my desk. I am deeply concerned about a union job action due to the non-union roofer. I will be seeking advice from our lawyer and a review by the School Board before I sign." (Appellant's App. p. 331). One hour later, at 8:25 a.m., Krueger emailed Architect Park, stating, " I have Ziolkowski's Contract. There is a huge issue over the roofing sub who is not union. I am not sure what to do. I am sure the unions will stop the project." (Appellant's App. p. 325). Architect Park replied, understanding " the concern but this is where a lot of the costs issues have come in from the bids. If we need to change the roofing contractor it would seem that we would need to rebid the project because it determined the selected contractor?" ...