*1 resumption temporary appeal, entitled Apart from this Pendill has not disability compensation total even his alleged any indicating if facts dilatory action P., again faith F. injury work-related should mani- or bad E. we do discharge. fest em- think F. pursuit rightful appeal, itself after his An E. P.’s of a more, ployee quits discharged punitive without warrants fees. who from his having employ, but never sustained judgment Indiana Industrial thereto, injury prior work-related is cer- affirmed, except Board that the award is tainly not entitled to supplemental percent (5%) required increased five wage benefits or Compensa- Workmen’s Ind.Code 22-3-4-8. tion. Pendill When was dismissed from his employ for reasons unrelated to his RATLIFF, JJ., NEAL and concur. injury, he no longer employee Corp. E. F. P. and he should not be enti- specific
tled to (temporary claim benefit disability) sup-
total as a wage intended
plement a wage substitution for em-
ployees waiting to (Em- return work. added.)
phasis CONSTRUCTION, INC., ATTLIN clearly E. F. P. ignores the fact that Plaintiff-Appellant, continuing Pendill’s unemployment is not termination, due to his but rather due to v. the injury he sustained while in their em MUNCIE COMMUNITY SCHOOLS and ployment. A review of cases E. Community Board of Trustee Muncie on, P.F. relies also this reveals misunder Marshall, President, Schools: J. Richard standing. These cases do involve the denial Wesley Wray, Vice-President, John of benefits in injured situations where the Murray, Secretary, Hurley Joan Goodall employee his original left employment. Members, Donati, and Jack Jacobs- however, Benefits were denied because Associates, L. Maze Dale Jacobs there was no causal connection between Maze, Defendants-Appel and Ronald G. of earnings employee’s injury, loss and the lees. rather than employment because terminat 2-178A4. No. cases, In resulting ed. these loss earnings employee’s was due failure Indiana, Court of Appeals company policies, voluntary to follow Fourth District. unemployment, unlike the case at bar. See 8, 1980. Dec. Bakeries, Hathaway Ucci Inc. 433; 341, R.I. 66 A.2d v. Small Crain Tubes Rehearing Denied Dec. Products, Pa.Super. Inc. 766; Comp. App.
A.2d Workmen's Bd. Co.,
John Galbreath & 20 Pa.Cmwlth. Therefore, A.2d we find no error decision granting tempo Board’s
rary disability payments. total
Pendill asks the court to remand this
case to the Board an order that attor
ney’s fees be awarded in addition to the
compensation award, charged rather than award,
against due E. F. P.’s bad resolving
faith in the claim. See Ind.Code
22-3-4-12. *2 Ice, Miller, Donadío & Lobley, Alan H. Demars, Indianapolis, Geupal
Ryan, Inc., as amicus curiae. White, Gilkison, Beasley, Gilki- Frank E. Reed, Buckles,
son, L. Samuel Retherford & Reed, Voran, DeFur, Hanley, Radcliff & Muncie, defendants-appellees. MILLER, Judge. Construction,
Plaintiff-appellant Attlin (Attlin) appeals judgment Inc. favor of the de- Delaware Circuit Court Community fendants-appellees, Mun- of Trustees of and the Board Schools Schools), (Muncie Community cie Schools (Jacobs-Maze), and Associates Jacobs-Maze (the L. Ronald G. Maze Dale Jacobs and upon ap- entered partners), individual involuntary for an dismiss- pellees’ motions Procedure, Trial pursuant al Ind.Rules 41(B). Rule all of Att- rejected After Muncie Schools construction lin’s bids on 23 of 27 different at each addition to Garfield projects Muncie, Elementary Schools and Sutton alleging it had Attlin sued Muncie Schools at in effect violated the statute (1976), time, 5-16-1-1 Ind.Code man- failing for bid the construction to let awarded Jacobs-Maze agement contract Richmond, let this Rather than Indiana. bid, 1975Muncie Schools in late with vari- of interviews conducted a series engineering firms be- ous architectural engineering firm of contracting fore “construction Jacobs-Maze to serve design con- manager” supervising the additions. Under struction of Jacobs-Maze received terms its contract a fee 4% the total at each projects tracts for the individual addition. reversal of appeal, Attlin seeks
On our presenting for judgment trial court’s question whether consideration sole finding that Muncie trial court erred enter into a possessed Schools sub- contract without mitting pursuant to IC 5-16-1—1 it for bids Winchester, Cook, Wayne Len- John T. J. required Muncie, $5,000 pub- E. let for nington, Spencer, Frank Indian- in excess of contracts stated competitive For the reasons apolis, plaintiff-appellant. lic bids. Ind.App. below we affirm the decision of the trial zele et al. Thus, 41(B),
court. N.E.2d 193. our Rule Trial supra, 41(b) differs from Federal Rule DECISION AND DISCUSSION that under the Rule the Federal trial сourt need not consider the evidence At complaint, the bench trial of Attlin’s and reasonable inferences therefrom most present any Attlin did not evidence but *3 non-moving party, favorable to the but is relied on it the evidence had introduced plaintiff free to determine whether the at a previously hearing on its unsuccessful (or party proof) with the burden of has request temporary injunction. for a Nei- right pre established a recovery by hearing ther at the nor the trial did the ponderance during of the evidence his evidence; rather, present any defendants case-in-chief. Emerson Electric Co. they each moved for an involuntary dismiss- Farmer, 1082; (5th Cir., 1970), 427 F.2d complaint pursuant 41(B).1 al of the to T.R. (9th Cir., Ellis v. 1964), Carter 328 F.2d granted The trial court these motions and 573, 577; Motorola, Inc. v. Fairchild Cam judgment accordingly. entered ap- Attlin (D.C.Ariz., Corp. era and Instrument peals, arguing ruling the court’s was con- also; 1973), 1173, F.Supp. 366 1176. See trary to the law as evidence demon- Wright and Miller Federal Practice and strated that Muncie Schools hired Jacobs- 224-225; Procedure, 2371, at Moore’s § manager Maze as the construction of the Practice, 5, 41.13[4], Federal Vol. 1155- § despite lacking two additions do so without submitting
manager public competitive contract to bid- may Because the trial court consider ding. Appellees argue that Attlin failed to only the evidence and inferences favor- prima establish a ruling facie case that Muncie to the non-moving party able in dismissal, such power. upon Schools lacked a motion for involuntary this Court must determine whether there Building Systems, Inc. v. Rochester Metal was which could evidence introduced Prods., 12, Ind.App. Inc. been sufficient support a recov- scope N.E.2d enunciates our of review ery by party granting when the or deciding presented the issue ap- in this denial of such a motion is an issue on peal. bar, then, appeal. In the case at the issue 41(B)] “The language requires of [T.R. properly found is whether the trial court the trial court to consider the evi- that there no substantial evidence dence and inferences most favorable to sup- probative which would have value non-moving party ruling upon allegations ported the material such a motion. may The trial court not contractor.” weigh testimony of one witness 13-14; at 703. Ind.App. at 340 N.E.2d against conflicting testimony of an- witness, may weigh nor conflict- The facts most favorable to Attlin con- cause, ing portions of the testimony of the same tained in the record of this derived exhibits, witness. Ohio Casualty Ins. Co. v. Ver- from its are as fol- witnesses 41(B) provides: may 1. T.R. them and trier of the facts then determine judgment against plaintiff render or Involuntary dismissal: Effect thereof. After any judgment until the close plaintiff decline render party proof the upon with the burden of judg- issue, all renders the evidence. If the court an in an action tried the court plaintiff par- against jury, completed ment on the merits presentation without a has court, ty thereon, proof, opposing party, with the burden of when of his evidence waiving right requested either without his at the time of the motion to offer evidence in if, granted, may party findings required by the event the motion is not and as move shall make ground considering 52(A). for a dismissal on the order for Rule Unless court specifies, the evidence and reasonable inferences otherwise a dismissal under dismissal party (E) therefrom in favor of the to whom the this subdivision or subdivision of this rule directed, true, rule, motion is provided to be there is no sub- dismissal not this probative stantial evidence of value to sustain jurisdiction, for lack of other than a dismissal operates allegations party against the material adjudication upon an the merits. whom the motion directed. The court as Taylor firm of Love & Recognizing lows:2 the need to construct (Graham, Love) as the architect both Ele- additions to the Garfield Sutton November, Schоols, employ a 1975 Muncie than mentary additions. Rather contractor, Ja- contracted interviewing architectural began Schools firm, cobs-Maze, engineering design and oversee engineering firms additions on for both of these additions. On De- of the con- signed January 1976.3 Utilization cember 1975 Muncie Schools tempo- cooperative presented project proceeding than a team effort rather nine witnesses at the Attlin adversaries, rary injunction hearing including among three mem- a situation Board, Community bers of the Muncie School uncommon in sector con- (one Tay- up relationships architects & are backed struction. These Attlin), lor and one from three contractors who worked Attlin’s owner and (CPM) Critical Path Method PERT sched- two addi- estimating, uling, and cost detailed cost tions to two schools. accounting. techniques are often com- These *4 competent puter-based, and a construction In an informative and useful amicus curiae great manager will use them with effectiveness brief, Geupel attorneys explained the Demars’ project. a to control purpose utilizing manager of the construction method and the function a construction mana- management usefulness of construction building The ger project a serves in as follows: complexity proportion project to in increases increasing agencies pres- “Public are under management and’cost. The total construction approach money developing to time and new sure save a inflation, can be used on cost-effective basis public energy plex facility requirements, facilities. Factors such the crunch, complex projects of generally with construction costs strikes and more com- hand, however, $3 million and above. On the other indi- have made goals parts management these more difficult to achieve. vidual nology, of construсtion tech- (CM) Management Management, may has been de- Construction such as Value pub- veloped yield applicable an alternative to traditional can on and real cost benefits process. manage- building lic ment seeks to save costing Construction projects $1 million often less. and cost owner time developers report they Several activity primarily through better coordination management perform functions construction management. Many project private devel- Most, however, obtain this service in-house. opers major agencies, including Federal the and the from an firm under a ser- outside (GSA) Services General Administration vice contract. Department Health, of and Welfare- Education many along jurisdictions- state and local Management (CM) refers to a “Construction management found can have help that construction professional working type of contractual and timе, money, aggravation to save relationship by building initiated a owner for building owner. project design professionals and the construc- Savings management have with construction applied manager. approach tion can be many impressive been ports design up public agencies report GSA re- instances. particular facility of a con- construction savings of and construction time of related within an struction overall construction several facilities years projects. certain Several program. The construc- savings time of more manager may group or a tion of individuals on the owner’s staff. More fre- quently, be an individual savings than six months. These devel- [are] inflation, oped reducing impact cut- however, manager the construction loans, ting interim reduc- costs for construction joint represents firm or venture an outside bids, ing contingency amounts contractor acting working agent jurisdiction as an periods temporary shortening and agency quarters, rental profession- best under a in the owner’s interest prior occupancy. Each specific al contract on construction these factors saves real dollars. Certain tech- project. niques through use available of construc- manage- Many variations of the construction management major tion amake contribution by private approach de- ment have been used Management, savings. in- these Value agencies. velopers Be- construction stance, effectively by can be construc- used special of each ma- characteristics cause manager system produced in this and has building regulations jor and rules savings consistent over cost of 8-to-l specific jurisdiction, single no form each use.... relationship management will best technology management construction suit the The construction jurisdictions.... particular of all needs centеrs on ger process. mana- utilization a construction management manages building is most effective Construction who coordinates predesign employed project’s manager when from as a The construction acts owner, occupan- fiduciary stage through until final for the fact which makes manager method manager process saved Muncie was going struetion since 4-5% in fees Ja- Attlin, Schools Munice be utilized Schools. charged only 4% of the construc- cobs-Maze contractor, general bid on 23 of the testimony as its fee while the at tion cost school; projects elementary how- at each general revealed that a trial reject- ever in all their bids were May, 1976 profit realized a to 8-9% equal would have ed and other contractors were awarded construction cost. the next Over jobs. began shortly those Construction concerning information four months June, early thereafter projects for all 27 on each Attlin into con- introduced evidence the prospective addition made available to manager struction between Ja- This included contractors. information cobs-Maze and Schools. This con- the con- Muncie Schools’ intention to utilize perform tract Jacobs-Maze required struction method than the rather (1) the phases: services in two different building contractor method for design phase; president additions. Attlin’s testified April, end of phase.4 1976 he knew Jacobs-Maze did not have to actu- however, cy. possible, preparing It Muncie Schools in 10.Assist management contracts. services for a sin- gle project, phase B. Phase: of a Construction but the benefits of the approach fully 1. Coordinate contractors’ work with not be realized. responsibilities of Muncie activities complete Love to Schools and TECHNOLOGY, INC., U PUBLIC *5 Quoted cost, quality additions within time and CONSTRUCTION FOR SING MANAGEMENT objectives. FACILITIES, PUBLIC AND INSTITUTIONAL pre-construction 2. and conduct Sсhedule March, 1-2, D.C., 1976.) (Washington, 9-12 meetings progress at which and Schools, Graham, Love, Jacobs-Maze and phase each 4.Within Jacobs-Maze’s jointly discussed construction contractors can be duties summarized as follows: procedures, progress, problems and schedul- Design A. Phase: ing. Consult with and 1. Muncie Schools Gra- approved and 3. Revise refine the esti- ham, during projects’ development Love costs, ap- incorporating mate of construction conceptual designs review and to assist in proved changes they developing as occur and projects. designing the reports cash flow and forecasts as needed. Develop update projects’ 2. and time Additionally, advise Muncie Schools and Gra- schedules, coordinating integrating into and ham, projected whenever Love costs exceed it architect’s services with construction budgets or estimates. schedules. requests design changes, for 4. Review Prepare budg- update projects’ 3. and recommending necessary design or desirable basing approval, ets for the owner’s Graham, changes Love, Muncie Schools and budgets upon drawings specifica- and negotiating change in and assist orders. tions. Develop implement procedure and for 5. drawings Review 4. and reviewing processing appli- and contractor’s they prepared, recommending alternative progress payments. and final cations for Also, design solutions whenever details affected recommendations make feasibility schedules. for to Muncie Schools Love for certification payment. employ- applicable equal 5. Determine opportunity program requirements ment for obtaining building permits in 6. Assist all in inclusion contract documents. special permits permanent improve- and ments, excluding Prepare pre-qualification 6. criteria required permits those develop and biddеrs projects. interest directly by the various obtained contrac- tors. bidding 7. Establish and con- schedules Verify paid that Muncie Schools has 7. pre-bid duct conferences to familiarize bid- perma- applicable and fees assessments ders with the and man- documents nent facilities. agement techniques any spe- as well as with required, If assist Muncie Schools 8. systems, cial materials or retaining professional methods. selecting consult- and bids, analyses prepare surveying testing Receive bid and and ants for laboratories coordinating make recommendations to Muncie Schools well as services. awarding rejecting Inspect contracts or bids. the contractors’ work to assure pre-award require- 9. Conduct conferences with to the contract conformed successful bidders. ments. estate, improvements, or or real estate any part of either addition. ally construct either, any governing as the Rather, coordinating solicita- interest through body necessary purposes, for school deems bids for the 27 acceptance buildings, including but not limited to design during projects at each additions parts buildings, gener- sharing [and] with the architect phase and buildings, .... per- over the work supervisory authority al phase, Jacobs- formed in the construction the entire construction synchronized Maze discharge for and (7) employ, To contract
package. superintendents, supervisors, principals, teachers, librarians, managers, business public body required IC 5-16-1-1 buildings grounds, superintendents competitive bidding any submit for architects, physicians, $5,000.5 janitors, engineers, This for construction excess nurses, accountants, teacher dentists, conjunction with statute must be read in performing non-instructional aides specifies pow- Ind.Code 20-5-2-2 which duties, other educational and possessed by governing bodies of ers consultants, comput- processing data Specifically, in Indiana. corporations ..., purposes, er for school service possessed power: services, all as the personnel or such other “(1) into contracts in mat- ... to enter necessary body governing considers by applicable ters law. permitted . purposes; establish, provide (2) locate and ... schools, necessary other build- facilities, ings, equipment property and any To exercise therefor. expenditure carrying out its make construct, erect, maintain, provided in general powers purposes acquire, To powers hold, carrying or in for such construc- sec. 201 reason- tion, maintenance, in this 202 which is of such real delineated sec. erection Graham, Love, 17. Secure transmit 10. In collaboration releases, affidavits, implement expe- required guarantees, procedures for establish *6 approval shop diting processing and and waivers. bonds keys, drawings samples. and Turn over to Muncie Schools 18. projects, manuals, progress drawings 11. Record the record and maintenance reports progress submit written to Muncie starts. procedure Develop implement and Love as well as main- Schools and 19. daily log applications processing tain a ham, Gra- for for review and pay- progress Love. final contractors site, 12. Maintain at cur- ments. rent basis all documents revisions (1976) provides pertinent or 5. IC arise out of the work. 5-16-1-1 arrange storage, Accept delivery part: 13. owner-pur- protection security for all building any any public or “When materials, equipment. systems and chased any public improvement of character or work incomplete Prepare a or 14. list of unsatis- constructed, to ... at the is be whatsoever factory along items with a schedule their corporation, expense of ... ... substantially completion after contractor ..., of such and when the estimated cost portion completes designatеd his or a work improvement bewill five thousand work or thereof. After Love certifies the more, duty ($5,000) or it shall be dollars completed, supervise work the correc- to adopt .., corporation, to ... of the . completion of the work. plans a con- award With the mainte- Muncie Schools’ improvement public or such work tract for personnel, out of utili- nance direct check bidder who a bid and best submits lowest ties, operational systems equipment ” performance thereof: . start-up readiness and assist in their initial testing. Acts, Pub.Law raised limit § $5,000 $25,000. This modification completion, providing Determine final (1980 Supp.) at 1C 5-16-1-1 codified and Gra- written notice to Muncie Schools ham, ready for final Love that the work inspection. able from a business or presents educational stand- an issue of impression first in Indi- point in carrying purposes out school ana. corporation,
the school
including but not
general
rule,
As a
contracts for
acquisition
limited to the
of property or
personal
professional
or
services entered
employment
or contracting for serv-
into
ices,
public body
private organi
with a
though
power
even
expendi-
zation or
governed by
ture shall not
individual are not
specifically
set out here-
in;
public
specific
competitive bidding
and the
laws
powers set out in this
and need
section shall not be construed
not be
public competitive
to limit the
submitted for
general grant of powers provided
Annot.,
(1967).
sec. bids.
Ap
A.L.R.3d
201 except where a limitation is set out in
plying
general
this
public
rule to
works
this
by specific
act
language
refer-
contracts,
competitive
rationale is that
(Emphasis added)
ence to other law.”
bidding laws
applicable
public
works
construction contracts
where the mate
appeal,
On
Attlin concedes that
since
rial and work
specifica
must conform to
Muncie Schools elected to utilize thе con-
allowing
performance
tions
of the con
process
building
instead
by relatively objective
tract to be measured
process,
it was
Consequently,
presumed
standards.
it
necessary to hire someone to oversee the
legislature
that
intended the lowest
work on each addition. Additionally, Attlin
price to
determining
be the ultimate
factor
does
argue
that Muncie Schools lacked
However,
in awarding the contract.
power pursuant
20-5-2-2(7)
to IC
public
calling
professional
contracts
enter into the architect’s contract without
letting
personal
requiring
it for
and/or
aesthet
significant-
bids. Most
ly,
ic,
Attlin does not suggest
judgment,
if Muncie
business or technical
and/or
Schools had contracted with an
architect or
experi
or scientific skills and
engineer by
profession-
ences,
means of a standard
legislature
is assumed that
al
perform
could not have intended the
price
lowest
manager’s duties, such a contract would
determining
be the ultimate
as the
factor
have
subject
been
performance of the contract can not be
(IC 5-16-1-1). Thus,
statute.
Attlin im-
objectively.6
evaluated
Because the nature
plicitly agrees that an architect’s or engi-
personal
service con
and/or
neer’s contract specifying duties the same
unlikely
tracts makes it
bids would
appear
in the construction manager’s
provide any advantage
public body
contract contested herein would not contract,
awarding
advertising
for such
subject
been
to IC 5-16-1-1.
undesirable,
impossible
bids would be
Ross,
impractical. Kennedy
supra;
Remaining is Attlin’s sole contention that
Redevelopment Agen
Graydon
v. Pasadena
Schools’
architects
*7
631,
engineers
cy, (1980)
Cal.App.3d
Cal.Rptr.
and
104
164
pursuant to IC 20-5-2-2 does
not create
exception
foregoing gen
an
to
56. In accordance with the
IC 5-16-1-1
allowing
rule,
to
jurisdictions
ap
enter
into a
eral
construction
numerous
manager
submitting
сontract without
plied
professional
personal
it to
ser
and/or
a
contract for
bids. This contention
engineers,7
vice contracts with
construction
Management,
Cty., (1928) Tex.Com.App.,
305;
6. Waste
Inc. v.
Wisconsin Solid
11
S.W.2d
Horton,
25,
Recycling Authority, (1967)
(1922)
Waste
Franklin v.
97 N.J.L.
116 A.
84 Wis.2d
Millville,
City
462,
176,
Ross,
659;
(1922)
Kennedy
aff'd. Franklin v.
(1946)
v.
267 N.W.2d
262,
City
29;
569,
Vermeule v.
904;
98 N.J.L.
119 A.
28 Cal.2d
Barnard v. Kan
170 P.2d
Corning, (1919)
206,
App.Div.
diyohi Cty.,
100,
186
174 N.Y.S.
(1942) 213 Minn.
5 N.W.2d
220,
(1920)
585,
aff’d.
317;
230 N.Y.
bonds. to the Ja service contract rule deciding appeal In issue primary significant note we cobs-Maze contract (whether township possessed the officers First, the contract with architec facts. to abandon a discretionary pоwer Love included firm of tural predecessors), their Court approved responsi had provision that to authority of the board considered bility supervising for plans with the architect for and Jacobs-Maze, Second, additions. submitting that con- specifications without engineering was an manager, bidding laws. public competitive tract and, 25- compliance with Ind.Code firm question resolve this examined To Court 31-1-18,11 (Dale its partners least one of at at competitive bidding law in effect Jacobs) engineer was an licensed Indiana. provided: time which these facts in mind we observe With necessary to erect a “If a finds it trustee statutes, specifically the ones licensing our schoolhouse, procure new he shall suitable (Ind.Code 25-4-1- architects applicable used specifications therefor Ross, Arensberg, supra (contract swimming pool); Kennedy with an 9. Hibbs v. a v. su with inspect building engi inspector (contract engineer new pra a with to furnish an district). proposed being neering plans erected on behalf architectural and sewage sludge disposal treatment Cumberland, (contract supra Pass, plant); supra (contract Krohnberg v. Flottum with an v. survey sketches, engineer prepare plans plans preliminary with an furnish architect to extending specifications rebuilding specifications of a school city’s utility plant); building); electrical and Krohn 198 Ind. v. State Cress Pass, berg supra (contract engineer pre- (contract an with N.E. with architect lay plans specifications for the heat plans specifications pare the construc- equipment ing, plumbing and building). other mechanical tion of constructing building); in Horton, Franklin (contract engi supra electrical part: pertinent provides in 25-31-1-18 IC plans prepare for an neer to registration “A certificate system provide light electrical distribution a natural *8 ... be issued public lighting). corporation partnership, person. firm or No doing in Indiana the state of business Pass, (contract supra 8. Krohnberg with su engi- practice professional engaged of in the perintendent to be on the work of construction practice neering carried on is ... unless such daily plans see that the are carried site responsible supervi- and engineer under the direction furnished); proper with materials Gulf Bitulith professional registered of sion a Cty., supra (contract with a ic Co. Nueces partnership principal the firm or who a of company supervise the a construction of corporation.” the or officer of county). by employees Highway built (Ind.Code supervise 29)12 engineers mates the construction of the 25-31-1- 19),13 required Muncie additions. As the evidence disclosed, Schools to both an engineer either architect both or Jacobs-Maze and assigned a prepare plans, specifications the esti- representative full-time at the additions to pertinent “(a) provides part: Except provid- IC 25-4-1-29 as hereinafter otherwise ed, town, “(a) county, city, Except township, provid- no as hereinafter otherwise ed, Indiana, board, any corporation political the state of nor or de- other subdivision of thereof, partment agency any county, or engage nor shall this state in the construction or city, town, township, corporations any or involving maintenance of work political subdivision of shall this state practice engineering plans, of for which engage construction, or alteration specifications and estimates have not been any public building maintenance of or prepared, by, certified and sealed and involving practice work of architecture construction and un- maintenance executed plans, specifications for which and estimates of, supervision professional der the direct a prepared, have not been certified and sealed engineer. Any contract executed violation by, construction, and the main- alteration or of section this shall be null void. supervi- tenance executed under the direct architect, sion of an architect shall state, (c) any city, No official of this or of good standing the holder in of a of certificate town, county, township corporation or registration registration board of thereof, charged now or hereafter with the practice entitling architects him to architec- law, any regula- of enforcement ordinance or ture in this state. relating tion or alteration (b) state, city, any No official of this nor buildings structures, accept of or shall use or town, county, township corporation or school any approve plans specifications or or thereof, charged now or hereafter with the by, prepared have not been or under the law, any regula- enforcement of ordinance or supervision by, registered of and certified relating to the construction or alteration Provided, professional engineer: structures, buildings That accept of or shall use or provisions approve apply any plans specifications of this subsection shall not or or plans, specifications prepared by, have not supervision of, if such or have been been or under by, supervision by registered prepared or and certified under the of and Provided, provisions by, registered architect: That of who is certified an architect ” apply plans this subsection shall not if such of under laws of the state Indiana: .. .. prepared by, or or added.) been (Emphasis supervision by under the of and certified professional engineer registered who is under 25-31-l-19(c) provides Ind.Code also that al- ..(Em- the laws of the of state Indiana: . public buildings costing of terations $10,000 less than phasis added). exempt provisions are from the of IC persоn An conducting architect is a “the 25-31-1-19. The additions practice registered of who architecture” $3,000,000. approximately totalled pursuant the State of Indiana such Ind. person conducting An is a practice Code 25—4-1-1. “The of architecture” “practice engineering” registered by of who is is defined as: pursuant of Indiana as the State such to Ind. performance professional “... of serv- 25-31-l-2(b). “practice engineer- Code The of safe, healthful, scientific, embracing ices ing” meaning: is defined orderly plan- aesthetic or coordination of the service, any professional “... or creative ning, erection, designing, alteration or en- work, education, requiring engineering train- largement any public private buildings, of or ing, experience, requiring appli- structures, project projects, or structure any part thereof, or or special knowledge cation of of the mathemat- equipment or the or utilities ical, physical, engineering sciences to thereto, thereof or the accessories such when services, work, or creative require application services consultation, investigation, evalua- such as of the art and science construction based tion, design, supervision upon ics, mathematics, planning, principles aesthet- physical purpose assuring acquired by or for the science edu- training, compliance specification designs, cation or and when such services with performed through any public private the media of consulta- or connection ties, utili- tion, evaluation, investigation, preliminary structures, machines, buildings, equip- study, plans, specifications, contract docu- ment, processes, works, projects. or ments, supervision Any of construction. ‘practice engineering’ term shall not in- one, foregoing combination performed ordinarily by per- clude work person shall constitute the operate machinery who sons or maintain practice of architecture....” equipment.” 25-31-l-2(d). Id. at provides pertinent part: IC 25-31-1-19 *9 expenditure “which is reasonable from responsibilities.
carry contractual out their standpoint carry- designated “field were or educational representatives Both business corpo- were not li- of the school engineers” though they purposes even ing out school engineer. Al- ration; or limited to censed as an architect but not including Jacobs-Maze was though the contract with though even contracting for services management con- a “construction stylized specifical- expenditure or shall power ” its tract,^” provisions of careful examination herein; .... ly set responsibilities or any reveal duties does not perform required to Jacobs-Maze required of a not otherwise be which would or of architect an services similar to substance, Thus, engineer. licensed insus- the contract engineer so as to make per- engineer hirеd an Muncie Schools It had evaluation. objective an ceptible (the authority for duties engineering form nature in engineering of an extensive duties set out at IC 20-5-2- specifically design phase; phases: 2(7)) while the form of the contract phase. It was Jacobs- the construction designated engineer as a “construction bring together responsibility to Maze’s employing both an architect manager.” By additions projects at both doubly sat- engineer and an accept- coordinating the solicitation statutory requirements super- isfied the at each projects various ance of bids vision construction. design during phase and addition engi- an not been Even had Jacobs-Maze general su- architect sharing with the a licensed neering firm with in the con- performed work pervision of the (or firm an architectural partners one of actual construction phase. architects), we still would owned licensed Jacobs-Maze. performed by was not to 20-5-2- reject Attlin’s contention that IC to utilize its employed It was 2(7) manager exempt does not insur- experiences as engineering skills and public bidding laws contracts from our timely would be ance that both additions em- light the fact that Muncie Schools guaran- it did not Significantly, completed. as the architect re- ployed of each addition the total cost tee the construction. sponsible supervising the total value would be at below being the final responsibilities Its included contractor; It was not a bids. in- language contractual interpreter any sub- rather, decisions were its actions and contractors, in addition volving projects’ approval Gra- ject supervision shop draw- possessing approval final ham, Love. orders, acceptance ings design change Legislature con- believe the We do not comple- of work work and certification would bidding statute that our templated Graham, Love’s сomparison tion. A con- contracts govern demon- tract with Jacobs-Maze’s for the provide us which like one before supervisory au- strates Love had to those of of duties similar performance thority over the contractors and Jacobs- into engineer and are entered architect or We supra. as noted in footnote Maze (19). 20-5-2-2(7), These IC under again observe that subsection 7 of IC 20-5- objective evalu- susceptible to are not tracts empowers a board to specifically 2-2 so as to make performance of their ation includ- professionals, certain named determining factor. ultimate price ing engineers, person- architects and Furthermore, contracts nature of such Admittedly, nel. this same statute silent impractical for bids advertisement makes How- manager contracts. here, Where, as a contract and undesirable. ever, a school board supplies subsection per- requires the to contract for ... “such with the an architect similar to that of services, form duties gov- all as the personnel exempting the rationale engineer, necessary for school erning considers board ” from the Furthermore, engineer's subsection architect or purposes; .... equally applicable bidding laws is board to make allows *10 manager’s Supreme contract. Cress fornia See Court’s decision was a State, supra. v. specific responsibility sideration Of one not present in Jacobs-Maze’s contract. The regard sup Our comments in this management guaranteed the ported the v. Doer by Mongiovi decision (maximum) outside price project the 639, 1110, ner 24 Or.App. 546 P.2d upon based the sub-contractor’s bids there- where court the held between contract. by making Douglas closely the contract more akin to County and a mana ger general the supervise accept lump solicitation and the sum traditional cоnstruc- ance of bids on a construction was tion contract rather than to a contract exempt Oregon bidding from the The law. services of an architect. Mongiovi court observed that the con management Consequently, contract manager’s position necessary objective could be criteria evaluated since general there was to be no contractor making price determining the ultimate on the county construction of the court factor. An examination the Jacobs- house as the county adopted the “fast Maze apparent contract makes it that it has (similar track” construction method Mongiovi profes- characteristics one employed by Schools); there gen- sional service contract rather than the fore synchronize there was no one agreement Ingle- in City eral contractor work. manager per The construction wood. “by formed coordinating this service For the reasons stated above we affirm solicitation and acceptance bids for vari judgment. the trial court’s ous parts project, by sharing with the super architect J., CHIPMAN, concurs. visory authority performed.” over the work 644; Id., 240 Or.App. at at 1113. P.2d YOUNG, J., P. with opinion. dissents He perform any did not construction work YOUNG, Presiding Judge, dissenting. on the courthouse nor did he supply any of Instead, county pur materials. I dissent. chased involving his majority opinion The ignores the thresh peculiar skills, knowledge expertise. question presented appeal. old in this That Consequently, held court that because legal corporation is whether can per his contract involved ly enter into contract with a construction services, sonal which could be evaluated manager. I would hold such a contract criteria, solely subjective it was sub statutory invalid of the absence of because ject competitive Oregon bidding corporation. authority in the schoоl State laws. Meiser, 337, 168 (1929) 201 Ind. N.E. Attlin places heavy upon reliance the case corporations are creatures of School of City Inglewood Angeles Cty. Civ — Los only possess such Assembly General ic Court, (1980) Center Superior Auth. v. power expressly given as is them or 601, Cal.Rptr. Cal.3d 500 P.2d implied power from the may where Supreme the California con Court Anderson, given. City School State management cluded that (1957) 236 142 N.E.2d Ind. contract was invalid since it had not been persons corporations which school let pursuant compet bids to California’s spelled with for services are contract itive law. The challenged following out in the statute: management involved the of the construc purposes “In carrying the school buildings of civic center owned corporation, governing each Angeles Los County Authority Civic Center shall body on its behalf acting provided generally manage following powers: specific supply ment contractor was to services and for and dis- experience preparation employ, lend To However, plan. controlling charge supervisors, prin- final the Cali- superintendents, employed as one librarians, “project consultant” teachers, man- business cipals, *11 budget and cost buildings and on and consider the superintendents of advise agers, architects, as of construction grounds, janitors, engineers, prior to commencement nurses, accountants, dentists, manage The bill well as construction. physicians, performing prevent aides noninstructional not the architect teacher would duties, entity local to en- educational and acting behalf consultants, processing comput- data The compliance with the contract. sure including purposes, for school proposing er service such an Assembly, General making to sched- amendment, limited of but not have believed the must not ules, grades of keeping analyzing such enactеd statutes included previously data, keeping other student bill as failure of this authorization. The warrants, and simi- pay-roll, others, preparing 101st g. e. H.B. well as see by the state approved where lar data 2d and H.B. Assembly Sess. General below, provided board of accounts as Assembly 2d Sess. 100th General services, personnel such other indication law also some (1978), to become necessary governing body considers Assembly yet does not the General purposes; pay to fix and the sala- school hiring public such permit intend persons compensation ries and of such Even aside projects this state. works services; classify per- and such such indication, the General negative from this adopt sons or services and to schedules continuing consider- Assembly’s recent and compensation; salaries or determine reason to of this issue is sufficient ation persons the number of such power judicially enlarging restrain from employed or con- amount of services thus corporations. given school for; tracted and to determine the nature 5-16-1-1, I.C. bid- Analysis of and extent of their duties.” statute, this dissent. ding support lends 20-5-2-2(7). I.C. a “construction the use of By approving majority the statu- manager” named obviates managers” are not “Construction build- tory for the construction of implied. such be Thus scheme may and neither corporations. ings by not one or school corporation As- contract with one. Had the General corporations are authorized School corporations sembly grant wished to buildings by awarding a con- struct school for such services the lowest and best person tract to the done so. The omission is easily could corporation and the The bid. do so. indicative of its desire person will be thereby assured that one building for a sum regarding to construct Assembly’s The General intent bound certain, being guaranteed by a performance consult- project authorization to hire a of the contract. I.C. is exhibited bond in the amount ant/construction In It is contem- attempts pass just legislation. such 20-2-9-1 and 5-16-1-1. I.C. completed building will be plated Bill 245 was introduced and Senate do so rather person 5-16-1-1 to who contracts to would have amended Ind.Code one per- separate tradesmen pub- than a number of hiring project allow consultants including plumbing, tasks such as buildings thereby forming separate lic work, etc. It is a “turn- masonry, under electrical consultant as one who could be hired 20-5-2-2(7). approved here key” project. 101st The method Ind.Code S.B. Gen- completion any project. (1979). amend- will not ensure Assembly eral 1st Sess. The speci- hiring completion it ensure at a permit of such Neither will ment would corporations hiring may price.1 without fied contract School consultant gen- are not authorized to act their own submission bids. bill defined contract, paid money majority fee to saved the 1. The states that rather, fixed, pеrcent manager age corporation is a is not but school manager. use of However, bid terms of the of each construction awarded. under the eral projects in such but must
contract with do so. others to
Robert A. GRIFFIN a/k/a Paul
Griffin, Appellant, Indiana, Appellee.
STATE of
No. 3-480A102. Indiana, Appeals
Court of
Third District.
Dec. Leonard, Deputy
Charles F. Public De- fender, appellant. Wayne, Fort Sendak, Gen., Atty. Wesley
Theodore L. Wilson, Gen., T. Deputy Atty. Indianapolis, appellee.
HOFFMAN, Judge. arson, defendant was convicted challenges class B felony, and now the suf- evidence, ficiency specifically alleg- ing prove failed to State was fire caused arson the evi- was, prove dence did not that the defendant any way, responsible for the fire. On appeal, this Court must consider the evi- dence most favorable to the State and the reasonable inferences to be drawn there- If, view, point from. from that there is probative substantial evidence of value from which the trier fact could reason- ably guilty infer that appellant beyond a reasonable doubt crime for convicted, judgment he was then the the trier of fact will be affirmed. Robin- son State 262 Ind. 317 N.E.2d case, In this clearly evidence shows a fire July occurred at R-V World on 11, 1978, resulting pecuniary in a loss in