Bolton: ‘Scintilla’ Columbia’s word of the year

Associate EditorDecember 16, 2009 

‘SCINTILLA’ ISN’T a word people go around using every day, but Columbia officials might well consider creating a city mascot that dons that name, or at least issuing a resolution proclaiming it the city’s word of the year.

Regular folks might not embrace the word, but Circuit Court Judge George C. James Jr. used it adeptly in ruling that four firms suing the city over the failed publicly owned hotel have no case. "This Court addresses each cause of action in turn and, viewing the evidence in the record as to each cause of action in the light most favorable to Plaintiffs, finds that Plaintiffs fail to produce even a scintilla of probative evidence to create a genuine issue of material fact. Therefore, the City is entitled to summary judgment on each cause of action as a matter of law." In other words, the judge was saying that as he reviewed the case, he was looking for any morsel, trace or hint of evidence to find in favor of the companies and forward the matter to a full trial, but found nothing, not a scintilla. Let me be clear. Columbia taxpayers ought to be angry that poor decisions by City Council put the city in a position where it had to spend $1 million to defend itself against a lawsuit over a hotel that never got built.

But, boy, city taxpayers should breathe a sigh of relief. It could have been much more costly if the local firms suing the city had prevailed. They didn’t because city officials, while they made a big mistake in trying to build their own hotel, made the right decisions when it came to fighting the firms’ feeble attempt to get paid.

Gary Realty, Garfield Traub Development, Turner Construction and the architectural firm Stevens & Wilkinson had claimed that Columbia owed them $4.3 million for designing the hotel.

They were part of the "dream team" assembled in 2003, when the city asked Edens & Avant Real Estate Services to put a group together to help it explore a publicly financed hotel and, if the city decided to go forward, build it. After strong public opposition, the city selected Greenville developer Bo Aughtry to build what is now the Hilton. Mr. Aughtry beat out several bidders, including a group made up of members of the dream team -- excluding Edens & Avant. That prompted the lawsuit. Columbia officials said the team had freely worked under a nonbinding agreement, knowing it wouldn’t be paid if the city backed out. The businesses said the council never specifically voted that a public hotel wasn’t feasible and claimed that a memorandum of understanding the city signed constituted a contract.

Oftentimes in situations like these, defendants -- even some governments -- might settle to hold down their costs. But City Council never seriously considered it. (The fact that the offers it did get were outrageous helped.) Not only did the city reject the idea of settling, but it even chose to take a chance and bypass a trial altogether. Instead, it went for a knockout by requesting a summary judgment. Judge James obliged, declaring that the city doesn’t owe the firms. He dismissed all claims except a $1.6 million one by Stevens & Wilkinson for "interim architectural fees" it says the city owes it for work performed from July 2003 until March 2004. The city must fight that ongoing case before another judge.

But Judge James’ order in the larger case makes it clear Columbia was more than right in taking the aggressive route. It was such a slam dunk, the city would have been foolish not to fight it.

Consider a few of Judge James’ observations, and you’ll understand what I mean:

-- On the claim of breach of trust, the judge said that the memorandum of understanding the firms have hung their hat on wasn’t binding. "There can be no contract where the parties never completed their negotiations as to essential terms," he wrote. He said there were at least six agreements that needed to be signed before a contract was firm. None was. --þHe said there was never any agreement on business terms and conditions. Also, he said, the cost of the project when the memorandum of understanding was signed was $60 million, but by March 2004 the city’s risk had escalated to $91 million. "There is no record to demonstrate that the City, by action of City Council, agreed to these ever-changing terms and conditions." --On the claim that the city was enriched by work the companies had done, the judge said: "Plaintiffs assert that they conferred valuable material and services to the City in the form of a ‘rendering’ of the proposed hotel plans, designs, drawings, financial models, construction estimates, and expertise. As to each of these allegations, there is not a scintilla of probative evidence to support Plaintiff’s position." He said the rendering was a sketch of a proposed hotel the city paid an artist $4,000 to produce. "The City even paid Stevens & Wilkinson’s co-architect, TVS, $400 to coordinate obtaining the rendering. Thus the city paid for whatever it received from the rendering." --þHe said the firms also claimed that the hotel eventually built looks like the one they proposed, suggesting Columbia gave Mr. Aughtry the dream team’s plans and drawings. But the firms presented no evidence of any "striking similarities," the judge wrote. "The plans, designs, drawings, financial models, and construction estimates for a hotel never constructed have no intrinsic value and might only have been valuable if they had been utilized to construct the proposed hotel, which they were not." This was a big victory for the city. While summary judgments aren’t unheard of, they’re rare. The city was betting it would win before a judge on the law and wouldn’t have to pay more for expert witnesses and lawyers during a long trial. "The cost of that to the city would have been astronomical and every bit of that would have been necessary," said Rick Detwiler, an attorney with Callison Tighe & Robinson, LLC, which represents the city. As Judge James’ decision notes, it wouldn’t have taken a lot -- just a scintilla of evidence on the firms’ part -- to block the summary judgment and get this thing to trial. If they couldn’t produce even a trace of evidence in their favor, then you’ve got to wonder why they sued. Edens & Avant walked away from the matter when the city decided to choose a private developer. That should have signaled the others to do the same. But they obviously feel they’re owed something and intend to get it. They’ve asked Judge James to reconsider his ruling. If he stands firm, there’s a good chance that the companies will appeal. Even so, you’ve got to like the city’s chances given the firms’ "scintilla" problem. Reach Mr. Bolton at (803) 771-8631 or wbolton@thestate.com.

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