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Bison Contracting Co., Inc. v. Halikowski

Court of Appeals of Arizona, First Division

December 19, 2013

BISON CONTRACTING CO., INC., Plaintiff/Appellant,
v.
JOHN and RUTH HALIKOWSKI, husband and wife; JENNIFER and GREG TOTH, husband and wife; DALLAS and BRITA HAMMIT, husband and wife, Defendants/Appellees.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court.

Appeal from the Superior Court in Maricopa County No. CV2012-052629 The Honorable Alfred M. Fenzel, Judge

Carmichael & Powell, P.C., Phoenix By David J. Sandoval Counsel for Plaintiff/Appellant

Arizona Attorney General's Office, Phoenix By Mark P. Bookholder Counsel for Defendants/Appellees

Presiding Judge Maurice Portley delivered the decision of the Court, in which Judge John C. Gemmill and Judge Kent E. Cattani joined.

MEMORANDUM DECISION

PORTLEY, Judge:

¶1 Bison Contracting Co., Inc. ("Bison") appeals an order dismissing its complaint against three state officials, John Halikowski, the Director of the Arizona Department of Transportation ("ADOT"), Jennifer Toth, the State Engineer, and Dallas Hammit, the Deputy State Engineer, (collectively, "Individual Defendants"), for failure to state a claim upon which relief may be granted. For the reasons that follow, we affirm.

FACTUAL [1] AND PROCEDURAL HISTORY

¶2 Bison, a public-works contractor, was awarded an ADOT contract to work on a highway construction project known as the Granite Creek Project. By May 11, 2012, Bison was two years behind schedule; it had encountered delays that increased its costs, such as an ineffective dewatering plan, access road issues, and unforeseeable changes in subterranean conditions. As a result, Bison submitted a claim to ADOT for more compensation. ADOT, however, rejected the claim and Bison continued work.

¶3 ADOT subsequently offered to settle Bison's complaints twice, but Bison rejected the settlement offers and project deadline extension. ADOT then began withholding liquidated damages and other sums, including revenue due to Bison from other projects. Additionally, ADOT allegedly started holding Bison to "abnormally rigid standards in the field, " began enforcing discretionary contract provisions without notice at several of Bison's projects, and subjected Bison to increased monitoring. Because Bison thought it was held to more rigid standards "than other contractors who have completed similar jobs in the surrounding area, " it sued ADOT and the three officials in May 2012.

¶4 Bison alleged that "ADOT's policies and practices towards Bison Contracting, after it rejected ADOT's settlement offer, were calculated to cause Bison Contracting financial ruin and to prevent Bison Contracting from bidding or being awarded future ADOT work." Bison further alleged that the Individual Defendants were grossly negligent and deliberately indifferent to Bison's rights and that Bison "has been deprived of its Fourteenth Amendment right to enjoy equal protection under the law and to preserve its liberty to conduct business activities free from undue State oppression."

¶5 After the Individual Defendants filed their motion to dismiss, the superior court subsequently dismissed the § 1983 claims against the officials "for the multiple bases . . . stated by the Individual State Defendants." The record reflects five reasons for the court's action. First, the § 1983 claim failed because the complaint was devoid of factual allegations to state or support the claim. Second, Bison did not plead facts that demonstrated a liberty interest or that the liberty interest had been violated. Third, although it does not appear that Bison alleged a procedural due process violation, even if it did, it fails. Fourth, the equal protection argument fails because the complaint does not provide enough detail regarding disparate treatment and discriminatory intent. Finally, qualified immunity otherwise bars Bison's claim against the state officials.

DISCUSSION

¶6 Bison argues that the superior court wrongfully found that it could not prove any set of facts to support its claim against ...


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