Free Statement - District Court of Arizona - Arizona

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John Michael Johnston, OBA No. 4736 228 Robert S. Kerr Ave., Suite 620 Oklahoma City, OK 73102 Tel: (405) 235-4074 Fax: (405) 235-4084 Charles E. Buri, AB No. 003651 FRIEDL, RICHTER & BURI, P.A. 6909 E. Greenway Parkway, Suite 200 Scottsdale, AZ 85254-2172 Attorneys for Plaintiff/Counter-Defendant, Doty Bros. Equipment Co. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DOTY BROS. EQUIPMENT CO., Plaintiff, vs. QUESTAR SOUTHERN TRAILS PIPELINE COMPANY, et al. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) )

CIV 03-2529 PHX HRH STATEMENT OF ISSUES

And Related Counterclaim

COME NOW the parties herein and submit the following proposed Statement of Issues as 20 21 22 23 24 25 26 1. directed by the Court in its Order dated August 15, 2005. [Note: Questar and Doty were unable to agree upon a Joint Statement of Issues. Both parties are submitting a proposed Statement of Issues. Each party objects to the other parties version of the issues as not properly reflecting the issues framed by the pleadings.] DOTY BROS.' (VERSION OF) STATEMENT OF ISSUES Whether or not Questar Southern Trails Pipeline Company was guilty of a breach of

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the construction contract or a breach of the covenant of good faith and fair dealing inherent in said contract (the existence of the contract is not in dispute) in any of the following respects. A. (Alleged) failure to pay (sufficient) monies due to Doty for substantial

additional work outside the project/bid description despite an express contract provision, 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 to Doty, as well as by inconsistent and/or arbitrary enforcement of various purported right20 21 22 23 24 25 26
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to wit: (Article I, paragraph I-I) which states that "Owner may amend a Work Authorization at any time and from time to time to authorize changes in the work. If the change causes an increase or decrease in the cost of the work, the parties shall negotiate a fair and equitable change in the cost which shall be reflected in the amended Work Authorization." B. (Alleged) failure to administer the Project in a proper and competent manner

by providing inaccurate or inadequate maps, drawings, and encroachment information as well as by (allegedly) furnishing defective equipment, including defective pipe casings and malfunctioning casing spacers. Also, an (alleged) failure to properly and timely address ( and advise Doty of) adverse developments in connection with on-going planning, engineering, and permitting of the Project while the job was in progress. C. (Alleged) restriction of the use of the full right-of-way by failing to

determine the proper boundaries of the work corridor (right-of-way) which was available

of-way restrictions. Also, by making (alleged) deceptive statements concerning Questar's efforts to obtain additional work space, coupled with arbitrary refusal to allow Doty itself to attempt to obtain additional work space from certain third parties. D. (Alleged) interference with, disruption or delaying Doty's work by failing

to timely make a complete and adequate disclosure, prior to the bid, of the full extent of the

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work and the true nature of the Project itself; as well as an alleged failure to timely obtain necessary engineering plans and/or needed governmental authorizations and permits in order to allow completion of the job within the purported time frame of the Project, as well as by directing and/or causing unexpected (often simultaneous) work-arounds for Questar's

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 purported Project deadline, waive Questar's claims for breach of contract damages? 20 21 22 23 24 25 26
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benefit, and by inconsistent/arbitrary enforcement of purported right of way restrictions. E. (Alleged) failure to "work with" Doty in good faith (i.e., to make schedule

allowances, to assist Doty in performance of it's work, and/or to pay additional / reasonable compensation) in regard to pre-acknowledged uncertainties in the jobsite terrain, and/or regarding unanticipated job changes and/or unexpected environmental or governmental requirements, and/or creating unexpected obstructions on the Project which delayed the nature of the work undertaken and forced Doty to work inefficiently. 2. Whether any recoverable damages (i.e., extra costs, unanticipated time and expenses,

and/or construction inefficiency) were caused to Doty by the acts alleged in paragraph 1, supra, and, if so, how much. 3. Doty's affirmative defenses to Questar's counterclaim: A. Did Questar's acceptance of Doty's completion of the Project, after the

B.

Did Questar, by making the retention payment to Doty or the payment of

June 5, 2003, without making any "demand" for payment of damages from Doty, waive Questar's claims for breach of contract damages? C. Does the contract limit Questar's damages to an offset against the contractor's

bills or damages?

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4. 5.

Is Doty or Questar entitled to attorney's fees and, if so, how much. Questar's Affirmative Defenses: A. Did Questar's payment to Doty on June 5, 2003 and Doty's acceptance of that

payment constitute an "accord and satisfaction" of Doty's claims arising from the Project? 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Did Questar breach the contract or, alternatively, the implied covenant of good faith and fair dealing, 20 21 22 23 24 25 26
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B. Are Doty's damages, if any, offset by Questar's damages, if any? 6. Questar's Counterclaim: Did Doty breach the contract by failing to complete the

Project in the time promised under the contract, including any allowable time extensions? 7. Questar's Damages: If Doty breached the contract as specified in Issue No. 6: A. Did that breach cause Questar any damages? B. If so, what is the principal amount of those damages?

QUESTAR'S (VERSION OF) STATEMENT OF ISSUES 1. Doty's Claim (Covenant of Good Faith and Fair Dealing Only): Did Questar breach

the implied covenant of good faith and fair dealing by requiring Doty to perform its work without encroaching upon the Morongo Band's land? 2. Doty's Claim (Breach of Contract and Covenant of Good Faith and Fair Dealing):

by: A. Requiring Doty to comply with the environmental requirements of the contract by (i) refraining from excavating the pipe trench in washes until Doty was ready to install the pipe?(ii) B. requiring that discharge water be tested to confirm it was not contaminated? requiring Doty to skip a section of trench excavation at the Robertson Spur?

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3.

Doty's Damages: If Questar breached the contract in any of the particulars specified

in Issue No. 2, and/or if Questar breached the implied covenant of good faith and fair dealing in any of the particulars specified in Issue Nos. 1 and/or 2: A. Did that breach cause Doty any damages? If so, what is the principal amount of those damages? If so, does the contract bar Doty's recovery of all or any of those damages? [Doty objects to this issue as having never been plead by Questar.] 4. Questar's Affirmative Defenses: A. Did Questar's payment to Doty on June 5, 2003 and Doty's acceptance of that

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B. C.

payment constituted an "accord and satisfaction" of Doty's claims arising from the Project? B. 5. Are Doty's damages, if any, offset by Questar's damages, if any?

Questar's Counterclaim: Did Doty breach the contract by failing to complete the

Project in the time promised under the contract, including any allowable time extensions? 6. Questar's Damages: If Doty breached the contract as specified in Issue No. 5: A. B. Did that breach cause Questar any damages? If so, what is the principal amount of those damages?

Doty's Affirmative Defenses: A. Did Questar's acceptance of Doty's completion of the Project, after the

purported Project deadline, waive Questar's claim for breach of contract damages? B. Did Questar, by making the payment to Doty on June 5, 2003, without

making any demand for payment of damages from Doty, waive Questar's claims for breach of contract damages?

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8.

Attorney Fees: Is either Doty or Questar entitled to attorneys fees?

WHEREFORE, both parties submit their respective version of the issues. Respectfully submitted,

s/John Michael Johnston John Michael Johnston, OBA No. 4736 228 Robert S. Kerr Ave., Suite 620 Oklahoma City, OK 73102 Tel: (405) 235-4074 Fax: (405) 235-4084 and Charles E. Buri, AB No. 003651 FRIEDL, RICHTER & BURI, P.A. 6909 E. Greenway Parkway, Suite 200 Scottsdale, AZ 85254-2172 ATTORNEYS FOR PLAINTIFF, DOTY BROS. EQUIPMENT CO.

s/ Jason Ebe Ronald W. Messerly (020582) Jason Ebe (017216) SNELL & WILMER, L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Tel: (602) 382-6000 Fax: (602) 382-6070 ATTORNEYS FOR DEFENDANT/ COUNTERCLAIMANT, QUESTAR SOUTHERN TRAILS PIPELINE COMPANY

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Certificate of Service

__X__I hereby certify that on the3rd day of October, 2005, I electronically transmitted the attached document to the Clerk of Court using the ECF System for filing. Based on the records currently on file, the Clerk of Court will transmit a Notice of Electronic Filing to the following ECF regisrtants: Jason Ebe Ronald W. Messerly SNELL & WILMER, L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ. 85004-2002 I further certify that on the 4th day of October, 2005, a full true and correct copy of the said document was deposited in the United States mail, priority mail, postage prepaid , and addressed to:

Honorable Russel Holland United States District Court 222 West 7th Avenue-No. 54 Anchorage, Alaska 99513

s/ John Michael Johnston

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