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Arkansas State Claims Comm'n v. Duit Construction Co.

Supreme Court of Arkansas

October 23, 2014

ARKANSAS STATE CLAIMS COMMISSION; ARKANSAS GENERAL ASSEMBLY, CLAIMS REVIEW SUBCOMMITTEE; ARKANSAS GENERAL ASSEMBLY, JOINT BUDGET COMMITTEE; ARKANSAS STATE HIGHWAY COMMISSION; AND ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT APPELLANTS
v.
DUIT CONSTRUCTION COMPANY, INC. APPELLEE

Page 497

[Copyrighted Material Omitted]

Page 498

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT. NO. 60-CV-13-1706. HONORABLE TIMOTHY DAVIS FOX, JUDGE.

Dustin McDaniel, Att'y Gen., by: Mindy D. Pipkin, Ass't Att'y Gen., and Michelle Davenport, for appellants.

Jack East III, for appellee.

PAUL E. DANIELSON, Associate Justice. Special Justice J. CARTER FAIRLEY joins. HOOFMAN, J., not participating.

OPINION

Page 499

PAUL E. DANIELSON, Associate Justice

Appellants, the Arkansas State Claims Commission (" ASCC" ), the General Assembly's Claims Review Subcommittee, the General Assembly's Joint Budget Committee, the Arkansas State Highway Commission, and the Arkansas State Highway and Transportation Department (" ASHTD" ), bring this interlocutory appeal from the circuit court's order denying in part their motions to dismiss the complaint for declaratory judgment and the first amended complaint for declaratory judgment of appellee Duit Construction Company, Inc. Their sole point on appeal is that the circuit court erred in its denial because they were entitled to sovereign immunity. Duit cross-appeals from the circuit court's order granting in part the Appellants' motions to dismiss, asserting that the circuit court erred in doing so, and the Appellants have moved to dismiss Duit's cross-appeal. We reverse and remand on direct appeal and dismiss the cross-appeal.

In 2002, Duit entered into a contract with the Arkansas State Highway Commission to complete an improvement project on Interstate 30 in Saline and Pulaski Counties. Duit subsequently encountered what it claims were " differing site conditions," and, in 2006, it transmitted a " Request for Equitable Adjustment for Cost Overruns" to the ASHTD, which denied Duit's request. Duit then filed a complaint with the ASCC on May 5, 2011, and the ASCC denied and dismissed Duit's claim " for failure to prove by a preponderance of the evidence any liability on the part of the [ASHTD]."

On January 9, 2012, the General Assembly's Claims Review Subcommittee remanded Duit's claim to the ASCC for further evidence or findings. The ASCC held a partial rehearing on remand, and it once again denied and dismissed Duit's claim. Duit claims that it appealed the ASCC's second denial and dismissal to the General Assembly and that " [b]y voice vote on March 20, 2013, a Subcommittee of the Joint Budget Committee 'affirmed' the ASCC's . . . decision. The Joint Budget Committee subsequently adopted the Subcommittee's decision without a hearing or notice to Duit."

Duit filed a " petition" and what it deemed a " notice of appeal" from the March 20, 2013 vote in the Pulaski County Circuit Court; it later amended that notice of appeal and additionally petitioned the circuit court for a writ of certiorari, as ...


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