
	OSCN Found Document:GLOVER CONSTRUCTION CO., INC. v. STATE ex rel. DEPT. OF TRANSPORTATION

	
				

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GLOVER CONSTRUCTION CO., INC. v. STATE ex rel. DEPT. OF TRANSPORTATION2014 OK CIV APP 51326 P.3d 547Case Number: 109913Decided: 02/14/2014Mandate Issued: 05/28/2014DIVISION ITHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION ICite as: 2014 OK CIV APP 51, 326 P.3d 547
GLOVER CONSTRUCTION COMPANY, INC., 
Plaintiff/Appellant,v.STATE OF OKLAHOMA ex rel., DEPARTMENT OF 
TRANSPORTATION, Defendant/Appellee.

APPEAL FROM THE DISTRICT COURT OFOKLAHOMA COUNTY, 
OKLAHOMA
HONORABLE DANIEL L. OWENS, TRIAL JUDGE

AFFIRMED

D.D. Hayes, Hayes Law Office, Muskogee, Oklahoma, and Lou Ann R. Barnes, 
Bixby, Oklahoma, for Plaintiff/Appellant,Christopher Allen Barrow, John E. 
Harper, Jr., Cori D. Powell, Gerald Stamper, Barrow & Grimm, P.C., Tulsa, 
Oklahoma, for Defendant/Appellee.


Wm. C. Hetherington, Jr., Vice-Chief Judge:
¶1 In the second appeal in this underlying action for breach of a road 
construction contract,1 Plaintiff Glover Construction Company, Inc. (GCC) 
seeks reversal of separate trial court orders. The first order granted the 
motion for partial summary adjudication filed by the Oklahoma Department of 
Transportation (ODOT) on the issue of GCC's claim for additional compensation 
due to ODOT's rejection of its proposed asphalt mix, but denied ODOT's motion on 
the issue of GCC's claim for additional compensation based on changed site 
conditions. Following a bench trial on the latter issue, the court entered 
judgment in favor of ODOT finding GCC failed to comply with the contract's 
notice requirements for filing such claims. The latter judgment is AFFIRMED. 
Although based on other grounds, the order granting partial summary adjudication 
is AFFIRMED.
HISTORY OF THE CASE
¶2 In September 2005, GCC and ODOT entered into a road construction contract 
(Contract). The Contract required GCC to perform grading, drainage and surface 
work on U.S. Hwy 59 in Sequoyah County, Oklahoma, and to construct two new lanes 
along 1.7 miles of the same highway (Project). The Contract incorporates by 
reference the requirements of the 1999 Standard Specifications for Highway 
Construction of ODOT's Standard Specifications.
¶3 ODOT subsequently issued a Notice to Proceed on the Project, and GCC 
commenced work on November 21, 2005, six days after the Governor of Oklahoma had 
issued a statewide burn ban as a result of extremely dry weather. GCC learned 
eight or nine days later that the burn ban might affect GCC's plan to burn the 
already- cleared brush and debris and asked the Resident Engineer to confirm its 
application to the Project. After GCC learned it was prohibited from burning the 
debris piles, undisputedly the most economical elimination method, it had to 
arrange for off-site borrow pits to which the debris piles were transported and 
buried.
¶4 Following verbal communications, GCC notified Mr. Bond, the Resident 
Engineer on the Project, by facsimile dated December 19, 2005, that GCC 
considered the dry conditions at the job site to be a differing site condition, 
for which extra work GCC would be seeking additional compensation. Mr. Bond 
responded by letter dated December 20, 2005, stating the dry conditions failed 
to meet the Contract's criteria for either "differing site condition" or 
"significant changes in the character of the work."2
¶5 GCC's proposed asphalt "mix design" for the Project was subsequently 
"reviewed" by ODOT's laboratory as required by the Contract,3 which permitted the use of up 
to 25% reclaimed asphalt concrete pavement ("RAP") in the mix design.4 On June 1, 
2006, ODOT approved GCC's proposed mix design for the Project, which GCC admits 
in its Brief "included the US-64 RAP."5 By letter dated June 23, 2006, however, GCC was 
informed by ODOT official, Mr. Saliba, that its "records indicate that two (2) 
mix designs have already been approved. . . both designs include RAP. . . if any 
portion of the RAP is from the US-64 CIP project the designs are no longer 
approved." As a result, GCC's plan to begin that part of the Project was 
delayed.
¶6 Due to the Burn Ban and rejection of its mix design with US 64 RAP, GCC 
filed a certified claim on August 22, 2006, requesting additional compensation 
1) for the hauling work resulting from the dry conditions ("Burn Ban Claim") and 
2) for ODOT's rejection of RAP from US 64 ("US 64 RAP Claim"). After GCC's 
claims were separately denied by the Resident Engineer and ODOT's Director of 
Operations, the parties met for mediation pursuant to the Contract's Dispute 
Resolution Procedure. For unknown reasons, the mediation failed. On June 19, 
2007, GCC then filed its petition in Oklahoma County District Court alleging 
breach of contract against ODOT.
¶7 Following GCC's only amendment to its petition and the filing of ODOT's 
answer, ODOT moved for partial summary adjudication. GCC filed a Response Brief, 
to which ODOT filed a Reply Brief. Almost two months later, a hearing on the 
motion was held. By order filed May 26, 2009, the trial court granted summary 
adjudication on GCC's request for additional compensation for the US 64 RAP 
Claim, but denied the motion on the Burn Ban Claim. GCC's motion for new trial 
was overruled. After dismissal of GCC's subsequent appeal, a non-jury trial on 
the Burn Ban Claim was held. On August 31, 2011, the court filed its Final 
Journal Entry of Judgment in favor of ODOT, finding that GCC had failed to 
comply with the Contract's notice requirements for filing claims. GCC appeals 
both the May 26, 2009 Order and the August 31, 2011 Judgment.
ISSUES ON APPEAL
¶8 In two propositions, GCC argues the partial summary adjudication order 
should be reversed because 1) the court's decision is based on a new defense 
raised for the first time in ODOT's reply brief to which new evidentiary 
materials were attached, 2) the court abused its discretion by refusing to allow 
GCC to respond to the new argument and evidentiary materials at the motion 
hearing, and 3) disputed material facts exist concerning the US 64 RAP Claim 
which preclude summary adjudication. In its third proposition, GCC alleges the 
trial court's judgment on the Burn Ban Claim is erroneously based on an 
affirmative defense ODOT raised for the first time ten days before trial, the 
facts of which had not been previously pleaded or argued, and which had been 
waived by ODOT.
STANDARD OF REVIEW
¶9 "Summary relief issues stand before us for de novo examination." 
Manley v. Brown, 1999 OK 
79, ¶ 22, 989 P.2d 448. All 
facts and inferences must be viewed in the light most favorable to the 
non-moving party. Id. Like the trial court, "appellate tribunals must 
equally bear an affirmative duty to test all evidentiary material tendered in 
summary process for its legal sufficiency to support the relief sought by the 
movant." Id. Only if the court should conclude that there is no 
substantial controversy over any material fact and the law favors the moving 
party's claim or liability-defeating defense is the moving party entitled to 
summary judgment in its favor. Id.
¶10 To prevail as the moving party on a motion for summary adjudication, one 
who defends against a claim by another must either (a) establish that there is 
no genuine issue of fact as to at least one essential component of the 
plaintiff's theory of recovery or (b) prove each essential element of an 
affirmative defense, showing in either case that, as a matter of law, the 
plaintiff has no viable cause of action. Akin v. Missouri Pacific R. Co., 
1998 OK 102, ¶ 9, 977 P.2d 1040.
¶11 The meaning assigned to a contract by a trial judge is a legal question 
which is reviewed de novo. May v. Mid-Century Insurance Co., 2006 OK 100, ¶ 22, 151 P.3d 132. When a legal action, 
such as breach of a contract, is tried to the court after a jury trial has been 
waived, the court's findings are as binding on appeal as a jury verdict, and if 
there is any competent evidence to support the findings, they will not be 
disturbed on appeal. Dismuke v. Cseh, 1992 OK 50, ¶ 7, 830 P.2d 188.
ANALYSIS
Summary Adjudication Of The US 64 RAP Claim
¶12 We address first GCC's abuse of discretion arguments relating to ODOT's 
Reply Brief and evidentiary materials. In pertinent part, the court expressly 
found:


[b]ased on the decision of the arbitrators, pursuant to the dispute 
    resolution provisions of the contract, no material facts are in dispute 
    with respect to Glover's claim that it is entitled to additional 
    compensation due to ODOT's rejection of the use of recycled asphalt from US 
    Highway 64 in Muskogee County, Oklahoma. (Emphasis 
added.)
¶13 We note the lack of a transcript included in the appellate record for the 
hearing on ODOT's motion. In light of Hadnot v. Shaw, 1992 OK 21, 826 P.2d 978, and the appellate 
record, we find no abuse of discretion.
¶14 The appellants in Hadnot v. Shaw similarly argued they were "never 
accorded an opportunity to respond" to the reply brief filed by the moving party 
for summary judgment and the brief raised issues "not tendered in the original 
motion." Id., 1992 OK 21, 
¶ 14. The Supreme Court declined to review the issue of the court's 
consideration of the reply brief because the appellants had never raised the 
issue to the court. Noting the reply brief had been filed "five days before 
the motion was reached" and the appellants "had ample opportunity to 
seek additional time to prepare a written response and to use the issue now 
pressed as a reason for their request" (emphasis added), the Court stated, 
"[t]hey failed to do so and cannot complain here of error." Id.
¶15 The Court in Hadnot v. Shaw, after explaining the court's 
"statement of uncontroverted facts only had one undisputed fact neither 
tendered in the original motion nor revealed by the evidentiary material" 
and that fact "stood conceded by [the appellants'] attorney during the 
summary judgment argument," held "the trial court's consideration of the [moving 
party's] reply, even if error, was at best harmless under these 
circumstances." Id., 1992 
OK 21, ¶ 16. As we interpret Hadnot v. Shaw, a reply brief by the 
moving party is permitted if the trial court accepts the reply brief and that 
brief does not raise new issues or arguments.6
¶16 In this case, the record on appeal demonstrates there was almost two 
months between the filing of ODOT's Reply Brief and the hearing on the motion. 
During this period according to the certified appearance docket included in the 
record, GCC did not file a written motion seeking to strike consideration 
of the Reply Brief or to object to either the "new" defense and/or the 
admissibility of the evidentiary materials in ODOT's Reply Brief,7 as permitted by 
Rule 13(c). The appearance docket further reveals GCC never sought approval to 
file a response to ODOT's reply brief during that two month period before the 
motion hearing.
¶17 ODOT raised these deficiencies in its response to GCC's motion for new 
trial, which alleged an "irregularity in the proceedings . . .or abuse of 
discretion, by which [it] was prevented from having a fair trial" under 12 O.S. 2001 § 651(1), because "oral 
argument was prohibited at the hearing and [it] was not allowed to respond to 
ODOT's new evidentiary material or defense." ODOT further argued its Reply Brief 
was necessary because by GCC's own admission, it had "vigorously disputed" with 
supporting evidentiary material ODOT's alleged undisputed fact, i.e., "it 
had been conclusively determined that the US 64 RAP did not meet the Contract 
Specifications for this Project." Without explanation of its reason(s), the 
trial court denied GCC's motion for new trial.
¶18 Clearly the trial court had authority under Rule13(f) of the Rules of the 
District Courts of Oklahoma, 12 O.S. Supp 2002, Ch. 2, App., to decide summary 
judgment or summary disposition without a hearing. As we view it, ODOT's Reply 
Brief merely clarifies its originally-tendered defense and supports the same 
with evidentiary material. Because GCC failed to object to the so-called 
newly-raised defenses and evidentiary material submitted in ODOT's Reply Brief 
or to seek approval to respond to that brief during the two months before the 
hearing, we find no abuse of discretion in the court's consideration of the 
Reply Brief and that GCC's own omissions prevented it from having an opportunity 
to respond to ODOT's Reply Brief.
Does The Arbitration Award Alone Support Summary 
Adjudication?
¶19 GCC denies the existence of any arbitrator decision regarding the 
Contract in this case. It claims the Final Arbitration Award8 on which the court solely 
based partial summary adjudication, resulted from another unrelated case 
between the parties which is not "binding" on this case and did not decide 
any issue or fact concerning GCC's entitlement to additional compensation based 
on ODOT's rejection of the US-64 RAP in this case.
¶20 ODOT's summary judgment argument, although not identified by either party 
as such, clearly raises the affirmative defense of "issue preclusion," which 
must be pleaded and proved. Nealis v. Baird, 1999 OK 98, ¶ 51, 996 P.2d 438. Under the doctrine of 
issue preclusion, once a court has decided an issue of fact or of law necessary 
to its judgment, the same parties or their privies may not relitigate that issue 
in a suit brought upon a different claim. Miller v. Miller, 1998 OK 24, ¶ 25, 956 P.2d 887. To establish issue 
preclusion, a party must prove: 1) that the party against whom it is being 
asserted was either a party to or a privy of a party to the prior action; 2) 
that the issue subject to preclusion has actually been adjudicated in the prior 
case; 3) that the adjudicated issue was necessary and essential to the outcome 
of that prior case; and 4) the party against whom it is interposed had a full 
and fair opportunity to litigate the claim or critical issue. Durham v. 
McDonald's Restaurants of Oklahoma, Inc., 2011 OK 45, ¶ 5, 256 P.3d 64.
¶21 "The availability of the doctrine of issue preclusion presents a question 
of law to be reviewed de novo." Wilson v. City of Tulsa, 2004 OK CIV APP 44, ¶ 8, 91 P.3d 673 (relying on Cities 
Serv. Co. v. Gulf Oil Corp., 1999 
OK 14, ¶ 12, 980 P.2d 116. 
"Whether it applies under the facts presented here calls for an exercise of the 
trial court's discretion, which we review for abuse of that discretion." 
Id. "An arbitration award can be the basis for the application of issue 
preclusion if the other criteria [for issue preclusion] are in place." (Footnote 
omitted.) Wilson, 2004 OK CIV 
APP 44, ¶ 9 (relying on Cities Serv. Co, 1999 OK 14, ¶ 16-17).
¶22 ODOT, the moving party on the affirmative defense of issue preclusion, 
had the burden to demonstrate all four elements of that defense. The Final 
Arbitration Award attached to its Reply Brief establishes only the first element 
- the same parties were involved in each case. However, like the arbitration 
award at issue in Carris v. John R. Thomas and Associates, P.C., 
1995 OK 33, ¶ 13, 896 P.2d 522, the Final Arbitration 
Award refers only to "asphalt" without identifying its source, lacks other 
material details such relevant dates, project identification, etc., and does 
not on its face establish the issue in this case was actually litigated 
and determined in that case.
¶23 "While an appellate court can take judicial notice of its own records in 
litigation interconnected with a case before it, it cannot take judicial notice 
of records in other courts." Salazar v. City of Oklahoma City, 1999 OK 20, ¶ 11, 976 P.2d 1056. The preclusive effect 
of a prior judgment cannot be assessed based solely on the four corners of a 
journal entry of judgment. Id., ¶ 12. "Those who rely on a judgment for 
its issue-preclusive force . . . are duty-bound to produce-as proof of its 
terms, effect and validity-the entire judgment roll for the case which 
culminated in the decision invoked as a bar to relitigation." (Parenthetical 
omitted; emphasis added.) Id. "This rule applies whether a favorable 
decision on the point is sought by summary relief or by trial." (Emphasis 
added.) Id., n. 12. Based on the evidentiary material submitted to the 
trial court, ODOT failed to carry its burden on the affirmative defense of issue 
preclusion. To the extent the trial court's partial summary adjudication may be 
viewed as concluding the Arbitration Award alone establishes the issue in 
this case was conclusively adjudicated and determined in the other case between 
the same parties, such legal conclusion is rejected as a matter of law.
¶24 Even if the trial court improperly granted ODOT's motion based on the 
Arbitration Award's preclusive effect of the US 64 RAP issue, our inquiry does 
not stop here. This Court has long held a court's summary adjudication order 
must stand if correct, even if it is based on the wrong reason. Morales v. 
City of Oklahoma City ex rel. Oklahoma City Police Dept., 2010 OK 9, ¶ 9, 230 P.3d 869; Shelley v. Kiwash 
Electric Cooperative, Inc., 1996 
OK 44, ¶ 16, 914 P.2d 669; 
G.A. Mosites Company of Fort Worth, Inc. v. Aetna Casualty and Surety 
Company, 1976 OK 7, ¶ 28, 545 P.2d 746. If properly pleaded 
and proven by the parties below, alternative grounds for summary judgment which 
are not addressed by the trial court may be considered as a basis for affirming 
the trial court.9 Malicoate v. Standard Life & Accident Ins. 
Co., 2000 OK CIV APP 37, ¶ 
28, 999 P.3d 1103 (relying on Reddell v. Johnson, 1997 OK 86,¶ 7-10, 942 P.2d 200).
¶25 GCC does not contend on appeal that ODOT failed to plead or argue in the 
original motion its good faith rejection defense, which is premised on GCC's 
agreement, on the first page of the multi-page Contract, "to build and complete 
[ODOT Project No. ACSTPY-168A(023)GB] . . .in accordance with the plans on file 
. . . and with the [ODOT] Standard Specifications] . . . and to the entire 
satisfaction of [ODOT]." "Contract terms conditioning performance upon the 
chief contractor or owner's satisfaction have generally been upheld by courts." 
Sento Construction Company v. Ross Group Construction, 2007 OK CIV APP 117, ¶ 9, 172 P.3d 241. "Oklahoma courts 
apply the subjective, or 'good faith,' standard, and not the reasonable person 
standard, to contract approval provisions." Id., ¶ 11 (interpreting 
Paul Hardeman, Inc. v. United States Fidelity & Guaranty Co., 1971 OK 70, 468 P.2d 726).
¶26 The issue of whether disapproval has been made in good faith is a 
question of fact for the jury, unless the case presents no substantial 
controversy. Sento, ¶ 12. Good faith is determined from the available 
evidence at the time of the disapproval. Id. Although ODOT relied 
in part on the Arbitration Award's preclusive effect to support it had a 
"good faith basis" for concluding that the "recycled asphalt at issue was 
not suitable for use in the Project," such inference is not supported by the 
evidentiary materials. It is undisputed ODOT's rejection of the US 64 RAP in 
this case occurred on June 23, 2006, whereas the Final Arbitration Award 
was not signed until May 19, 2008, almost two years after the rejection. 
Similarly the email dated November 2006 from the Resident Engineer giving his 
legal interpretation of the GCC's Contract entitlement to additional 
compensation, which GCC contends disputes ODOT's good faith basis, is not 
relevant to ODOT's June 2006 rejection.
¶27 To demonstrate a substantial controversy regarding ODOT's good faith 
rejection of the proposed mix design with US 69 RAP, GCC attached evidentiary 
material to its response brief tending to show ODOT had approved the use of US 
64 RAP three times in 2004 on other projects by other contractors and again in 
2006 by another company, only a month after ODOT had rejected GCC's 
proposed use of the same. However, ODOT responded by attaching to its Reply 
Brief an affidavit of an ODOT official, stating ODOT has only approved the use 
of US 64 RAP in temporary roads, never a permanent road like the 
one in the Project.
¶28 Further, the prior failure of US Hwy 69 has never been disputed by GCC, 
and the only reasonable inference from the ODOT's pre-rejection internal emails 
and its June 23, 2006 letter, which withdrew its approval of GCC's two 
previously approved mix design if either contained US 64 RAP and stated GCC's 
use of any other RAP would be approved, is that ODOT had a consistent, 
good faith basis for disapproving the use of material from a known failed 
highway. Considering the evidentiary materials submitted to the trial court 
which are relevant to the time of disapproval by ODOT, we find, like the Court 
in Sento, that as a matter of law and fact, ODOT had a good faith basis 
for disapproving GCC's proposed use of the mix design with US 64 RAP. The trial 
court's order granting partial summary adjudication is affirmed.
GCC's Procedural Argument Relating to the Burn Ban 
Issue
¶29 In its third proposition, GCC contends the trial court committed 
reversible error in basing its judgment solely on a "lack of timely notice" 
defense raised for the first time 10 days before trial, facts of which had not 
been pleaded or previously argued, and which had been waived by ODOT. This 
argument fails to consider the Pre-Trial Conference Order (Order) filed December 
22, 2010, which establishes ODOT raised the subject defense.10 Pursuant to Oklahoma 
District Court Rule 5(I), "[t]he contents of the pretrial order shall 
supersede the pleadings and govern the trial of the case unless departure 
therefrom is permitted by the Court to prevent manifest injustice." (Emphasis 
added). This alleged error lacks both record and legal support.
¶30 After review of the record on appeal, we find no reversible error of law 
and the trial court's findings of fact and conclusions of law adequately 
explains the decision in its August 31, 2011 Judgment, copy of which is 
attached. The judgment is AFFIRMED under Okla. Sup.Ct. R. 1.202(d).

JOPLIN, P.J., and BUETTNER, J., concur.

FOOTNOTES

1 GCC 
appealed the order granting in part ODOT's motion for partial summary 
adjudication, Case No. 107,678. The Supreme Court, on its own motion, dismissed 
the appeal for lack of an appealable order and expressly permitted GCC to raise 
all issues it had raised in the dismissed appeal upon the filing of a final 
judgment in the case.

2 These 
terms refer to sections within ODOT's Standard Specifications, which were 
incorporated as part of the Contract, § 104.03 "Differing Site Conditions," and 
§ 104.04, "Significant Changes in the Character of the Work."

3 Section 
708.04(a) of the Contract explains, in pertinent part:
The review of the proposed mix design will be to determine 
that the mix meets the design criteria . . .The mix design shall be prepared 
in an approved laboratory of the Contractor's choice. A request for laboratory 
approval may be made by a Contractor or a Laboratory. Approval will be according 
to the Materials Division Policy for Asphalt Mix Design Laboratories. The 
initial job-mix formula shall meet the requirements of Table 5A and 5B and 
Tables 6A and 6B for the type mix specified on the Plans or in the 
Proposal. (Emphasis added.)

4 
Pursuant to § 708.04(c), "[b]ituminous mixtures containing up to 25 percent 
reclaimed asphalt concrete mixture will be accepted provided that the mixture 
meets all the requirements of these Specifications."

5 A 
party's admissions in a brief may be deemed as curing and supplementing a 
deficient record. Reeves v. Agee, 1989 OK 25, ¶ 15, 769 P.2d 745.

6 See 
"Summary Judgment: Some Clarification," which was published February 13, 2001, 
by then-Vice Chief Judge of the Oklahoma Court of Civil Appeals, John F. Reif 
(subsequently appointed to the Oklahoma Supreme Court).

7 The 
Final Arbitration Award, discussed in further detail in footnote 8, and an 
affidavit of Darren Saliba, ODOT's Division One Engineer, were attached for the 
first time to ODOT's Reply Brief. Of the two, only the Arbitration Award relates 
to the "binding arbitration defense" GCC claims "ODOT did not plead or argue . . 
.at any other time prior to its Reply Brief." Review of ODOT's Answer to Amended 
Petition reveals it did not raise issue preclusion (collateral estoppel) or any 
related affirmative defenses.

8 The 
copy of the "Final Arbitration Award" of the "American Arbitration Association", 
in "Case No.71 110 Y 00528 04," which was signed on "5-19-08," by the Chairman, 
reads as follows:
We find Claimant [GCC] failed to prove by a preponderance of the evidence 
that it substantially complied with the terms and conditions of its contract 
with Respondent [ODOT].
We further find, pursuant to the specifications, terms and conditions of the 
contract, that [ODOT] acted within its authority in requiring the removal and 
replacement of the asphalt on this project.
We further find that there is a final contract balance in the amount of 
$31,410.89 due to [GCC] from [ODOT], therefore [ODOT] shall pay to [GCC] the sum 
of $31,410.89.
The remaining paragraphs dealt with apportionment of total fees and expenses 
of the arbitration and attorneys' fee and witness expenses. The Court of Civil 
Appeals in Glover v. ODOT, 2011 OK CIV APP 62, 259 P.3d 872, when reviewing a 
court order modifying the administrative disbarment of GCC and Paul Glover, its 
owner, from participation in state contracts, appears to describe the same 
arbitration
"ODOT awarded to GCC several highway construction projects located near 
Muskogee, Poteau, Stigler, and Warner in eastern Oklahoma. In arbitration, GCC 
sought $3,000,000.00 to recover costs of replacing defective asphalt paving 
on one of the projects, discovered in 2001 prior to the project's completion 
in 2003. The arbitrator determined GCC had not substantially complied with 
its contract with ODOT, awarded about $31,000.00, and the district court 
confirmed the award." (Emphasis added.) Glover, 2011 OK CIV APP 62, ¶ 2.
The same opinion further explains GCC's indictment for conspiracy to defraud 
the state arose from "the alleged substitution of unapproved aggregate in the 
asphalt paving" used in the same projects, id., ¶3, and "in June 
2006, ODOT suspended the right of [Glover] and GCC to participate in state 
contracts." Id., ¶ 4. This is the same month ODOT officials in this case 
emailed the ODOT lab not to approve any more of GCC's mix designs and wrote GCC 
informing that if any of its two previously-approved mix designs included RAP 
from US Hwy 64 those designs would no longer be approved. Additionally, the 
Court of Civil Appeals explained ODOT had "notified GCC in 1999 that stone 
from its Onapa quarry was unacceptable and could not be used on the 
projects," GCC "nevertheless used [such] stone up through 2001 on one or more of 
the subject projects," and ODOT discovered it in 2003.

9 We 
agree with GCC the Sovereign Acts Doctrine does not apply to this case. If the 
Doctrine applies to States, which we do not decide, it only "operates to 
insulate the government from liability for certain inabilities to perform 
contractual obligations," which immunity is afforded only if its performance 
failure "is the result of legislation targeting a class of contracts to which it 
is a party." See Resolution Trust Corp. v. Federal Sav. and Loan Ins. 
Corp., 25 F.3d 1493(10th Cir.1994); Horowitz v. United States, 267 
U.S. 458, 461, 45 S.Ct. 344. The Governor's Burn Ban neither targeted ODOT's 
road construction contract nor made ODOT's performance under the Contract 
impossible.

10 
Under the "Defendant's Contentions" section of the Order, ODOT listed several 
"Theories of Defense," including "Plaintiff waived its claim for additional 
compensation by failing to comply with the notice provisions regarding differing 
site conditions in the contract" and "Plaintiff failed to comply with the notice 
provision of the Contract, which is a condition precedent to additional 
compensation under the Contract." ODOT listed as its authority for both 
defenses, M.J. Lee v. Oklahoma Turnpike Authority, 2005 OK 87, 125 P.3d 1205, the case on which 
the trial court relies in its final judgment.
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Name
Level
Oklahoma Court of Civil Appeals Cases CiteNameLevel 2004 OK CIV APP 44, 91 P.3d 673, WILSON v. CITY OF TULSADiscussed at Length 2007 OK CIV APP 117, 172 P.3d 241, SENTCO CONSTRUCTION CO. v. ROSS GROUP CONSTRUCTION CORP.Discussed 2011 OK CIV APP 62, 259 P.3d 872, GLOVER v. OKLAHOMA DEPT. OF TRANSPORTATIONDiscussed at Length 2000 OK CIV APP 37, 999 P.2d 1103, 71 OBJ        1257, MALICOATE v. STANDARD LIFE & ACCIDENT INSURANCE CO.CitedOklahoma Supreme Court Cases CiteNameLevel 1989 OK 25, 769 P.2d 745, 60 OBJ        369, Reeves v. AgeeDiscussed 1992 OK 21, 826 P.2d 978, 63 OBJ        442, Hadnot v. ShawDiscussed at Length 1992 OK 50, 830 P.2d 188, 63 OBJ        1289, Dismuke v. CsehDiscussed 1997 OK 86, 942 P.2d 200, 68 OBJ        2333, REDDELL v. JOHNSONDiscussed 1995 OK 33, 896 P.2d 522, 66 OBJ        1239, Carris v. John R. Thomas and Associates, P.C.Discussed 1971 OK 70, 486 P.2d 726, PAUL HARDEMAN v. UNITED STATES FIDELITY & GUARANTY CO.Cited 2005 OK 87, 125 P.3d 1205, M. J. LEE CONSTRUCTION CO. v. OKLA. TRANSPORTATION AUTHORITYDiscussed 1996 OK 44, 914 P.2d 669, 67 OBJ        1190, Shelley v. Kiwash Elec. Cooperative, Inc.Discussed 2006 OK 100, 151 P.3d 132, MAY v. MID-CENTURY INSURANCE COMPANYDiscussed 2010 OK 9, 230 P.3d 869, MORALES v. CITY OF OKLAHOMA CITY ex rel. OKLAHOMA CITY POLICE DEPT.Discussed 2011 OK 45, 256 P.3d 64, DURHAM v. MCDONALD'S RESTAURANTS OF OKLAHOMA, INC.Discussed 1976 OK 7, 545 P.2d 746, G.A. MOSITES CO. OF FT. WORTH v. AETNA CAS. & S.Discussed 1999 OK 98, 996 P.2d 438, 70 OBJ        3640, Nealis v. BairdDiscussed 1998 OK 24, 956 P.2d 887, 69 OBJ        1172, MILLER v. MILLERDiscussed 1998 OK 102, 977 P.2d 1040, 69 OBJ        3512, Akin v. Missouri Pacific Railroad Co.Discussed 1999 OK 14, 980 P.2d 116, 70 OBJ        762, Cities Service Co. v. Gulf Oil Corp.Discussed at Length 1999 OK 20, 976 P.2d 1056, 70 OBJ        862, Salazar v. City of Oklahoma CityDiscussed 1999 OK 79, 989 P.2d 448, 70 OBJ        2752, Manley v. BrownDiscussedTitle 12. Civil Procedure CiteNameLevel 12 O.S. 651, New Trial - Definition - Causes forCited










