                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                  DIVISION ONE


           SOUTHWEST FABRICATION LLC, Plaintiff/Appellant,

                                         v.

               CITY OF PHOENIX, et al, Defendants/Appellees.

                              No. 1 CA-CV 18-0588
                                FILED 12-17-2019


            Appeal from the Superior Court in Maricopa County
                          No. CV 2017-008552
                The Honorable Kerstin G. LeMaire, Judge

                                   AFFIRMED


                                    COUNSEL

Zeitlin v. Zeitlin PC, Phoenix
By Dale S. Zeitlin
Counsel for Plaintiff/Appellant

Sanders & Parks PC, Phoenix
By Shanks Leonhardt
Counsel for Defendants/Appellees

Gaona Law Firm, Phoenix
By David F. Gaona
Counsel for Defendant/Appellee, TALIS Construction, Co.
                  SW FABRICATION v. PHOENIX, et al.
                        Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Lawrence F. Winthrop
joined.


B R O W N, Judge:

¶1             Southwest Fabrication, LLC, (“SWF”) appeals the superior
court’s orders (1) granting summary judgment on SWF’s special action
complaint filed against the City of Phoenix and members of the city council
(collectively, “the City”) and TALIS Construction Corporation (“TALIS”);
(2) denying SWF’s motion for relief from judgment; and (3) awarding the
City and TALIS attorneys’ fees under A.R.S. § 12-341.01. For the following
reasons, we affirm.

                             BACKGROUND

¶2            On October 28, 2016, the City issued an invitation for bids
(“IFB”) for bus stop enhancements. SWF and TALIS were the only bidders.
Among other things, the IFB required that bids include a pre-approved
solar-powered operating electrical system to light the bus shelters. City
staff approved the proposed electrical systems submitted by SWF and
TALIS.

¶3             SWF’s bid price was $10,165,446 and TALIS’s bid price was
$9,512,975. In January 2017, City staff recommended that the contract be
awarded to TALIS as the lowest responsive, responsible bidder. SWF filed
a protest, asserting in part that (1) TALIS was not a responsible bidder
because it did not meet the IFB’s work-experience requirements, and (2)
TALIS’s bid was not responsive because it did not comply with the
electrical-system requirements. City staff denied SWF’s protest and SWF
appealed. Following an evidentiary hearing, a hearing officer
recommended denying SWF’s appeal. The city manager adopted the
hearing officer’s findings and denied the appeal. The city council executed
the contract with TALIS on May 10, 2017.

¶4           SWF filed a special action complaint in the superior court on
May 25, 2017, reiterating the allegations raised at the bid-protest hearing
and asking the court to issue a preliminary injunction, rescind the contract



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                  SW FABRICATION v. PHOENIX, et al.
                        Decision of the Court

award to TALIS, and award the contract to SWF. That same day, TALIS
met with City staff and agreed to prepare three different prototypes of bus
shelter configurations and refurbishments. On May 31, TALIS began
performing the services outlined in the contract. By June 15, TALIS had
performed work on 66 bus shelters.

¶5             In response to SWF’s complaint, the City filed a motion for
summary judgment, in which TALIS joined. On June 19, SWF filed an
application for preliminary injunction and request to consolidate with the
trial on the merits. After oral argument, by minute entry dated September
13, 2017, the superior court denied SWF’s application for preliminary
injunction, finding in part that its claims were barred by laches and were
moot. SWF did not seek to appeal that order.

¶6            After allowing the parties to engage in limited discovery and
conducting oral argument, the court granted summary judgment in favor
of the City and TALIS, affirming its prior rulings. The court also awarded
attorneys’ fees to the City and TALIS under § 12-341.01.               SWF
unsuccessfully sought post-judgment relief, and this timely appeal
followed.

                               DISCUSSION

¶7            To prevail on claims raised in a special action complaint, a
plaintiff must demonstrate: (1) “the defendant has failed to exercise
discretion which he has a duty to exercise; or to perform a duty required by
law as to which he has no discretion”; (2) “the defendant has proceeded or
is threatening to proceed without or in excess of jurisdiction or legal
authority”; or (3) a “determination was arbitrary and capricious or an abuse
of discretion.” Ariz. R.P. Spec. Act. 3. As a threshold matter, however, a
court may deny special action relief if the plaintiff fails to pursue its claims
in a timely manner. See ASH, Inc. v. Mesa Unified Sch. Dist. No. 4, 138 Ariz.
190, 192 (App. 1983); Western Sun Contractors Co. v. Super. Ct., 159 Ariz. 223,
227 (App. 1988).

       A.     Laches

¶8            SWF argues its claims are not barred by laches because it
timely sought to preserve the status quo, the contract is severable, and the
City and TALIS have unclean hands. We review the superior court’s
finding on laches for abuse of discretion. Korte v. Bayless, 199 Ariz. 173, 174,
¶ 3 (2001). An abuse of discretion occurs if the record lacks substantial
evidence supporting the court’s conclusion. Rash v. Town of Mammoth, 233
Ariz. 577, 583, ¶ 17 (App. 2013). We review de novo the court’s legal


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                        Decision of the Court

conclusions. Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, 47, ¶ 9
(App. 2007).

¶9            The laches doctrine is an equitable defense “designed to
discourage dilatory conduct.” Sotomayor v. Burns, 199 Ariz. 81, 82–83, ¶ 6
(2000). “Laches will generally bar a claim when the delay is unreasonable
and results in prejudice to the opposing party.” Id. at 83, ¶ 6. To determine
whether delay was unreasonable, we consider the justification for the delay,
the extent of the plaintiff’s advance knowledge of the basis for the
challenge, and whether the plaintiff exercised diligence in preparing and
advancing his case. See Harris v. Purcell, 193 Ariz. 409, 412, ¶ 16 (1998). “The
unreasonable delay must also cause prejudice to either the opposing party
or the administration of justice, ‘which may be demonstrated by showing
injury or a change in position as a result of the delay.’” Rash, 233 Ariz. at
583, ¶ 18.

¶10           Two cases are helpful in assessing whether the superior court
erred in finding that SWF’s claims were barred by laches. In ASH, 138 Ariz.
at 191–92, a school bus supplier (“ASH”) whose bid was unsuccessful
sought to invalidate a contract between a school district and the successful
bidder and to compel the district to award the contract to ASH. Id. The
superior court denied relief, but before briefing was complete for the
ensuing appeal, the buses were paid for and delivered. Id. We held that
because the contract had been performed, the relief ASH sought would be
futile and therefore the case was moot. Id. We reasoned that “[b]y failing
to obtain any interlocutory stay or injunction to enjoin performance of the
disputed contract, ASH did not protect the status quo,” and that failing to
stay the contract’s performance “made the issue of its propriety moot.” Id.
at 192.1

¶11           By contrast, in Western Sun, 159 Ariz. at 225, 227, we found
that laches did not bar Western Sun Contractors Company’s (“Western
Sun”) action because it took steps to preserve the status quo throughout the
litigation. A city awarded a construction contract to Pipe Tech, Inc. (“Pipe
Tech”) because it determined that Pipe Tech was the lowest bidder. Id. at

1       Cases involving mootness are often instructive in analyzing whether
laches applies because they share the common thread that a party may lose
the right to have its claims heard on the merits if it does not timely seek
relief or take steps to preserve the status quo. See e.g., Korte, 199 Ariz. at
174, ¶ 3; Harris, 193 Ariz. at 412, ¶ 16; Mathieu v. Mahoney, 174 Ariz. 456, 458
(1993); Prutch v. Town of Quartzsite, 231 Ariz. 431, 435, ¶ 13 (App. 2013), as
amended (Feb. 26, 2013).


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                  SW FABRICATION v. PHOENIX, et al.
                        Decision of the Court

225. One day after the contract was executed, Western Sun obtained an
interlocutory stay to enjoin the city from proceeding with the contract. Id.
at 226. When the superior court later denied relief, Western Sun filed a
special action the next day, obtained a stay at the appellate level, and was
granted an accelerated briefing schedule. Id. We held that Western Sun
preserved the status quo because it timely obtained an injunction before
any construction began. Id. at 227. We also concluded that Pipe Tech had
suffered no significant reasonable change in position or irreparable harm
because all the steps it took before the injunction was issued were
preparatory to contract performance. Id. (noting that notifying utilities of
contemplated construction work, obtaining permits, and ordering supplies
and equipment were preparatory acts).

¶12           Here, SWF failed to timely seek or obtain a preliminary
injunction or otherwise preserve the status quo throughout litigation. As
the superior court observed:

      On May 10, 2017, the City of Phoenix and Talis executed the
      contract. On May 26, 2017, Talis began work on the contract
      by meeting with the City of Phoenix and preparing mock ups
      of the shelter projects and refurbishments to other bus
      shelters. On May 31, 2017, Talis began actual performance of
      the contract. By mid-June, Talis had worked on . . . 6[6] bus
      shelters.

Despite being aware of these developments, SWF did not file its application
for preliminary injunction until June 19, 2017. When the superior court
denied the application, SWF did not appeal the ruling, seek a stay, or
pursue special-action relief in this court. As of the date of the superior
court’s judgment, TALIS had been performing work under the contract for
more than ten months.

¶13          Read together, ASH and Western Sun make it clear that a party
must act to preserve the status quo before contract performance begins to
avoid laches.     SWF unreasonably delayed by waiting until after
construction was well underway to file its application for preliminary
injunction. And unlike Western Sun, SWF did not diligently advance its
case when it failed to appeal the superior court’s order denying its
application.

¶14          SWF urges us to follow Sandy City v. Salt Lake City, 827 P.2d
227 (Utah 1992). That case, however, supports our analysis. Sandy City
challenged Salt Lake City’s zoning change and grant of a conditional use



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                  SW FABRICATION v. PHOENIX, et al.
                        Decision of the Court

permit to McDonalds to develop a restaurant on a parcel of land formerly
zoned as residential. Id. at 229. The Utah Supreme Court ruled that Sandy
City’s claim was not barred by laches because Sandy City diligently
pursued its case at each step of the litigation, including seeking an
injunction before any construction began and appealing when the district
court denied the injunction. Id. at 230. SWF did none of these things. It
waited to file its application for preliminary injunction until after
construction had already begun and then failed to appeal when the superior
court denied its application. Sandy City is consistent with the rule set forth
in ASH and Western Sun.

¶15           SWF argues that it timely moved to preserve the status quo
by asking the superior court for a preliminary injunction in its unverified
complaint and emailing the City and TALIS requesting that they
voluntarily refrain from entering a formal contract. This fails for at least
two reasons.

¶16            First, a complaint must be verified to allow a plaintiff to
obtain an injunction on the complaint alone. A.R.S. § 12-1803(B); Barnet v.
Bd. of Med. Examiners, 121 Ariz. 338, 340 (1979) (“This statute means that
relief on the ‘complaint alone’ shall not be granted unless the complaint is
verified.”). SWF’s complaint was not verified; thus, it could not obtain a
preliminary injunction on that basis alone.

¶17            Second, the email that SWF sent to the City and TALIS was
insufficient to preserve the status quo. ASH and Western Sun confirm that,
barring some voluntary agreement, a party seeking to preserve the status
quo must obtain an injunction or stay to avoid a later finding of laches or
mootness. See ASH, 138 Ariz. at 192 (“By failing to obtain any interlocutory
stay or injunction to enjoin performance of the disputed contract, ASH did
not protect the status quo . . . .”); W. Sun, 159 Ariz. at 227 (“Western Sun
timely obtained an injunction in this matter before any construction began,
and thus preserved the status quo.”). SWF knew that the City and TALIS
executed the contract on May 10, 2017, and were required to begin
performing work under the contract on May 31, 2017. Emailing the City
and TALIS to request that they not formalize a contract they had already
executed and incurred obligations under was insufficient to preserve the
status quo.

¶18           Further, SWF’s unreasonable delay prejudiced TALIS. Unlike
the preparatory steps Western Sun took, by the time SWF filed its
application for preliminary injunction TALIS had begun to perform the
contract and had already worked on 66 bus stops. Ramsey v. Arizona


                                      6
                  SW FABRICATION v. PHOENIX, et al.
                        Decision of the Court

Registrar of Contractors, 241 Ariz. 102, 109, ¶ 22 (App. 2016) (“We will not set
aside the trial court’s factual findings unless they are clearly erroneous.”).
SWF prejudiced TALIS by waiting until TALIS changed its position before
moving to preserve the status quo.

¶19            SWF asserts that TALIS is not prejudiced and that laches is
unavailable because the contract between the City and TALIS is severable.
“A contract may be considered severable when the consideration given is
not single, but apportioned. When separate consideration is given for a
portion of a contract, that part of the contract may be considered severable.”
Verma v. Stuhr, 223 Ariz. 144, 158 (App. 2009) (internal citations omitted).
However, this does not end our inquiry. As our supreme court observed in
Waddell v. White:

       Primarily, the question of whether a contract is entire or
       severable is one of intention, which intention is to be
       determined by the language which the parties have used and
       the subject matter of the agreement. A contract may both in
       its nature and by its terms be severable, and yet rendered
       entire by the intention of the parties. We think that perhaps
       the best test is whether all of the things, as a whole, are of the
       essence of the contract. That is, if it appeared that the purpose
       was to take the whole or none, then the contract would be
       entire; otherwise, it would be severable. The divisibility of
       the subject matter, or the apportionment of the consideration,
       while they are both items to consider in determining whether
       a contract is entire or severable, are not conclusive.

51 Ariz. 526, 540–41 (1938) (internal citations omitted).

¶20           Here, the parties intended the contract to be entire rather than
severable. When the City solicited bids, the invitation was to bid on all
work outlined in the contract, not a portion of it. And when the City
awarded the contract to TALIS, it awarded the contract based on the price
of TALIS’s bid for completion of all work outlined in the contract. A
contract for the building and refurbishment of many individual bus stops
could be viewed as severable by its nature and terms; however, “[t]he
divisibility of the subject matter, or the apportionment of the
consideration . . . , are not conclusive.” Id. at 541. The price of the bid to
complete work on the bus stops, as a whole, is the essence of the contract
between the City and TALIS, and the basis for the award. When TALIS bid
on the contract it had two choices: take the whole or take none. The contract
is not severable.


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                  SW FABRICATION v. PHOENIX, et al.
                        Decision of the Court

¶21            Finally, SWF counters that laches does not apply due to the
doctrine of unclean hands. “It is a cardinal rule of equity that he who comes
into a court of equity seeking equitable relief must come with clean hands.”
MacRae v. MacRae, 57 Ariz. 157, 161 (1941). “[I]t is the moral intent of the
party seeking relief, and not the actual injury done, that is controlling.”
Weiner v. Romley, 94 Ariz. 40, 42–43 (1963). Misconduct that would deprive
a party of equitable relief must be willful. Id. at 43.

¶22           SWF argues the City secretly never intended to require TALIS
to comply with the requirements in its IFB, and the City and TALIS
conspired to fraudulently conceal from SWF that the bus stops TALIS
produced, including the electric systems, fall below the IFB requirements.
Therefore, according to SWF, the City and TALIS cannot rely on the
equitable defense of laches. SWF’s assertion that the bus stops do not meet
the IFB requirements is based on the declaration of one of its employees,
who inspected several of the bus stops TALIS constructed and reported that
they fall below the standards set out in the IFB.

¶23           The superior court found that (1) the City complied with the
applicable code and terms when it awarded the contract to TALIS; and (2)
SWF did not prove the City’s engineer acted improperly when he decided
that TALIS’s electric system met the IFB requirements. However, even if
SWF’s allegation that the bus stops TALIS constructed fall below the IFB
requirements is true, it does not establish that the City secretly did not
intend to hold TALIS to the terms of the contract, nor does it demonstrate a
conspiracy between the City and TALIS to conceal that alleged intent from
SWF. Because SWF has not shown willful misconduct on the part of the
City or TALIS, its unclean-hands defense fails. In sum, the superior court
did not abuse its discretion in finding that SWF’s claims were barred by
laches.2

       B.     Attorneys’ Fees Award

¶24            SWF contends that the superior court erred in awarding
attorneys’ fees to the City and TALIS under A.R.S. § 12-341.01 because this
action is a challenge to the alleged illegal award of a contract rather than an
action arising out of a contract. A.R.S. § 12-341.01. SWF does not challenge
the amount of the fees awarded.



2     Because we do not disturb the superior court’s laches ruling, we do
not address the merits of TALIS’s bid challenge or whether the court erred
in denying SWF’s motion for post-judgment relief.


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                  SW FABRICATION v. PHOENIX, et al.
                        Decision of the Court

¶25           As an initial matter, we note SWF requested an award of
attorneys’ fees under § 12-341.01 in its cross-motion for summary judgment.
After the court ruled against SWF and stated it was awarding fees to the
City and TALIS upon submission of affidavits, SWF argued for the first time
that fees were not recoverable under § 12-341.01. SWF cites no authority
suggesting a party may properly reverse its position as to fee eligibility after
the court issues an adverse ruling. Regardless, we are not persuaded by
SWF’s argument that fees could not be awarded under § 12-341.01.

¶26           This court’s decision in ASH, 138 Ariz. at 192, resolves the
issue. ASH argued that its lawsuit seeking to invalidate the school district’s
contract award to a competing bidder did not arise out of a contract but was
instead a petition to compel Mesa Schools to perform a legal duty. Id. We
disagreed, explaining that our “interpretation [was] consistent with the
broad statutory language providing for the award of attorneys’ fees ‘in any
contested action.’” Id. We further reasoned that “[b]y focusing on the
procedural context of th[e] special action . . . ASH ignores its substantive
nature.” Id.

¶27           SWF’s complaint sought to invalidate the City’s contract
award to TALIS and have the contract awarded to SWF. As in ASH, it is
the contract that prompted the suit. Id. Accordingly, the superior court did
not err in implicitly finding that the City and TALIS were eligible for an
award of attorneys’ fees under § 12-341.01.

¶28           SWF argues nonetheless that awarding attorneys’ fees in this
case contravenes public policy, relying on Wistuber v. Paradise Valley Unified
School District, 141 Ariz. 346, 347 (1984). However, our supreme court
expressly distinguished Wistuber from ASH in the same paragraph SWF
quotes from:

       Moreover, this action differs from the type of contract action
       at issue in Ash. Here, petitioners are challenging the
       constitutionality of the action of a public body. An award of
       attorney’s fees would be contrary to public policy in this case
       because it would have a chilling effect on other parties who
       may wish to question the legitimacy of the actions of public
       officials. Where aggrieved citizens, in good-faith, seek a
       determination of the legitimacy of governmental actions,
       attorney’s fees should not usually be awarded. Courts exist
       to hear such cases; we should encourage resolution of
       constitutional arguments in court rather than on the streets.




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                 SW FABRICATION v. PHOENIX, et al.
                       Decision of the Court

Id. at 350. The supreme court clarified that the public policy encouraging
the determination of the legitimacy of governmental actions in courts
applies to constitutional questions as specifically distinguished from the
type of actions at issue in ASH—the same actions at issue here.

                              CONCLUSION

¶29            We affirm the superior court’s orders (1) granting summary
judgment in favor of the City and TALIS; (2) denying SWF’s motion for
relief from judgment; and (3) awarding the City and TALIS their reasonable
attorneys’ fees and costs. Because SWF has not prevailed on appeal, we
deny its request for attorneys’ fees and costs. In our discretion, we award
reasonable attorneys’ fees to the City and TALIS, as well as taxable costs,
upon compliance with ARCAP 21.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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