County owes Ausbern Construction

1STOCK COURT NEWS Gavel On FlagHOUSTON – A judge has ruled that Chickasaw County and engineer Edward Springer owe Ausbern Construction for work done on a county road, but how much and exactly who will pay it will be determined in court.

A motion for partial summary judgment has been given by Circuit Court Judge Andrew Howorth saying he believes the county and Ed Springer breached their contract with Ausbern Construction by not paying for excess gravel used to repair County Road 4.

Howorth’s judgment did not specify if Chickasaw County or Ed Springer and his bonding company was liable for the amount.

“Who is liable and how much is the big issue,” said interim Chickasaw County Board of Supervisors Attorney Gary Lee Carnathan. “We owe Ausbern Construction some money, but what we say we owe and what they say we owe is at issue.”

Carnathan said the county tried to point out the extra gravel needed by Ausbern should have been addressed in a change order and decided by all parties before the work was done.

Ausbern Construction filed a suit against the Chickasaw County Board of Supervisors and Springer Engineering in the spring of 2012 seeking payment for work the company did at the alleged direction of the county and its engineer.

Ausbern Construction is owned by the family of then Chickasaw County Board of Supervisors Attorney Elizabeth Ausbern. That circumstance prompted the county to hire the firm of Carnathan & McAuley, of Tupelo, to handle legal duties for the Board of Supervisors in this lawsuit this past summer.

At the heart of the case is the payment for grading and resurfacing 1.39-miles of County Road 4. Ausbern’s bid of $396,566 for the work was accepted by the county and awarded on Nov. 23, 2010.

The suit filed by Ausbern Construction said the county breached its contract and Ausbern is owed not less than $220,000 in damages.

Ausbern’s lawsuit contends County Engineer Ed Springer underestimated the amount of material needed to resurface the road, knew Ausbern Construction would be putting down 19,944-cubic yards of materials on a bid that specified 7,689-cubic yards and that Springer failed to notify state and local authorities of this change so Ausbern Construction could be paid accordingly. The suit also seeks additional damages allegedly incurred by Ausbern Construction since that time, due to the county’s failure to pay promptly for the work.

A letter from State Aid District Engineer Joel S. Bridges dated Feb. 2, 2012 recommended payment for 17,700 cubic yards. The letter also said there was an error in the plans used to bid the job.

“An error in the plan quantity for granular material was discovered since this quantity issue has arisen,” said Bridges. “Granular material calculates to be 16,577 cubic yards using the dimensions and shrinkage factor from the plans. An amount of 8,883 cubic yards more than the original plan quantity of 7,688.7 cubic yards.

“State Aid recommends the payment of 17,700 (cubic yards) at the contract unit price of $19.50 cubic yards provided the total can be verified with tickets from the County Engineer,” Bridges letter adds. “Chickasaw County needs to keep $220,000 of State Aid funds available until the granular material quantity is settled.”

Ausbern Construction’s attorney of record, Mark Herbert, of Jones Walker of Jackson would not comment on facts of the case.

“I don’t want to say anything at this point that is not reflected in the record of this case,” said Herbert.

Carnathan said the case is still in discovery, with attorney’s exchanging information and facts about the case, and a trial will determine how much is owed and who owes it.

“The issue now is not if we owe money – we do – but how much we owe and if the county or Springer owe it individually,” said Carnathan. “There are two sides to those issues and that will be for a judge and jury to decide.”

Carnathan also said the county has asked Springer to produce his bond.

Springer did not return phone calls seeking comment on this case and his office has previously referred questions to Springer’s attorney Rex Sanderson of Houston. Sanderson said he would not comment on the facts of the case specifically, if Springer was bonded, or was bonded at the time he drew up plans for the CR 4 project.

As of Monday, a trial date had not been set in Chickasaw County Circuit Court for this case, but a motion for change of venue has been filed.

A potential conflict of interest has prompted Circuit Court Judge John Gregory to recuse himself from hearing the case, since Gregory was the county attorney prior to Elizabeth Ausbern’s appointment to the post.

Read additional story on the hiring of interim attorney for Board of Supervisors in this week’s Chickasaw Journal.

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