County vs. Ausbern extended to March

CJ-0408-HOUSTON5-3C.jpgHOUSTON – A lawsuit between Chickasaw County and Ausbern Construction set for court on Oct. 7, in Lafayette County has been reset for March 24, 2014.

Circuit Court Judge Andrew Howorth allowed the new date at the request of Ausbern’s attorneys, who cited a scheduling conflict.

Ausbern Construction seeks payment for work they did for the county almost three years ago. Howorth has already ruled the bill is owed and has asked both parties to reach an agreement through mediation. Ausbern is also suing for damages.

Ausbern Construction is owned by the family of former 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. Ausbern no longer serves as the board attorney.

Chickasaw County Board Attorney Gary Lee Carnathan met with District 4 Supervisor Jerry Hall in private session Sept. 23 at the Chickasaw County Courthouse. Carnathan said at that time the meeting only involved discussion with one supervisor and the meeting was not a public meeting.

The political nature of the case has also prompted the court to change the venue. Explaining the case involves the county, prominent elected officials, concerns of a tax increase and pre-trial publicity, Howorth ruled in March the trial would be moved from Chickasaw County.

Howorth also said he had hoped parties in the suit could reach an agreement and a change of venue would not be needed.

“I thought this case should have been settled a long time ago,” said Howorth in March. “There seems to be some hard-headedness – I don’t know by who – but we need to move forward.”

Ausbern’s lead-attorney Mark Herbert said his client met with mediators in Greenwood last year and agreed to settle for damages of $220,000. Kirk said in March the county countered with an offer of about $30,000.

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 attorney Sabrina Ruffin has said damages in the case could top $1 million.

In papers filed with the court, Ausbern said the suit and lack of payment has affected his ability to secure bids, loans and security bonds.

And the clock for attorneys on both sides continues to tick.

One of the major reasons the change of venue was sought was to keep jurors worried about property taxes going up, should the case go against the county, out of the jury pool.

Motions filed by Carnathan said the county has 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 early 2012 seeking payment for work the company did at the alleged direction of the county and its engineer.

Carnathan said another key point to be settled is if Chickasaw County or engineer Ed Springer is liable for the amount owed and possible damages.

Springer’s attorney Rex Sanderson said a motion to dismiss Springer from the suit has been over-ruled by Howorth. That decision could seat Springer at the same table with Chickasaw County if the case goes to trial.

Springer said in March he did not have bond insurance and was hired by the county to provide engineering for the County Road 4 job.

“I have a contract with the (Chickasaw County) Board of Supervisors,” Springer said at that time. “I work for the county.”

Ausbern Construction’s suit contends 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.

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.

On a motion by District 5 Supervisor Russell King and a second by District 3 Supervisor Russell Brooks in January, the Chickasaw County Board of Supervisors voted unanimously to hire Springer and approve his bond.

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