Circuit Court Judge Andrew Howorth ruled Monday morning that because the case involved the county, prominent elected officials, concerns of a tax increase and pre-trial publicity that the trial should be moved from Chickasaw County.
“I’m satisfied that no one could get a fair trial in Chickasaw County, neither the defendant nor the plantiff,” said Howorth. “For that reason I feel it is appropriate to move it.”
Howorth also said he had hoped parties in the suit could reach an agreement and that a change of venue would not be needed.
“I thought this case should have been settled a long time ago,” said Howorth. “There seems to be some hard-headedness – I don’t know by who – but we need to move forward.”
Howorth suggested a trial day of sometime in September.
Ausbern’s lead-attorney Mark Kirk said his client met with mediators in Greenwood last year and agreed to settle for damages of $220,000. Kirk said 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 said Monday that damages in the case could top $1 million.
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 interim Chickasaw County Board Attorney Gary Lee 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.
The Chickasaw County Board of Supervisors and Ed Springer met in executive session to discuss pending litigation after Monday’s ruling. Chancery Clerk Wanda Sweeney said no formal action was taken after that meeting.
Springer said Monday he did not have bond insurance and was hired by the county to provide engineering for the County Road 4 job. Springer is being represented in the case by Houston attorney Rex Sanderson.
“I have a contract with the (Chickasaw County) Board of Supervisors,” Springer said Monday. “I work for the county.”
On a motion by District 5 Supervisor Russell King and a second by District 3 Supervisor Russell Brooks on January 22, 2013 the Chickasaw County Board of Supervisors voted unanimously to hire Springer and approve his bond.
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 at the board attorney.
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. 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.
Potential conflict of interest has also prompted Judge John Gregory to recuse himself from hearing the case, since Gregory was the county attorney prior to Elizabeth Ausbern’s election to the post last summer.