Jury awards Ausbern Construction $570,000

1STOCK COURT NEWS Gavel On FlagOXFORD – A Lafayette County jury has ruled Ausbern Construction is due $570,293.60 in costs and damages following a lawsuit with Chickasaw County that has stretched over two years.

Ausbern Construction, owned by Terry Ausbern, of Okolona, sought payment from the Chickasaw County Board of Supervisors for work his company did over three years ago on County Road 4 in Northwestern Chickasaw County.

The jury’s verdict specified the county must pay Ausbern $387,793.60 in construction costs and damages. The jury also awarded Ausbern $182,500 in damages from Chickasaw County Engineer Ed Springer.

“I think it was just a situation where Chickasaw County had no legal reason not to pay Ausbern Construction,” said Ausbern’s attorney Mark Herbert. “I think the separate verdict against Mr. Springer also shows he had no reason to not pay the bill.

“It is unfortunate for the residents of Chickasaw County that they have now been added damages to a bill that could have been paid two years ago if they had so chosen,” said Herbert. “I think my client is delighted with the verdict, because he knew he was right. I do think it is sad that we had to go to court with this lawsuit to prove that.”

Chickasaw County attorney Gary Lee Carnathan did not return telephone calls asking for his view of the verdict.

Ed Springer’s attorney Rex Sanderson was asked to comment on the verdict and did not.

The Chickasaw County Board of Supervisors will meet April 3 in a special called meeting at the Okolona Courthouse to discuss a possible appeal or how to pay the amount decreed by the court.

County Engineer Ed Springer, who has said he had no bond at the time, has repeatedly claimed he is a contract employee of the county. Springer owns a private engineering firm employing about 10 people in Starkville.

At the heart of the case was 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 was owed not less than $220,000 in damages. Ausbern’s attorney Sabrina Ruffin had said damages in the case could top $1 million.

Ausbern’s attorneys entered evidence the company failed to get $14.9 million in potential projects due to the unpaid bill’s impact on Ausbern’s bonding capacity.

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.

The political nature of the case prompted the court to change the venue. Explaining the case involved the county, prominent elected officials, concerns of a tax increase and pre-trial publicity, Circuit Court Judge Andrew Howorth ruled in last fall the trial would be moved from Chickasaw to Lafayette county.

The trial began Monday, March 24 with the defense bringing a line of witnesses to the stand over two days. Aubern’s financial records, including tax returns, were discussed at length to show damages.

Chickasaw County’s attorneys and Springer’s attorneys repeatedly said they followed procedures established in the state’s “Green Book” for state-aid road projects. The defense said a supplemental agreement – similar to a change order — was necessary to pay for the excess work done by Ausbern and no such document was ever drawn up.

Herbert said after the trial the supplemental agreement was never drawn up by Springer and the county never asked him to create one.

Springer admitted in court he figured the project incorrectly and felt Ausbern should have been paid for the work he did.

That hesitancy to resolve the bill was noted by Judge Howorth.

“I thought this case should have been settled a long time ago,” said Howorth in March 2013. “There seems to be some hard-headedness – I don’t know by who – but we need to move forward.”

Herbert said his client met with mediators in Greenwood and agreed to settle for damages of $220,000. Herbert said the county countered with an offer of about $30,000.

Ausbern Construction’s suit said Springer underestimated the amount of material needed to resurface the road, discovered Ausbern Construction put 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.

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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