Commissioner, former county managers, give depositions on landfill lawsuit
Wil Petty Staff Writer firstname.lastname@example.org
Two former Ashe County managers and an Ashe County Commissioner gave depositions on Dec. 19 and 20 during the discovery phase of a lawsuit filed by Mooresville-based Hunter Construction Group Inc. over a contractual dispute over the construction of the Ashe County landfill.
“(Depositions) are a form of discovery,” Ashe County attorney John Kilby said. “It is sort of like a testimony, but it’s not for a purpose of a trial.” They gave sworn statements concerning the matter.”
The former managers, Dr. Pat Mitchell and Dan McMillan, as well as Commissioner Larry Rhodes gave the depositions at the office of the Clerk of Superior Court at the Ashe County Courthouse. The depositions were videotaped by Bugg & Wolf P.A. out of Durham and recorded before a Notary Public, according to court documents filed by attorneys representing Hunter Construction.
Hunter Construction was hired in 2009 to expand the county’s landfill, located in Crumpler. According to documents, the county says the construction ran 405 days over the mutually-agreed time to complete the project.
Upon completion, the county held $95,814 which would “otherwise be owed to (Hunter) for completion of the project.” The money was held as an offset against $505,500 in liquidated damages.
In a November 2012 counterclaim by the county, documents say “One of the Defendant County’s greatest concerns was that it was having to ship waste outside the county at significant expense and wanted at least a part of the project completed as soon as possible to avoid that ongoing cost.”
According to the counterclaim, as soon as the first portion of the project was completed and the state issued a permit, liquidated damages would be reduced from $2,000 a day, to $500 daily.
According to the initial filing on Sept. 19, 2012, Hunter Construction claims the county breached its contract in 10 different ways, including “Furnishing inadequate and/or defective plans and specifications to Hunter for the construction of the Project,” “Failing to address in a timely and adequate matter the inadequacies and defects in the plans and specifications provided to Hunter,” and “Failing to timely pay Hunter for its work.”
An additional defendant named in the case, Municipal Engineering Services Company, is based in Wake County. An additional 10 complaints were filed by Hunter against the company for negligence.
The claims against Municipal include “Prepared plans and specifications that contained errors and omissions,” “Failed to inform the bidders of preexisting and ongoing problems with the adjacent landfill cells” and “Failed to provide properly licensed and experienced personnel to design, oversee and manage the Project and to draft the Contract documents and specifications.”
Hunter Construction claims it fully and properly performed its work in accordance with the contract. According to documents, Hunter Construction seeks $10,000 plus interest from both Ashe County and Municipal, as well as court costs.
The lawsuit was filed by Hunter in Iredell County. In November of 2012, a motion was made to move the venue from Statesville to Ashe County, and during that motion the county delivered a response to the allegations made by Hunter Construction.
According to the county’s counterclaim, the county is “entitled to liquidated damages in the amount of $404,000 through April 15, 2011 and an additional $101,500 for the 203 days of delay between April 15 and Nov. 4, 2011.”
The $404,000 claim was from the first part of the project being 202 days late, at $2,000 a day. The additional $101,500 claim was from the $500 per day the rest of the project was incomplete.
“It is a good amount of money, so if you can’t resolve it, there is only one place you can get it resolved,” said County Manager Sam Yearick.
According to court records, judge Edgar B. Gregory on July 24, 2013 required that all mediation between the sides be completed by Feb. 28, 2014 and that it may be set for trial on March 3, 2014.
Kilby and Yearick both expect the case will go to trial.
“It seems to me there’s a good possibility that it might (go to trial), given the fact that they are apparently quite far apart in their positions,” Kilby said.
“I would imagine that as old as (the case) is, just from what I’ve heard, I can’t imagine it not going to trial,” Yearick said.
According to documents, Ashe County opened sealed bids for construction of phase 4 of the solid waste landfill on Oct. 2, 2009. The contract for the project was $1,665,065.
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