Oral arg.- COA – March 10, 2016

At 10:00 the COA will hear ARD, LLC v. Trulite Glass and Aluminum Solutions, LLC,

ARD leased a  business premises to  VVP America, Inc. d/b/a Binswanger Glass  on Highway 49 in Richland.   The term of the lease  was from December 1, 2001 through November 30, 2011. After VVP filed for bankruptcy, the assets of VVP  were acquired by Trulite. Without a lease,  Trulite took over possession of the building.   ARD ended up suing Trulite for failure to pay rent and for damages to the property. The County Court granted summary judgment to  Trulite on the basis of the doctrines of election of remedies and judicial estoppel because ARD sought the exact same damages against Binswanger in that company’s bankruptcy case.  ARD appealed to Circuit Court and lost and appeals again.

ARD’s brief

Trulite’s brief

Watch the argument here

At 2:00 the Court will hear Edward Springer v. Ausbern Construction

Chickasaw County needed 1.398 miles of road constructed.  Ausbern planned to submity a bid and consulted the County Engineer  Edward Springer to get specs.  Ausburn’s bid was the lowest and it did the road.  Afterwards it realized that the amount of “topping” (asphalt overlay) used was much more than that estimated by Springer  and contacted Springer and the State Aid office to make a claim for the excess material.  Springer responded and admitted that there had been an error in the original calculations, and that the project should have taken 10,605 cubic yard of fill material.  Ausbern filed suit against the Chickasaw County Board of Supervisors for breach of contract and  against Springer alleged that Springer maliciously interfered with the contract. At the conclusion of the trial, the jury returned a verdict in favor of  Ausbern awarding  $387, 793.50 from the Chickasaw County Board of Superiors and $182,500 from Springer for tortious interference of a contract. 

According to Ausbern, “Under the State Aid program, the local county engineer is responsible for inspecting the contractor’s work, measuring and keeping track of the actual unit quantities placed by the contractor, preparing monthly estimates of the work actually performed by the contractor, and reporting that quantity and corresponding earned contract amounts to both the State Aid Division and the County. If any estimated quantities are exceeded, the county engineer is responsible under the Green Book to prepare a supplemental agreement, have it signed by the County and the contractor so that the contractor can be fully paid for the actual quantities he placed.”  Springer employed his brother in law to keep track of the quantities.  When Ausbern tried to contact Springer about the extra materials, Springer ignored their messages.  And when he finally admitted that he erred in estimating the amount needed,he told the Board that Ausbern should be paid only $8.00 a cubic yard, not the $19.50 in its contract

Springer appeals (Chickasaw County did not) arguing that his actions were immune under the Tort Claims Act. 

Springer’s brief

Ausbern’s brief

Springer’s reply brief

Watch the arguement here

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