Lawyers squabble over attorneys fees in case against Sabine Pass ISD

David Yates Nov. 3, 2009, 8:48am


Two months after jurors awarded ICI Construction more than $195,000 for work performed to the Sabine Pass School athletic field, the lawyers in the case have begun a new fight over attorney's fees.

In September, the Southeast Texas Record reported on the trial of ICI Construction vs. Sabine Pass Independent School District. On Sept. 23 jurors rendered a verdict in favor of ICI Construction, awarding the company $195,906.26.

ICI Construction had filed suit against SPISD in 2007, alleging that the district had not paid the company for several change orders it made to the design of the athletic complex.

Although SPISD will have to pay the construction company, it does not want to pay the company's attorneys' fees too.

A hearing over a motion to dismiss the plaintiff's claim for attorneys' fees was held Nov. 2 in Judge Milton Shuffield's 136th District Court.

During the hearing, Sarah Frasher, an attorney for SPISD, argued that the district has governmental immunity and is protected from having to pay attorney's fees.

According to the defense's motion, SPISD is a public school existing under Texas state laws and is protected by the Texas Local Government Code.

"Section 271.159 of the Texas Local Government Code expressly prohibits any award of attorney's fees in a breach of contract against a municipality, unless the contract ... specifically allows recovery," the motion states.

"The contract between SPISD and ICI did not provide the recovery of attorney's fees ... and as such, ICI is not entitled to an award of attorney's fees."

Conversely, ICI argues that Texas Law does prohibit the recovery of attorney's fees from a public entity.

However, rather than argue their case for attorney's fees during the hearing, ICI attorneys were primarily focused on collecting interest from the district, asking the judge to award them interest on four years of non-payment.

"We prevailed at trial," said ICI attorney Timothy Ross of the Porter & Hedges law firm at the hearing. "The jury found in our favor."

SPISD argued that it shouldn't have to pay interest for the last four years since it tried to pay ICI.

ICI had rejected the district's final payment, insisting that it was owed money for the change orders.

Case background

In 1999, the residents of Sabine Pass voted to build a new Pre-K through 12th grade school. The complex, costing more than $10 million to build, has since become an iconic structure for the small town.

Nearly two years after the renovation of the Sabine Pass athletic field, ICI Construction claimed that it had not received full payment of the $1.8 million the school district owes for the field's restoration.

According to the plaintiff's petition, filed with the Jefferson County District Court on May 8, 2007, the Sabine Pass district and ICI entered into a $1.7 million contract to renovate the gym in 2003.

During the construction, district officials requested modifications and additions to the design. ICU itemized the supplementary costs and tacked them on to the original contract as change orders, the suit stated.

"The district promised that such changes would be paid for through change orders," the suit said. "ICI complied with the district's verbal instructions and performed the changes they were directed to perform."

The project and all the changes directed by the district were completed before Hurricane Rita hit the coastal community on Sept. 23, 2005. In light of all the changes, the amount of the contract had been upped from $1.7 million to $1,867,295, the suit said.

"However, the district has refused to pay ICI for the changes," the suit said. "Such action constitutes a breach of contract."

A copy of the contract attached to the suit did note the original agreement ($1.7 million), plus two change orders.

The plaintiff is also represented in part by attorney James Old Jr. of the Germer Gertz law firm in Beaumont.

The defense is represented in part by attorney Bruce Partain, an attorney with the Wells, Peyton, Greenberg & Hunt law firm in Beaumont.

Case No. D179-270

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