Panel denies Livingston's Parish’s $59 million in claims from Gustav _lowres

Advocate staff photo by PATRICK DENNIS -- Livingston Parish President Layton Ricks speaks during a press conference regarding the parish losing its $59 million arbitration case against FEMA for Hurricane Gustav cleanup costs. They were awarded ZERO. And the arbitration was binding. It's over.

A lawsuit between the Livingston Parish Council and its former road engineering firm will move forward to trial without Parish President Layton Ricks becoming a party in the case, a state court judge ruled Monday.

Judge Elizabeth Wolfe, of the 21st Judicial District Court, said that while Ricks almost certainly will have to testify at trial, the office of parish president in signing the engineering contract was only performing a duty the Parish Council had ordered.

The council is seeking repayment of $312,000 of a $453,000 check Ricks wrote to Alvin Fairburn & Associates immediately after he took office in January 2012. Ricks worked at the Fairburn firm before being elected parish president.

The council claims Fairburn performed unauthorized work and overbilled for the work on the parish’s 2010 road overlay program. Fairburn has denied the claims.

Former Parish President Mike Grimmer had refused to pay the engineering bill in 2011, despite two council resolutions and a court order demanding payment. Grimmer said that because he signed the contract, he was a party to the agreement and had a right to object to payment.

Fairburn’s attorney, Brad Rhorer, adopted that strategy in arguing for the office of parish president, and therefore Ricks, to be included in the lawsuit.

But the council’s attorney, Richard Zimmerman, said Monday that Grimmer signed the contract only at the behest of the council, which was the actual party to the agreement.

“With all due respect to Mr. Grimmer … he’s not a lawyer,” Zimmerman said.

If Grimmer was not a party as parish president at the time, then Ricks is not a party to the contract now, Zimmerman said.

Judge Wolfe agreed, noting that the reason for declaring someone a party to a lawsuit is to ensure that person does not later file suit over the same issues and possibly obtain a different result.

Wolfe said she could not envision a scenario in which Ricks would ever sue Fairburn.

“Certainly, he will be a witness, but practically speaking, where does he line up?” Wolfe asked Rhorer. “From what I’ve read in the newspapers, I understand he’s a little opposed to the council now.”

Despite language in his motion that Ricks “actually issued (the) payment and perhaps disfavors this lawsuit,” Rhorer said he was not suggesting that Ricks is aligned with the engineering firm. But if the office of parish president was a party to the contract, Rhorer said, it is possible a future parish president could later file suit.

Wolfe also denied Rhorer’s motion to have the case tossed out before trial.

Rhorer had argued that the current Parish Council — with six of nine members being newly elected in November 2011 — cannot claim Fairburn performed unauthorized work, when the “old” council in office at the time unanimously voted that the firm had not breached its contract and should be paid.

However, Zimmerman argued Monday that the lawsuit was also for reimbursement of fees the council claims Ricks overpaid. Zimmerman said an engineering expert the “new” council hired in 2012 to review the contract and Fairburn’s billing found the alleged overbilling. That new information warranted the change in the council’s stance, Zimmerman said.

Wolfe said there are too many questions about what work was authorized and how it should have been billed for the case to be dismissed without a trial.

Wolfe also declined to dismiss the engineering firm’s insurance company from the case, saying it is unclear from the contract and pleadings whether the type of breach of contract the Parish Council alleges was covered by the firm’s professional liability policy.

Fairburn has a separate lawsuit against the Parish Council, claiming it terminated the road contract without cause. The two lawsuits, however, will not be consolidated.

The road contract may not be the only legal issue between the parish and Alvin Fairburn & Associates. The firm was one of the two monitoring firms that were supposed to ensure only eligible work was performed in the Hurricane Gustav cleanup. A three-judge panel recently denied the parish’s claims against the Federal Emergency Management Agency for cleanup costs, leaving the parish with a $59 million debt. The parish has not yet decided whether to sue the monitoring firms over that matter.

Before Monday’s hearing began on the Parish Council’s road contract lawsuit against Fairburn, Wolfe disclosed connections to parties on both sides. Wolfe and her husband are personal friends with Parish Councilman Delos Blackwell, and Alvin Fairburn Jr.’s wife, Christa Fairburn, used to be a secretary for the judges of the 21st Judicial District, Wolfe said.

The lawyers for all the parties said they had no objection to Wolfe continuing to preside over the case.

Follow Heidi R. Kinchen on Twitter, @HeidiRKinchen.