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Judges rule on breach of contract lawsuit

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The City of Jeffersonville breached its contract with a company hired to maintain its sewer system by not adequately providing written notice before ending the contract.

Environmental Management Corporation filed an action against the City of Jeffersonville and its Sanitary Sewer Board alleging Jeffersonville breached its contract with EMC, violated Indiana’s Open Door Law, and acted in contempt of an agreed entry and order.

Based on the parties’ contract, written notice had to be given to the other party 90 days before terminating the contract, to allow the party to cure its performance. There were issues after EMC began operating the city’s sewer system, and a letter was sent by the city attorney to EMC asking for specific information, but it never detailed that the city would terminate the contract if problems were not rectified within 90 days. That letter, and one sent in August that said the city was terminating the contract, were authorized during an executive session of the sewer board held before the open board meeting. The city took over operations of the plant in December 2008.

EMC filed its suit, in which the judge ruled in favor of EMC, awarded damages to EMC, and ordered the city to pay attorney fees and costs.

In City of Jeffersonville, Indiana and City of Jeffersonville Sanitary Sewer Board v. Environmental Management Corporation, No. 10A01-1005-PL-217, the Court of Appeals agreed that the city did not provide sufficient written notice to EMC 90 days before terminating the contract. The city’s verbal comments at a regular sewer board meeting held prior to the first letter being sent do not count because they were oral and never recorded in the board’s minutes. In addition, the letter didn’t allege inadequate performance as required by the terms of the contract.

The judges reversed summary judgment for EMC regarding its Open Door Law claims, finding EMC waived those claims. EMC had a 30-day time limit to file its complaints, which it did not do. The time period begins when the plaintiff “knew or should have known” about the act or failure to act that had occurred. EMC had representatives attending every sewer board meeting, so it should have known under the principles of common knowledge and experience, that the two letters weren’t authorized at a public meeting, wrote Judge Patricia Riley. The two complaints filed regarding these letters were filed more than 30 days after the point when EMC should have known about a violation.

The trial court based its award of attorney fees in part on the Open Door Law violations, so the judges remanded for the trial court to recalculate those fees as well as only order the city to pay EMC costs related to filing fees and statutory witness fees.

The judges affirmed the finding the city was in contempt of an agreed entry between the parties to not interfere with EMC’s access to the sewer facilities while a preliminary injunction hearing was pending. The appellate court also affirmed the trial court’s decision to reduce EMC’s corporate support expenses from its losses during calculation of EMC’s damages.

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  1. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  2. wow is this a bunch of bs! i know the facts!

  3. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  4. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  5. It's a capital offense...one for you Latin scholars..

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