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Posted: May 1, 2014 10:00 p.m.

County denies allegations

Plantiff files motion to disallow county attorney to defend case

Newton County formally denied allegations that it illegally breached its contract with former landscaper Billy Durden, who is suing the county and seeking at least $150,000 in damages plus legal costs.

Durden is suing Newton County both for what he argues were two breaches of contract, the first being allegedly illegally canceling his contract, signed in 2011, and the second breach related to the Board of Commissioners reneging on an initial vote in early 2013 to offer him a five-year contract extension as well as allegedly making slanderous statements.

County Attorney Tommy Craig filed the county’s official answer March 14, saying the county canceled Durden’s original 2011 contract “for cause.” Regarding the complaint of a breach of contract in 2013, Craig’s answer simply states “there is no written contract entered on the Board’s minutes.” Craig also argues that county officials did not “act in bad faith” at any point in time.

In the original lawsuit, filed Feb. 7, Durden’s attorney John Strauss said there “existed no lawful basis to terminate” the landscaping contract between the county and Durden. If that’s true, Strauss argues the county should have given the proper 90-day notice of termination for a “termination of convenience”; the lawsuit states the specific amount of damages is still being calculated and will ultimately be determined by a jury, but estimates damages to exceed $50,000.

Durden is also seeking at least $100,000 because of “slanderous statements and the consequent unlawful rescission” of a five-year contract renewal and extension the board approved giving Durden, but which Chairman Ellis never signed. The board later revoked its offer and canceled its existing contract with Durden because, the county said, Durden did not maintain a valid county business license at all times.

Durden acknowledged he operated without a business license from 2002 to 2006, but he said he operated out of his house and didn’t know he needed a license. As far as being late because he applied for his license after Jan. 1 of other years, Durden has argued that March 15 is the actual late deadline, because penalties aren’t assessed until after that point.

In the pre-lawsuit notice Strauss sent the county, he argued that the county doesn’t even have the authority to require business licenses for landscaping and other businesses.

The lawsuit also claims “false and slanderous information” provided by county officials and a competitor of Durden – referring to current landscape contract holder Gary Campbell – led to the board rescinding its five-year contract offer.

Motion to disqualify Craig from case
Strauss filed a motion to disqualify Craig and his law firm from defending the case, “because of their need to testify regarding certain aspects of the contractual negotiation, preparation, delivery, and execution.”

Strauss said the case can’t move forward until the issues of who will represent the county is discovered.

“One of the first things that I would normally do is to conduct discovery about the issues that I mentioned above regarding Mr. Durden’s contract (and another contract that was negotiated at the same time), but again, I can’t very well conduct discovery from an attorney who is also representing the county,” Strauss said in an April 18 email.

When Craig was asked about the motion to disqualify his firm, he said “I can certainly understand why Mr. Strauss does not want me on the other side of his case. Had he taken the time to acquaint himself with the facts of the case, he would not have filed his motion to disqualify my firm. Unlike Mr. Strauss, I intend to try this case in court and not in the newspaper.”

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