A Boise judge last week threw out a lawsuit by the city of McCall claiming the city received bad advice from two law firms during a disastrous lawsuit against two companies over construction of the J-Ditch sewage holding pond.
Fourth District Court Judge Michael McLaughlin threw out the case last Thursday, saying the city filed the case too late under the state's statute of limitations.
The action means the merits of the case will not be heard. The year-old lawsuit against the Boise law firms was an attempt by the city to get back an estimated $750,000 in legal fees paid to the two firms between 2000 and 2005.
It had been hoped that money would have been used to reduce the amount of money needed from city taxpayers to pay off $6.5 million in awards, legal fees and interest as a result of the J-Ditch case.
One of the firms targeted by the lawsuit was Moore, Smith, Buxton and Turke of Boise, which served as the city's contract law firm from 1998 to 2005.
The other firm was Brassey, Wetherell, Crawford and Garrett of Boise, which represented the city in the lawsuits with St. Clair Contractors and Employers Insurance of Wausau, which won the judgment against the city following a 2004 jury trial.
J-U-B release cited
The lawsuit by the city said the firms. and specifically Susan Buxton of the Moore firm and William McCurdy of the Brassey firm, gave poor legal advice to the city throughout the - construction of the 277-million-gallon winter holding pond and the subsequent legal entanglements that followed.
Among the claims in the city's lawsuit was that McCurdy and Buxton advised the city council in June 2002 to sign an agreement with J-U-B Engineers, which designed the J-Ditch pond.
That agreement freed J-U-B from any claims or lawsuits arising from the project. The release came after St. Clair and Wausau filed suit in December 2001.
The rationale was to avoid fighting both J-U-B and St. Clair/ Wausau. Instead, J-U-B's expertise would be used to build the city's case in the trial, according to court documents.
After the 2004 verdict against the city, jurors in the case specifically pointed to J-U-B for shirking its responsibility for managing the construction of the pond. The jurors also said JU-B was not impartial while acting as a liaison between the city and St. Clair Contractors and provided unimpressive testimony during the trial.
Buxton and McCurdy should have advised the council to consult with an independent attorney before signing the 2002 release with J-U-B, the city's lawsuit said.
The two firms also made a mistake when they advised the city to withhold about $900,000 in payments from St. Clair in 2000 when the company fell behind in completing the pond. Jurors said the city should have stopped the work when it was clear St. Clair was having problems.
Similar bad legal advice was claimed in the lawsuit for the way the city was advised to handle Wausau, which hired a second contractor, Interwest Supply Inc. to complete the project. The attorney also advised withholding of payments to Wausau when Interwest was not able to finish the job started by St. Clair.
Settlement offer disputed St. Clair and Wausau sued the city for breach of contract, and the jurors agreed with them. Also, the city claimed Buxton and McCurdy's firms gave bad advice when they advised against accepting a $500,000 settlement offer from St. Clair and Wausau in 2003.
One of the claims by the city was countered in an affidavit from Christopher Yorgason, a former attorney with Buxton's firm, who said he was at the meeting in the which the $500,000 settlement was discussed.
The council was advised to make a counter-offer, but council members rejected that course, Yorgason's affidavit said.
The rest of the city's claims were based on the mistaken assumption that any advice given by attorneys are a guarantee of success, according to a response to the city's suit filed by the two Boise law firms.
"The mere fact that the decision the city made, having taken into account the Moore firm's advice, did not have the desired outcome does not render the Moore firm's advice negligent," the response said.
The case was filed in May 2006, or just before two years had expired after the J-Ditch jury handed down its decision.
The city believed it had filed the case in time under the two year statute of limitations for filing a malpractice case.
The law firms challenged that claim, saying the two-year period began in 2002, when they began accepting payments from the city for the advice the city said was flawed.
McLaughlin agreed the two year limit had expired before May 2006 and threw out the case.
The city was represented in the case by Boise attorney Allen Ellis.
