The Huntsville Item, Huntsville, TX

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December 8, 2010

Judge denies new city, chamber trial

By Tori Brock Staff Reporter

HUNTSVILLE — District Judge Kenneth Keeling on Wednesday denied a motion for a new trial in the case of the City of Huntsville v. the Huntsville-Walker County Chamber of Commerce and Dee Everett — and insisted defendants pick up the remaining court costs associated with the first trial.

Keeling told the chamber’s attorney, David Dodge of Dallas, that the defendants’ motion for a new trial looked like a rehashing of arguments they presented at the trial, which ran for nearly two weeks in October.

The city filed suit against the chamber, alleging the chamber and its former president, Dee Everett, misspent hotel occupancy tax funds. A Leon County jury awarded the city close to half a million dollars with the addition of attorneys’ fees.

“Do you have anything new we have not argued in the past?” Keeling asked Dodge.

Dodge told Keeling the judgment imposed on defendants amounted to double recovery. Defendants were held both jointly and severally — as a group and as individuals — liable for breach of contract and breach of fiduciary duty.

The plaintiff should have had to choose between breach of contract or breach of fiduciary, chamber attorneys argue. With a judgment of breach of fiduciary duty, the city would hold both the chamber and Everett liable for the judgment amount, but it would have to waive reimbursement of attorneys fees. If the city had chosen remedy for breach of contract only, it could have held the chamber responsible for the full judgment amount and attorneys fees, but it would have had to waive its claim against Everett.

Keeling denied Dodge’s motion.

The day’s proceedings were held up by arguments between Dodge and the city’s attorney, Leonard Schneider, over which party should take care of the final bill for court costs that were not included in the judgment against the chamber. Leon County has assessed courts costs of $2,000 to $4,000, including jurors’ pay.

The losing party traditionally pays all court costs, such as filing fees and the district clerk’s expenses, including those incurred by the other party, Keeling said.

“We need to correct this judgment,” he told Dodge, who argued against the suggestion the chamber accept the bill. “You need to pay Leon County for their costs since they were gracious enough to hear this matter. I don’t want to disturb this judgment, but this has got to be taken care of.”

Dodge said he would need to see a copy of the final bill from Leon County before agreeing to pay.

“I just want the understanding that these costs have to be paid to Leon County,” Keeling said. “What happened to the old days when you just taxed costs to the plaintiff or the defendant — whoever lost? In every case, there are court costs. As a general rule, you tax all costs to the losing party.”

Keeling said he didn’t want the case leaving his court to go through the appeals process until the matter of which side pays for Leon County court costs is decided.

“I’m surprised y’all appear surprised by this,” Keeling said. “Generally, the losing party pays. What’s the big deal?”

Keeling recessed at 10:20 a.m. to allow the attorneys for the city and chamber to hash out payment. Both attorneys eventually returned to their respective law offices. The case was never officially recessed for the day.

 

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