WV Supreme Court takes up construction company action - WTRF 7 News Sports Weather - Wheeling Steubenville

WV Supreme Court takes up construction company action

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A West Virginia construction company says a trial court should not have granted the town of Clay's attorneys fees upon dismissal of an injunction in a suit related to the construction of the town's water plant.

Multiplex Inc., Art R. Poff and Pamela Poff appealed their Clay County case against the Town of Clay and argued their case Sept. 11 before the West Virginia Supreme Court.  

The case began with the construction of a water plant in Clay, which Multiplex says has produced four lawsuits — three of them pending.

In its brief to the state's highest court, Multiplex said it needed the engineer to interpret certain aspects of the contract before it could complete its work.

Multiplex argued they told the town it couldn't do any more work without the engineer's input.  In its brief, Multiplex said the town informed the company that it would be in default of the contract.

The brief continued, saying the town held a meeting with Multiplex where Multiplex said it would return to work if the engineer would give the information. Multiplex argued that information was not provided and it later filed an action in Clay County Circuit Court.

In its action, Multiplex sought an order to prevent the town from declaring Multiplex in default of the contract and wanted to order the town to issue requested change orders and respond to its questions, the brief states.

The court issued a preliminary injunction that prevented the town from declaring Multiplex in default until it could conduct a hearing.

According to the brief, Multiplex requested mediation be conducted by the American Arbitration Association and the town opposed it, saying the court didn't have jurisdiction to order mediation.

The court then held a hearing on Multiplex's remaining claims, the brief states, and allowed the securing of a preliminary injunction.

The court also later ordered mediation, canceling the hearing and appointing a special commissioner to conduct a hearing and issue a decision.

Mediation was conducted, the brief continued, and Multiplex agreed to withdraw the injunction but preserved the right to reinstitute the suit if it was not resolved.  

The special commissioner found the town of Clay entitled to proceeds from the injunction bond because of expense resulting from Multiplex's suit and the abandoning of the complaint before the court could determine merits, court records state.

The order stated Mutliplex's bond would be $25,000 and any money paid back to the town would be limited to that injunction bond amount, since the company did not act in bad faith. The court also ordered sanctions in addition to the bond.

Multiplex said the court shouldn't have sanctioned it and shouldn't have entered sanctions before the town complied with the trial court's order to provide documents on attorneys' fees.

In its brief, Multiplex argued the court shouldn't have ordered the forfeiture of the $25,000 bond that it says did not exist and was never posted because of the $2,500 deposit to secure the preliminary injunction.

Multiplex argues the state's highest court should reverse the decision and limit any penalty to $2,500.

In its brief to the state Supreme Court, the town of Clay argues the court was right to order forfeiture of the $25,000 bond and correctly ordered that forfeiture to compensate the town.

The town said, the brief continued, that attorneys fees and costs resulting from dismissing the injunction are recoverable under state code.

The town also argued in its brief that Multiplex abandoned the water project because it ran out of money. The brief says it was only after that happened that it wanted change orders and a response to questions, which the town said cost $478,757.33 in proposals submitted. The brief argued Multiplex performed no work.