AMARILLO, Texas (KAMR/KCIT) — As retired Judge William Sowder continues to go through and decipher the documents and the evidence related to the recent trial surrounding the legality of the city of Amarillo’s use of anticipation notes to fund the Amarillo Civic Center Complex project, the legal teams for both the city and Amarillo Businessman Alex Fairly are arguing why each of the parties should not be required to pay for their attorney’s fees, and why the other party should cover them.

This comes after a two-day trial earlier this month where officials heard from a number of city of Amarillo staff members, Amarillo City Council members along with experts, giving each legal team the chance to present their case regarding the question of if what the city did with the anticipation notes was legal.

What did the city have to say?

The city of Amarillo’s legal team first filed its motion for attorneys’ fees and their response to Fairly’s team’s claims for attorneys’ fees Tuesday morning. In this motion, the city is requesting that Sowder rule that Fairly pays all, or a substantial portion of, the attorneys’ fees and costs that have come as a result of the case, citing Texas Government Code chapter 1205. According to the documents, the team claims that this chapter does not allow for parties like the intervenor in the case to recover attorneys’ fees.

The city’s legal team claims that the “reasonable and necessary fees” in this case result in more than $600,000, not including the fees related to the recent two-day bench trial. The documents state that the city would not have needed to incur the majority of the fees if Fairly had not joined the lawsuit.

The city of Amarillo’s legal team provided a number of reasons why they believe Fairly should have to cover their attorneys’ fees, with one of the main reasons being their belief that Fairly’s claims, along with the discovery that was conducted, “have been political as opposed to legal.” They cited the fact that the city has issued two instances of anticipation notes for projects in 2022, including one during the course of the litigation.

The city’s team also provided claims that through the course of the litigation, Fairly’s team “abandoned” some of its arguments against the city, referencing the following topics:

• Question about the ordinance imposing a tax;
• Potential violations of subject requirements of the Texas Open Meetings Act;
• Potential violations of the quorum rules of the Texas Open Meetings Act;
• The entire argument brought forward regarding the Tax Increment Reinvestment Zone No. 1;

The city’s team argued that these topics covered during the trial were a “fishing expedition” by Fairly’s team, unsubstantiated by law and wasteful to the city of Amarillo’s taxpayers. Officials with the city also took issue with the discovery process, saying that it “has become apparent the Intervenor (Fairly) used discovery almost entirely for political purposes.

In the documents, the city of Amarillo’s legal team provides excerpts from the depositions of city of Amarillo staff and Amarillo City Council members, claiming that they were proof “to air (Fairly’s) grudges with the City Council and City Staff.” Some of the excerpts provided include a line of questioning to Amarillo Mayor Ginger Nelson regarding the definition of the term democracy, along with the potential occupational future of the city of Amarillo’s Chief Financial Officer Laura Storrs.

Lastly, in the documents, the city’s legal team stressed that Chapter 37 of the Texas Civil Practice and Remedies Code does not apply in this case, and said that even if it did, the city should still be awarded attorneys’ fees. According to that portion of the code, it authorizes but does not require a court to award fees.

“If either party is entitled to attorneys’ fees, it is the city,” the documents read. “As set forth above and supported by the invoices that have been or will be provided to the Court, the Intervenor (Fairly) forced the City to incur substantial attorney’s fees in this case. Even should the Intervenor prevail in this action, the City urges the Court to take these fees into consideration in determining whether an award of attorneys’ fees to the Intervenor would be equitable or just.”

What did Fairly have to say?

Fairly’s legal team cited Chapter 37 of the Texas Civil Practice and Remedies Code to begin their argument on why Fairly should be entitled to an award of attorneys’ fees, according to documents filed Tuesday morning. Officials stressed that “‘the Court may award costs and reasonable and necessary attorneys’ fees as are equitable and just…'” and that a part to a declaratory judgment action does not have to prevail to recover an award of attorneys’ fees.

To back up this argument, Fairly’s team said that Fairly revealed pieces of evidence that show what the city did was wrong. This evidence includes the claimed lack of notice on the agendas for Ordinances 7980 and 7985, the city’s attempt at amending the TIRZ No. One plan and what Fairly’s team believes was the “secret plan” by the city to authorize the issuance of anticipation notes for the project.

“Fairly’s claims had merit, and the retention of counsel to pursue the claims challenging the city’s conduct was necessary considering the unprecedented nature of the transactions made the basis of this lawsuit, which attracted statewide attention,” the documents read. “The City had adequate opportunity to relent early upon its errors being revealed, both at the City Council meeting where it first voted to issue the tax anticipation notes and subsequently before filing its Motion for Security. The City has refused to reconsider its actions despite overwhelming evidence and public outcry from the citizens of Amarillo, with Fairly undertaking the burden and expense to give force to those complaints.”

Fairly’s team is seeking a total for attorneys’ fees and costs of $527,426.11, consisting of fees, along with travel, court costs, expert fees and document management.

In direct response to the city’s arguments, Fairly’s team claims that the city’s legal team’s argument “lacks credibility” when they characterized the allegations and evidence in the case. They said the city’s motion was a “shrill” attempt to “relitigate the case with clear mischaracterizations of the evidence and the law.”

Fairly’s legal team said that the city brought forward a “baseless” argument that Fairly’s team “abandoned” any claims, saying the trial record speaks for itself.

“The City has gone from the awkward argument that its case is not ‘sexy’ as it was based only on the strict statutory compliance in the debt issuance, to now a vast political conspiracy,” the documents read.

Ultimately, Fairly’s legal team stressed that Fairly should not be left to “carry the full financial burden of his efforts to require the City of Amarillo to follow the law of Texas regarding municipal financing and public securities.”

“An award of his attorneys’ fees and costs would be equitable and just under the circumstances,” the document concluded. “Fairly respectfully moves and prays the Court to award reimbursement of his attorneys’ fees and costs as such an award would be equitable and just under these circumstances.”

What’s next?

According to previous reports, Sowder said he would have a decision in this case within 10 days from Oct. 5, the last day of the trial. No further documents have been filed in Potter County District Court regarding this case, as of Thursday afternoon.