■A new civil lawsuit seeks to stop Fresno Unified from paying for Harris Construction’s defense costs in the Gaston contract lawsuit.

■The suit was filed by local contractor Stephen Davis, who also filed the original lawsuit.

■The lawsuit asks the court to find that using taxpayer dollars to defend Harris would be “an impermissible gift of public funds.”

The Fresno contractor who is suing Fresno Unified School District and Harris Construction over a 12-year-old middle school construction contract is asking the Fresno County Superior Court in a new lawsuit to prevent Fresno Unified from covering Harris’ defense costs.

The new lawsuit was filed Feb. by attorney Kevin Carlin on behalf of Stephen Davis. Davis is the plaintiff in a 2012 lawsuit that alleges the lease-leaseback contract that the district signed with Harris Construction to build Gaston Middle School was an illegal agreement because of the financing method and also because Harris had acted as a consultant to the district on building the middle school.

In an email Thursday afternoon to School Board members, Carlin said that Harris now owes the district nearly $63 million — the original $36 million, plus 7% interest compounded over the past decade to total nearly $27 million. He’s asking the board to add an item to next Wednesday’s agenda to specifically discuss the 2012 lawsuit.

Davis, president of Davis Moreno Construction, filed both lawsuits as a private taxpayer and resident of the district. The named defendants are Harris, Fresno Unified, and the seven current School Board members.

Davis’ original lawsuit, which seeks to force Harris to repay the $36 million in construction costs to the district, has been upheld by the Fifth District Court of Appeal and California Supreme Court and returned to Fresno County Superior Court for trial. The original lawsuit is scheduled for a jury trial on March 18.

Harris has argued that most of the $36 million was spent on materials and paid to subcontractors.

The new suit alleges that the district should not be covering Harris’ defense costs under paragraphs in the pre-construction services agreement and facilities lease in which the district agrees to “indemnify, hold harmless and defend” Harris from any legal challenges of the contracts. “District further agrees to pay all costs of any kind, including but not limited to attorney’s fees, discovery costs, investigative costs or costs of experts, to defend such actions described above, and to pay all judgement or fines assessed or rendered against Contractor in any such action.”

‘Gift of Public Funds’

The lawsuit maintains that such contract terms are illegal and unenforceable, and that using taxpayer dollars to defend Harris would “constitute an impermissible gift of public funds,” in violation of the California Constitution.

The lawsuit also alleges that the district, in response to a public records request, acknowledged that there are communications between Harris and the district in which Harris has demanded the district provide defense and indemnity in the original lawsuit.

An exhibit attached to the new lawsuit is a letter from attorney Mark Creede, who represents Fresno Unified, denying Carlin’s public records request for the communications while the original and new lawsuits are being litigated.

However, it appears from Creede’s letter that the district may have shared the documents “for settlement purposes only.”

A case management conference for the new lawsuit has been scheduled for June 6

The two sides reportedly are in mediation in talks to settle the original case.

District spokeswoman Nikki Henry said Fresno Unified officials would not comment on the new lawsuit. “We will not be commenting on any pending or ongoing litigation,” she said.

Carlin did not immediately respond Thursday morning to a text message seeking comment.

In his emailed letter to the trustees later Thursday, Carlin said the district has been wasting taxpayer dollars by opposing Davis’ lawsuit, which is intended to return to the district that Davis contends were improperly paid to Harris.

Carlin said he was informed by Creede that Harris has been “insisting (behind the scenes)” that Fresno Unified is contractually obligated to defend and indemnify Harris.

“A public entity is not legally required to defend or indemnify a party against paying back money to the public entity that the party was not legally entitled to in the first place. That would be the same as making the victim of physical assault pay the medical bills of their abuser when the abuser injures their knuckles when engaged in the assault,” Carlin wrote in the letter to the board.

New Lawsuit