After more than three hours of pleadings summarizing the “roadmaps” or conflicting theories of the “Warren Economic Development Authority” (EDA, WC EDA, FR-WC EDA) against the Donald F. Poe and Earthright Energy civil liability case Solar LLC, a decision in this case was assigned to a seven-member jury in the Warren County Circuit Court. The jury was sent to deliberations and lunch if they remembered the court’s suggestion to bring lunches with them at 1:10 p.m.
After a brief status conference with Judge Bruce D. Albertson at 6 p.m., they were returned to the jury room with the promise of dinner to accompany their deliberations. The judge promised not to keep them too late, likely until around 9 p.m., if they needed more time to reach a unanimous verdict on the plaintiffs’ five claims for the return of $945,000 to the defendants . These claims relate to fraud, unjust enrichment, conversion, conspiracy and ultra vires, the latter legal term referring to a person exceeding his legal authority in a public or corporate office. The ultra vires complaint relates to the alleged unilateral creation by former EDA Executive Director Jennifer McDonald of solar installation contracts with Poe and ERE for hundreds of thousands, if not millions of dollars.
One thing the jury won’t consider is the $27.3 million Poe/ERE counterclaim against the EDA related to a failed contract to install solar panels at all nine schools in the county’s public school system. of Warren. Late Wednesday, Judge Albertson granted plaintiff EDA’s motion to strike the counterclaim based on uncontested trial testimony that the 2018 contract presented to ERE Solar for this project by Jennifer McDonald on behalf of the EDA was not a legally valid contract.
Two former board members, Greg Drescher and Ron Llewellyn, as well as former county and EDA attorney Dan Whitten, whose lead plaintiff attorney Cullen Seltzer pointed out to the jury included scrutiny of all current contracts, all testified that they had never seen the contract at the time, and certainly never voted as a board of directors to approve it. Such board approval is required by state law for all EDA transactions over certain amounts, $10,000 in Warren EDA’s case, involving public funds, the EDA attorney pointed out. during the trial.
What’s at stake in the jury’s deliberations is the EDA’s effort to force Poe to repay $945,037 he received in EDA funds from McDonald’s, sometimes co-signed by a single member of the Board of Directors of the EDA, on the basis of contracts which, according to the plaintiff, were all illegal. Drescher explained his co-signature on a check because, due to McDonald’s explanation, it was just money before that would be refunded to EDA when ERE funding was obtained.
Poe/ERE actually received about $1.2 million in EDA payments, but refunded $334,000 when informed that the Baugh Drive warehouse solar installation project would not proceed. Defense attorney William Ashwell pointed out that the refund was a sign that Poe and ERE were acting in good faith on contracts and proposals they believed to be legally made, as presented by McDonald’s.
But as EDA’s attorney explained to the jury on Thursday, if they find Poe/ERE guilty of two of the five claims — fraud and conspiracy — they could also recommend punitive damages at a cap of three times. compensatory claim of $945,037 or less.
Thursday’s closing arguments presented the stark contrast between plaintiff’s and defense’s “roadmaps” or theories about the circumstances of Poe and Earthright Energy’s dealings with McDonald as executive director of the EDA.
Point – applicant’s “road map”
On the side of the plaintiffs, the EDA’s attorneys painted a grim picture of collusion and fraudulent intent between McDonald’s, Poe and ERE, to defraud the EDA not only out of hundreds of thousands of dollars in a series transactions, but as Seltzer alluded to in his $27.3 million “shoot for the moon” closing summary with the alleged contract between EDA and ERE for the school solar installation proposal public. It was a proposal that, although discussed in a preliminary manner with EDA Board Chairman and Superintendent of Schools Greg Drescher, was never even presented for a vote to the School Board or the School Board of Supervisors. county, owners of the property having the power to adopt such Agreement.
As to the defense’s arguments that it was the EDA board itself and county officials who were negligent in preventing McDonald’s alleged financial wrongdoing that ultimately victimized Poe and his solar company in contracts they believed to be valid, Seltzer countered:
“They would have you believe that Mr. Poe was ‘cheated too’. – But he knew things that EDA didn’t,” Seltzer said, drawing the jury’s attention to Poe’s “money back to McDonald’s” and concealing the existence of the alleged EDA-ERE contract on the project. public schools of $27.3 million. It was a contract that the EDA had no legal authority to enter into, Seltzer argued. Noting Drescher’s attempt to put the brakes on the school’s proposal, Seltzer claimed that Poe concealed the existence of the EDA-ERE contract for Drescher’s $27.3 million job during meetings between the two.
EDA’s attorney also pointed to Poe’s Earthright Energy Solar partner, Justin Appleton, who signed the EDA-ERE school’s contract with McDonald’s, McDonald’s communications until December 2018, assuring that he There would be “no cost to the EDA, the County, the public Schools, or County taxpayers in any way” related to the school facility proposal. The EDA lawyer asked “Where is he?” from Poe’s partner ERE Solar. “If he had anything good to say, he would be here,” Seltzer speculated about Appleton’s absence as a defense witness. Originally named as a co-defendant in the EDA’s amended civil litigation, Appleton was ultimately not sued in the civil liability case according to EDA officials.
The escrow funding request has led to a huge debate over a $5 million escrow filing through a West Virginia law firm, by alleged project financier, Hutton Ventures, based in New York. While Poe claimed he visited the company in New York, securing a handshake deal on financing the $27.3 million project, Seltzer countered that the escrow filing had no direct indication. that it was done on behalf of Warren EDA or the county school system, and certainly never. went to such use.
And of the defense blaming the EDA for McDonald’s financial misdeeds, Seltzer said, “They say, ‘Boy, the EDA is dysfunctional. It’s a “victim blaming” tactic – But who lost money? »
About a conviction and the potential for not just compensatory damages, but also assessed punitive damages, Seltzer told the jury to consider that outcome as a deterrent to others who might hatch “scams.” similar,” adding, “This is your community. It will be your decision.
Counterpoint – defense roadmap
In contrast, defense attorney Ashwell pointed to payments made to Earthright, and work completed at the EDA’s Kendrick Lane office complex and undertaken at various public school sites, for those payments. “They want you to ignore the facts,” Ashwell said of the work being done at EDA offices and preliminary work begun on public school sites in return for payments to ERE. He presented invoices and checks for $325,000, $482,000 and $334,851, the first two for work to install LED lighting and install solar panels at Kendrick Lane EDA offices – “ Installed; work done,” Ashwell told the Kendrick Lane Labor Jury. And the $334,851 appears to have been for the aborted Baugh Drive project, which ERE repaid to the EDA.
Regarding the plaintiff’s theory of “money back to McDonald’s” in her purchase of a percentage of her real estate company MoveOn8 which had acquired a developable parcel off Happy Creek Road, the defense attorney reminded the jury that as a property developer among his other construction-related businesses, “That’s just what he does – Mr. Poe invests in developable properties.”
Of the plaintiff’s introduction of myriad contract-related exhibits, Ashwell told the jury, “It was simple. It wasn’t Mr. Poe weaving through dark alleys – you saw the contracts. He was the executive director of Warren EDA who received statewide awards… Even so, they want you to believe that Mr. Poe worked on these projects for one magic word – “cheated”. Why do that?” Ashwell asked the jury about the plaintiff’s theories, pointing to a key point of defense – “You heard it, the whole EDA Warren malfunction.”
The defense attorney also pointed out that the EDA board had aggressively taken an interest in solar development by courting a large, unnamed company to set up shop here. “The EDA was trying to attract a big company with solar power… She’s a branch of the EDA board of directors – That’s what an EDA is supposed to do,” Ashwell told About the development of solar energy to attract community investment by a company with an interest in such community-wide development of alternative energy sources.
The defense attorney also noted that the evidence indicated Mr. Poe was connected to McDonald’s through an intermediary aware of the county’s sudden interest in solar power, as well as LED lighting at an EDA facility, who knew that Mr. Poe had a company doing this work.
Of the notion, promises were made that ERE would do Kendrick Lane’s work “absolutely free”, Ashwell told the jury “that doesn’t make sense”.
And at 7:30 p.m. Thursday, July 14, the jury was still debating these crossed views.
Stay tuned …
See: Jury in civil case orders return of $945,000 to WC EDA by Donald Poe and Earthright Energy Solar