EDA attorneys don’t contest Appleton’s removal from $21.3 million civil suit

On EDA defense motions “Groundhog Day” – the December 12 date when attorneys for six defendants argued on identical legal grounds on multiple reasons for dismissal of their clients from the $21.3 million EDA civil suit – a seventh defendant’s dismissal motion was not heard. That defendant was Earth Right Energy (ERE) minority partner Justin Appleton.

And on December 13 it was not an unlucky Friday for Appleton, as an “Order of Non-Suit” signed the previous day by seven attorneys, including EDA counsel Cullen Seltzer, was entered into the court record without objection. That order removes Appleton from any personal civil liability in the EDA’s civil litigation seeking recovery of what has risen from $17 million to over $21 million in allegedly misdirected EDA assets.

While each defendants’ alleged participation in efforts to defraud the EDA is described with specificity as to actions and amounts of money involved, the EDA civil litigation views the totality of those acts as part of a far-ranging conspiracy now involving 14 human and limited liability business entity defendants. A copy of the Order of Non-Suit was sent to all involved defense counsel.

For Justin Appleton, his involvement as an defendant co-conspirator in the EDA civil litigation came to a stop on December 13.

One connecting theme in those December 12 defense removal motion arguments was the existing EDA litigation’s assertion of an interlocking conspiracy linking all civil case defendants to central figure defendant and former EDA executive director Jennifer McDonald. As previously reported here, in countering defense arguments that there was no interconnectivity between the various defendants and their individual self-enrichment allegations described in the litigation, EDA lead counsel Seltzer scoffed at the idea that McDonald was “a rouge tornado dumping all this EDA money into all these pockets” without those defendants’ common knowledge that something was legally amiss in their shared good fortune.

Of course, each defense counsel appearing December 12 also argued specifics of their client’s situation they believe adds to their case for removal from the joint EDA civil litigation.
So, in the wake of the non-suit of Appleton should other EDA civil case defendants, particularly ERE majority partner Donald Poe, draw hope for a favorable court ruling on their motions for removal from the civil suit?

That remains to be seen as the plaintiff’s allegations against EDA civil case defendants contain specifics as to each one’s role in the various contracted or non-contracted acts involving portions of the EDA assets at issue in the lawsuit.

Appleton attorney Christopher Whelan of the Warrenton firm of Morrison, Ross and Whelan wrote that the EDA case against Appleton, ERE’s licensed electrician, was particularly sparse as to details of any wrongdoing. Whelan pointed out that the same four causes of action – fraud, conversion, conspiracy and unjust enrichment – were cited against all the EDA civil defendants.

“The plaintiff’s claim against … Appleton is improperly premised upon his affiliation with Defendant, Earth Right Energy Solar Commercial, LLC (ERE), and not on any separate, independent actions that would support a legitimate theory of recovery. In fact, Appleton’s name is mentioned only twice in the Complaint, for the sole purpose of describing his relationship with ERE. The
Complaint makes no specific allegations regarding any acts or omissions on the part of Appleton. In sum, the Warren EDA’s claims against Appleton are woefully deficient and not well-grounded in fact or law,” Whelan wrote in his Demurrer for dropping his client from the EDA civil litigation.

The cost of Earth Right Energy solar panels installed on the roof of the EDA office complex on Kendrick Ln. may remain in dispute, but the involvement of the solar panel company’s electrical professional has been removed from the EDA civil suit.

And in retrospect the EDA counsel from the Richmond Sands Anderson Law Firm agreed with this argument regarding Appleton only. Contacted by phone, lead EDA attorney Cullen Seltzer declined comment on the reasons for the plaintiff’s agreement to non-suit Appleton alone of the alleged co-conspirators of central defendant Jennifer McDonald. Appleton attorney Whelan could not be reached prior to publication.

Judge Bruce D. Albertson has set January 10 to rule on those contested defense Demurrers for removal from the EDA civil suit.