Jury gets EDA vs. Poe/Earthright Energy civil liability case at 1:10 p.m. Thursday afternoon

After over three hours of closing arguments summarizing the conflicting “roadmaps” or theories of the “Warren Economic Development Authority” (EDA, WC EDA, FR-WC EDA) versus Donald F. Poe and Earthright Energy Solar LLC civil liability case, a decision in that case was handed over to a seven-member Warren County Circuit Court jury. The jury was sent out to deliberations and lunch if they remembered the court’s suggestion they bring lunches with them at 1:10 p.m.

After a brief conference on their status with Judge Bruce D. Albertson at 6 p.m. they were sent back to the jury room with the promise of a dinner delivery to accompany their deliberations. The judge promised not to keep them too late, probably till 9 p.m. or so, if they needed more time to come to a unanimous verdict on the five plaintiff claims for the return of $945,000 from the defendants. Those claims are for Fraud, Unjust Enrichment, Conversion, Conspiracy, and Ultra Vires, the latter a legal term for someone exceeding their legal authority in a public or corporate position. The ultra vires claim relates to the allegation of former EDA Executive Director Jennifer McDonald’s unilateral creation of solar installation contracts with Poe and ERE in the hundreds of thousands and even millions of dollars.

How late will the EDA vs. Poe/Earthright Energy Solar LLC jury work tonight? They had been at it for just under 5 hours when dinner was sent out for them Thursday evening.

One thing the jury won’t take under consideration is the $27.3-million Poe/ERE counterclaim against the EDA related to an aborted contract to install solar panels throughout the Warren County Public School system’s nine schools. Late Wednesday, Judge Albertson granted the plaintiff EDA’s motion to strike the counterclaim based on undisputed trial testimony that the 2018 contract presented to ERE Solar for that 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 job lead plaintiff counsel Cullen Seltzer pointed out to the jury included review of all pending contracts, all testified they had never seen the contract at the time, and certainly never voted as a board on approval of it. Such board approval is required by state law for all EDA transactions over certain amounts, $10,000 in the Warren EDA’s case, involving public funds, EDA counsel pointed out during the trial.

What is at stake in the jury’s deliberations is the EDA’s effort to force Poe to pay back $945,037 he received in EDA funds from McDonald, sometimes co-signed by a single EDA board member, based on contracts the plaintiff argued were all illegal. Drescher explained his co-signature on one check as due to McDonald’s explanation it was just front money that would be reimbursed to the EDA when ERE financing was achieved.

Poe/ERE actually received about $1.2 million in EDA payments but paid back $334,000 of that when informed the Baugh Drive warehouse solar installation project would not go through. Defense attorney William Ashwell pointed to that reimbursement as a sign Poe and ERE were acting in good faith on contracts and proposals they believed to be legally achieved as presented to them by McDonald.

But as EDA counsel explained to the jury on Thursday, if they find Poe/ERE guilty on two of the five claims – fraud and conspiracy – they could also recommend punitive damages at a cap of three times the compensatory claim of $945,037, or less.

Thursday’s closing arguments presented the stark contrast in the plaintiff and defense “roadmaps” or theories of the circumstance of Poe and Earthright Energy’s dealings with McDonald as then-executive director of the EDA.

Point – Plaintiff ‘roadmap’
On the plaintiff side, EDA attorneys painted a dark picture of collusion and fraudulent intent between McDonald, Poe and ERE, to defraud the EDA out of, not only hundreds of thousands of dollars in a series of transactions, but as Seltzer alluded to in his closing summary “shoot for the moon” at $27.3 million with the alleged contract between the EDA and ERE for the public schools solar installation proposal. It was a proposal that while discussed in a preliminary fashion with EDA Board Chairman and Schools Superintendent Greg Drescher, was never even presented for a vote to either the School Board or County Board of Supervisors, owners of the property with the authority to enact such a contract.

Greg Drescher and Jennifer McDonald at an April 2017 EDA board meeting during approval of the purchase of property for a workforce housing project.

As to defense arguments that it was the EDA board itself and county officials who were negligent in preventing McDonald’s alleged financial misdeeds which in the end victimized Poe and his solar company in contracts they believed to be valid, Seltzer countered:

“They would have you believe Mr. Poe was ‘tricked too’. – But he knew things they EDA did not know,” Seltzer said directing the jury’s attention to Poe’s “funneling of money back to McDonald” and concealing the existence of the alleged EDA-ERE contract on the $27.3 million public schools project. It was a contract the EDA had no legal authority to make, Seltzer argued. Noting Drescher’s attempt to put brakes on the school proposal, Seltzer asserted that Poe had concealed the existence of the EDA-ERE contract for the $27.3 million job from Drescher during meetings between the two.

EDA counsel also pointed to Poe’s Earthright Energy Solar partner Justin Appleton, who signed the EDA-ERE school contract along with McDonald,’s communications as late as December of 2018 assuring that there would be “no cost to the EDA, the County, Public Schools, or county taxpayers in any way” related to the school installation proposal. EDA counsel asked “Where is he?” of Poe’s ERE Solar partner. “If he had anything good to say, he’d be here,” Seltzer theorized of Appleton’s absence as a defense witness. Originally named as a co-defendant in the EDA amended civil litigation, Appleton was eventually non-suited from the civil liability case according to EDA officials.

The escrow-financing claim led to a huge debate over a $5 million escrow deposit through a West Virginia law firm, by an ostensible financier of the project, New York City based Hutton Ventures. While Poe claimed to have visited the company in New York, securing a handshake agreement on financing the $27.3 million project, Seltzer countered that the escrow deposit had no direct indication it was made on behalf the Warren EDA or the county’s school system, and certainly never went to such use.

And of the defense placing of blame on the EDA for McDonald financial misdeeds, Seltzer said, “They say, ‘Boy, the EDA is dysfunctional.’ That is a ‘blame the victim’ tactic – But who lost money?”

Of a conviction and the potential of not only compensatory damages, but punitive damages assessed as well, Seltzer told the jury to look at that result as a deterrent to others who might hatch “similar scams” 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 work accomplished at the EDA offices and preliminary work begun at public school sites in exchange for payments made to ERE. He presented invoices for and checks cut for $325,000, $482,000, and $334,851, the first two for work for LED light installation and solar panel installation at Kendrick Lane EDA offices – “Installed; job performed” Ashwell told the jury of the Kendrick Lane work. And the $334,851 appears to have been for the aborted Baugh Drive project, which ERE reimbursed to the EDA.

As to the plaintiff’s “funneling of money back to McDonald” theory in his purchase of a percentage of her MoveOn8 real estate company which had acquired a develop-able parcel off Happy Creek Road, defense counsel reminded the jury that as a real estate developer among his other construction-related businesses, “That is simply what he does – Mr. Poe invests in develop-able properties.”

File photo of defendant Donald F. Poe

Of the plaintiff’s introduction of myriad exhibits related to contracts, Ashwell told the jury, “This was straightforward. It was not Mr. Poe sneaking in dark back alleys – you’ve seen the contracts. This was the executive director of the Warren EDA who got statewide awards … Despite this they want you to believe Mr. Poe worked on these projects for some magical word – ‘tricked’. Why do that?” Ashwell asked the jury of the plaintiff’s theories, pointing toward a key defense point – “You heard it, all the dysfunction of the Warren EDA.”

Defense counsel also pointed out that the EDA board had become aggressively interested in solar development in the courting of a major and unnamed company to locate here. “The EDA was trying to entice a big company with solar … She is an arm of the EDA board – This is what an EDA is supposed to do,” Ashwell said of development of solar energy to attract investment in the community by a company with an interest in such community-wide development of alternative energy sources.

Defense counsel also noted that evidence indicated that Mr. Poe was connected to McDonald by an intermediary aware of the County’s sudden interest in solar, as well as LED lighting at an EDA facility, who knew Mr. Poe had a company doing such work.

Of the notion promises were made that ERE would do the Kendrick Lane work “absolutely free” Ashwell told the jury “that doesn’t make sense”.
And as of 7:30 p.m. Thursday, July 14, the jury was still discussing these varying perspectives.

Stay tuned …

See: Civil Case Jury orders return of $945,000 to WC EDA by Donald Poe and Earthright Energy Solar