Jury hears opening arguments in EDA versus Poe/Earthright Energy civil claim, counterclaim case

After a full morning of jury selection involving a large jury pool of 75 to 80 or more, many being disqualified for personal, business, or even familial connections to the defendant or potential witnesses, a 10-person jury including three as yet-unnamed alternates heard opening arguments in the “Warren Economic Development Authority” (EDA, WC EDA) versus Donald F. Poe/Earthright Energy (ERE) civil liability case and defense counterclaim against the EDA.

The plaintiff EDA is seeking $945,000 in unreturned payments for solar panel installation work it says was either promised in writing at no cost or was never approved or accomplished. The disputed work or non-work surrounds contracts regarding solar panel installation at the EDA office complex on Kendrick Lane, at the Warren County Public School system’s nine school facilities, and at the EDA’s Baugh Drive warehouse in the north side industrial corridor.

As plaintiff co-counsel Karissa Kaseorg noted in opening arguments, Poe’s Earthright Energy-Commercial LLC, through then-EDA Executive Director Jennifer McDonald, received a total of over $1.2 million, but returned $343,000 of that total. That leaves a balance of $945,037.21 received under false pretenses unreturned, Kaseorg told the jury.

However, in his opening statement defense counsel William Ashwell used that returned amount of $343,000 to argue that his client was acting in good faith on the series of solar installation contracts between the EDA and ERE. He pointed out that the money was returned by the defendants when informed that the Baugh Drive warehouse contract would not go through.

Royal Examiner file photo of EDA civil case defendant Donald F. Poe

Ashwell also informed the jury that the defendants would be asking for a counterclaim judgment of $27.3 million against the EDA. That was the amount of an aborted contract, a contract plaintiff counsel asserted the EDA or its then-executive director had no authority to enter into, with the county’s public school system for installation of system-wide solar panels.

Responding to the plaintiff’s somewhat briefer opening statement, defense counsel Ashwell described those opening statements as each side’s “roadmap” or “theory” of their respective cases to be presented to the jury throughout the remainder of the week. And as in April Petty’s defense the previous week, Ashwell presented a defense roadmap in which the $21-million financial scandal conspiracy Jennifer McDonald is alleged by the EDA to have orchestrated over several years positioned his client to be a victim, rather than a co-conspirator.

In contrast again echoing its previous week’s strategy, in its opening statement EDA counsel focused on presentation of a paper trail of documents it told the jury supported its claims of fraud, conversion, conspiracy, unjust enrichment, and ultra vires, the latter a legal term for an overstepping of one’s authorized authority, against the defendants and their alleged co-conspirator McDonald.

Those opening arguments began at 1:30 p.m. following a one-hour lunch break. At their conclusion at 2:45 p.m., Judge Bruce D. Albertson dismissed the jury with instructions to be ready for a 9 a.m. start to what is likely to be a hotly contested several days of testimony and evidence presented to traverse those varying plaintiff and defense civil liability “roadmaps”.

Dan Whitten, left, and Greg Drescher, back to camera as Jennifer McDonald’s EDA office and computer are locked down shortly after her Dec. 20, 2018 resignation, are listed as plaintiff witnesses, among other former EDA staff and board members.

Asked by the judge about a time frame for its case, EDA lead counsel Cullen Seltzer cited 10 witnesses the plaintiff plans to call in support of its case. He estimated that dependent on cross examination lengths, the EDA case could be completed by 4:30 or 5 p.m. Tuesday afternoon. Defense attorney Ashwell told the court its case would likely take up the bulk of Wednesday, with some carryover into Thursday possible. Before dismissing the jury, Judge Albertson told them to be prepared for some longer days into evenings, in order to bring the case to a resolution and verdict this week.