Town vs. EDA civil case motions arguments pushed to October 9

The Warren County Courthouse has become a familiar stop for EDA business in recent months. Royal Examiner File Photos/Roger Bianchini

Town of Front Royal Attorney Doug Napier and legal counsel for the Front Royal-Warren County Economic Development Authority were in Warren County Circuit Court Thursday morning to argue motions filings in the Town’s civil suit against the EDA. The Town initially filed for recovery $3 million in Town assets on June 21 and amended that amount up to as much as $15 million on July 12.

Former EDA Executive Director Jennifer McDonald is also named as a defendant in the Town litigation; however, she was not present and not represented by counsel at Tuesday’s hearing.

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The fluidity of the litigation due to a constantly changing legal landscape impacting both civil and criminal sides of the equation were a primary point of discussion between the town attorney and Rosalie Fessier of the TimberlakeSmith law firm of Staunton, representing the EDA.

“This case is a very fluid one – players are added almost weekly as to who did what. We’ve put together a bare-boned complaint …that we’re going to continue to amend,” Napier told Judge Bruce D. Albertson.

Fessier countered that her client was the EDA, not individuals tied to the EDA. So, she told the court, the fluidity Napier addressed was irrelevant to the defense claim of sovereign immunity for the EDA as a public body created by legislative order for specific public functions.

“The issue is not how individual actors functioned or performed, the public body is still immune – though individuals could still be on the hook,” Fessier told the court in seeking a ruling on the defense’s sovereign immunity claim.

“I am concerned about ruling on a moving target … I find it premature to rule on the Demurrer … though I feel I have a handle on where everyone is going on this,” Albertson told the attorneys of the EDA’s claim of sovereign immunity. And well he might have that handle as both sides’ written arguments spell their positions out.

Town Attorney Doug Napier is at the point of Front Royal’s attempt to recover misdirected Town assets under the EDA’s control.

The EDA Demurrer states that as a legislatively-created entity that carries out a public governmental function, specifically facilitating the financing of land development for involved municipalities, the EDA itself carries that sovereign immunity designation.

“Plaintiff argues … that the EDA is not entitled to sovereign immunity because it vested the management of the EDA to the executive director,” Fessier wrote in response to Napier’s opposition filing to the EDA sovereign immunity claim. The EDA attorney then added, “However, a determination of whether an entity is a municipal corporation is governed by the enabling statutes, not on the actions of the entity in a particular case,” citing a “Richmond vs. Richmond Metropolitan Authority case from 1970.

After checking with his Harrisonburg Court Clerk’s Office by phone for his schedule about 30 days out to give attorneys time to submit further briefs on their motions or amendments to those motions, Judge Albertson set arguments for October 9, at 2 p.m. Both counsels said they were comfortable filing additional briefs by email to facilitate preparation for that hearing.

So sports fans, mark the afternoon of Wednesday, October 9, on your calendars as attorneys for both sides will come out “punching” for a favorable court determination on exactly where the legal liability for whatever happened to who knows how much Town managed, EDA handled, public funding lies.

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