Court considers evidence in Sunshine Law suit against the city

Wednesday, September 10, 2003

A special judge assigned to preside over a suit against the city of Nevada announced Tuesday that he'll be taking a while to decide whether a violation of the Sunshine Law occurred. Nearly six months since the case was originally filed, the H&M Demolation vs. the city of Nevada, Craig Hubler, Bill Edmonds, Ben Mendenhall, Marie Wessley, Tim Moore and Richard Meyers case claiming possible fraud and alleging Sunshine Law violations was presented before Judge Mike Dawson in a hearing Tuesday. Dawson dismissed the case against the individual city council members but took the rest of the claims under advisement until he has reviewed the 6- to 8- inch high stack of evidence that was presented. After H&M Demolation's attorneys requested a change of judge earlier this summer, Presiding Circuit Judge James Bickel had granted the request, and the Missouri Supreme Court assigned Dawson to the case. The dismissal of claims against the council members came after a long discussion about Sunshine Law issues and assertions by attorneys Bob Jester, who represented the city and four of the five council members; and a second attorney representing former mayor Dick Meyers, that council members made no attempt to skirt the law and hadn't done anything wrong. The main claim of the lawsuit is that the city of Nevada, the City Council and city manager Craig Hubler fraudulently took bids on the demolition or renovation of the Ozark building when they had already made up their minds to award the bid to The Legacy Group. In addition, the petition also includes specific Sunshine Law violations. The lawsuit asserts that Hubler was told on Nov. 19 by the city council to draft purchase and sale agreements. This was followed by a Nov. 21 letter Hubler wrote to Pete Ramsel of the Missouri Housing Development Commission in which he referred to an Oct. 29 letter as "outlining the terms of purchase of the Ozark Building." The first official vote by the city council to accept the Legacy Groups proposal was taken on Dec. 3. The portion of the lawsuit still at issue claims that the city of Nevada violated the Sunshine Law by intentional failing to produce a Oct. 29, 2002 and the Nov. 21, 2002 letters to the Legacy group. According to state records, the company filing the lawsuit, was formed 12 days before becoming one of the original bidders on the Ozark Building project, but H&M lost out to The Legacy Group by a vote of the city council on Dec. 3. H&M Demolition wanted to raze the Ozark Building and construct a new building in its place, then use the rubble from this process to build a road. The Legacy Group proposed to refurbish the existing Ozark Building and turn it into an apartment complex for people 55 years and older. Pam Holt, of H&M Demolation and first witness for the plaintiff to take the stand on Tuesday, said that H&M had put a lot of work and money into the submitted proposal. She said,"We felt the city had already made their decision." On Nov. 19, 2002, the city council held a closed executive session in which H&M asserts that the city council agreed to accept the Legacy proposal. Dr. Ben Mendenhall, second witness for the plaintiff, admitted that all the individual city council members were in favor of keeping the Ozark Building, rather than demolishing it. However, he denied that a vote was taken on this date, despite being aggressively questioned by Jay Kirksey, attorney for H&M Demolation, on his use of the word "polled" in a deposition relating to the case. Webster's dictionary was consulted and it was found that "polled" could mean either a vote or an opinion. Testimony revealed that the council did give Hubler permission to begin work on a contract for sale of the Ozark Building at this time, and on Dec. 3 the council voted to approve the preliminary contract. However, the final sale has not yet transpired. City Attorney Bill McCaffree stated, while under oath, "As you know, an agreement to agree is not a contract." A large amount of court time was spent in minutely detailed study into the Oct. 29 letter sent from the office of Craig Hubler to Robert Allen of The Legacy Group -- a document at the crux of H&M Demolation's claim of both Sunshine Law violation and fraud. For hours, attorneys representing both sides of the case tried to establish whether or not this letter -- especially the second paragraph -- actually transferred site control of the Ozark Building to Legacy Group. The plaintiff claimed that the second paragraph transfers control of the Ozark Building to the Legacy Group while the defense countered by saying that ownership has yet to be transferred because stipulations have not been met. The other letter in question, the Nov. 21 letter, was drafted by the office of an attorney, K. Bird, and was not stored in the records of the offices of the city of Nevada. Hubler claims that the only reason he had for not including these letters in with the Sunshine request made on behalf of H&M is he simply forgot. He denied having a secret file of clandestine records, saying, "All our records are public records." City Clerk Robin Fisher testified that she did not know that the letters in question even existed and after reading them did not think that they particularly pertained to the issue at hand and probably would not have included them anyway. Bob Jester, attorney for the city of Nevada said, "The letter has no real value, because the letter is not what the plaintiff wants it to be." The plaintiffs want the court to nullify the sale of the building and the city council's decision to accept Legacy's development proposal as a remedy in the suit if the court finds that fraud or a Sunshine Law violation occurred. "I'm here to decide if the city of Nevada violated a law, not whether they should have torn down a building or not torn down a building," said Dawson. Nevertheless, the sale cannot be finalized and Legacy cannot proceed with its development plans unless or until the suit is resolved.

To Read More
Subscribe Sign In
Continue reading with a subscription
Subscription options