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City's case takes a hit

BY Carolyn Muyskens - cmuyskens@chronicle-tribune.com

Two of the three claims against defendant London Witte Group in the city's lawsuit over the YMCA project were dismissed Monday. 

With the case set to go before a Grant County jury in less than a week, the city has filed a motion to delay the trial and the mayor said he wants to appeal the judge's decision, which could substantially delay the lawsuit going to trial.

Judge Warren Haas of Grant County Superior Court III ruled that the statute of limitations had expired on two of the city's allegations of wrongdoing — the claims of negligence and breach of fiduciary duty.

The judge's order says the City of Marion knew in the spring of 2014, if not earlier, that some of the YMCA project bond funds could have been misused.

The statute of limitations to file claims of negligence and breach of fiduciary duty is two years.

The judge said in his order that the very latest he could start the clock on the statute of limitations was the spring of 2014, when the city requested an investigation into the project.

The city filed the first lawsuit over the project in December 2016, more than two years later.

Meanwhile, the lawsuit is scheduled to go to trial this Monday, but according to defendant Chad Seybold's attorney, P. Adam Davis, if any party plans to appeal the judge's ruling, the trial will be called off.

On Tuesday, Mayor Jess Alumbaugh said he wants to appeal Haas's decision.

Alumbaugh said he was not going to back down from the lawsuit, which has drawn criticism from city council members over the cost of the city's legal fees, which are nearing $1 million.

“We intend to pursue it to the end. … To not pursue justice would be a travesty, and we feel we have a very strong case if we can get it to trial,” Alumbaugh said.

The judge's decision leaves one outstanding claim against London Witte Group — constructive fraud. 

Thomas Falkenberg, attorney for London Witte Group, declined to comment on the judge's decision.

The city has asked for the trial to be delayed in a motion filed Tuesday by the city's attorneys, law firm Ice Miller.

Seybold is opposing that delay.

“Seybold has a sneaking suspicion that what the City is really trying to do is to push off the Jury Trial long enough so that the City has time to seek reconsideration of the Court’s July 8, 2019, ORDER ON SUMMARY JUDGMENT in the hopes of having another bite at the apple,” Seybold's motion reads.

In that motion, Seybold also says the case has taken a personal and financial toll, a toll which would grow if the trial was pushed off.

The parties are expected to appear for another hearing today. If the city requests an appeal today, next week's trial will likely be called off.