Pharos-Tribune

May 20, 2013

Appeal filed in dismissed suit against city

City will continue to pursue reimbursement for fees.

by Mitchell Kirk
Pharos-Tribune

— The plaintiff in a dismissed lawsuit against the Logansport mayor and city council claiming an abuse of power regarding the city’s power plant project has filed for an appeal with the Indiana Court of Appeals.

Logansport citizen Julie Kitchell, represented by local attorney Jim Brugh, filed the suit in March claiming the city engaged in the process of developing a public-private agreement with Pyrolyzer LLC to develop a new power plant before adopting an ordinance authorizing it to do so.

Lawyers representing Franklin and city council responded to the suit by citing a provision in Indiana Code allowing for the ratification of previous actions. This provision was among Cass County Superior Court II Judge Rick Maughmer’s reasons for dismissing the case, according to court records.

“The appeal is moving forward because the issue in this case isn’t about monetary damages, it’s about the process that moved forward, and continues to move forward, without considering all options available to ratepayers,” Kitchell said in an email.

She feels the possibility of developing a plant fueled by natural gas and having the city join the Indiana Municipal Power Agency, a wholesale electricity provider, have not been properly explored.

“The legal remedy at stake here for LMU customers is to reject a process that has come up with only one alternative that has never been operated by the company involved successfully in the United States.”

Pyrolyzer, which uses a process called pyrolysis to heat feedstock into a gas that will power turbine engines to create electricity, has seen its design come to fruition in two cases in Germany, both much smaller than the plant being proposed for Logansport. The company is also currently developing plants in Georgia, Utah and the Bahamas, all much smaller than the plant being proposed for Logansport as well.

“The remedy is to pursue all options and to let them be heard  by the Logansport Utility Service Board, the Logansport City Council and most importantly, the public,” Kitchell continued.

Mark Crandley, an attorney with Indianapolis-based Barnes & Thornburg LLP representing Logansport Mayor Ted Franklin in the suit, said he will vigorously defend against the appeal.

“The judge’s order was very clear,” Crandley said of the case’s dismissal. “The legal issues were so clear, we sought our attorney fees... We will continue to seek attorney fees for what we think is litigation that has no basis, including the appeal.”

The city’s attorney fees for the suit currently stand at more than $24,000, according to the lawyers’ invoices.

John Molitor, an attorney out of Indianapolis defending city council in the suit, said further costs to the city could end up being two to three times the current amount.

Crandley and Molitor are seeking reimbursement of their fees from Kitchell, arguing her case is frivolous and was brought in bad faith. A hearing had been scheduled in Cass County Superior Court II to discuss the reimbursement of fees, but has been postponed in light of the recent appeal filing.

“I don’t think the arguments we would make to the appeals court would be any different than the ones we made to the trial court,” Molitor said. “The case was originally brought just as a way to harass and embarrass the administration and to try to delay the power plant project and really has no merit to it in terms of the legality of it all.”

Mayor Ted Franklin said he will continue to pursue the reimbursement of the city’s attorney fees from Kitchell.

“I’m confident we’ll win this appeal,” Franklin said. “There’s a very good possibility the appellate court will dismiss this case as well. We won the first case in front of the first judge and we’ll win the second case in front of the second judge. This case was brought against us and we have in good faith done everything we’re supposed to do and we’re going to do everything we have to do to collect our fees.

“This is nothing more than a personal vendetta and it’s going to be very costly to either the citizens of Logansport or the plaintiff in this suit.”

Kitchell’s attorney, Jim Brugh, declined to comment other than to confirm that he had filed the appeal.

Mitchell Kirk is a staff reporter at the Pharos-Tribune. He can be reached at 574-732-5130 or mitchell.kirk@pharostribune.com.

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