Wind Turbine Lawsuit Draws DMN Attention

in Addison Texas Council by

Despite Mayor Chow’s promise to attendees at a Mayor’s Coffee in December to keep the citizens informed of any changes in the pending Landmark lawsuit regarding the wind turbines, the Mayor and Council has failed to keep its taxpayers up to date by informing them that in December, Landmark filed a second Summary Judgment and that Addison then filed its own Summary Judgment.  Thus it appears that only Facts Matter and The Dallas Morning News are doing anything to keep taxpayers informed.

On Super Bowl Sunday, the biggest news outside of the sports pages for Addison residents was likely Dave Lieber’s article about the wind turbine lawsuit.  Interestingly, several neighborhoods on the West side somehow failed to receive their newspaper delivery.  How strange was that?  But that didn’t seem to stop several residents from getting special deliveries from the DMN or going to nearby grocery stores to pick up a copy.

While no mention of the Summary Judgments was mentioned in the Watchdog Columnist’s story (Towering flop, crazy lawsuit for Addison), Lieber’s coverage certainly magnifies the waste of tax dollars and the duplicity of the town’s 32-year city manager who betrayed the town by jumping sides to protect the guys he recommended be hired—Landmark and Freese & Nichols.

As many residents have been talking about since reading the article, there’s certainly something fishy here.  The whole wind turbine idea was Whitehead’s, he recommended Landmark Structures, then he played ignorant and in a deposition after the lawsuit was filed, blamed all the decision-making on his successor Lea Dunn.  Once the lawsuit was filed, he bailed on Addison and became a witness for Landmark, first shocking Addison’s team when he showed up with Landmark at the mediation, then again in Landmark’s depositions.  The big question is…..WHY?  What’s in it for Whitehead?  While Whitehead’s defenders try to justify his actions, by all ethical standards turning on the town that paid him for 32 years—it’s pretty indefensible.  People who don’t live in Addison get it and to those we’ve heard from who read Lieber’s article, many think Whitehead’s a traitor and should be embarrassed to remain a resident of the town.  Most see through the manipulation of facts used for excuses that old cronies of Whitehead espouse trying to dispute reality.   They ignore that in deposition testimony their buddy Ron completely throws his successor, Lea Dunn, under the bus, blaming her for making all decisions.  And, when it comes to fraudulent testimony about the wind turbines producing tremendous energy, they fail to accept that Ron Whitehead wrote in his own words in his March 27, 2009 E-newsletter to residents, “In fact the turbines will produce more electricity than we need to operate the water tower and we can get credit for returning that excess power to the grid.”   Those are the facts and that’s the real truth!

In case you missed the DMN article, here’s a link to the online version:

While Landmark continues, with Whitehead’s help, to attempt to get the Town’s lawsuit dismissed, Addison’s taxpayer dollars continue to be drained on legal costs.  Here’s the latest that town officials haven’t made you aware of:

Defendant’s Motion For Relief For Spoliation of Evidence

On December 21 Landmark filed a motion for Spoliation of Evidence claiming that “Addison did not produce electronically-stored records until June 2017.  There were almost no emails or electronic records from Lea Dunn or Ron Whitehead.  Moreover, there were fewer emails than would be expected from other city employees like Lisa Pyles. “

The motion further states that “Apparently, the Town had virtually no document retention policy for electronic communications.  When someone’s allotted email data storage size was filled, employees were instructed to purge their records.  Additionally, when employees left their employment, their electronic records were permanently purged. “  So who set that policy?

Interestingly the motion does not state WHO implemented that policy but given that the buck generally stops at the top, one may assume that Whitehead was the culprit.  Seems to be a pattern with Whitehead.  First no one knows what was in that mysterious safe deposit box that Whitehead went to just before retiring and claimed he had little knowledge of yet he was one of the original signers.  Now it appears he also instructed employees to get rid of all emails.

Despite the fact that Landmark noted the earlier statement regarding emails, they also allege in this motion that “At the deposition Landmark learned that Addison intentionally purged the files of Ron Whitehead and of Lea Dunn.”  They further allege that “Addison breached its duty by (i) deleting all of Ron Whitehead’s records and emails, (ii) deleting all of Lea Dunn’s records and emails, and (iii) deleting emails from Lisa Pyles and former city officials.  Addison never took efforts to preserve its own records—and in fact intentionally destroyed records for at least nine months after it engaged counsel to pursue claims.”

If this, in fact, is true, it once again begs the question, who originally set this policy and why?  And is this policy still in place today?  If not, how has it been changed and who changed it?

As of now no action has been taken by the court on this summary motion.

Motion to Exclude Plaintiff’s Experts

Additionally on January 16, 2018 Landmark filed a motion to “Move to exclude Aaron Sterns, John Franzek, and Dean Descheness as testifying witnesses in this case,” claiming lack of qualifications.

This motion is to be heard this Friday, February 9, at 1:30 p.m.

Landmark’s Structures I, L.P.’s Second Supplement to Motion For Summary Judgment and Request For Fees

On January 17, Landmark supplements its traditional and no-evidence motion for summary judgment claiming, “Since the November 10 hearing on Landmark’s motion, the parties have completed discovery covering Addison’s claims against Landmark.  In this interim the Town has not presented facts in support of its allegations.  In fact, the testimony of the Town’s designated representative has established that Addison’s allegations were never well-founded. “

Landmark goes on to allege, “Landmark deposed Addison’s designated representative, Lisa Pyles, who was identified as the witness that would testify on all factual bases behind the Town’s allegations.  Her testimony did not support Addison’s claim, and it contradicted Addison’s responses to certain requests for admission, attached in Exhibit N.”

What this document does not reveal is that in nearly all the questions asked of Ms. Pyles, all were about situations that happened BEFORE Pyles was even employed by Addison.  Questions and responses such as the following:

Landmark:  “Do you have any personal knowledge about whether Landmark ever made any—had any discussion, presentation or representation to the Town of Addison about wind systems before the contract was awarded in February 2011?”

Pyles:  “No.”

Landmark:  “Page 9, Paragraph 32 reads, Prior to Addison’s decision to purchase the Wind Turbine System, Landmark and/or UGE represented to Addison that this System would produce a substantial amount of energy, perhaps so much that Addison could sell energy generated by the Wind Turbine System back to the power grid.

“That sentence is nothing—is not something that  you would have personal knowledge of, correct?

Pyles:  “No.”

Landmark:  “Do you know where that—who gave that information to counsel to put into this lawsuit?”

Pyles:  “No, I don’t.”

Landmark:  “Has anyone ever told that sentence or substantially a paraphrase of that sentence to you?”

Pyles:  “I’ve read it before, but —

Landmark:  “Well, where have you read it before?  In the lawsuit?

Pyles:  “Here (indicating)

Landmark:  “Okay.  Apart from seeing it in the lawsuit, has any witness – has any employee of Addison or a consultant of Addison or anybody else said that such a representation was made?

Pyles: “I don’t recall.”

Pyles didn’t become an employee of Addison until February 18, 2013—first as Director of Infrastructure and Operations Services.  A year later that title was  changed to Infrastructure and Development Services.  She reported to the Deputy City Manager at the time, Lea Dunn.  The water tower was already built at the time she became employed and the turbines were already on top of the tower.  By that time, two of the failures had already taken place, therefore she was not an employee when that happened and did not have firsthand knowledge of those failures when they had occurred.

On January 19 the Court posted the following “Notice of Hearing.”

“Please be advised that on Friday, February 9, 2018 at 1:30 p.m., the Court will hear Landmark Structures I, LP’s Second Supplemental toMotion for Summary Judgment and Landmark Structures I,LP’s Motion to Exclude Experts.

“The hearing will be conducted in the 44th District Court, 600 Commerce Street, 5th Floor, New Tower, Dallas, Texas 75202.”

It will be interesting who, other than the town’s lawyers, show up for this hearing.

One More Thing:  On January 8, 2018 Addison filed Plaintiff’s Fourth Amended Petition.

In this petition Addison requests that “Landmark, UGE, and F&N be cited to appear and answer and that upon final trial of this cause, the Court enter a judgment in favor of Addison and against Defendants awarding Addison its actual damages, exemplary damages, reasonable and necessary attorneys’ fees, expert fees, pre- and post-judgment interest at the maximum rate allowed by law, and costs of court.  In addition, Addison requests all such other and further relief, at law or in equity, to which it may show itself justly entitled.”

If the Court finds in favor of Landmark on Friday, February 9, it’s all over.  If not, this all goes to trial on March 5.

It’s a complicated mess any way you look at it.  What makes it worse is that the Town had a City Manager who purely envisioned himself as a visionary yet who apparently felt no compulsion to accept any responsibility for any decisions, was very comfortable throwing others under the bus and appears to have made sure that no documentation would leave a trail to support or deny his actions.  Sort of like when there was no documentation for the decisions that were made to re-do Midway Road.  Now taxpayers are bearing the burden and suffering the embarrassment of a City Manager that in the end betrayed them all.  What a SAD, SAD day for Addison.