Injunction request now in the hands of the judge

POMEROY — Following a more than two-hour hearing on Friday morning, the fate (at least temporarily) of the old bus garage in Rutland is in the hands of the judge.

Visiting Judge Dean Evans, a retired judge from Gallia County who was assigned to the case, heard testimony from only one witness — Meigs County Commissioner Randy Smith — during the hearing on the preliminary injunction request from the Meigs County Commissioners against the Village of Rutland. Other than that witness, both sides only presented opening and closing arguments.

Meigs County Prosecutor James K. Stanley represented the Meigs County Commissioners in the case and called Smith to the stand following opening arguments.

Richard Clagg, one of the two attorneys representing the Village of Rutland in the case, objected multiple times during Smith’s testimony. Co-counsel for the hearing was Rusty Miller. Both attorneys are based in Wellston.

Clagg objected to whether Smith had personal knowledge of the sewer-water department and sewer system in Rutland as he was not in office when the initial contract was drafted.

Smith stated that he had knowledge of the system and had learned about it more since taking office in 2013.

Smith explained that the commissioners took over the system from Rutland due to the mounting debt owed on the failing system, including loans from the time the system was put in place.

Clagg also objected to Smith’s testimony regarding possible future uses of the bus garage property, stating that it was speculation and Smith was not qualified to make the statements. Smith himself stated that he was not an engineer.

Evans on a couple of occasions asked that Stanley rephrase his questions following the objections by Clagg, including when Smith was testifying about his appearance at an August 2016 Rutland Council meeting and when attempting to get on the agenda for the December meeting.

Smith stated that he attended the August meeting to address the village regarding rumors he heard of Dollar General coming into the village at the site of the old bus garage. Smith said what he learned at the meeting was that the rumors were “just talk.”

Smith was also asked about the uses of the bus garage, how it was utilized before the county took over the sewer and water department and how it was utilized after that time. Smith said the building housed equipment and parts for the sewer system and water system, including the grinder pumps, fittings, pipes and water meters.

The items continued to be housed in the building after the county took over, and were believed to remain in the building until August 2016. Following the August council meeting, Smith said he and the Rutland Police Department Captain walked over to the building where Smith said everything had been removed and only an S-10 was inside. The truck is not part of the sewer and water department. Smith said he then saw the parts which were once in the building in a pile behind the Rutland Civic Center.

Smith said he instructed Dave Davis who handles the system maintenance for the county to go look through the pile to see what could be salvaged.

Smith testified that returning to the village in late November or early December to retrieve the water bill payments, he noticed no trespassing signs on the building and that the locks had been changed.

On cross-examination, Clagg asked Smith why, if the building was county property, the no trespass signs kept the county from going into the building if it was their property.

Smith said the threat of prosecution was enough to keep him out of the building and for him to not send others into the building as the county was not the one to put the sign on the building.

Smith additionally stated that the county has paid the electric bill on the property since May 2013 when then-Mayor Lowell Vance began bringing the bill to the county. Since that time the bill has been transferred into the county’s name and has continued to be paid by the county.

Clagg asked Smith if he was aware of two electric meters on the bus garage, to which Smith replied he was not and there was only one bill. Clagg did not elaborate further on the possibility of the second meter.

Clagg continued to ask for answers given by Smith to be stricken from the record when Smith was answering questions during cross-examination. Clagg stated on more than one occasion that the questions were yes or no questions and stopped Smith when he attempted to answer with a longer answer.

Smith, when questioned by Clagg, stated that he had not had correspondence with the village since the August meeting, but had spoke with then-prosecutor Colleen Williams about it.

Clagg also brought up the issue of possible liens on the property. He asked Smith if he was aware of two liens totaling around $40,000 on the property. Smith said he had learned of the liens, but did not know the amount.

Defense exhibit 1 was a letter from January 2013 from Williams to Vance regarding possession of “all physical and monetary assets,” more specifically the back hoe which had been used by the water and sewer department, but was in the possession of the village. After the letter, the backhoe was turned over to the county.

Asked by Stanley why there was not a specific request regarding the bus garage, Smith said it was being used for its intended purpose and did not need to be addressed.

Following a brief recess at the end of Smith’s testimony, Stanley stated he had no other witnesses and the defense declined to call any witnesses.

In closing arguments, Stanley asked the court to grant the motion for a preliminary injunction, while Clagg stated that the county did not meet its burden of proof for the preliminary injunction.

Clagg stated that the county would not be irreparably harmed should the sale of the property proceed, as if they were to ultimately prevail in a civil action they could receive the monetary gain from the sale. He also stated that Smith’s testimony indicated that there was also other property that the county could use for sewer system upgrades in the future should the bus garage property be sold.

Stanley further stated that the county has not yet filed an action regarding breech of contract in the matter as it would not have been appropriate to do so while negotiations in the case were taking place. He said that matter would be discussed further with the commissioners as to going forward with that or not at this time.

Evans asked both attorneys if they wished to file simultaneous briefs in the case, but both agreeing that they would not be filing briefs, instead letting the evidence and record in the case stand for itself.

Evans said he would consider the matter and make a decision. There was no time frame given for the decision.

By Sarah Hawley

Reach Sarah Hawley at 740-992-2155 ext. 2555 or on Twitter @SarahHawleyNews