Archive for Thursday, January 21, 2010

Judge rules on RWD 4’s motion for attorney fees

January 21, 2010

The U.S. District Court in Topeka has denied Douglas County Rural Water District No. 4’s motion for attorney fees in its lawsuit with the city of Eudora.

U.S. District Judge Julie A. Robinson wrote in her decision that since both parties have appealed numerous issues in the case, she believed it to be more efficient to wait for a decision on the appeals from the 10th Circuit before awarding or denying attorney fees.

In May 2009, a jury in U.S. District Court in Topeka found the city had limited Douglas County Rural Water District No. 4’s ability to serve 113 acres annexed into the city in recent years. The jury also awarded $23,500 to the district to pay for engineering studies the water district presented as evidence.

The district filed subsequent motions asking for attorney fees totaling about $800,000.

In September, the district was granted an injunction ordering the city to refrain from competing for customers with RWD 4.

Both the city and the district have filed appeals with the U.S. 10th Circuit Court of Appeals in Denver.

The city’s appeal focuses on the power of the water district to enter into a loan agreement with the federal government and whether the city prevented or limited the district’s ability to serve its territory.

The district is counter-appealing the decision that it can’t serve territory adjacent to its boundaries because it believes there’s 10th Circuit precedents on the issue. It also has counter-appealed whether it needs to prove it acquired a federal loan for a necessary purpose.

The city and RWD No. 4 had entered into settlement talks. However, the only statement to emerge from the talks is that negotiations have broken down.

Curt Tideman, the city’s attorney, said he hoped the case could be heard in late 2010. However, RWD No. 4 administrator Scott Schultz said it was plausible it could be a year before the appeal was heard. That might not end the case, he said, because there was a possibility of further appeals.

“Eudora’s elected officials will have to determine for themselves whether the appeal makes sense given that their chance of prevailing is slim,” Schultz said. “Our counsel told us from the beginning that the strategy of most cities is to prolong the litigation with the objectives of running an opponent out of money.

"In that regard, the city is following typical policy.”

Tideman said the city wasn’t prolonging the case and wouldn’t have appealed it if it thought it wouldn’t be successful.

“We’ve been trying very hard for a very long time to reach not only an amicable settlement, but to reach the court as soon as possible,” Tideman said. “We wouldn’t be taking this action if there weren’t a good chance of prevailing. I think with the court’s last ruling, it has recognized that possibility exists.”

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