04/06/2006

Judge refuses to throw out Bay Harbor suit

By craig mccool

mccoolrecordeagle@sbcglobal.net

PETOSKEY — A judge declined to throw out a homowner's lawsuit against Bay Harbor developers David Johnson and CMS Energy over site pollution.

Attorneys for Johnson, Bay Harbor and CMS wanted an October lawsuit filed by disgruntled property owner Richard Franks dismissed as groundless. Franks' attorney accused Johnson, Bay Harbor and CMS of being evasive and avoiding deposition requests.

"The defendants brashly ask this court to ... dismiss the Franks' claim even though the defendants have failed to provide any discovery or produce a single witness," wrote Franks' attorney, Steve Weiss.

Emmet County Circuit Judge Charles Johnson ruled last week that Franks' lawyers could have until late July to depose witnesses, though he reserved the right to toss out the lawsuit once the discovery process is complete.

"All documents we asked for have to be produced," said Weiss. "We had asked for top-level people at CMS; the judge said first take lower-level people with knowledge."

The judge did not specifically address whether David Johnson will have to answer questions, Weiss said.

Bay Harbor, the posh development on Little Traverse Bay west of Petoskey, formerly was home to a quarry and cement operation. The cement plant left behind several buried "piles" of toxic cement kiln dust — including one near the Franks' vacation home on Coastal Ridge Drive — that leached caustic pollutants into Lake Michigan.

In the suit, Franks alleges the kiln dust piles and environmental concerns weren't disclosed when he bought the property as a summer vacation home in 2001.

Attorneys for CMS and Bay Harbor call the allegations "unjustified."

"There is no evidence in (the Franks') favor, only speculative, unjustified and vague allegations," lawyers wrote in their request to dismiss the case. "No amount of discovery can ... cure their failures to present evidence."

In his March 29 order, Johnson tabled the motion to dismiss the case until after the discovery process is completed. Franks' lawyers must finish depositions by July 28, and turn in a brief summarizing their findings by Aug. 4.

See related stories:

• Questions aplenty at Bay Harbor forum - March 26, 2006
• East Park to remain closed - March 5, 2006
• Cleanup cost now estimated at $85 million - February 25, 2006
• Developers buy back at least one lavish home - February 7, 2006
• Property assessments rise despite pollution - February 3, 2006
• Bay Harbor homeowners file lawsuit - January 31, 2006

See related editorial:

• Bay Harbor lawsuit is a chance to learn more - February 10, 2006