EPCOR trial to remain in Bullhead City (January 9, 2022)
BULLHEAD CITY — The trial that will determine the actual price Bullhead City must pay for ownership of EPCOR Water Arizona’s local system will remain in Bullhead City.
Mohave County Superior Court Judge Charles Gurtler made that ruling Friday morning, denying motions on behalf of EPCOR to move the trial out of the county because of “inflammatory comments” made by city staff and others aligned with the city that potentially tainted the jury pool for the trial scheduled to begin before Gurtler on Jan. 24.
That ruling came early in a day-long pretrial conference conducted in a near-empty courtroom at the Mohave County Judicial Center in Bullhead City.
Lawyers for both sides participated by phone. Gurtler was joined only by Court Clerk Jacqueline Martinez; no court reporter was available, so transcripts will be processed from a recording.
Gurtler also ruled against EPCOR in two other components of the change of venue motion filed Wednesday: He declined to exclude Bullhead City residents from the jury pool and did not order the city to pay EPCOR’s costs of bringing the change of venue motion before the court.
EPCOR cited several instances when city officials and others made comments in public — on televised Bullhead City Council meetings, in articles published by the Mohave Valley Daily News, on social media and in court depositions — that were an “intentional” effort to prejudice prospective jurors, said Joe Conner, of Baker Donelson Caldwell & Berkowitz, one of two law firms representing EPCOR in the eminent domain proceedings enacted by the city.
“Our view is that a venue change is appropriate,” Conner concluded.
Gurtler disagreed, saying that he didn’t believe it met that justification.
He said that the Daily News reaches only a fraction of county residents while the jury pool is comprised of residents of all sections of the county.
The court sent jury notices to 120 county residents; 82 returned a questionnaire designed to help whittle that pool down. Those remaining in the pool will be notified to appear at the court for the actual selection of an eight-member jury to hear the civil case.
“I cannot find that there was a pervasive effect” on the ability of counsel to find impartial jurors from the pool, Gurtler said, applying that to both the change of venue request and to the request to exclude Bullhead City residents simply because they resided in the city.
“The court does not find it appropriate to exclude Bullhead City residents,” he said, adding that counsel will have an opportunity to determine if any city residents — or anyone else on the panel of prospective jurors — was influenced by external publicity during the selection process, referring to voir dire, the counsel examination of possible jurors to determine their qualifications to serve.
Gurtler began to rule on other parts of the latest motion but gave the city until Jan. 12 to file a response to EPCOR’s motion that was filed late Wednesday afternoon.
EPCOR will have until Jan. 18 to file a reply.
Gurtler did rule on a number of motions in limine, requests by both sides to exclude or limit testimony on certain topics by certain individuals.
Gurtler approved some, denied some and modified some.
EPCOR had asked to exclude testimony from Bullhead City Utilities Director Mark Clark and Utilities Construction Manager Ryan Farnell concerning the value and condition of EPCOR assets taken over by the city on Sept. 1.
Christopher Kramer, of Jennings Strouss, a law firm representing the city, said that Clark and Farnell would be “rebuttal witnesses” to testimony expected from EPCOR’s witnesses on the value and condition of the system.
Gurtler ruled that Clark and Farnell could testify, but not as “expert witnesses” on the question of system value.
Bart Wilhoit, of Mooney, Wright, Moore & Wilhoit, another firm representing EPCOR, asked Gurtler to exclude testimony about the purchase price of the Mohave and North Mohave systems when EPCOR bought them in 2012 and 2013, respectively, suggesting that details of the “outdated transactions” and “outdated sales” weren’t relevant to the system’s value today because of dramatic changes in real estate and utility markets.
Those sales are being used by the city’s legal team for comparisons, among other water system sales made over the last decade.
Gurtler said he would allow the testimony but that it should carry limited weight.
Among other motions:
• Gurtler gave a mixed ruling to the city’s request on testimony about the establishment of market value for a utility.
He said testimony about how much the city was capable of paying would not be permitted, nor would the likelihood of a higher price being the result of a bidding war between buyers.
He allowed testimony directed at government entities being among buyers in actual and hypothetical situations.
• Gurtler ruled that EPCOR could introduce testimony about an Arizona Department of Environmental Quality violation that occurred after the city’s takeover but could not enter testimony that included the statement that it could do a better job running the utility than the city could.
• Gurtler denied the city’s motion to restrict testimony of EPCOR USA President Joe Gysel on appraisal of the Bullhead City-area system.
The city argued that Gysel, as a corporation officer, was not an “owner” of the system and did not have owners’ rights to testify about the system’s value.
Wilhoit countered that a Supreme Court ruling declared that owners’ rights extended to corporations.
Gurtler agreed, ruling that Gysel had the right and was qualified to form an opinion.
After paring down the list of prospective jurors, the lengthy conference ended with the parties trying to establish a time and mechanism for cleaning up some unfinished pre-trial business.
“I anticipate we’re going to need another half-day,” Gurtler said.
Gurtler, who has come out of retirement to preside over the case, said he didn’t have a courtroom available any day next week but would be willing to conduct businesses remotely from any workable venue, as long as court staff was available.
Source: Bill McMillen, Mohave Daily News