2007-06-13 UpdateC1 IVERSON REUVERS
ATTORNEYS AT LAW
JASON J. KUBOUSHEK
DIRECT 952.548.7206
JKUBOUSHEK@I VERSONLAW.COM
JON K. IVERSON
PAUL D. REUVERS
June 13, 2007 �'1>r e `..
JEFF M. ZALASKY
JASON J. KUBOUSHEK
PAMELA WHITMORE
J.F.
Mark Rossow, Asst. Program Claims Manager
JASON M. HIVELEY
LMCIT
SUSAN M.TINDAL
145 University Avenue West
JEFFREY A. EGGE
AMBER S.LEE
St. Paul, MN 55103
Re: Trust Member: City of Albertville
Claimants: Gold Key Development, Inc. /TC Homes
Claim Nos. 11056480/11057039
Our File Nos. 100.526/100.535
Dear Mr. Rossow:
Since our last report, we have received Gold Key's, T/C Homes' and Hedlund
Engineering's Responses to our Motion to Amend the Counterclaim and the
Scheduling Order. We have filed a Reply Memorandum and have also received a
Notice of Violation letter from the MPCA. I have enclosed a copy of all
documents for your file.
MOTION TO AMEND THE COUNTERCLAIM AND SCHEDULING
ORDER: Gold Key, T/C Homes and Hedlund Engineering argued in their
memoranda that amending the Counterclaim at this time would be highly
prejudicial because of the extensive discovery which has been conducted and
because a new trial date would be severely damaging to the builders. They also
argue discovery should be limited to the two intervening parties — Majestic
Builders and Legacy Homes. We disagree with this position and argued
additional time is necessary to fully discover the new MPCA violation and to
allow the parties to gather all information for trial. Moreover, by limiting
discovery only to Majestic Builders' and Legacy Homes' damage claims, the City
would essentially be barred from asserting a cross -claim against Gold Key based
upon the MPCA violation.
Prior to the hearing, I received a copy of the enclosed MPCA Notice of Violation.
As you can see, the MPCA noted they were conducting a file review when they
noticed the problem. They then went out and did a site inspection which affirmed
the file review. We believe this violation is a further reason to hold Gold Key in
default.
At the hearing, we made this same argument. Gold Key's response was they are
not liable for any problems associated with the MPCA permit and, moreover, the
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June 13, 2007
Page 2
problem could be resolved for $10,000 to $15,000. I argued the issue was more
extensive than that and the parties needed to further discover the issue before trial.
Overall, the hearing went well. Judge Kathleen Mottl heard the case but did not
ask any questions. She indicated she would be issuing an Order soon; however,
she did not give a specific timeframe. I will forward the Order on to you as soon
as we receive it.
DISCOVERY: In addition to working on the various motions, we also
subpoenaed the records of Gold Key and T/C Homes' financial institutes. We are
the process of receiving those documents (in excess of 1000 pages) and will be
sending them on to Art Cobb for his expert review. After he has had a chance to
review the documents, we will be talking with Mr. Cobb to get a preliminary
opinion.
MOTION TO SUPPLEMENT THE RECORD: Because the MPCA Notice of
Violation letter is directly related to the summary judgment motions, we are filing
a Motion to Supplement the Record. While there is a strong likelihood the Court
will deny the motion, we believe it is important to put Judge Halsey on notice of
the Violation letter because it is further evidence to support the default.
As always, we will keep you advised of any new developments. Please do not
hesitate to contact Paul or me with any questions, comments or direction.
Best regards,
IVERSON REUVERS
Jason J. Kuboushek
JJK:be
Enclosures
cc: Bridget Miller, City Clerk
Mike Couri, City Attorney
Larry Kruse, City Administrator