Photo by Beverly McKnight
This photo, shown as evidence during the trial, shows work being done on Mohney Creek.
When Larry and Stacy Birindelli bought their 60 acres near McCleary, little Mohney Creek would sometimes flood in the winter. Now, they claim in a lawsuit that has gone on for three years, work done on an upstream property changed the flow of the creek and has completely converted 5 acres of the Birindellis’ land into wetlands.
After the long, winding road to get to trial in their suit, Superior Court Judge David Edwards has declared a mistrial after the testimony of a key witness — Ken Brogan.
Brogan is central to the case and, in fact, at one time was a defendant. As a result of a personal bankruptcy, Brogan is now insulated from the litigation as an individual.
Brogan had owned the land with Gary Anensen as part of a limited liability company, Brogan & Anensen. The company tried various ways of planning homes on the 100-acre property, but none worked out over the multi-year effort. The lawsuit contends that as part of a plan to subdivide the property, the company used heavy equipment to alter the stream bed and clear vegetation without any permitting or permission.
Now, the water runs through a culvert under Elma-Hicklin Road, washes sediment over the property line and clogs up into the trees and fields on the Birindellis’ property.
“It left a straight-line, high-velocity volume of water coming through that culvert, being caught by the trees which were left on my side,” Larry Birindelli said. “Needless to say, that is what started the damage and the flooding, because now my stream bed is completely full of sediment, my trees are clogged, and there is no longer a stream bed on my property. The creek simply goes out into the fields at random, creating wetlands and destroying any creek that I had.”
Birindelli said he used to use that land for things like growing hay. An expert witness testified that the damage ranged from $400,000 to $2 million.
“All they had to do was simply operate their business in a moral and legal fashion and none of this would have happened. All Stacy and I ever wanted was for them to stop breaking the state and county codes and fix the creek. It was their decision to have this whole embarrassing mess end up in court, for the legal problems they face were self-inflicted,” Birindelli said after the mistrial last week.
Eileen McKillop, an attorney representing the defendants, said she asked Edwards to throw the case out because the Birindellis failed to show any connection between the remaining defendants and the issues on their property. Edwards instead declared a mistrial, leaving the door open for the Birindellis to pursue another trial, which they say they plan to do.
Four defendants are left on the still-active lawsuit: Capital Contracting Inc., Capital Investments, Civil Investments LLC and Hicklen Estates. Brogan is listed as the sole proprietor of Capital Investments.
Edwards also decided the Birindellis could seek their attorney fees in addition to any damages a future jury would award them. After three years of working through the courts, those fees may be substantial, although Birindelli declined to discuss them publicly.
During the Superior Court proceedings, Edwards said Brogan’s testimony seemed to indicate he may not have properly disclosed all of his holdings during his bankruptcy proceedings. It was at that point that Edwards declared a mistrial. McKillop contends Edwards went beyond his authority. “The court stepped outside its jurisdiction and said there may have been a fraud in bankruptcy,” McKillop said.
The trial went smoothly until the very end, McKillop said. Things changed quickly once Brogan testified. McKillop, in fact, was found in contempt and fined $500 for interrupting Edwards.
Allen Miller, attorney for the Birindellis, said Brogan’s testimony indicated that after Brogan & Anensen dissolved, the owners deeded the property involved to Hicklin Estates. But testimony indicated that company hadn’t even been formed at the time.
“They’ve been playing … hide the ball, forming all these companies and transferring the title. Judge Edwards saw through all that,” Miller said. “The judge took one look at him and sent the jury out and said , ‘I’m declaring a mistrial.’ ”
McKillop maintains that all properties were disclosed as they should have been. McKillop said she is pursuing a contempt order against Grays Harbor Superior Court in bankruptcy court, which, if granted, she said would effectively end the Birindellis’ lawsuit.
If that doesn’t happen, the case could get a new trial date and start again.
“I’m grateful for the people who have participated in being witnesses and being deposed and going through the different situations with me. I greatly appreciate their support and help,” Larry Birindelli said.