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DEJUTE CASE Judge tosses $2M count



Published: Sat, February 16, 2002 @ 12:00 a.m.



The last-minute ruling is a setback to the Ohio attorney general's litigation plans, a spokesman said.

By DAVID SKOLNICK

VINDICATOR POLITICS WRITER

WARREN -- A judge's decision to grant summary judgment to Frank D. DeJute on most of a $2.4 million civil lawsuit filed against him by the Ohio Attorney General's Office has left the state agency disappointed and seeking a delay in the case.

In a nine-page decision Friday, visiting Judge Richard M. Markus dismissed the largest of the four counts, which sought $1,960,890 from DeJute, saying the former Mahoning Valley Sanitary District board director was "entitled to judgment as a matter of law."

The attorney general's office filed separate $2.4 million lawsuits in 1998 against DeJute of Niles; Edward A. Flask of Poland, another former MVSD board director; and Gilbane Building Co. of Rhode Island, which served as construction manager on the water agency's $50 million capital improvement project.

The lawsuits contend DeJute and Flask improperly paid Gilbane for construction work not performed at the MVSD and that the two former directors improperly received health, retirement and life insurance benefits from the water agency.

DeJute, a nonlawyer who is defending himself, sought summary judgment for the Gilbane counts based on a federal judge's dismissal in the Gilbane case, saying the payments were not illegal. The attorney general is appealing that decision.

Reaction: "This wasn't worthy of going to trial," DeJute said. "I was persecuted from the start. I didn't deserve to be in this. I wasn't involved in this to start with. They wasted about $1 million on this and now the attorney general's office is a three-time loser."

Flask's civil suit is on hold because he filed for bankruptcy protection.

In his ruling, Judge Markus wrote that because of the decision in the Gilbane case, which mirrors DeJute's case, "there is no legally justifiable reason to retry those issues." Also, the judge wrote that no reference to his decision on the Gilbane count could be made during DeJute's hearing in front of a jury.

Joe Case, the attorney general's spokesman, said his office is seeking a delay in the DeJute trial, which is set to begin Tuesday in Trumbull County Common Pleas Court. During a telephone conference Friday with DeJute and the attorney general's office, Judge Markus agreed to postpone the case, but insists it be done in open court Tuesday.

"We have to regroup and rethink our strategy because this decision obviously throws a huge monkey wrench into what we were going to try to do next week," Case said. "To do this at the 11th hour and not allow us to be able to appeal it significantly forces us into a position to rethink our strategy. We're disappointed with the decision."

Case said the judge's ruling on the last legal day of business before DeJute's trial is to start is like "getting ready for the big game and just before kickoff, your entire first string is pulled and your playbook is yanked out of your hand. That's the position we're put in here and we're not happy with it."

Other claims: The judge did not rule in favor of DeJute on another count that Mascaro Inc., a Pittsburgh company, was improperly paid $385,000 for design phase consulting services it did not do on the MVSD's capital improvement projects.

A 1997 report by the Ohio Auditor's Office says Gilbane paid Mascaro with money it received from the water agency. DeJute said the auditor's office report was the first he heard that Mascaro was paid and he never approved a payment to the company.

The judge wrote in his decision that he did not know if the MVSD or Gilbane made the payments.

"In those ambiguous circumstances, this court cannot determine whether the federal court's ruling against Gilbane liability for Gilbane's payments to Mascaro bars the plaintiff's claim that defendant DeJute improperly approved MVSD payments to Mascaro," he wrote.

The other claims against DeJute, totaling $69,972, are for accepting health care, life insurance and retirement benefits from the district. DeJute said those benefits were given to MVSD members who came before and after him. Those benefits were taken away from board members in 1998 after a state law was passed revamping how the water agency operates.

skolnick@vindy.com




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