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Water Board Attorney Attacks Judges Rulings in Water Case

Virgin Valley Water Board from left to right Kevin Brown, manager Bo Bingham, attorney and Rich Bowler, Board Member at the Virgin Valley Water District Board Meeting: September 2018 Photo by Andrew Davey

On Monday, Virgin Valley Water Board (VVWB) Attorney Jedidiah (Bo) Bingham announced his intention to continue with frivolous and burdensome motions to overcome previous rulings against him and his publicly elected clients while at the same time attacking previous Judicial rulings. 

Monday’s pre-trial motion hearing was the latest before Las Vegas District Court Judge Timothy Williams. The two-year nine 1/2-month old civil cases (No. A-18-774539-B) brought by the owners of Paradise Canyon dba as Mesquite, Nevada’s Wolf Creek golf club against the VVWB. The owners seek legal adjustments from an attempt by the VVWB to raise their river water irrigation rates from $250 per share to originally $1,246 [i] per share but now reduced to $1,115.00 per share.

The latest hearing involved Bingham’s contention that the golf course owners violated an irrigation lease with them by sub-leasing irrigation water shares to a Master Home Owners Association (M-HOA).

Jeffery Sylvester, acting for the golf course owners, told the Judge that the homes and the golf course are part of a single entity with a single irrigation infrastructure developed decades ago by original owners of both the golf course and the houses.

Sylvester argued that Paradise Canyon has a right to renew its irrigation lease with the water board in perpetuity. And he noted, Bingham cannot demonstrate that provisioning of water to co-located homeowners violates either the spirit or intent of the lease arrangement.

Bingham, Sylvester said, first declared a contractual breach by claiming that Paradise Canyon sub-leased water board provided leases to the Southern Nevada Water Authority (SNWA). Upon learning that the claim was meritless, Bingham shifted his breach claim to argue that the 20-year co-use of water between the golf course and the MHOA violated the contract.

Sylvester told the Judge that at least one prior VVWB member, along with a former and the current Virgin Valley Water District (VVWD) Managers, knew of the water use issue and approved prior lease arrangements.

According to Sylvester, Bingham represented one of the two HOA’s co-located with the golf course and knew of the water use arrangement for at least ten years.  Sylvester told the Judge that while Bingham knew of the joint use agreement, he did notify the board of any violation, suggesting that Bingham did not feel such a violation existed.

Further, Sylvester pointed to a deposition he took from Clifford Gravett, an attorney for Bingham’s law firm.  Gravett, who Bingham appointed as a subject matter expert, in this case,  told Sylvester during the deposition that the lease between the water district and the golf course owners involved the leasing of shares, not individual amounts of water.

The water board contract allows the golf course owners to call for and take water share equal to 7.182 Acre Feet Annually (AFA) per share. And doing so does not violate the lease, as confirmed by Gravett, Sylvester said.

Further, Sylvester said, the water district does not regulate the water or its use. That is the responsibility of the Mesquite Irrigation Company (MIC). The VVWB does not provide water nor an infrastructure. They collect rent by sub-leasing water shares they acquired from MIC to the golf course owners.

Sylvester presented several documents and correspondences supporting his argument, noting that the district had been aware of a violation; they had the right to terminate, but at no point did they do that.

Following Sylvester’s presentation, Judge Williams asked Bingham if he wished to present his arguments in the half-hour left in Monday’s allotted time. Bingham opted to give his side of the debate, now scheduled for 9:30 a.m. on April 19.

Before ending the day, Bingham attacked the Judges ruling concerning two prior motions. On March 15, the Judge ended Bingham’s attempt to deny a future jury from considering a Nevada law requiring the water board to act in Good Faith and Fair dealing when making contractual pricing decisions. The Judge’s decision ended Bingham’s attempt to claim that the water board had an absolute right to set the water rate at whatever price it desired.

The Judge said that “at the end of the day, it appears to be a straightforward issue: does the Covenant of Good Faith and Fair dealing apply under Nevada law? “I have to say yes, it does without question any decision otherwise would invite error.

And on February 2,  Judge Williams rejected a plea by Bingham to consider effluent use in this case, noting that the “conduct” of Water Board officials” resulted in a waiver of such condition. Therefore, the failure to use available recycled or effluent water was an immaterial provision under the lease.”

Bingham told the Judge that he errored in not waiting until all motion hearings, including any future ones he plans to file, are heard before ruling. The Judge reminded Bingham that even if he waited, the decisions would likely be the same according to law. Further, he told Bingham judicial procedures required decisions within 60-days, adding that if he needed more time to decide, he would take it.

Sylvester suggested that Bingham wants to re-argue the same issues with no new evidence, no new facts that you have already heard over hours of his testimony. “That is disingenuous, “Sylvester said.

“It baffles me that Bingham withheld information that they should have presented,” Sylvester said. “It means,” he added, that Bingham “is arguing his counter-argument.”

Judge Williams told Bingham that ” if there is something that I missed, there are procedural ways to address those issues.”

Editors note:

Arguably Bingham is pushing the VVWB and, therefore, the public, which they allegedly represent close to vexatious litigation. That is legal action which an attorney brings solely to harass or subdue an adversary.

Vexatious litigation involves repeated motions that are: “so devoid of merit and frivolous that reach the level of flagrant abuse of the system. And they have no reasonable probability of success, lack reasonable or probable cause or excuse, and are meant to abuse the courts’ processes and harass the adverse party than other litigants. [i]

The threshold for “repeated” frivolous motions or litigations is relatively high. “While there is no bright-line rule as to what constitutes ‘repeatedly,’ most cases affirming the vexatious litigant designation involve situations where litigants have filed dozens of motions either during the pendency of an action or relating to the same judgment.”[ii]

In this case, Bingham and his law firm benefit from continued litigation since they receive public money from the VVWB to continue litigation. At the same time, Wolf Creek owners must pay from their earned revenue.

Filing vexatious litigation is considered an abuse of the judicial process and may result in sanctions against the offender. Repeated and severe instances by a single lawyer or firm can result in eventual disbarment.

Endnotes:

[i] Morton v. Wagner, (2007) 156 Cal.App.4th 963, 67 Cal.Rptr.3d 818.

[ii]  Bravo v. Ismaj, (2002) 99 Cal.App.4th 211, 120 Cal.Rptr.2d 879

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About Author

Michael McGreer Mesquite, Nevada
Dr. Michael Manford McGreer is managing editor of Nevada-today.com and writes on issues that impact public policy.

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