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Aqua wins appeal, takeover price trial

Utility praises state high court’s ruling, hopes for agreement

– Aqua Indiana won its bid for a jury to decide how much Fort Wayne should pay for its 2002 takeover of the utility’s northern system.

The Indiana Supreme Court ruled Thursday that the utility is entitled to a full rehearing of the matter, and that includes a request to trial by jury. It reversed the local court and Indiana Court of Appeals.

The city had argued Aqua Indiana was allowed only a limited review by a judge on the price and can’t offer new evidence to counter city appraisals, while Aqua Indiana said the review should include a full evidentiary hearing before a jury.

This is the second time the state’s highest court has stepped into the decade-old debate.

In 2007, the Supreme Court upheld the city’s takeover of Aqua Indiana north. While that settled the legal dispute over the city’s authority to declare eminent domain and take over the utility, the price the city must pay is still in dispute.

The city, through its Board of Public Works, said the company should get about $17 million.

The appellate court had ruled no jury trial was allowed, and the judge was limited to reviewing evidence already provided to the Board of Public Works.

The reason the utility is pushing for a full review is that Aqua Indiana didn’t submit its own appraisal at the time to the board. It merely filed a written brief alleging what was wrong with the city’s estimate of worth.

Aqua Indiana President Tom Bruns praised the decision but said the company hopes to avoid the jury trial that the Supreme Court said the firm has a right to.

“We continue to hope to reach an agreement with the city of Fort Wayne that would include the Aboite Township area and a settlement on the north price, as well,” Bruns said. “We’re happy with the decision. It confirms what we thought all along.”

City officials said they are evaluating the decision but won’t back down from their efforts to acquire Aqua’s water utilities.

“The decision made by the Supreme Court is about the procedure of review, not the value of the Aqua North Utility,” City Utilities Director Kumar Menon said. “While the Supreme Court decision brings some finality to this issue, (City Utilities) and Aqua Indiana are continuing negotiations for a fair settlement for the purchase of the North and the Southwest systems.”

Aqua Indiana attorneys argued the statute specifically allows for a de novo review – a Latin term meaning “from the beginning” or “beginning again” – and that it means just that, the process gets to start over.

The conclusion of the case is considered vital as the city tries to acquire Aqua Indiana’s southwest utility because the method used to determine the value of each utility has been a major sticking point in negotiations.

Though it wasn’t entered as evidence, Aqua officials have said their north system was worth about $40 million, more than double the $17 million the city claimed. They say their southwest system is worth about $60 million; the city contends it is worth a fraction of that.

nkelly@jg.net

Dan Stockman of The Journal Gazette contributed to this story.

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