Free Response - District Court of Federal Claims - federal

Case 1:99-cv-04451-ECH

Document 268-6

Filed 07/15/2008

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1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS

) ) JOHN H. AND MARY E. BANKS, ET AL., ) ) Plaintiffs, ) ) v. ) Docket No.: ) UNITED STATES, ) ) Defendant. ) ____________________________________) ) EUGENE J. FRETT, INDIVIDUALLY AND ) AS TRUSTEE OF THE VICTOR J. HORVATH ) AND FRANCES B. HORVATH TRUST, ) ) Plaintiffs, ) ) Docket No.: v. ) ) UNITED STATES, ) ) Defendant. )

In the Matter Of:

99-4451L

05-1353L

Suite 617, Chambers National Courts Building 717 Madison Place NW Washington, D.C. Tuesday, February 19, 2008 The parties met, pursuant to the notice of the Court, at 11:01 a.m. BEFORE: HONORABLE EMILY C. HEWITT Judge

Heritage Reporting Corporation (202) 628-4888

Exhibit 5 - 1 of 5

Case 1:99-cv-04451-ECH

Document 268-6

Filed 07/15/2008

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2 APPEARANCES: (Via Telephone)

For the Plaintiffs: JOHN EHRET, Esquire Christensen & Ehret, LLP 20860 Greenwood Drive Olympia Fields, Illinois (708) 748-8975

60461

EUGENE FRETT, Esquire Sperling & Slater, P.C. 55 West Monroe Street, Suite 3200 Chicago, Illinois 60603 (312) 641-3200 MARK CHRISTENSEN, Esquire Christensen & Ehret, LLP 222 West Adams Street, Suite 2170 Chicago, Illinois 60606 (312) 634-1014 For the Defendant: TERRY PETRIE, Esquire U.S. Department of Justice Environment and Natural Resources Division 1961 Stout Street, 8th Floor Denver, Colorado 80294 (303) 844-1369 DON ERWIN, Esquire GARY SEGREST, Esquire U.S. Army Corps of Engineers Office of Counsel 477 Michigan Avenue, Room 659 Detroit, Michigan 48226 (313) 226-2215

Heritage Reporting Corporation (202) 628-4888

Exhibit 5 - 2 of 5

Case 1:99-cv-04451-ECH

Document 268-6

Filed 07/15/2008

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3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 here. MR. PETRIE: THE COURT: Good morning, Your Honor. Thank you. Let me go around and do Judge Hewitt. MR. ERWIN: Good morning, Judge. Don Erwin THE COURT: P R O C E E D I N G S (11:01 a.m.) Gentlemen, good morning. This is

a roll call for the record.

Let me just say by way of

preparation that we're on the phone for a posttrial and pretrial conference in Case No. 99-4451L, John H. Banks, et al., and Eugene J. Frett, Individually and as Trustee. And I

think we have representatives of all parties on the line. Please begin, beginning with Plaintiff, then Defendant. MR. EHRET: Your Honor, this is John Ehret. I

should report that my health condition has not changed.

The

surgery from the 18th is still healing up and still draining. I don't want to go into all the details. But the doctors do

not want to proceed with any further treatment until this stops and that I'm considered to be healed up. I actually

canceled an appointment yesterday because the drainage was continuing. So it looks reasonably foreseeable to coin a phrase that we're going to be needing more time. And I'm just

projecting here that I probably won't know for another two Heritage Reporting Corporation (202) 628-4888

Exhibit 5 - 3 of 5

Case 1:99-cv-04451-ECH

Document 268-6

Filed 07/15/2008

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4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 weeks what the course of treatment is going to be. In addition, we have, however, been making some progress between the parties. list with documentation. lists. I have prepared my ownership

We have actually exchanged ownership

The government has provided a list to me. And then we're planning to get together later

in the week by phone to compare notes so that hopefully we could present an agreed-upon ownership list. I'm not sure

what the outcome of our meeting will be later in the week by phone. Also, we feel we need to make property-specific soil exploration by each person's property in order to foresee reasonably what shore protection is going to be necessary. We do have a video from Mr. Thompson, who you know he testified, during which time he presented was in the Stevensville area. His representation that we could not

expect to leave our property to our children in 10 to 20 years, that was a representation made in 1994, and it turns out it was on videotape. So I will be filing a motion to send

that tape to Your Honor for your perusal. But this causes us to not only need to learn the property-specific condition of the soils but also for the purpose of driving piles. In other words, you can't contract

with a contractor, you can't establish dollar amounts unless you're able to tell them what soil is below where he's going Heritage Reporting Corporation (202) 628-4888

Exhibit 5 - 4 of 5

Case 1:99-cv-04451-ECH

Document 268-6

Filed 07/15/2008

Page 5 of 5

5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. THE COURT: MR. FRETT: Yes, and we turn to you next, sir. Okay. I can just report that I of an update. to be driving the piles. So I think that overall gives you a little bit And to summarize, I would say 30, 60 or 90 days

or maybe all three is my prognostication of what the next gettogethers ought to be. We really can't do anything in the We've had an extremely cold So

ground until the melt comes.

winter and a very heavy snow and rivers are flooding.

we're going to have a bigger lake to contend with by spring. It takes more than one season. to bring the lake way back up. my status report. THE COURT: Thank you. We may come back with It will take several seasons But that's a short version of

questions, but I think I'll go around the electronic room here. And is there anyone else, Mr. Ehret, who is speaking I know Mr.

with you for the Plaintiffs in the combined case? Christensen is on the line. MR. CHRISTENSEN: I'm here for the roll call. THE COURT: MR. FRETT: Thank you so much.

I am, and I acknowledge that

Eugene Frett is also here, Your

have exchanged some updated ownership information with Mr. Petrie, and I believe that the specific property that I'm Heritage Reporting Corporation (202) 628-4888

Exhibit 5 - 5 of 5