Wednesday, May 12, 2021
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Springfield

Witt’s Lawsuit Against Former Firm Moves Along

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Throughout the summer, the lawsuit which Wittenberg’s Board of Directors filed against their former law — Martin, Browne, Harper and Hull (Martin Browne) and two of the firm’s partners — has moved through the Clark County Court of Common Pleas. Last year, Wittenberg alleged in a complaint that the firm — along with Glenn Collier and David Weaver — breached its fiduciary duties to Wittenberg. The university’s complaint alleged that Weaver and Collier withheld information regarding the use of endowment funds in the 2010 purchase of the Springfield Museum of Art, among other property acquisitions. The complaint attributes the alleged malfeasance to conflict of interest due the positions Weaver and Collier held on the boards of the Turner Foundation and the Springfield Museum of Art, among other community institutions. The complaint also alleged that Martin Browne had failed to return files to Wittenberg at the end of its tenure as general counsel.
On May 11, the university filed an amended complaint which specified the allegations. The amended complaint alleged that Martin Browne violated “the Statement of Investment Policy,” which the firm helped draft in 2010. According to the complaint, the Investment Policy required that those with conflicts of interest must disclose the conflict in writing before the investment committee began any discussion or consideration of investment. The Investment Policy also required board approval for the use of endowment funds.
The amended complaint states that the university has discovered that the endowment’s real estate fund was “loaned” to the university during the purchase of the art museum without board approval in violation of the investment policy. The claim goes on to say that the defendants were aware that the “loan” was never intended to be repaid. The claim goes on to say that such events occurred multiple times.
On June 8, Martin Browne filed a response which disputed the veracity of the most direct assertions of Wittenberg’s complaint, including the firm’s involvement in the purchase of the Springfield Museum of Art, and sought to have the suit dismissed on grounds that statute of limitations had been passed. The response mounts 23 separate defenses and includes as evidence emails which reveal a tense relationship between the university’s most recent administration. In a 2013 email, Collier wrote former Chairman of the Board David Boyle, and he said that the law firm felt its fiduciary duty lay ultimately with the Board rather than the President. The email went on to read “. . . I know that Dave made this observation during an earlier meeting with Laurie. My understanding is that Laurie did not appreciate this position. She may have thought that we serve as a ‘staff’ legal counsel who would report and owe a duty of loyalty to the President.” The response insinuates that this disagreement led the university  to turn away from the law firm some time in 2013, while maintaining its official status as general counsel into 2014.
Furthermore, in an attempt to rebut the claim made in the complaint that Wittenberg was just recently made aware of the firm’s malpractice. An email dated Feb. 3, 2010 shows a discussion between Collier and Wittenberg’s former Finance Director Darrell B. Kitchen, in which Collier demonstrates knowledge of the Turner Foundation’s operation of the museum.
In a Jan. 2014 email sent from David Weaver to David Boyle, it was stated, “As you well know even though I am still designated as University Counsel, President Joyner has not called upon me or others in my firm to provide any substantive legal services for months. I recognize that effective attorney-client relationships are built upon a foundation of trust and confidence. Regrettably for whatever reason such a relationship does not currently exist.” Furthermore, the response includes emails from Weaver in which he discusses the importance of transferring files back to Wittenberg along with an “Acknowledgement of Receipt of Files” signed by a Wittenberg representative in March of 2015.
The response also provided a “Wittenberg College, DBA Wittenberg University Certified Corporate Resolution,” which was unanimously approved by the Wittenberg Board of Directors. The resolution, which seems to authorize the purchase of the art museum, “RESOLVED FURTHER, it is intended that ultimately all of the funds needed to acquire the improvements will be raised from external sources notwithstanding the fact that the initial short-term source may require utilizing funds available.”
On June 20, Wittenberg filed a motion to dismiss Exhibits B through F, which include the aforementioned emails. The memorandum accompanying the motion argues that the exhibits violate what the appellate court has defined as a written instrument and, thus, is eligible to be submitted as evidence. However, on Aug. 6, a judge ruled in favor of the defendants.

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