Bowling Green businessman Don Lowe and his attorney are taking their legal fight against a former city electrical inspector back to the Kentucky Court of Appeals.
Lowe, owner of Lowe’s Feed and Grain, has been entangled in a lawsuit with Rick Maxwell for 13 years over the fallout from a 2002 power outage at Lowe’s business caused by a thunderstorm.
Lowe sued Maxwell and the city of Bowling Green in 2007 on claims that officials withheld information from him about getting power restored at his business, which remained closed for 17 months.
A Warren Circuit Court jury in 2012 found Maxwell committed negligent representation to Lowe about the reasons for shutting off power to the feed mill and also found the city made fraudulent representations to Lowe regarding its decision to deny electricity to the business.
A subsequent decision from the state appeals court removed the city from the lawsuit and reversed the jury’s decision and its $970,000 award to Lowe.
Years of legal wrangling culminated in April with a ruling from Warren Circuit Judge John Grise that Lowe did not present enough evidence to prove that Maxwell acted with malicious intent to harm Lowe in his dealings with the feed mill owner after the power outage.
Grise reached that decision after being directed by the state appeals court to determine from the available evidence whether Maxwell acted with malicious intent, or what is known in legal terms as subjective bad faith.
Lowe’s attorney, Charles Greenwell, filed a notice of appeal Monday with the state appeals court, which would make this the third instance in which the appeals court has been asked to make a ruling.
Greenwell had sought unsuccessfully to have Grise reconsider his judgment, referring to the judge’s decision as a “shocking reversal” of what the jury in 2012 found.
“We knew we would probably have to appeal and that’s what we’ve done,” Greenwell said Friday.
In a motion filed in March to have Grise’s judgment vacated, Greenwell argued that Maxwell concealed information for a few months after the storm damage that Lowe needed when he sought to restore power at the mill.
“Maxwell willfully or maliciously withheld information within his knowledge about what it would take to restore electricity, and during the same time provided false information to Lowe and tried to force Lowe to demolish the mill building or incur the cost to rewire the whole building,” Greenwell said in his motion filed in Warren Circuit Court. “All the while, Maxwell knew that the mill building did not have to be demolished ... a new breaker and repair of the storm damages were all that was needed.”
Shawn Rosso Alcott, an attorney representing Maxwell, opposed Greenwell’s motion to vacate Grise’s judgment, saying in a filing last month that no new evidence emerged to support Lowe’s contention that Maxwell acted with malicious intent to harm him and there was no law that could be cited to alter the judge’s analysis.
“Plaintiff suggests the court’s judgment is a ‘shocking reversal’ and ‘startling switch’ of its prior rulings in this case, ‘reflecting a bias for Maxwell and the city, prejudicial to (Lowe),’ ” Alcott said in the filing. “Of course, this argument is illogical. If the court’s ruling for Maxwell constitutes a ‘shocking reversal’ of its positions throughout the twelve-year pendency of this case, that ruling cannot possibly be the product of a bias in Maxwell’s favor, nor does it constitute a ‘manifest injustice’ sufficient to vacate the judgment.”