THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, December 16, 1995 TAG: 9512160260
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: NORFOLK LENGTH: Long : 131 lines
Land salvager Edwin B. Lindsley Jr., the man who claims he owns the Virginia Beach Oceanfront beach, tried to pull a fast one on the federal court, but it wasn't fast enough, Judge Robert G. Doumar has ruled.
Playing detective, the judge said he found evidence that Lindsley and his lawyer ``colluded'' to fool the court in a land dispute involving a North Carolina charity and the city of Virginia Beach.
In a strongly worded opinion, Doumar threw out a lawsuit in which the charity claimed it owns a small site in Oceana, acquired from Lindsley, on which the city has run a sewage pump station for 25 years.
The lawsuit was filed in February by the Pasquotank Action Council, an Elizabeth City charity involved in youth recreation and feeding the poor.
The charity had demanded about $2 million in damages.
But Doumar didn't stop there. He also ruled that Lindsley, 71, gave the land to an out-of-state charity so the case could be filed in federal court, which hears disputes between residents of different states.
Lindsley apparently wanted toavoid Virginia Beach Circuit Court, which has been unfriendly to him for years.
A federal judge can throw out a case if he thinks an out-of-state party was brought in strictly to create federal jurisdiction.
``The facts in this case . . . emit an odor of collusion,'' Doumar wrote in his 24-page opinion. ``Indeed, the odor is so strong that it is conclusive. Mr. Lindsley had an obvious motive to transfer the parcel in question'' to the charity.
The judge also ruled that evidence showed that Lindsley and lawyer Harold Barnes - who represents Lindsley and Pasquotank - were in ``collusion'' to fool the court.
But Barnes, after reading the opinion, said late Friday that the judge was way off base.
``There was no evidence whatsoever, but he speculated on what may have happened,'' Barnes said. ``I looked at it as rambling on things that weren't in the evidence.''
Barnes blamed Lindsley's defeat on his unpopularity.
``The real issue is Mr. Lindsley,'' Barnes said. ``As a general proposition, because of the way he conducts his business, he's not absolutely popular. . . . It's been difficult for him to get his claims looked at (in court) in the same way others could.''
Doumar said he based his opinion, in part, on his own detective work, including an analysis of a memo's typeface, computer notations on a pair of letters and Lindsley's courtroom demeanor to show that Lindsley, not Pasquotank, was calling the shots.
Doumar wrote his opinion Thursday. The city received it Friday.
The land in dispute is a tiny lot - 2,100 square feet - on which the city built a sewage pump station in 1970. It sits at the edge of West Oceana Gardens.
The land is part of a larger 2-acre site that was designated as a park in 1950, when the neighborhood was built, and dedicated to the city. The park was never built. The land remains undeveloped except for the pump station.
In the early 1990s, Lindsley tried to buy the two acres from the defunct corporation that developed the neighborhood, but was rebuffed.
Instead, his business associate, James Moore Jr., bought the land for $14,500 in 1993 with money loaned to him by Lindsley.
A week later, Moore gave Lindsley the two acres for free. Then, Lindsley tried to build six houses on the two acres, but the city refused to let him.
Soon after, in July 1994, Lindsley gave the pump station site to the Pasquotank group for free, but kept the six housing sites for himself.
Pasquotank then sued the city, claiming it owned the land and that the city owed $1.7 million in back rent, plus $250,000 in punitive damages.
In defending the lawsuit, the city argued that Lindsley's transfer of the land to the charity was bogus, a ruse to get into federal court. Judge Doumar agreed.
``Lindsley's motive is laid bare by his transfer of the tiny, and largely useless (for development purposes) pump station site, and his retention of the most valuable portion of the park property,'' Doumar wrote. ``He stood to benefit greatly if Pasquotank succeeded here.''
As evidence of Lindsley's plot to fool the court, Doumar noted an anonymous memo that surfaced in court from the files of Lindsley's title examiner, Severn Kellam.
The memo - unsigned and undated - lays out a strategy to force the city to approve Lindsley's development of the park site, or force the case into federal court.
If the city denies Lindsley's development request, the memo stated, ``we will then convey the pump station to Mr. Barnes' people, who will then take the City into Federal Court.''
Barnes, a Norfolk lawyer, referred Lindsley to the North Carolina charity, testimony showed.
Besides representing the North Carolina group, Barnes also represents Lindsley in other land disputes, including Lindsley's current claim that he owns the Virginia Beach Oceanfront beach.
In court, Lindsley said he did not know who wrote the unsigned memo.
But Doumar, in his ruling, noted that the memo's typeface ``is strikingly similar to the typeface on two letters written by Mr. Moore in the office shared by Moore and Lindsley (they also share a secretary).''
The judge also noted in his ruling two letters written this summer by Barnes to the city attorney, at a time when Barnes was supposed to be representing Pasquotank, not Lindsley.
Doumar noted that both letters bear notations that show they came from computer files called ``cat/lindsleyp11'' and ``cat/lindsleyp15.''
``This would indicate that Barnes' typist believed the work in this case was actually being undertaken on behalf of Mr. Lindsley, not Pasquotank,'' the judge wrote.
Finally, Doumar noted that during an October court hearing on the matter, both Lindsley and his associate Moore remained in the courtroom after they had testified, passing notes and whispering to Barnes.
``It clearly appeared that Mr. Lindsley was the person who was consulting and directing Barnes throughout the evidentiary hearing,'' the judge wrote.
The judge remarked that Lindsley's testimony in the hearing ``strained credulity,'' and therefore ``the court . . . rejects most of it.''
``It defies reason,'' Doumar wrote, ``to accept Moore's characterization that the money ($14,500 given to Moore to buy the land) was a loan; Moore was a front man for Lindsley.''
For all those reasons, Doumar dismissed the case.
L. Steven Emmert, an assistant city attorney who handled the case, said he feels exonerated. ``Judge Doumar saw what I saw: The client here was Lindsley,'' Emmert said.
Barnes said he may appeal all or parts of Doumar's ruling, or may refile the case in state court.
Doumar's ruling could have implications beyond this case.
In the past year, Lindsley has donated six other Virginia Beach properties to Pasquotank. All have unusual shapes, sizes or encumbrances that make them ripe for federal lawsuits.
Among the properties is a half-mile stretch of Chesapeake Bay beach and a strip across the 15th fairway of the Princess Anne Country Club golf course.
Now, it is unlikely any of those will wind up in federal court, Emmert said. Still, Lindsley could bring the cases, including the pump station case, to state court.
``This,'' Emmert said, ``is in the court of Pasquotank and Mr. Lindsley.''
KEYWORDS: LAWSUIT RULING DISMISSAL ED LINDSLEY CHARITY by CNB