Witness: Purchase contract for Alvamar says site did not contain asbestos, indemnified Lawrence developer Thomas Fritzel
photo by: Nick Krug
TOPEKA — A purchase contract for Lawrence’s Alvamar Country Club, presented in U.S. District Court Monday, states there were no hazardous materials on the property, and it includes a provision that would financially protect Lawrence developer Thomas Fritzel in the case of such an issue.
Fritzel is charged with illegally disposing of asbestos-containing material during a 2016 remodeling of the Alvamar Country Club in west Lawrence, now known as the Jayhawk Club. The federal indictment alleges that in order to save money, Fritzel knowingly violated federal laws for safely handling asbestos, which has been linked to cancer. Fritzel is charged with three counts: knowingly failing to notify environmental agencies prior to removing asbestos material, knowingly failing to wet asbestos before removing it from the construction site, and knowingly failing to dispose of asbestos waste in leak-tight containers.
Fritzel’s defense attorney, Edward Novak, has said Fritzel was not originally aware there was asbestos at Alvamar and that because the Alvamar purchase contract included an indemnification, Fritzel did not have a financial incentive to improperly dispose of the asbestos. However, prosecuting attorneys have said Fritzel was made aware the Alvamar clubhouse roof contained asbestos, and that he did not notify the Kansas Department of Health and Environment when required or comply when the agency asked that all work on the construction site cease.
During Monday’s proceedings, Novak called on attorney Matt Gough to testify regarding the contract between Alvamar and an investor group Fritzel was part of to purchase the Alvamar property. Gough said Fritzel is a client of his firm and that he assisted with the purchase contract, which was displayed in court.
The purchase contract for Alvamar, finalized in December 2015, indicated there were no hazardous substances anywhere on the property, including asbestos. Gough said it wasn’t until he emailed Glen Grant of Alvamar on May 4, 2016, about potential asbestos that he was informed of a 2008 report that indicated the clubhouse roof contained asbestos. Gough said that because the purchase contract included an indemnification, Fritzel was reimbursed for costs he later paid to remediate the asbestos, and a final settlement between Alvamar and the investor group was displayed in court.
During cross-examination, federal prosecutor Richard Hathaway asked Gough about a March 5, 2016, email from Richard Herries, former golf course superintendent at Alvamar, in which Herries informed Fritzel and others of the 2008 asbestos report. Hathaway called Herries to testify Thursday about the email, as the Journal-World previously reported. Hathaway asked Gough if Fritzel shared that email with him or if he’d ever seen the email, and Gough responded that he didn’t believe so.
Novak also called Architect Paul Werner to testify. Werner said he prepared remodeling plans for the Alvamar clubhouse and submitted the building permit application to the City of Lawrence. Novak asked if the plans included the partial demolition of the clubhouse roof, to which Werner responded that the if the walls and rafters were left intact then roof work would have been considered a non-structural item. Novak then asked if Werner thought the demolition and remodel of the clubhouse exceeded the scope of the city permit and whether the city had ever required a survey before issuing such a permit, and Werner said he didn’t believe so.
During cross-examination of Werner, Hathaway again brought up Herries’ email, which in addition to Fritzel was sent to Jayhawk Club General Manager Wesley Lynch and Werner. Hathaway pointed out that the city demolition permit was dated March 1, 2016, and the email dated March 5, 2016, and asked Werner if he discussed the email with Fritzel at the time. Werner responded that he did and that Fritzel said the issue would be investigated and subsequently sent him a report regarding “some product” that tested negative for asbestos. Hathaway then asked Werner if he was aware that Fritzel’s son Tucker collected that sample and that the KDHE requires notification when a facility may contain asbestos, to which Werner said he was not.
Last week, KDHE employees testified that following a tip about potential asbestos, they visited the Alvamar construction site in October 2016. The employees said they found a large debris pile on the site that included the roofing material suspected of containing asbestos and that Fritzel was subsequently told that all work on the site needed to cease and that no debris should be moved. Hathaway also presented receipts from the Hamm Landfill outside Lawrence that indicate that in the days after KDHE visited the site, a company owned by Fritzel took several truck loads of debris to a local landfill. Novak previously called the timeline of events into question, as there were some discrepancies of dates on KDHE paperwork related to the event.
Novak called upon Jennifer Nuessen, who is the food and beverage director at the Jayhawk Club and formally held the same position at Alvamar. Novak asked Nuessen about two of Fritzel’s business associates, Lynch and Casey Stewart, the latter of whom is also Fritzel’s nephew. In response to questions from Novak, Nuessen said that in 2016 she saw Stewart on the Alvamar site almost daily and saw Fritzel on the site about once per month. When asked if she saw Fritzel give instruction or direction to Lynch or Stewart in 2016, Nuessen said she did not.
As part of Monday’s proceedings, Novak also called Harrison Quinn to testify. Quinn said that he previously worked for Fritzel, taking drone photographs of the Alvamar construction site in 2016. Novak exhibited a series of photographs of the site, taken in September, October and November of 2016, asking Quinn if he took those photos and whether they accurately depicted the areas shown in the photos on the dates indicated, and Quinn indicated they did.
Before the jury was brought into the courtroom Monday, U.S. District Judge Holly Teeter and attorneys for both sides discussed a motion filed by Fritzel’s defense to strike Herries’ testimony regarding the email warning of potential asbestos, arguing that a portion of it was hearsay. Thomas Lemon, another of Fritzel’s attorneys, argued that testimony Herries made stating that Lynch told him that Fritzel said to never put such things in writing again was hearsay and that all of Herries’ testimony should be stricken so as to not redirect the jury’s attention to the prejudicial testimony. Teeter ultimately decided to only strike the portion of the testimony in question and directed prosecutors not to mention it during closing arguments.
The defense also filed a motion to have Fritzel acquitted, stating the government did not provide sufficient evidence of its charges.
Monday was the fourth day of trial, and following the testimony of its witnesses, Fritzel’s defense rested its case. Fritzel did not testify. Both sides will make their closing arguments Tuesday, after which the jury will begin deliberating.