MANSFIELD — Attorneys for a Lucas contractor have filed a motion seeking to dismiss a lawsuit filed by the City of Mansfield that seeks to recoup money and damages from an alleged improper demolition of the former YMCA on Park Avenue West.
The 28-page motion filed Wednesday in Richland County Common Pleas Court by a Columbus law firm makes several assertions on behalf of Page Excavating.
Its primary claim is that the contract between Page Excavating and the city in 2018 “specifically authorizes the burial of construction debris and materials … which is the very thing that forms the basis of all (the city’s) claims.”
“Our clients vehemently deny the allegations in the city’s complaint and any accusation of malfeasance as a part of Page Excavating’s performance of work on the YMCA demolition project,” Columbus attorney John Gambill told Richland Source in an email.
“Our clients intend to vigorously defend the city’s claims and look forward to letting the litigation process play out. We are confident that the discovery process will bring to light facts that support dismissal of all the city’s claims,” said Gambill, an attorney with the firm of Taft, Stettinius & Hollister LLP, which is representing Page Excavating.
The motion requests a hearing before retired Medina County Common Pleas Court Judge Christopher Collier.
Collier was selected by the Ohio Supreme Court to preside over the case after both Richland County Common Pleas Court general division judges recused themselves, citing concerns over impartiality in the matter.
The dismissal motion also claims the city has no right to sue Jeff and Landa Page as individuals since the contract was entered into was with Page Excavating, Inc. and claims the complaint makes a “rote and conclusory claim against them attempting to disregard corporate formalities.”
A dollar amount is not specified in the city’s complaint, though the city paid Page Excavating $512,000 for the work done on the 3.2-acre site at 455 Park Ave. West in late 2018 and early 2019, using a portion of the city’s PRIDE tax funds.
The city also contributed another $600,000 in PRIDE funds earlier this year, during a $1 million “re-do” by a different contractor on the site. The property is now owned by the Richland County Land Bank, which also utilized a $405,000 state grant to help fund the work.
(Below is a PDF with the 28-page dismissal motion filed Wednesday on behalf of Page Excavating of Lucas.)
The City of Mansfield has hired outside legal counsel in the case, the Canton law firm of Baker, Dublikar, Beck, Wiley & Mathews.
The city’s complaint alleges that during initial post-demolition inspections “it was not discovered that (Page) had not demolished most of the lower floors of the building, including the existing swimming pool, locker rooms and other structures. The site also contained demolished material that was to be removed from the site.”
In its complaint, the city alleged that under the contract, Page Excavating was required to demolish and remove all structures, “including footings, foundation, floors, concrete slabs, walls, roof contents … and remove all demolished materials from the site.”
The complaint alleges Page Excavating conducted much of its work in the evenings and on weekends “when there would be less scrutiny by the city.”
“This deceptive conduct by (the defendants) … was designed, in part, to allow the defendants to bury certain material or undemolished remnants of the large building without detection,” according to the city’s complaint.
In its motion to dismiss, however, Page Excavating states the contract also allows that “masonry, concrete, concrete block, brick and stone materials are permitted to be used as fill materials within the demolition site.”
According to the contract, the dismissal claims, “these types of fill materials shall be acquired from within the demolition site limits only. Materials shall be broken, crushed, and compacted so as not to create any voids.”
The motion said the contract “specifically permitted Page Excavating to use demolished materials as fill for the demolition site.”
Page Excavating also claimed the city was allowed to withhold payment for the project until it was satisfied with the work.
“At no point prior to filing its Complaint, did Plaintiff claim that Page Excavating’s work was incomplete, not performed in a workmanlike manner, or otherwise not completed in accordance with the terms of the contract,” according to the dismissal motion.
The motion said the city filed its complaint almost six years after the contract was executed and two years after the city “allegedly discovered (the) contract breach and resulting damages.”
“In fact, Plaintiff sat on its rights for nearly four years before doing anything about the alleged defects and nearly six years before the filing of this lawsuit,” according to the dismissal motion.
The work was done during the administration of previous Mayor Tim Theaker and Law Director John Spon. New Mayor Jodie Perry and Law Director Rollie Harper took office in January, four months before the city filed its complaint.
The motion also alleges the city’s attorneys have “overcomplicated this case and attempted to strong-arm the individual defendants (Jeff Page and Landa Page) by asserting erroneous tort claims and seeking punitive damages in a case that is the quintessential example of a contract dispute.
“Plaintiff is attempting to hold the individual Page defendants liable for a mere breach of contract by Page Excavating,” the motion to dismiss claims.
It said all of the city’s claims should be dismissed because “the conduct forming the basis of Plaintiff’s claims was expressly permitted by the contract.”
