MANSFIELD — The legal battle over the original demolition of the former Mansfield YMCA is about to reach the courtroom.
On one side is the City of Mansfield, which paid $500,000 to have 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.
On the other is Page Excavating, a Lucas contractor that did the work, as well as the company owners, Jeff and Landa Page, as individuals.
The city, through its Canton-based law firm, filed a lawsuit against Page in April, alleges the work was not properly completed. Service of the complaint was not successful until July. A dollar amount is not specified in the complaint in terms of damages being sought by the city.
The company, represented by a Columbus law firm, filed a motion to dismiss the suit on Sept. 18.
The city’s lawyers filed a brief Wednesday in response to that dismissal motion.
(Below is a PDF with the City of Mansfield’s legal brief opposing a motion to dismiss from attorneys representing Page Excavating of Lucas.)
A hearing is now scheduled for Nov. 6 at 9 a.m. in Richland County Common Pleas Court on that dismissal motion before visiting Judge Christopher Collier.
The Ohio Supreme Court on July 25 appointed the retired Medina County Common Pleas Court Judge Christopher Collier to preside over the case.
According to court records, both Richland County Common Pleas Court general division judges, Brent Robinson and Phil Naumoff, recused themselves from the case July 24, citing concerns over impartiality in the matter.
In his brief opposing the dismissal, attorney Mel Lute. Jr. from the Canton law firm of Baker, Dublikar, Beck, Wiley & Mathews claimed the lawsuit is at its beginning stages without discovery having been conducted.
“A complaint need not contain every factual allegation that the complaint intends to provide, as such facts may not be available until after discovery,” Lute said in his brief. “A plaintiff is not required to plead the legal theory of the case at the pleading stage and need only give a reasonable notice of the claim.
“Discovery has not yet commenced, therefore the parties have not had an opportunity to flesh out the breadth of the claims and the facts which may support the assertions alleged in the Complaint,” Lute wrote.
“This Court should not indulge Defendants by dismission claims at the outset of the case before there has even been an opportunity to conduct responsible discovery,” he said.
As part of the eight-page brief, Lute claimed Page Exvacating “fraudulently and/or negligently represented (its) experience and expertise with respect to excavation/demolition/debris removal and then further directly and consistently concealed information about structural subsurface (materials) that were buried by Defendants at the worksite, resulting in a direct injury to the City of Mansfield.”
Mansfield Law Director Rollie Harper, who took office in January, said March 19 he was considering outside legal counsel for the work.
“That’s certainly the goal,” Harper said during a Board of Control meeting in March in reference to a Richland Source question about recouping expenses.
“We are in the process of hiring outside counsel. We’re looking at negligence and fraud and we’re going to take it from there.”
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.
During a Mansfield City Council meeting in early September, Harper said he was hopeful for a settlement in the case, which came when the Richland County Land Bank discovered a massive amount of material left buried in the initial demolition done by Page Excavating.
The Land Bank assumed ownership of the property after the original demolition was complete and was seeking to have a 3.2-acre site redeveloped.
Land Bank board executive director Amy Hamrick said in March new contractor crews dug down as deep as 40 feet to remove material left behind by Page Excavation.
“Once we tell them everything is buried, (developers) quickly lose interest,” Hamrick said in March.
“To be honest, in my worst dreams, it was never this bad. I don’t know what else to say. It’s unbelievable,” she said of what was found at the site.
The complaint against the company alleges breach of contract; breach of implied warranties; breach of expressed warranties; fraudulent misrepresentation; negligent misrepresentation; and negligence and resulting damages.
In the motion to dismiss the complaint, Columbus attorney John Gambill said 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,” said Gambill, an attorney with the firm of Taft, Stettinius & Hollister LLP, which is representing Page Excavating.
“We are confident that the discovery process will bring to light facts that support dismissal of all the city’s claims.”
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.”
