MANSFIELD — The legal battle over the original demolition of the former YMCA along Park Avenue West began in Richland County Common Pleas Court on Wednesday morning — and will likely continue.
Retired Medina County Common Pleas Court Judge Christopher Collier conducted a 20-minute oral hearing on a motion by attorneys for Page Excavating to dismiss a lawsuit filed by the City of Mansfield that claims the work was not done properly.
At the conclusion, Collier, selected by the Ohio Supreme Court to preside over the case, asked attorneys for both sides to file judgement entries with their positions on the motion, promising to also do his own research on the case.
“The other thing I want to do is meet with the attorneys and see if we can sit down and get some dates for discovery and summary judgement, assuming that the case proceeds further down the line on any of the issues,” Collier said before adjourning the hearing in Judge Phil Naumoff’s courtroom in the Richland County Courthouse.
According to court records, both Richland County Common Pleas Court general division judges, Brent Robinson and Naumoff, recused themselves from the case July 24, citing concerns over impartiality in the matter.
Attorneys in the case — Canton lawyer Mel Lute Jr., representing the City of Mansfield, and Columbus lawyer John Gambill, representing Page Excavating — largely argued along the lines of briefs previously filed in the lawsuit, which was filed in April.
At issue is the contract between the city and Page Excavating signed six years ago that allowed the contractor to remove debris from the site — and to also bury some of the debris.
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.
Mansfield Law Director Rollie Harper was in the audience in the gallery during the hearing, as were Jeff and Landa Page.
The city alleges the work was not properly completed and that it was later “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.”
A dollar amount is not specified in the complaint in terms of damages being sought by the city.
Attorneys for the company filed a motion to dismiss the suit on Sept. 18.
The wide-ranging 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.
It also claims Jeff and Landa Page didn’t properly operate as an LLC as defined by state law and are therefore individually liable for damages, as well.
Gambill told the judge the issue should be limited to an alleged breach of contract, also arguing even that claim could be dismissed under the terms of the contract.
“When you look at the claims of the complaint, all the factual allegations that underline the breach of contract action are mere images of what is forming the basis for the tort claims for fraudulent misrepresentation.
“There are no independent duties that were alleged or raised by the plaintiff in the briefing that would otherwise support a fraud or a negligence claim,” he said.
Gambill also said the contract language was ambiguous, allowing for both burial and removal of material.
“One of the items we raised in our motion (to dismiss) is that the very conduct that underpins the entire complaint is that Page Excavating buried certain materials on site when they are supposed to haul them away.
“The plaintiff points to a particular language of the contract which says that all debris is to be removed.
“However, in our briefing, we highlighted that there is other language in the contract which says that you can bury material and bury certain construction materials.
“That is the allegation that forms the basis of their complaint,” Gambill said.
Lute, whose firm was hired by Harper to pursue the case, didn’t deny the complaint had many prongs. But, he said, until discovery is completed, there is no way to determine which elements of the complaint should move forward.
“We erred on the side of being as complete as possible. So we included, knowing that in the arc of this case, we’re not even hardly at the starting line yet,” Lute said.
“After discovery, after we have the benefit of looking at at all of the facts that will be developed in the course of discovery, then some of these things may shake out.
“But right now … we’re here … we’re right at the beginning. So what we did was we put everything in there,” he said.
He said the motion to dismiss the complaint said the plaintiff had not proven its case yet.
“Well, no kidding, we haven’t. We’re going to.
“But we sufficiently stated with specificity in our complaint, the necessary elements to survive a motion to dismiss primarily because there’s no obligation for us under the law (to do more),” Lute said.
“If we hadn’t planned that, then the argument would be ‘Why are you trying to amend the complaint in the course of discovery to add a fraud claim? You should have done that from the beginning.’
“So again, we erred on the side of inclusiveness. We erred on the side of notice, maybe the discovery will bear this out and maybe it will not,” he said.
In terms of contract ambiguity, Lute said it’s clear Page Excavating didn’t do the work properly.
“The language that was cited in the contract about being able to grind up and crush certain construction materials and leave it on the premises is so different than what we’re experiencing, which is totally intact locker rooms and bathrooms that are buried underground that were not touched or destroyed, just concealed,” he said.
“We didn’t even see argument being made, because we don’t think that it’s an issue of ambiguity in the contract whatsoever,” Lute said.
Legal filings (PDFs)
City of Mansfield complaint against Page Excavating
Page Excavating motion to dismiss the City of Mansfield complaint
(City of Mansfield brief opposing Page Excavation motion to dismiss)
