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Talismanic Properties, LLC v. Tipp City

United States District Court, S.D. Ohio, Western Division, Dayton

December 11, 2017

TALISMANIC PROPERTIES, LLC, et al., Plaintiffs,
v.
TIPP CITY, OHIO, Defendant.

         DECISION AND ENTRY: (1) DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC. 75); (2) GRANTING DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT (DOC. 88) WITH REGARD TO PLAINTIFFS' FEDERAL CLAIMS; (3) DECLINING TO EXERCISE SUPPLEMENTAL JURISDICTION OVER PLAINTIFFS' REMAINING STATE LAW CLAIMS; (4) DENYING WITHOUT PREJUDICE THE PARTIES' REMAINING MOTIONS (DOCS. 102, 104, 113, 115, 116); (5) DENYING AS MOOT PLAINTIFFS' MOTION FOR LEAVE TO EXCEED THE PAGE LIMITATION (DOC. 121); AND (6) DIRECTING THE CLERK OF COURTS TO ENTER JUDGMENT ACCORDINGLY, REMAND THE REMAINING STATE LAW CLAIMS TO THE COMMON PLEAS COURT OF MIAMI COUNTY, OHIO, AND TERMINATE THE CASE ON THE COURT'S DOCKET

          MICHAEL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         This 42 U.S.C. § 1983 case, for which the parties have consented, is before the Court on the parties' cross motions for summary judgment; namely, Plaintiffs' motion for partial summary judgment (doc. 75) and Defendant's cross summary judgment motion (doc. 88). Also before the Court are a number of other motions related to the summary judgment briefing -- the City's motion to strike certain exhibits (doc. 104), Plaintiffs' three motions to strike certain evidence (docs. 102, 113, 116), and the City's motion to disqualify counsel (doc. 115).[1] All of the motions are all fully briefed (docs. 91, 96, 101, 105, 108, 109, 111, 112, 114, 117, 118, 119, 120, 122, 123). The Court has carefully considered all of the foregoing, including proper Rule 56 evidence cited to by the parties, and these motions are all ripe for decision.

         I.

         This case concerns, among other claims, alleged constitutional violations by Defendant Tipp City, Ohio (“the City”) with regard to development of the Cedar Grove subdivision (“subdivision”) and, in particular, issues concerning the electrical infrastructure proposed by the City for the subdivision. The parties have submitted hundreds of pages of arguments (docs. 75, 88, 91, 96, 101-02, 104-05, 108-09, 111-23), thousands of pages of deposition testimony (docs. 72-74, 76-87, 93-95), as well as thousands of pages of exhibits in support of their motions. See, e.g., docs. 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88. The Court will summarize the facts material to disposition of the pending motions herein.

         Two plaintiffs now seek relief. Plaintiff Talismanic Properties, LLC (“Talismanic”) owns a tract of real estate within the City limits which consists of 42 lots available for residential construction. Doc. 5 at PageID 145.[2] Plaintiff Judith Tomb is Talismanic's general manager.[3]Id. Talismanic purchased the subject property from another developer in 2013 (doc. 85 at PageID 4843) and, thereafter, began the process of designing the subdivision and obtaining the necessary approvals from the City to commence development. Doc. 85 at PageID 4843-47.

         In July 2013, the City approved Plaintiffs' preliminary plan for Cedar Grove and set a hearing for approval of Plaintiffs' final plan later that month. Doc. 96-17 at PageID 6846. Subsequently, on July 25, 2013, the City Planning Board recommended approval of Plaintiffs' final plan. Id. at PageID 6846-47.

         Part of Plaintiffs' final plan at that time was an electrical extension agreement executed by Plaintiffs in which Talismanic agreed to pay the City $142, 721.00 for an electrical extension to the subdvision. See doc. 85-5 at PageID 5056-57. The cost for the electrical extension was originally estimated by the City in July 2013 and communicated to Plaintiffs at or about that time. Doc. 79-5 at PageID 3823-24. On July 25, 2013, Plaintiffs advised the City that the electrical extension cost was excessive and appeared “‘to be an ‘exaction' by the City which may be illegal.” Doc. 85-4 at PageID 5055. Plaintiffs requested additional detail regarding the cost of the extension on August 5, 2013 (doc. 85-2 at PageID 5050) and, on August 9, 2013, Plaintiffs advised the City that construction documents could not be executed because, inter alia, “the financial burden” of the electrical extension “is too great for . . . the developer . . . to bear[.]” Doc. 85-3 at PageID 5052. As further explained by Plaintiffs on that date, “[t]he project simply cannot go forward until there is an economically viable resolution on the electrical issue.” Id.

         Nonetheless, on August 30, 2013, Plaintiffs signed the electrical extension agreement, agreeing, inter alia, “to pay to the city the sum of $142, 721.00[.]” Doc. 85-5 at PageID 5056. When asked why she signed the agreement on behalf of Talismanic, Judith Tomb testified that she “had no alternative” after being “told point blank by Brad Vath of the City of Tipp City that if I did not sign it, the project would stop right then and there and no use would be made of the land.” Doc. 85 at PageID 4871-72. The electrical extension agreement was made part of Plaintiffs' Subdivision Construction Agreement with the City executed on July 15, 2014 and subsequently submitted to the City Council for approval by ordinance. See doc. 96-17 at PageID 6848; see also doc. 96-17 at PageID 6938-39.

         An ordinance to approve the Plaintiffs' final plan and the Subdivision Construction Agreement was placed on the City Council agenda for July 21, 2014, where it had its first reading. Doc. 96-17 at PageID 6848. The ordinance had its second reading at a City Council meeting on August 4, 2014 and, immediately thereafter, the City Council President called for a second to the motion to approve the ordinance. Id. at PageID 6849. When the motion was not seconded, the ordinance was declared dead. Id.

         Following failure of the ordinance, Talismanic filed suit against the City in the Common Pleas Court of Miami County, Ohio on August 18, 2014 (hereinafter referred to as “the first lawsuit”). See doc. 85-6. The pleadings were subsequently amended in November 2014 to add Tomb among the plaintiffs to that case. Doc. 96-17 at PageID 6843. The claims asserted by Plaintiffs against the City in the first lawsuit included, inter alia, a petition for a writ of mandamus in which Plaintiffs sought to compel the City “to (1) reverse the wrongful de facto denial/rejection of the ordinance and the failure to pass the ordinance [on August 4, 2013] and (2) approve the ordinance immediately.” Id. at PageID 6854 (capitalization omitted). In that first lawsuit, Plaintiffs did not seek relief as a result of an alleged taking arising out of the electrical cost demand. Doc. 96-17. The parties ultimately settled their dispute and, in March 2015, the Common Pleas Court dismissed the first lawsuit with prejudice. Doc. 84-1 at PageID 4810-11. As part of that settlement, the City, by a 2015 ordinance, approved Plaintiffs' electrical extension. See doc. 5 at PageID 146.

         Following dismissal of the first lawsuit, a number of other disputes arose between the parties regarding development of the subdivision and the cost of the electrical extension. See doc. 5 at PageID 145-51. In June 2016, Plaintiffs filed the instant suit against the City -- i.e., the second lawsuit between the same parties -- in the Miami County Common Pleas Court. See id. Seeking relief under § 1983, Plaintiffs claim in the second lawsuit that: (1) application of City Ordinance § 155.03(F) deprives them of due process of law guaranteed by the Fourteenth Amendment; (2) the City's excessive fee demand constitutes a taking without just compensation in violation of the Fifth Amendment; and (3) the City's fee demand also violates Plaintiffs' right to equal protection under the Fourteenth Amendment. Doc. 5 at PageID 157. Seeking relief under state law and via the Court's supplement jurisdiction, see 28 U.S.C. § 1367, Plaintiffs also claim in the second lawsuit that the City violated their right to due process under the Ohio Constitution, breached the parties' construction agreement, and tortuously interfered with Plaintiffs' business relationships with others.[4] Doc. 5.

         In July 2016, the City timely removed Plaintiffs' complaint to this Court on the basis of federal question jurisdiction. Doc. 1. It is this complaint from the second ...


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