Trial begins in Mansfield’s demolition of YMCA building

MANFIELD — The A lawsuit over the initial demolition of a former YMCA along Park Avenue West has begun in Richland County Common Pleas Court on Wednesday morning — and will likely continue.

Retired Medina County Circuit Judge Christopher Collier held a 20-minute oral hearing on Page Excavating’s attorneys’ motion to dismiss a lawsuit filed by the City of Mansfield, which alleges the work was not done properly.

In the end, Collier, selected by the Ohio Supreme Court to preside over the case, asked lawyers for both sides to provide transcripts of the decision and their positions on the motion, promising to conduct his own research into the case as well.

“The other thing I want to do is meet with the attorneys and see if we can sit down and work out some dates for discovery and summary trial, assuming the case goes forward on either issue,” Collier told the a break hearing in Judge Phil Naumoff’s chambers at the Richland County Courthouse.

Both Richland County Common Pleas Judges Brent Robinson and Naumoff recused themselves from the case on July 24, citing concerns about the impartiality of the case, according to court records.

The attorneys in the case — Canton attorney Mel Lute Jr., who represents the city of Mansfield, and Columbus attorney John Gambill, who represents Page Excavating — argued largely according to filings previously filed in the lawsuit, which was filed in April.

At issue is a contract between the city and Page Excavating signed six years ago that allowed the contractor to haul debris from the site as well as bury some of the debris.

On one side is the city of Mansfield, which paid $500,000 to do the work 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 dollars.

On the other is Page Excavating, Lucas’ contractor who did the work, and the company’s owners, Jeff and Landa Page, as individuals.

Mansfield Law Principal Rollie Harper was in the gallery audience at the hearing, as were Jeff and Landa Page.

City officials say the work was not properly completed and later “it was discovered that (Page) had not demolished most of the lower floors of the building, including the existing pool, locker rooms and other structures. Materials that were supposed to be removed from the site were also destroyed on the spot.”

The complaint does not specify the amount of damages sought by the city.

Company lawyers filed a motion to drop the lawsuit on September 18.

A broad complaint against the company alleges breach of contract; breach of implied warranties; breach of express warranties; fraudulent misrepresentation; negligent misrepresentation; and negligence and related damages.

It also alleges that Jeff and Landa Page did not properly operate as an LLC as defined by state law and are therefore also individually liable for damages.

Gambill told the judge that the issue should be limited to the alleged breach of contract, also arguing that the claim could be dismissed under the terms of the contract.

“When you look at the claims of the complaint, all of the factual allegations alleging breach of contract actions are mere depictions of what is the basis for tort claims for fraudulent misrepresentation.

“There are no independent duties alleged or raised by the plaintiff during the brief that would otherwise support a claim for fraud or negligence,” he said.

Gambill also said the contract wording is ambiguous, allowing for both burial and removal of the material.

“One of the points we raised in our motion (to dismiss) is that the very conduct underlying the entire complaint is that Page Excavating buried certain materials on site when they should have removed them .

“Plaintiff points to specific language in the contract that says all trash must be removed.

“However, we noted in our briefing that there is another wording in the contract that says you can bury material and bury certain construction materials.

“That allegation is the basis of their complaint,” Gambill said.

Lute, whose firm Harper hired to handle the case, did not dispute that the complaint had many characteristics. But until discovery is complete, he said, it’s impossible to determine which elements of the complaint should be advanced.

“We made the mistake of trying to be as complete as possible. So we went in knowing that we’re not even at the starting line in the arc of this thing,” Lute said.

“After discovery, after we have the benefit of reviewing all the facts that will be developed in discovery, then some of these things may shake out.

“But now… we’re here… we’re at the very beginning. So what we did was put everything in there,” he said.

According to him, the motion to dismiss the complaint states that the plaintiff has not yet proven his case.

“Well, I’m not kidding, we didn’t. We are going.

“But we’ve been pretty specific in our complaint about the necessary elements to survive a motion to dismiss, mainly because we’re not required by law (to do more),” Lute said.

“If we hadn’t planned it, then the argument would be, ‘Why are you trying to amend the complaint in discovery to add a claim of fraud?’ You should have done it from the beginning.’

“Again, we got it wrong on inclusiveness. We erred on the side of the message, maybe the discovery will confirm that, maybe not,” he said.

In terms of the ambiguity in the contract, Lute said it’s clear Page Excavating didn’t do the job properly.

“The language that was quoted in the contract about being able to grind and crush certain building materials and leave them on the property is very different from what we experience, which is completely intact locker rooms and bathrooms buried underground that were not touched or destroyed, they just hid,” he said.

“We haven’t even seen a dispute because we don’t think it’s an ambiguity problem in the contract,” Lute said.

Legal documents (PDF)

City of Mansfield v. Page Excavating complaint

Motion to Dismiss City of Mansfield’s Complaint

(Town of Mansfield v. Request to Excavate Page Denied)