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Mirbeau seeks third amended complaint



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September 08, 2010 | 08:55 AM
The federal court filings came quickly last week as the lawsuit between Mirbeau of Geneva Lake and the city of Lake Geneva continues.

Early last week, Mirbeau filed a pair of documents. One is a 28-page document opposing motions to dismiss two of the most recently added defendants in the case — Linn Township resident Richard Malmin and current Lake Geneva Mayor Jim Connors. The other was a request to file a 55-page third amended complaint against the city and other defendants.

Currently, the discovery process in the $29 million lawsuit involving the resort and spa developer and the city is on hold after U.S. Eastern District Federal Court Judge J.P. Stadtmueller ordered last month that until the motions to dismiss as requested by the most recent defendants added to the suit are heard, the gathering of evidence and witness interviews will have to wait.

In August, Connors, Malmin, Lower Density Development and its manager, Tom Muenster, asked the court to dismiss Mirbeau's complaints against them. The same defendants, after receiving notices to appear for depositions for the case, requested to stay discovery.

They claimed the statute of limitations has expired, that there is no basis or fact that infers conspiracy or interference and there are improper procedures and law citations within the complaint.

Mirbeau's opposition to the dismissal reasons filed last week states that the complaint indeed alleges facts showing that Malmin and Connors acted jointly with other city defendants. Mirbeau also states that statute of limitations "for an action of tortious interference with contractual relations is six years."

The opposition also states that "Mirbeau did not learn of the role of Malmin and Connors in the conspiracy to delay and deny its zoning amendment application until after this litigation was commenced." Information was obtained through discovery of e-mail transmissions.

According to Mirbeau's filing, Malmin did not show up at his deposition set for Feb. 19. Connors was deposed on June 21.

In the other document filed by Mirbeau, minor changes and corrections were made in the third amended complaint. Some citations to state statute were changed and called "typos" by Mirbeau attorneys. The order of two allegations also were reversed and are incorporated into conspiracy claims against certain defendants.

In Mirbeau's complaints, the focus is on current Alderwoman Mary Jo Fesenmaier, former alderwoman and Friends of Geneva Lake leader Penny Roehrer, Connors, Malmin, Lower Density Development, and Muenster, brother-in-law of lakefront owner and billionaire J.B. Pritzker. That claim is for "tortious interference with a contract."

Mirbeau is suing the city after the failure of their combined development with Geneva Ridge Joint Venture on the 718 acres on the city's south side. The plan included an inn, winery and homes. Mirbeau, which had a contract in 2008 with Geneva Ridge to purchase 54.5 acres of the property for its development, is claiming that Fesenmaier, Roehrer, Connors, Malmin, Muenster and LDD "intentionally interfered with the Mirbeau purchase contract." The complaint states this effort included trying to drive down the value of the property so LDD could "acquire title at less than market price."

Connors' response motion for dismissal states that Mirbeau's recent decision to join him as a defendant "is nothing more than a strategic move to put pressure on Connors and the city." It also states that Mirbeau "does not allege a single conversation, meeting, correspondence or other form of contact between Connors and the city defendants that could support an inference of conspiracy."

According to Mirbeau's amended complaint, following LDD's offer to purchase the 718 acres for $10 million, a "flurry of behind-the-scenes activity, spearheaded by Roehrer, Muenster, LDD, Fesenmaier, Malmin and Connors.

"These defendants developed, organized, planned and led a multifront attack on Mirbeau, all designed to delay, disrupt, and interfere with Mirbeau's purchase contract," the amended complaint states.

Geneva Ridge and Mirbeau teamed together in an effort to develop 718 acres of land near Big Foot Beach State Park. After the effort with Mirbeau failed, Geneva Ridge, better known as Hummel, went on their own in an effort to develop the property. That also failed.

In general, both Mirbeau and Hummel are alleging among other things, "unlawful conduct by certain city officials who control the local government." It involves a "systematic and ongoing pattern of intentional unequal treatment ... without any rational basis. These city officials individually and collectively have abandoned and ignored legal obligations of their elected offices, as well as the rules, regulations and procedures of their own municipal zoning ordinances."

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