flag image
Form Wealth Management

Mirbeau case takes hit with dismissals



shadow
shadow
November 03, 2010 | 09:00 AM
Lake Geneva Mayor Jim Connors is among those who no longer are defendants in the case between Mirbeau of Geneva Lake and the city of Lake Geneva.

On July 1, Mirbeau filed its second amended complaint and added Connors, Lower Density Development, Thomas Muenster and Richard Malmin as parties to the action in the $29 million lawsuit against the city. Mirbeau is suing the city following 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.

However, last week, U.S. District Court Judge J.P. Stadtmueller ordered the dismissal of the plaintiff's claims against Connors, Malmin, Muenster and LDD. In his 38-page order, Stadtmueller cited several reasons for the dismissal, including deficiencies in the complaint from Mirbeau and exceeding the statute of limitations on one of the claims.

He also questioned the future of the Mirbeau case in federal court.

Stadtmueller stated "both parties should contemplate whether this case, which unlike fine wine, is not improving with age, can be resolved short of this court further involving itself in the process. Such an alternative may prove to be far less costly and may, in the end resolve the competing concerns and interests of the remaining parties."

He also wrote, "the parties are reminded that the remaining federal claims in this case are extremely narrow avenues for relief, as federal courts are ordinarily not vehicles to review zoning board decisions. Before following what has regrettably become the routine of this case of filing motions before communicating with opposing counsel, counsel for all sides should very seriously contemplate whether this forum is truly the most appropriate and the most advantageous venue in which to satisfy the concerns of each of their respective clients."

Regarding the dismissals, Stadtmueller states Mirbeau's complaint is "silent on whether Connors and Malmin wanted the city to act maliciously and arbitrarily in its treatment of Mirbeau and its zoning change application." Rather, the complaint "only makes clear that Connors and Malmin wanted an end — LDD to develop the property in question, but the two relevant defendants did not express any sort of opinion, let alone come to an agreement with city officials, that they wanted Mirbeau to be treated irrationally by the city."

In Mirbeau's amended complaint, the focus turned to 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 was for "tortious interference with a contract" which was between Mirbeau and property owner Geneva Ridge Joint Venture to purchase a 54-acre piece.

In August, Connors, Malmin, LDD and Muenster filed motions in U.S. District Court, stating the Mirbeau complaints against them should be dismissed. They cited the two-year 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 included within the complaint.

In his opinion, Stadtmueller also stated that some of the allegations regarding e-mails sent and received by the defendants, while they may be true, does not prove that the they had any interest in the city denying Mirbeau's constitutional rights.

"In the final analysis, Mirbeau's complaint with respect to Connors and Malmin conspiring with city officials to violate the plaintiff's constitutional rights is thread bare and, as such, warrants dismissal of the claim.

Stadtmueller states "while city officials may have also shared in Muenster's and LDDs desire to have LDD develop the property in question, sharing one common goal is not the same thing as having a mutual goal to trample on someone's constitutional rights." He also states that while Muenster and LDD may have requested help from city officials to acquire the property "on the cheap," a request for the law to help a party "accomplish even a nefarious goal is insufficient to expose a private party to federal liability."

Stadtmueller finishes with the statute of limitations explanation. He states that Mirbeau did understand the non-city defendants role in the "alleged efforts to derail Mirbeau's contract with Geneva Ridge" before acquiring the e-mails from town of Linn officials in June. He states that they "knew about the four defendants' efforts to interfere with Mirbeau's contract before April 23, 2008.

"Given the two-year limitations period, Mirbeau brining a complaint against the non-city defendants on July 1, 2010, was far too late," Stadtmueller wrote.

Mirbeau, which had a contract in 2008 with Geneva Ridge to purchase 54.5 acres of the property for its development, states 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."

The complaint cited Connors as the president and founder of the Vote No Mirbeau-Hummel political action committee formed to oppose Mirbeau's zoning amendment application. It cited Malmin as an active member of the Friends of Geneva Lake group which also opposed the Mirbeau development. It also cited that Muenster was the manager of LDD.

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 multi-front 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."

printPrint
emailEmail
CommentFeedback
shareShare
Comments ()
Plaza Pharmacy Elkhorn
LAKE GENEVA AREA REALTY
Regional News