Reasor v. City of Norfolk, Va.

• Citation: 606 F. Supp. 788
• Decision Date: 05 October 1984
• Docket Number: Civ. A. No. 84-3-N.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: W.W. REASOR, Jerry W. Adams, Michael W. McCabe, and Harry T. Lester, Individually and as Partners of Raml Associates, a Virginia General Partnership, and, with respect to Jerry W. Adams, Michael W. McCabe and Harry T. Lester, as Partners of Adams, McCabe & Lester, a Virginia General Partnership, Plaintiffs, v. The CITY OF NORFOLK, VIRGINIA, A Virginia Municipal Corporation, and Norfolk Redevelopment and Housing Authority, a Virginia Redevelopment and Housing Authority, and Goodman-Segar-Hogan, Incorporated, a Virginia Corporation, Defendants.

606 F. Supp. 788

W.W. REASOR, Jerry W. Adams, Michael W. McCabe, and Harry T. Lester, Individually and as Partners of Raml Associates, a Virginia General Partnership, and, with respect to Jerry W. Adams, Michael W. McCabe and Harry T. Lester, as Partners of Adams, McCabe & Lester, a Virginia General Partnership, Plaintiffs, v. The CITY OF NORFOLK, VIRGINIA, A Virginia Municipal Corporation and Norfolk Redevelopment and Housing Authority, a Virginia Redevelopment and Housing Authority and Goodman-Segar-Hogan, Incorporated, a Virginia Corporation, Defendants.

Civ. A. No. 84-3-N.

United States District Court, E.D. Virginia, Norfolk Division.

July 18, 1984.

Supplemental Order October 5, 1984.

COPYRIGHT MATERIAL OMITTED

Everette G. Allen, Jr., Hirschler, Fleischer, Weinberg, Cox & Allen, Richmond, Va., for plaintiffs.

William T. Prince, Norfolk, Va., for City.

Walkley E. Johnson, Jr., Norfolk, Va., for NRHA.

Hunter W. Sims, Jr., Norfolk, Va., for Goodman-Segar.

OPINION AND ORDER

CLARKE, District Judge.

This matter comes before the Court on the motion to dismiss and for summary judgment filed by the defendant, City ("City"). The plaintiffs have filed a brief in opposition to the City's motion, the City then filed reply briefs, and oral argument was heard on the motion. Accordingly, the issues are ripe for disposition.

The plaintiffs, partners of a realty firm, filed this suit against the City, Norfolk Redevelopment and Housing Authority, and Goodman-Segar-Hogan, Inc., a rival realty corporation, on January 4, 1984. The forty-two page complaint asserted thirteen different grounds for relief. The background of the dispute is that the City acquired part of a tract of land owned by the plaintiffs and constructed a parking garage, Garage Site I, on that land. At the time of the sale, the plaintiffs negotiated with the City concerning the City's desire to acquire a second parcel of the plaintiffs' land and the plaintiffs' desire to erect an office building in the airspace over the proposed parking garage on the second parcel of land (Garage Site II A). Those negotiations fell through and eventually resulted in this suit in which plaintiffs allege, in part, violations of state and federal antitrust statutes, relocation statutes, and breach of contract.

The Court begins its analysis by observing that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts" which would entitle him to relief. See, Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Summary judgment can only be granted "where it is perfectly clear that there is no dispute about either the facts of the controversy or the inferences to be drawn from such facts." Morrison v. Nissan Motor Co., 601 F.2d 139 (4th Cir.1979). The plaintiffs have filed an affidavit stating they are unable to produce affidavits on several issues. Fed.R.Civ.P. 56(f). The Court will consider that proposition when it deals with the affected counts of the complaint.

The Court will examine the motion to dismiss and for summary judgment on each count separately in the same order and grouping as they appear in the City's brief.

Contract Claims—Counts 1, 2, 4 and 6

Counts 1, 2 and 4 of the complaint each request the Court to enforce the "Condemnation Agreement" which allegedly allowed the City to buy the plaintiffs' property and construct a parking garage, Garage Site I, and in return required the City to allow the plaintiffs to construct an office building over the parking garage on Garage Site IIA.

Count 6 seeks a recision of the sale of Garage Site I because the City allegedly failed to meet its obligations under the "Condemnation Agreement." The City has moved for summary judgment on Counts 1, 2, 4 and 6 contending that there is no "Condemnation Agreement." The plaintiffs allege that the "Condemnation Agreement" consists of two written documents, the Statement of Principles and the Memorandum of Understanding, along with various oral representations and agreements made by the parties.

The Court DENIES the motion to dismiss and for summary judgment on Counts 1, 2, 4, and 6 of the complaint. The complaint alleges that the parties had agreed to a "condemnation agreement" which allowed the City to acquire Garage Site I without the use of condemnation proceedings. Whether the parties' minds had met is a disputed question of fact on the record before the Court at this time. Charbonnages de France v. Smith, 597 F.2d 406 (4th Cir.1979). Thus summary judgment is not appropriate on Counts 1, 2, 4, and 6 at this time because the existence of a "condemnation agreement" is an unresolved question of fact.

Relocation Benefits—Counts 3 and 4

In Counts 3 and 4, the plaintiffs seek relocation assistance pursuant to the Housing Act of 1949, 42 U.S.C. § 1455(c), and Section 25-235 et seq. of the Virginia Code. The City has moved to dismiss Counts Three and Four on the grounds that the plaintiffs are not "displaced persons," the project was not federally funded and plaintiffs have failed to exhaust administrative remedies. The plaintiffs Reasor, Adams, McCabe and Lester, trading as RAML Associates, have failed to state a claim for relief in Count 3 or 4 because they are not displaced persons. The relocation benefits are afforded to "displaced" persons. A displaced person is a person who "moves" as a result of an acquisition or written order to vacate. See, 42 U.S.C. § 4601(6); Va.Code § 25-238(c). "Displaced" persons include occupants, but not owners. City of Mishawaka v. Knights of Columbus Home Association of Mishawaka, 396 N.E.2d 948, 950 (Ind.Ct.App.1980). RAML has never even alleged that they were occupants of the property thus RAML's claims under Counts 3 and 4 are DISMISSED for failure to state a claim. The plaintiffs, Adams, McCabe and Lester, partners of Adams, McCabe and Lester ("AML") have alleged that they were forced to move as a result of the City's agreement to purchase the property where AML was located. Thus, AML, unlike RAML, may have a valid cause of action because AML's occupancy was terminated. Whether AML moved as a result of the City's acquisition or written order to vacate is a disputed question of fact.

The defendants assert that AML, the sole surviving plaintiff in Counts 3 and 4, must exhaust its administrative remedies before bringing this suit.

Federal statutes provide for payment of benefits to displaced persons upon application for relocation benefits. 42 U.S.C. § 4622. The Virginia statute implies that the displaced person must seek payment of benefits. Va.Code § 25-239; Boston v. United States, 424 F.Supp. 259 (E.D.Mo. 1976). AML has not alleged that they have applied for benefits. AML's claim for moving expenses has not been presented to any administrative agency. Thus, AML's claim for relocation benefits is DISMISSED without prejudice for failure to exhaust administrative remedies. 42 U.S.C. § 4633(b)(3), 24 C.F.R. §§ 42.225(h), 42.703(a)(b), 42.711; Olivares v. Martin, 555 F.2d 1192, 1196 (5th Cir.1977). The plaintiffs' reliance on M.M. Crockin Co. v. Portsmouth Redevelopment & Housing Authority, 437 F.2d 784 (4th Cir.1971), is misplaced because the plaintiff in that case challenged the agency's approval of a relocation plan. In this case, the plaintiff complains of the City's failure to award the plaintiff moving expenses and other relocation benefits, yet such a claim is obviously dependent upon a request by the plaintiff and no such request has been alleged.

The plaintiffs, Adams, McCabe and Lester, have also asked this Court to enforce the "Condemnation Agreement" as effective relocation assistance in Counts 3 and 4. To the extent AML seeks damages for the defendants' allegedly wrongful denial of relocation assistance, AML need not exhaust administrative remedies. M.M. Crockin Co. v. Portsmouth Redevelopment & Housing Authority, supra. Unlike relocation benefits, e.g., moving expenses, denial of relocation assistance may not be reviewable by an administrative agency. 24 C.F.R. § 42.703(a). Thus, the Court refuses to require exhaustion on the claims for relocation assistance, as distinguished from relocation benefits.

The City has also urged dismissal on the ground that no federal funds were used in the acquisition and construction of the garage on Garage Site I. The plaintiffs have filed an affidavit under Rule 56(f) stating they are unable, at this time, to produce affidavits concerning the use of federal funds. Accordingly, the Court DENIES the motion for summary judgment and to dismiss at this time. The plaintiffs are advised to make a timely compliance with the requirements of the newly revised Rule 11. Fed.R.Civ.P. The plaintiffs should further be on notice from the number of attorneys present at the hearing on this motion as well as the length of the briefs in this case, that plaintiffs' counsel may also expose themselves to extensive liability if they fail to comply with the requirements of this rule.

Thus, the Court has dismissed Reasor, Adams, McCabe and Lester as plaintiffs from Counts 3 and 4 with prejudice, has dismissed Adams, McCabe and Lester's claim for relocation benefits, such as moving expenses, without prejudice, and has declined to dismiss the claims of AML alleging denial of relocation assistance under Counts 3 and 4.

Declaratory Judgment—Count 5

In Count Five, plaintiffs seek a declaratory judgment that if the City uses condemnation to acquire RAML's property, Garage Site IIA, that the City be limited to the amount of airspace above the property as is necessary to construct a garage and that the City provide for ingress and egress to a building site to be titled in RAML, above the proposed parking garage. The City contends that it cannot be ordered to limit its acquisition of property by eminent domain to accommodate the development by plaintiffs. In their brief in opposition the plaintiffs state "plaintiffs merely...