Schultz v. Averett

• Decision Date: 22 August 2018
• Docket Number: Case No. 2:15-cv-00720-JNP-EJF
• Parties: CHARLES A. SCHULTZ, Plaintiff, v. MICHAEL AVERETT, HEATHER BATEMAN, KASEY BATEMAN, JAY BINKERD, JONATHAN BLOTTER, ERIC BUNKER, LYNN CRISLER, LAMBERT DEEGAN, MICHAEL DUGGIN, JOHN GLODOWSKI, DIANE GROASE, DANIEL HARVATH, KIM NORRIS, ED PRESSGROVE, LANCE TURNER, PAM SKINNGER, LYNNE SCHINDURLING, FRANCIS SMITH, GARY WALTON, GARY WEIGHT, and THE TOWN OF DANIEL, Defendants.
• Court: U.S. District Court — District of Utah

CHARLES A. SCHULTZ, Plaintiff, v. MICHAEL AVERETT, HEATHER BATEMAN, KASEY BATEMAN,JAY BINKERD, JONATHAN BLOTTER, ERIC BUNKER, LYNN CRISLER,

LAMBERT DEEGAN, MICHAEL DUGGIN, JOHN GLODOWSKI, DIANE GROASE,

DANIEL HARVATH, KIM NORRIS, ED PRESSGROVE, LANCE TURNER,

PAM SKINNGER, LYNNE SCHINDURLING,

FRANCIS SMITH, GARY WALTON,

GARY WEIGHT, and THE TOWN OF DANIEL, Defendants.

Case No. 2:15-cv-00720-JNP-EJF

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

August 22, 2018

REPORT AND RECOMMENDATION TO GRANT THE DEFENDANTS' MOTION TO DISMISS

District Judge Jill N. Parrish

Magistrate Judge Evelyn J. Furse

The Defendants Michael Averett, Heather Bateman, Kasey Bateman, Jay Binkerd, Jonathan Blotter, Eric Bunker, Lynn Crisler, Lambert Deegan, Michael Duggin, John Glodowski, Diane Groase, Daniel Harvath, Kim Norris, Ed Pressgrove, Lance Turner, Pam Skinnger, Lynne Schindurling, Francis Smith, Gary Walton, Gary Weight, and the Town of Daniel (collectively, "the Daniel Defendants") move the Court¹ to dismiss Plaintiff Charles Schultz's Amended Complaint. (Defs.' Mot. to Dismiss & Supp'g Mem. ("Mot."), ECF No. 33.) The Daniel Defendants ask the Court to dismiss all of the claims in Mr. Schultz's Amended Complaint for failure to state a claim upon which this Court can grant relief. (Id. at vii-xii.)

In response, Mr. Schultz agreed to voluntarily dismiss his tortious interference with economic relations (tenth cause of action), tortious interference with prospective business relations (eleventh cause of action), intentional infliction of emotional distress (twelfth cause of action), and negligent infliction of emotional distress (thirteenth cause of action) claims against Eric Bunker and Lynne Shindurling because the Governmental Immunity Act shields Mr. Bunker and Ms. Shindurling from suit on these claims. (Mem. in Opp'n to Mot. to Dismiss ("Opp'n") 20-21, ECF No. 35.) On June 4, 2018, Mr. Schultz filed a notice of voluntary dismissal of his tenth, eleventh, twelfth, and thirteenth causes of action. (Voluntary Dismissal, ECF No. 46.) The Daniel Defendants stated they would stipulate to dismissing the claims with prejudice. (Defs.'s Response to Pl.'s Voluntary Dismissal, ECF No. 47.) Therefore, the undersigned RECOMMENDS the District Judge DISMISS Mr. Schultz's tortious interference with economic relations (tenth cause of action), tortious interference with prospective business relations (eleventh cause of action), intentional infliction of emotional distress (twelfth cause of action), and negligent infliction of emotional distress (thirteenth cause of action) claims against Eric Bunker and Lynne Shindurling with prejudice. See accord S.H. ex rel R.H. v. Utah, 865 P.2d 1363, 1364-65 (Utah 1993) (affirming dismissal with prejudice on the basis of governmental immunity).

Mr. Schultz also agrees to the dismissal of his tortious interference with prospective business relations (ninth cause of action), intentional infliction of emotional distress (fifteenth cause of action), and negligent infliction of emotional distress (sixteenth cause of action). (Opp'n 21, ECF No. 35.). Therefore, the undersignedRECOMMENDS the District Judge DISMISS Mr. Schultz's ninth, fifteenth, and sixteenth causes of action.

Regarding the remaining claims, the undersigned carefully considered the parties' briefing,² took all factual allegations as true, and RECOMMENDS the District Judge GRANT the Daniel Defendants' Motion and DISMISS the following claims. Specifically, the undersigned RECOMMENDS the District Judge DISMISS: (1) Mr. Schultz's first cause of action for unlawful taking of property under the United States Constitution because he has not sought monetary relief under the Utah Constitution Article I, section 22, (2) Mr. Schultz's second cause of action for unlawful taking under the Utah Constitution because Article I, section 7 does not provide for a takings claim, (3) Mr. Schultz's eighth cause of action for tortious interference with economic relations because he has not alleged that the individual defendants interfered by improper means, and (4) Mr. Schultz's fourteenth cause of action for a violation of Fourteenth Amendment because he has not alleged facts demonstrating the Daniel Defendants acted irrationally and abusively towards him when they did not permit him to build a house on his property. The undersigned further RECOMMENDS the District Judge grant Mr. Schultz fourteen days to file a second amended complaint curing the problems identified regarding the individual defendants and the eighth and fourteenth cause of actions and correct any other aspects Mr. Schultz wishes to correct. The undersigned further RECOMMENDS the District Judge DENY the remainder of the Motion.

FACTUAL AND PROCEDURAL HISTORY

The facts from Mr. Schultz's first Complaint have not changed. On September 15, 2016, Mr. Schultz moved the Court to add the Town of Daniel as a defendant after he mistakenly named the Township of Daniel, which is a non-existing entity. (Mot. to Add the Town of Daniel as a Defendant, ECF No. 20.) On September 20, 2017, the District Judge denied the addition of the Town of Daniel to the claims for tortious interference, negligent infliction of emotional distress, intentional infliction of emotional destress, and Utah Code section 17-27a-510, granted Mr. Schultz leave to amend "all other portions of his complaint to substitute 'the Town of Daniel' for 'the Township of Daniel.'" (Order Adopting R&R ("Order"), ECF No. 31.) On October 12, 2017, Mr. Schultz filed his Amended Complaint. (Am. Compl., ECF No. 32.) Taking the factual allegations in the Amended Complaint as true, Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)), the following facts provide the background for this decision.

On June 1, 1999, Mr. Schultz purchased a home on 3.71 acres in Wasatch County, Utah. (Am. Compl. ¶ 14, ECF No. 32.) At the time Mr. Schultz purchased the property, Wasatch County had zoned the property residential/agriculture ("RA"). (Id. at ¶ 19.) On May 1, 2002, a fire destroyed Mr. Schultz's property. (Id. at ¶ 18.) In 2002, Wasatch County rezoned Mr. Schultz's property from RA, to residential/agriculture with a five-acre minimum ("RA5"). (Id. at ¶ 33.) Mr. Schultz alleges his home retained its RA designation after the rezoning because Wasatch County grandfathered in his property "as a residential building lot." (Id. at ¶¶ 34-35.)

In March 2006, the Town of Daniel filed articles of incorporation with the Wasatch County Recorder. (Id. at ¶ 20.) Mr. Schultz's property sits in the Town of Daniel. (Id. at ¶ 23.) No one notified Mr. Schultz of the Town of Daniel's incorporation, and he did not know the area became a town until April or May of 2014. (Id. at ¶¶ 24-26.) In 2006 or 2007, the Town of Daniel passed a code that changed Mr. Schultz's property's zoning from RA5 to agriculture. (Id. at ¶¶ 42-43, 50.) The Town of Daniel never informed Mr. Schultz that it rezoned his property. (Id. at ¶ 44.) In fact, Mr. Schultz continued to pay taxes on his property as a residential lot and therefore overpaid his property taxes to the Town of Daniel. (Id. at ¶¶ 45, 52-54.)

Mr. Schultz first learned the Town of Daniel had changed the zoning of his property in April or May of 2014 while attempting to sell his property. (Id. at ¶ 27.) After experiencing difficulty selling his property, Mr. Schultz contacted the Town of Daniel

who told him a home could not be constructed on his property, because the Town of Daniel had passed Daniel Town Code, Section 8.22.03, that states that Mr. Schultz could not build a new home on his property, because he did not construct a new home on his property, within one year after the home on the property was destroyed by fire, on May 1, 2002, even though the Town of Daniel did not exist until 2006, and did not enact its Town Code until 2006, at the earliest, unless Mr. Schultz could provide the Town of Daniel with a document called a "lot of record."

(Id. at ¶ 27.) Mr. Schultz alleges multiple representatives from the Town of Daniel "told numerous people who were interested in purchasing Mr. Schultz's property, that they could not build a home on the property." (Id. at ¶ 31.)

Between September 15, 2014 and March 10, 2015, Mr. Schultz engaged in multiple attempts to determine whether the Town of Daniel would issue a building permit for his lot. (Id. at ¶¶ 36-40, 47.) On March 10, 2015, Erick Bunker sent Mr. Schultz a letter confirming that the Town of Daniel would not issue a building permit to Mr. Schultz.(Id. at ¶ 47.) On March 30, 2015, Mr. Schultz filed a notice of claim with the Town of Daniel. (Id. at ¶ 57.) Ultimately, Mr. Schultz alleges his "property, under its present zoning, i.e., simply an agriculture lot, is virtually worthless, as no one can build a home on it, and 3.71 acres is not large enough for any type of agriculture use." (Id. at ¶ 43.)

LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege "'enough facts to state a claim to relief that is plausible on its face.'" Hogan v. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014) (quoting Twombly, 550 U.S. at 547). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In reviewing a motion to dismiss, the court accepts as true the well-pled factual allegations and views the allegations in the light most favorable to the plaintiff, drawing all reasonable inferences in the plaintiff's favor. Wilson v. Montano, 715 F.3d 847, 852 (10th Cir. 2013). "[A] plaintiff must offer specific factual allegations to support each claim." Kan. Penn Gaming, 656 F.3d at 1214 (citing Twombly, 550 U.S. at 555). A complaint survives only if it "'states a plausible claim for relief,'" though courts...