Woodland Market Realty Co. v. City of Cleveland
| Decision Date | 19 May 1970 |
| Docket Number | No. 19515.,19515. |
| Citation | 426 F.2d 955 |
| Parties | WOODLAND MARKET REALTY COMPANY, Plaintiff-Appellant, v. CITY OF CLEVELAND, East 55th-Woodland Improvement Company, and Frank M. Brennan, Cuyahoga County Treasurer, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Charles S. Tricarichi, Cleveland, Ohio, for plaintiff-appellant; Tricarichi & Carnes, Cleveland, Ohio, on the brief.
James P. Mancino, Cleveland, Ohio, for defendants-appellees; Clarence L. James, Jr., Director of Law, George J. Dinda, Asst. Director of Law, Cleveland, Ohio, for City of Cleveland, Robert W. Sharp; Hauxhurst, Sharp, Mollison & Gallagher, Cleveland, Ohio, for East 55th-Woodland Improvement Co., Fred H. Hilow, Cleveland, Ohio, for Frank Brennan, Cuyahoga County Treasurer, on the brief.
Before EDWARDS and McCREE, Circuit Judges, and WILSON*, District Judge.
This case presents an appeal from the action of the District Court in sustaining a motion for summary judgment and dismissing a property owner's action against a municipality for losses alleged to have been sustained in connection with the establishment of an urban renewal project. Woodland Market Realty Company, an Ohio corporation, filed this action in the District Court alleging that it held a leasehold interest in certain commercial property located within the City of Cleveland, Ohio, and averring that the value of its leasehold interest had been destroyed by the activities of the City of Cleveland in establishing an urban renewal project. Averring that the actions of the City amounted to a taking of its property without just compensation, contrary to the Fifth and Fourteenth Amendments of the Federal Constitution, the appellant (plaintiff below) sought to recover of the City for the loss in value of its leasehold interest. Also joined as parties defendant were the lessor, East 55th-Woodland Improvement Company, and the County Treasurer of Cuyahoga County, Frank M. Brennan, the latter two being joined as parties insofar as they may have any interest in the rights asserted or in the recovery sought.
Interpreting the initial complaint as sounding in tort, the District Court entered an order dismissing the complaint for lack of federal diversity judisdiction, but at the same time permitted the plaintiff to amend its complaint, which it promptly did.
The amended complaint alleged that the plaintiff was the lessee of a tract of commercial property located at the corner of Woodland Avenue and East 55th Street in Cleveland, Ohio, under a 99 year renewable lease. The plaintiff had constructed a market building housing a number of retail food markets on the property, the tenants having themselves formed Woodland Realty Company for the purpose of acquiring the lease and the building. Beginning in 1955 the City of Cleveland instituted an urban renewal project known as the "Gladstone Urban Renewal Project." It was alleged that the plaintiff's property was included within the urban renewal project as originally established, but later excluded, while the City retained within the project all adjacent property. Thereafter the City acquired the adjacent property, including a parking lot belonging to the plaintiff, and removed all inhabitants, dwellings, and structures from the area, thereby depriving the plaintiff of its tenants, thus destroying the value of its leasehold. The action of the City in first including and then excluding the plaintiff's property from the Gladstone Urban Renewal Project was alleged to be an attempt by the City to deprive the plaintiff of its property and to amount to an intentional taking of the property without due process of law.
To these allegations of the amended complaint the City of Cleveland filed a motion for summary judgment (which motion was later adopted by the lessor, East 55th-Woodland Improvement Co.). The motion was accompanied by verified copies of the various municipal ordinances and records relating to the establishment of the Gladstone Urban Renewal Project and by affidavits of municipal officials having knowledge of the project. The substance of these exhibits and affidavits was to establish that, although in the preliminary planning stages the Woodland Market tract was included within the proposed project area, it was excluded prior to any official action and was never a part of the project as established by ordinance. Rather, it at all times remained adjacent to but outside the project. These matters were not disputed by the plaintiff and no counter-affidavits were filed.
On the basis of the record as thus established, the District Court concluded that no genuine issue of fact existed but that there had been no intentional taking of the plaintiff's property and no exercise by the City of the right of eminent domain. Relying upon Foster v. Herley, 330 F.2d 87 (C.A.6, 1964) and Foster v. City of Detroit, 405 F.2d 138 (C.A.6, 1968), and concluding that the loss of customers and income was no more than consequential damages, unrecoverable in an action of this nature, the District Court sustained the motion for summary judgment and dismissed the lawsuit.
The appellant contends that the District Court was in error in sustaining the motion for summary judgment in that the Court misconstrued the amended complaint as averring that the plaintiff's losses were occasioned by the City initiating eminent domain action without completing such action, when in fact the plaintiff's allegation and theory was that the plaintiff's losses were occasioned by the City acting with the express or implied intention of taking the plaintiff's property but without ever using its eminent domain powers. The appellant further contends that the District Court was in error in relying upon the Foster cases, supra, since those cases involve property losses occasioned by the initiation of condemnation action followed by the abandonment thereof.
It is clear from the undisputed facts in this case that there has been no taking of the plaintiff's property by the City of Cleveland within the meaning of the Fifth and Fourteenth Amendments requiring payment of just compensation. The losses occasioned to the plaintiff were not the result of any intrusion or encroachment by the City upon the plaintiff's property. Rather, the plaintiff's...
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