Freistatt facing federal lawsuit by landlord

Friday, October 12, 2018

Claims of rights violated over water issue to tenant

The Village of Freistatt has had a lawsuit filed against it and its city officials for violation of rights under the federal Constitution.

Landlord Randy Davidson and his wife, Bonnie, filed a civil case in the Southwestern Division of the Western District Court on Missouri. Hearings would be held in Kansas City. The case arises out of Davidson’s dispute with the village over providing water service to tenants living in Davidson’s properties, dating back to 2016. In the narrative of the suit, Davidson recounts difficulties in securing water service in two specific instances for a mobile home at 109 Fourth Street.

The first involved tenant Travis Doran. Davidson described delays in service after Doran moved in without explaining what issues were raised by the village that obstructed setting up Doran’s account.

The central contention focused on service to Mark Reyes, who rents the mobile home from Davidson. This matter surfaced in numerous discussions during village board meetings. The suit does not detail the reason for why Reyes, unlike Doran, does not have water service to this day.

During the board’s December 2017 meeting, it was explained that 31 years ago, the village board adopted an ordinance restricting water service to mobile homes unless occupied by the owner. Board chairman Mike Ortwein explained the current board was only enforcing the standing regulation, adopted to prevent the establishment of mobile home parks in Freistatt.

Davidson knew the restriction was in place, Ortwein said, before he attempted to rent the trailer. Service was turned off to the trailer when occupancy changed, according to city regulations, contrary to a request made by Bonnie Davidson.

Davidson reported to the board that he gave Reyes partial ownership of the trailer to meet the requirement. Trustees subsequently passed a new ordinance in October 2017, clarifying that “ownership” meant 51 percent or more. Davidson said trustees were targeting him unfairly, to which Ortwein said Davidson was simply trying to find ways to bend the rules.

Rather than cite the 31-year-old ordinance, the suit goes on to describe how Davidson sent letters asking for water service, which he said were ignored. He subsequently connected a water tank to the trailer and began hauling water in for his tenant. He then had a dispute with the village over use of unmetered sewer service to dispose of that water when a sewer account had not been established.

The suit recounts Davidson’s fears that the city would remove sewer access from the property during the dispute. A sewer fee was set by ordinance on Feb. 8, 2018, that Davidson has characterized as exorbitant. The water service issue remains unresolved.

Davidson claimed in the suit that action by the village and its officials “was maliciously and recklessly indifferent.” He claimed the legal immunity for government action did not apply “when acting under color of law when village ordinances clearly do not conform to Missouri State Statutes.” No specifics on the lack of conformity were listed.

Davidson also claimed the village officials should be considered individually liable. He listed as defendants members of the village board: Ortwein, Delphi Bowling, Brenna Schroeder, and Eva Jobe, who left the board in April. He did not include longtime trustee Elmer Conway nor new board member Sarah Robinett, who began her duties in April. Davidson also named village clerk Deborah Schoen and City Attorney Bill Petrus as defendants.

Davidson is acting as his own attorney in the case.

Katherine O’Dell, attorney with the Springfield firm of Baird Lightner Millsap, representing the village’s insurance company, filed a motion for dismissal of the suit on Oct. 1.

Even responding to the suit brought irregularities to light. Petrus was served in person, but one copy of the suit was dropped in the community building dropbox as service on the other defendants, not the proper procedure. O’Dell said the defendants decided to file a response together, based on the 21 days allowed by law in federal cases, triggered by the serving of Petrus. That filing deadline was Oct. 1.

In her suggestions in support of her motion to dismiss, O’Dell cites difficulties with Davidson’s suit, including a failure to state a claim upon which relief may be granted. She cites 2009 case law, asserting that “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements” would not survive a motion to dismiss. Court rules dictate even “well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” and do not show the pleader is entitled to relief.

O’Dell went on to note Davidson’s allegations “do not state any claim upon which relief shall be granted,” having cited no specific financial loss or injury due to the village’s action.

She further noted individual liability claims have to cite specific actions by those individuals in the court filing, showing constitutional violations, which was not done. Three board members were only named as defendants in the title, but no specific actions were ever attributed to them. Actions by the city attorney referenced in the suit also did not reflect a violation of constitutional rights, nor did those of Ortwein or Schoen in dealing with Davidson over the water and sewer issues. O’Dell noted there were no allegations that Ortwein and Schoen prevented the signing of any new water contract “for some unconstitutional reason.”

In O’Dell’s assessment, village officials conducted their actions within clearly established statutory or constitutional rights, and thus fell under qualified immunity granted to government officials. Individual liability would require the showing of specific actions by those persons to qualify, which had not been done in Davidson’s suit.

Davidson’s second count cited the village and its officials individually in an effort to prove municipal liability. O’Dell stated that under a 2007 case law, the governmental entity, which would be the village itself, would become the sole defendant, eliminating cases against the individuals. Moreover, she asserted, “The Village of Freistatt cannot be liable in this case because plaintiffs have not adequately alleged a violation of their constitutional rights,” a criteria required under a 2005 case law. “The factual content of the complaint, or the lack thereof, does not state a plausible claim which permits a reasonable inference that the Village of Freistatt is liable for a constitutional violation,” O’Dell wrote, supporting her motion to dismiss.

The case has been assigned to District Judge Brian Wimes. A conference to develop recommendations for deadline schedule on the case has been set for Oct. 18. The schedule would include when discovery would be completed, when the judge would hear motions on disposition of the case and when expert witness testimony was due.

O’Dell noted that Davidson would have a specified time to respond to her motion, and she would be given time to reply to his response, likely due after the conference meeting on Oct. 18. Only after all those decisions had been made would an actual hearing be held on motions to dismiss.

A meeting with the judge has been set for Nov. 21.

At the monthly trustee meeting on Tuesday, Schoen read a prepared statement describing the suit. She noted that O’Dell interviewed her for three hours in advance of drafting the motion to dismiss and suggestions in support of the motion.

“The board and all defendants named have been advised by their attorneys to not discuss any further details of the case except to say, ‘The Board of Trustees denies any wrongdoing and further expresses its concern about the time and expense that will be incurred in defending the Village of Freistatt and its representatives from these unnecessary and meritless claims,’” the statement said.

Copies of filings in the case are available for reading at the village office. Schoen said anyone wanting copies of the 25 pages will be charged $2.50.

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