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Romine v. City of Anniston

United States District Court, N.D. Alabama, Eastern Division

October 2, 2014

ERVINE ROMINE, d/b/a Romine's Cane Creek Grill, Plaintiff,
CITY OF ANNISTON, ALABAMA, et al., Defendants.




Plaintiff Ervine Romine ("Mr. Romine") initiated this civil rights lawsuit against Defendants City of Anniston (the "City"), Mayor Gene Robinson ("Mayor Robinson"), in his individual capacity, and City Manager Don A. Hoyt ("City Manager Hoyt"), in his individual capacity, on November 2, 2012, arising out of his loss of a lease to run the Cane Creek Grill located on the Cane Creek Golf Course in Anniston, Alabama. (Doc. 1 at 1; id. at 3 ¶ 2). Mr. Romine's complaint contains three counts.

Count One is for race discrimination under 42 U.S.C. § 1981 by and through § 1983. ( Id. at 10-12 ¶¶ 39-49). Count Two is for equal protection and due process violations under the Fourteenth Amendment. ( Id. at 12-14 ¶¶ 50-63). Finally, Count Three is for breach of contract under Alabama law. ( Id. at 14-15 ¶¶ 64-70).

Pending before the court is Defendants' Motion for Summary Judgment (Doc. 26) (the "Rule 56 Motion") filed on March 24, 2014. The parties have briefed the Rule 56 Motion and it is now fully under submission. (Docs. 27, 34-36, 41).

Also pending is Mr. Romine's Motion To Strike (Doc. 37) (the "Strike Motion") filed on May 7, 2014. Defendants opposed (Doc. 41) the Strike Motion on May 28, 2014, and no reply from Mr. Romine was filed.

For the reasons explained below, Defendants' Rule 56 Motion is due to be granted. Mr. Romine's Strike Motion is due to be termed as moot.


Facts Leading Up To The Clubhouse Restaurant Lease Between Mr. Romine And The COA

Mr. Romine has been a business owner in the COA for over twenty-five years, having operated the Annistonian Restaurant as well as other restaurants and stores. AF No. 1.[2] Long before the key events of this lawsuit, the COA purchased the Cane Creek Golf Course, which facility included a clubhouse with a separate space for a restaurant. AF No. 2. On February 8, 2007, the COA contracted with Mark Spaulding ("Mr. Spaulding") to lease and operate a restaurant at the Cane Creek Golf Course. AF No. 3. Mr. Spaulding voluntarily terminated this lease in November 2009. Id.

After Mr. Spaulding's departure, the COA managed the golf course and restaurant by and through its Parks and Recreation Manager, Steven Folks ("Mr. Folks"). AF No. 4. In December of 2009, the COA publicized notice of its intention to accept requests for qualifications ("RFQs") from applicants who desired to bid on

Although four or five people initially indicated that they were interested in running the restaurant through their attendance at a pre-bid meeting, Mr. Romine, who is African American, submitted the only bid in February of 2010. AF No. 7; (Doc. 34-6 at 1 ¶¶ 2, 3). The City Council for the COA had Mr. Romine's bid on the agenda for many meetings, including one on March 9, 2010, March 23, 2010, April 27, 2010, and May 25, 2010. (Doc. 34-6 at 1¶ 4). At the meeting held on June 22, 2010, the City Council authorized City Manager Hoyt to negotiate a lease agreement with Mr. Romine for the operation of the restaurant. (Doc. 34-6 at 1¶ 4).

Execution And Terms Of The Clubhouse Restaurant Lease Between Mr. Romine And The COA

On August 24, 2010, Mr. Romine signed a three year lease with the COA. City Manager Hoyt signed the lease on behalf of COA. The term of the lease was scheduled to begin on September 1, 2010, and end on August 30, 2013.

The lease required Mr. Romine to pay quarterly installments towards the annual rent of $6, 600.00, with the first $1, 650.00 payment due on September 1, 2010. (Doc. 26-7 at 3 ¶ 3).[3] The lease's default provision further permitted the COA to declare default for the nonpayment of rent. ( Id. at 3, 15 ¶¶ 3, 17).

Another part of the lease provided that "[e]xcept for the prior written permission of the [City], through its City Manager, the [Plaintiff] shall at all times during the lease term, have the premises open, staffed, and available for food and beverage service, " and that "failure to do so shall constitute a ground of default under the terms of this lease agreement." (Doc. 26-7 at 5 ¶ 5). However, Mr. Romine testified that City Manager Hoyt knew that this provision was unreasonable given the short duration of time ( i.e., only one week) between the parties' execution of the lease on August 24, 2010, and the beginning of the term on September 1, 2010. (Doc. 26-3 at 20 at 75-76).[4]

Additionally, the lease mandated Mr. Romine to have commercial liability, property, and liquor liability insurance and that "[c]ertified copies of all such policies shall be made available to the City of Anniston upon entering into this lease agreement." (Doc. 26-7 at 11 ¶7).

The lease further obligated Mr. Romine to "at all times" have and maintain all required liquor licenses. (Doc. 26-7 at 5 ¶ 4). During his deposition, Mr. Romine questioned the feasibility of this particular requirement by pointing out that the COA did not approve his liquor license until September 28, 2010. (Doc. 26-3 at 20 at 76).

The lease provided that any "[f]ailure by [the City] to enforce any provision of this lease shall not work as a forfeiture of [the City's] right to enforce any provision of this lease at any time." AF No. 16; (Doc. 26-7 at 15 ¶17). Finally, the lease stated that "[i]t is understood and agreed that this instrument constitutes the entire agreement between the parties hereto and that any changes or alterations hereunder must be made in writing, duly executed by and parties hereto, and attached to this instrument." AF No. 17; (Doc. 26-7 at 16 ¶ 20).

Facts Post-Dating The Execution Of The Clubhouse Restaurant Lease Between Mr. Romine And The COA

On August 27, 2010, City Manager Hoyt informed the City Council in an email message that Mr. Romine had experienced problems acquiring the required insurance coverages and licenses, but that Mr. Romine had assured him that he would have all these items in place when the term of the lease began on September 1, 2010. (Doc. 26-1 at 17, 18, 61-62, 66).[5] City Manager Hoyt did not share with the City Council in this electronic communication that the lease had only just been signed 3 days earlier. (Doc. 34-2 at 78).[6]

Mr. Romine did not pay the first quarterly payment of $1, 650.00 due on September 1, 2010. AF No. 19.1; ( see Doc. 26-3 at 12 at 43 ("I agree that it was, you know, September 1st, but when I asked him [ i.e., City Manager Hoyt] about that, it was after the 1st.")). However, Mr. Romine testified that City Manager Hoyt told him that he could postpone making the first installment payment until he had gotten into the building. (Doc. 26-3 at 12 at 43-44).

Mr. Romine also had neither obtained the necessary policies of commercial liability, property, and liquor liability insurance, nor a liquor license by September 1, 2010. AF No. 19.2. However, Mr. Romine testified that he was not able to acquire the various insurance policies until after he had received a copy of the executed lease. (Doc. 26-3 at 20 at 76).

As for the delay in obtaining his license to sell alcohol, Mr. Romine pointed out during his deposition that it was the COA which did not approve his application for forwarding to the ABC Board until the end of September 2010. (Doc. 26-3 at 20 at 76; see also Doc. 34-6 at 4 ¶ 11 ("I made application for my Liquor License on September 16, 2010 and the city did not approve my application and forward it to the ABC Board until September 29, 2010.")).

Mr. Folks continued to operate the restaurant on behalf of COA during this interim time period. (Doc. 26-4 at 3-4; Doc. 26-6 at 5-6 ¶ 14). Mr. Romine testified that he did not get cooperation from COA personnel in securing maintenance records (Doc. 26-3 at 66 at 18), that he was treated with disrespect, and that he was ignored when he needed something for the building. (Doc. 34-7 at 17-18).[7]

After signing the lease on August 24, 2010, Mr. Folks indicated that all Mr. Romine did with respect to getting the restaurant ready "was having a warming buffet table delivered, having an electrical contractor to install one 220 volt wall socket, and... [having] someone to remove carpet and replace[] [that] very small area of the restaurant [with tile.]" (Doc. 26-4 at 4).

Mr. Romine counters that Mr. Folks's recollection is an understatement as he proceeded to obtain: (i) commercial property coverage effective September 30, 2010, to September 30, 2011; (ii) liquor liability coverage effective September 10, 2010, to September 10, 2011; and (iii) an Alcohol Beverage License from the Alcohol Beverage Control Board, which became effective on October 25, 2010. (Doc. 34-6 at 3-4 ¶¶ 12, 14). Mr. Romine also met with the Health Department and made necessary upgrades to the restaurant. (Doc. 34-7 at 7). Mr. Romine further had menus printed up and paid for grand opening advertising. (Doc. 26-3 at 19 at 70; id. at 20 at 74-75).

City Manager Hoyt testified about a document dated October 21, 2010, which attempted to modify certain portions of the restaurant lease while it left other provisions unchanged. (Doc. 26-1 at 15-16 at 55-60). City Manager Hoyt indicated that he could not "recall the exact differences[, ]" but thought that the "food sales" and "minimum menu may have been changed." (Doc. 26-1 at 16 at 57, 58). No underlying document, such as, for example, a copy of the City Council's minutes, confirms that it voted to have City Manager Hoyt modify the terms of the previously executed lease. Instead, City Manager Hoyt indicated that he understood that he had this authority from the City Council's original vote and that he did not "see that as a barrier to making minor changes [to the original lease]." ( Id. at 16 at 59). Mr. Romine did not ever sign this amended lease. AF No. 26.3.

On November 4, 2010, City Manager Hoyt reported to the City Council in a written memorandum that Mr. Romine "has been out of compliance with his lease since the day it was signed." (Doc. 26-8 at 2).[8] City Manager Hoyt made it clear in this communication to the City Council that the lease had not been executed until August 24, 2010. ( Id. at 3). City Manager Hoyt further indicated in this correspondence that "unless somebody has a better idea, I'm going to hand deliver a default notice to Mr. Romine tomorrow." ( Id. at 3). The City Council never formally voted to default Mr. Romine under the lease and never consulted with the City Attorney, Cleo Thomas, about Mr. Romine's defaulted status. (Doc. 35 at 12 ¶¶ 31-32).

On or about November 5, 2010, the COA, through City Manager Hoyt, delivered Mr. Romine a default notice dated November 4, 2010. AF No. 30; (Doc. 26-9 at 2). This notice identifies 7 terms of the restaurant lease in which the COA contends Mr. Romine has "been out of compliance... since September 1, 2010, the day you were supposed to open for business." (Doc. 26-9 at 2). The listed provisions include: (i) being open for business; (ii) acquiring and maintaining all necessary licenses and permits; (iii) holding a Restaurant Liquor License; (iv) operating a fully supplied beverage cart on the golf course; (v) maintaining a public liability insurance policy; (vi) providing certified copies of all such policies to the COA upon entering into the lease agreement; and (vii) paying rent in quarterly installments. Id. The notice also indicates that "the Council may entertain a reasonable monetary settlement for the expenses that [Mr. Romine] incurred in [his] attempts to comply with the agreement." Id. Finally, the notice invites Mr. Romine to make a subsequent bid. Id.

Mr. Romine disputes the legitimacy of grounds relied upon by the COA for issuing the default notice and offers several explanations for his inability to meet the referenced terms of the lease by September 1, 2010. ( See, e.g., Doc. 35 at 23 (pointing out that lease was not finally executed until August 24, 2010, and that by "November 4, 2010, [Mr. Romine] had all the necessary insurance, had provided the [COA] with proof thereof in October of 2010, and had his liquor license")).

Neither Mayor Robinson nor the City Council ever took steps to rescind this termination notice delivered to Mr. Romine by City Manager Hoyt. Mr. Romine did not submit any requests for reimbursement from the COA immediately after his lease was terminated. However, as of November 3, 2011, the COA (through its insurance carrier) acknowledged Mr. Romine's race discrimination claim relating to the ending of his lease. (Doc. 34-9 at 2).[9]

On June 29, 2011, the COA, once again, requested bids to operate a restaurant on the golf course property. AF No. 36. Mr. Romine did not submit a bid, but three other people did. Id. The COA selected Rocco Gomez ("Mr. Gomez") (a Mexican-American) and executed a lease with him on September 29, 2011. AF No. 37. At some point in 2013, Mr. Gomez's lease was, with the COA's consent, assigned to Chandler Wilborn (a white male) ("Mr. Wilborn") and Hunter LeCroy (a white male) ("Mr. LeCroy"). ( See Doc. 34-10 at 2 ¶ 3 ("In the late Summer or early Fall of 2013, I approached Steven Folks, the Director of Parks and Recreation for the City of Anniston, and asked him whether the City would allow me to assign the [restaurant] lease to a qualified applicant.")).[10]


A. Summary Judgment

Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to come forward with specific facts showing that there is a genuine issue for trial.'" International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)).

Finally "[i]f the movant bears the burden of proof on an issue, because, as a defendant, it is asserting an affirmative defense, it must establish that there is no genuine issue of material fact as to any element of that defense." International Stamp, 456 F.3d at 1274 (citing Martin v. Alamo Community College Dist., 353 F.3d 409, 412 (5th Cir. 2003)).

B. Qualified Immunity

Both individual defendants assert that qualified immunity bars Mr. Romine's § 1983 claims brought against them in their personal capacities in Counts One and Two. (Doc. 27 at 19-20).[11] "The defense of qualified immunity completely protects government officials performing discretionary functions from suit in their individual capacities unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known.'" Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003) (internal quotation marks omitted) (quoting Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir. 2003)). "To receive qualified immunity, a government official first must prove that he was acting within his discretionary authority." Id.

This is a two-part test. Under the first step, "the defendant must [prove that he or she was] performing a function that, but for the alleged constitutional infirmity, would have fallen within his legitimate job description." Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004). Next, the defendant must prove that he or she was "executing that job-related function." Id. at 1267. "Once a defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that the defendant is not entitled to qualified immunity." Cottone, 326 F.3d at 1358.[12]

Until 2009, the Supreme Court had required a two-part inquiry to determine the applicability of qualified immunity, as established by Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001). Under the Saucier test, "[t]he threshold inquiry a court must undertake in a qualified immunity analysis is whether [the] plaintiff's allegations, if true, establish a constitutional violation." Hope v. Pelzer, 536 U.S. 730, 736, 122 S.Ct. 2508, 2513, 153 L.Ed.2d 666 (2002).

If, under the plaintiff's allegations, the individual defendants would have violated a constitutional right, "the next, sequential step is to ask whether the right was clearly established." Cottone, 326 F.3d at 1358 (quoting Saucier, 533 U.S. at 201, 121 S.Ct. at 2156). The "clearly established" requirement is designed to assure that officers have fair notice of the conduct which is proscribed. Hope, 536 U.S. at 739, 122 S.Ct. at 2515. This second inquiry ensures "that before they are subjected to suit, officers are on notice their conduct is unlawful." Saucier, 533 U.S. at 206, 121 S.Ct. at 2158.

The "unlawfulness must be apparent" under preexisting law.[13] Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (citing Malley v. Briggs, 475 U.S. 335, 344-45, 106 S.Ct. 1092, 1097-98, 89 L.Ed.2d 271 (1986)). Therefore, a temporal requirement exists related to this inquiry. More particularly, a plaintiff must show that a reasonable public official would not have believed her actions to be lawful in light of law that was clearly established at the time of the purported violation. See Anderson, 483 U.S. at 639, 107 S.Ct. at 3038 ("[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness' of the action[, ] assessed in light of the legal rules that were clearly established' at the time it was taken[.]") (emphasis added) (citation omitted); Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 599, 160 L.Ed.2d 583 (2004) ("If the law at that time did not clearly establish that the officer's conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation.") (emphasis added); Brosseau, 543 U.S. at 198, 125 S.Ct. at 599 ("Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.") (emphasis added); see also Johnson v. Clifton, 74 F.3d 1087, 1093 (11th Cir. 1996) ("We know of no [preexisting] case which might have clearly told Clifton that he could not take the disciplinary action indicated by an investigation which was initiated before he even knew about the allegedly protected speech, and in circumstances where the public concern implication was doubtful.").

However, the Saucier framework was made non-mandatory by the Supreme Court in Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009), in which the Court concluded that, "while the sequence set forth [in Saucier ] is often appropriate, it should no longer be regarded as mandatory." Thus, "judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id.

Despite the Supreme Court's modification of Saucier 's analytical process, the substantive analysis remains unchanged; an officer is entitled to qualified immunity protection as long as he "could have believed" his conduct was lawful. Hunter v. Bryan, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991). Therefore, to deny immunity, a plaintiff must affirmatively demonstrate that "no reasonable competent officer would have" acted as the public official did. Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986).

C. Evidentiary Rulings

"All evidentiary decisions are reviewed under an abuse-of-discretion standard." See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997). "An abuse of discretion can occur where the district court applies the wrong law, follows the wrong procedure, bases its decision on clearly erroneous facts, or commits a clear error in judgment." United States v. Estelan, 156 ...

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