# Brookewood Constuction Company, Inc. v. City of Gahanna, Ohio

> District Court, S.D. Ohio · July 15, 2025

URL: https://www.frixlaw.com/law-library/cases/11100525

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** July 15, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11100525

## How later opinions describe it (automated extraction)

- finding that defendant’s emails demonstrating a “hope and desire to settle the controversy” did not suffice to invoke equitable estoppel
- holding that equitable estoppel requires “affirmative steps or action on the part of a defendant” which reasonable keeps plaintiff from timely filing suit
- discussing equitable tolling in the context of fraudulent concealment by the defendant

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Brookewood Construction Co., Inc.,

Plaintiff, Case No. 2:23-cv-295
Judge James L. Graham
v. Magistrate Judge Chelsey M. Vascura

City of Gahanna, Ohio.,

Defendant.

Opinion and Order

Plaintiff Brookewood Construction Co., Inc. brings this suit under 42 U.S.C. § 1983 against
defendant City of Gahanna, Ohio. Brookewood alleges that it received the City’s approval of a final
development plan to build a residential community, but the City later demanded that Brookewood
make improvements to its design for the sanitary sewer system. Meeting the City’s demands would
have substantially increased costs, and Brookewood abandoned the development plans after it
completed the first phase of the community. The complaint asserts claims under the Takings Clause
of the Fifth Amendment to the United States Constitution and under the Equal Protection and Due
Process Clauses of the Fourteenth Amendment, in addition to asserting various state law claims.
This matter is before the Court on the City’s converted motion for summary judgment,
which argues that the claims are barred by the statute of limitations. For the reasons stated below,
the Court agrees that the claims are time-barred and thus grants summary judgment to the City.
I. Background
A. Factual Allegations
In May 2017, Brookewood entered into a land purchase contract for the rights to a 7.2 acre
tract of land in Gahanna. Brookewood intended to subdivide and develop the land into a residential
community called Pinnacle Pointe. The development would occur in three phases. Once
Brookewood found buyers and received deposits for each of the 37 lots (comprising 0.6 acres) to be
developed in Phase 1, it could acquire title to that portion of the land. Brookewood had the right to
acquire title to the remaining 6.6 acres in a “Second Takedown,” by which Brookewood would be
required to deliver a monetary deposit by a certain date.
On April 20, 2018, Brookewood submitted its Final Development Plan for Pinnacle Pointe.
The City’s Planning Commission approved the Plan on July 11, 2018. The Plan included the
location and placement of the sanitary sewer lines and depicted the direction of flow and the
intended outlet location. Construction of Phase 1 began in July 2019, with the placement of sanitary
sewer lines in accord with the Plan.
The City first advised Brookewood in May 2018 of its position that the “sanitary sewer, lift
station, etc. must be constructed to public standards, and as directed by the Engineer’s Office.”
Compl., ¶ 126. The City further noted that “the system shall be designed to accommodate all offsite
tributary areas.” Id.
At some point in time before January 2020, the City told Brookewood that Phases 2 and 3
would require the construction of a lift station (used to move wastewater from lower to higher
elevation) built to public specification standards instead of less expensive private standards. It was
Brookewood’s expectation that the City would share the cost of construction because the benefit of
the station would normally extend beyond the residents of Pinnacle Pointe to “offsite” areas. See id.,
¶¶ 29, 31, 132. However, the City indicated that Brookewood would have to build the lift station
solely at its expense.
In January 2020, Brookewood met with City Engineer John Moorehead to discuss the lift
station. Moorehead stated that no offsite area would be served by the lift station. Brookewood
alleges that Moorehead’s statement led it to temporarily believe that it would only be required to
build the station to private standards. See id., ¶ 33. But Moorehead and the City thereafter
“remained steadfast” that Brookewood would have to build the station to public standards. See id.,
¶¶ 34, 133.
Brookewood’s plan for Pinnacle Pointe’s sewer lines also came into dispute. On May 29,
2020, Brookewood received an email from Moorehead. The City stated that the planned sewer
outlet lacked sufficient capacity to serve Phases 2 and 3. The City also stated that Brookewood
would have to alter the sewer flow. As described by Brookewood, the email indicated that the City
had made a “decision to deny use of the planned sewer line depicted in the Final Development
Plan.” Id., ¶ 50. The required redesign and rerouting of sewer lines would be at Brookewood’s
expense.
Brookewood believed that the City’s position on the lift station and sewer lines was
unreasonable and unfair, in that it would require Brookewood to pay for improvements that
benefitted the public and not just Pinnacle Point. See id., ¶ 42. The costs to Brookewood of
complying with the City’s demands would have been prohibitive.
After the May 29, 2020 email, Brookewood made an attempt to investigate the validity of the
City’s assertion that the planned sewer lines lacked sufficient capacity. Brookewood did this even
though Moorehead told Brookewood that the City would not change its decision about requiring it
to upgrade the system. See id., ¶ 50. Brookewood requested studies and information from the City
regarding the lines and capacity of the area’s sewer system. According to Brookewood, the City
failed to provide a 2014 Sanitary Sewer Evaluation Survey commissioned by the City. At some
unspecified point, Brookewood obtained the study and, based upon information contained therein,
prepared its own capacity analysis in October 2021 showing that the capacity of its original sewer
design was sufficient. See id., ¶¶ 66–67. The City refused to accept Brookewood’s capacity analysis.
In February 2022, Brookewood was in breach of the land purchase contract regarding the
Second Takedown for Phases 2 and 3. In March 2022, the land owner listed the remaining 6.6 acres
for resale.
B. Procedural History
Brookewood filed this lawsuit on January 20, 2023. The complaint asserts a claim under the
Takings Clause, alleging that the City’s requirements – that Brookewood build a lift station to public
standards and redesign the sewer lines to greater capacity and a different flow direction – deprived
Brookewood of an economically viable use of the property. The complaint also asserts an equal
protection claim. The City allegedly treated Brookewood, as a developer, differently from ordinary
property owners by demanding that it pay for sewer system improvements which would benefit the
public at large. The final federal claim is for violations of substantive due process. The complaint
alleges that the City’s attempts to require Brookewood to pay for public improvements to the sewer
system was arbitrary and capricious. The complaint also asserts state law claims for fraud, tortious
interference with a contract, and a violation of the Ohio Constitution in the City’s attempt to impose
allegedly unfair fees on sanitary sewer service.
The City moved for judgment on the pleadings. See Fed. R. Civ. P. 12(c). It argued that the
claims are barred by the two-year statute of limitations applicable to § 1983 suits in Ohio. The City
contended that, accepting the complaint’s allegations as true, Brookewood knew no later than May
29, 2020 of the City’s position that the lift station would have to be built to public standards and that
Brookewood would have to redesign and improve the sanitary sewer lines at its own expense. See
Compl., ¶¶ 30–36, 39–47, 131, 133. Brookewood filed suit on January 20, 2023, over two years later.
Brookewood responded that the statute of limitations should be tolled because of the City’s
requests that Brookewood forego litigation while the parties attempted to resolve their dispute.
Brookewood argued that the parties’ settlement efforts continued until April 12, 2022, when the City
ended any further discussions.
The Court found that the statute of limitations issue could not be resolved on the pleadings.
The parties were allowed to conduct “discovery directed to the issue of whether an equitable tolling
or estoppel doctrine should apply to the statute of limitations.” Doc. 25 at PAGEID 357. The
Court also stated that it would convert the motion for judgment on the pleadings into a motion for
summary judgment, see Fed. R. Civ. P. 12(d), and instructed the parties to file supplemental briefs
after the close of discovery.
The parties have conducted discovery and submitted supplemental briefs, and this matter is
now ripe for the Court’s consideration.
II. Standard of Review
Under Federal Rule of Civil Procedure 56, summary judgment is proper if the evidentiary
materials in the record show that there is “no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Longaberger Co. v. Kolt, 586 F.3d
459, 465 (6th Cir. 2009). The moving party bears the burden of proving the absence of genuine
issues of material fact and its entitlement to judgment as a matter of law, which may be
accomplished by demonstrating that the nonmoving party lacks evidence to support an essential
element of its case on which it would bear the burden of proof at trial. See Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005).
The “mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original); see also Longaberger, 586 F.3d at 465. “Only disputed material facts, those ‘that might affect
the outcome of the suit under the governing law,’ will preclude summary judgment.” Daugherty v.
Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir. 2008) (quoting Anderson, 477 U.S. at 248). Accordingly,
the nonmoving party must present “significant probative evidence” to demonstrate that “there is
[more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., Inc., 8 F.3d
335, 340 (6th Cir. 1993).
A district court considering a motion for summary judgment may not weigh evidence or
make credibility determinations. Daugherty, 544 F.3d at 702; Adams v. Metiva, 31 F.3d 375, 379 (6th
Cir. 1994). Rather, in reviewing a motion for summary judgment, a court must determine whether
“the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52. The
evidence, all facts, and any inferences that may permissibly be drawn from the facts must be viewed
in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992).
However, “[t]he mere existence of a scintilla of evidence in support of the plaintiff’s position will be
insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”
Anderson, 477 U.S. at 252; see Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009).
III. Discussion
A. The Two-Year Statute of Limitations Period Began on May 29, 2020
An action under 42 U.S.C. § 1983 is governed by Ohio’s two-year statute of limitations
applicable to personal injury claims. See Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989); see
also Ewing v. O'Brien, 115 Fed. App’x 780, 783 (6th Cir. 2004) (“Section 1983 claims brought in
federal court in Ohio are subject to the two-year statute of limitations period set forth in Ohio Rev.
Code § 2305.11.”). The statute of limitations for a § 1983 claim accrues when the plaintiff knew or
should have known of the injury which forms the basis of the claim. Ruff v. Runyon, 258 F.3d 498,
500 (6th Cir. 2001).
The complaint asserts claims for violations of Brookewood’s rights under the Takings Clause
and under the Equal Protection and Due Process Clauses. The alleged injury is the same for each
claim – that the City would not allow Brookewood to proceed to Phases 2 and 3 of development
unless Brookewood, at its expense, would build a lift station to public standards and would redesign
and construct the sewer lines, to the benefit of the public.
As noted above, the City argued in its original motion that the complaint’s allegations
supported a conclusion that Brookewood knew no later than May 29, 2020 of the City’s positions
about the lift station and sewer lines. Discovery has not led the parties to submit any evidence
which would alter May 29, 2020 as being the accrual date for Brookewood’s causes of action. The
complaint’s allegations – including those concerning Engineer Moorehead’s meeting with
Brookewood in January 2020 about the lift station, his subsequent communications, and his May 29,
2020 email – all point to Brookewood knowing by no later than May 29, 2020 of the City’s refusal to
allow Brookewood to proceed to Phases 2 and 3 of the development plan unless Brookewood met
the City’s allegedly unlawful demands.
Brookewood did not file suit until January 20, 2023. Thus, absent the statute of limitations
being tolled, the § 1983 claims are time barred.
B. Brookewood Relies on an Equitable Estoppel Argument
The concept of the tolling of a statute of limitations encompasses two separate principles:
equitable tolling and equitable estoppel. Equitable tolling refers to the suspension of the limitations
period while a plaintiff is justifiably unaware of his claim. See Egerer v. Woodland Realty, Inc., 556 F.3d
415, 421–22 (6th Cir. 2009). In other words, the facts underlying the cause of action are concealed
from plaintiff, though he has exercised due diligence in trying to discover the cause of action. See id.
(discussing equitable tolling in the context of fraudulent concealment by the defendant). In contrast,
equitable estoppel “applies when plaintiffs are aware of their claims but defendants’ conduct
prevents plaintiffs from timely filing suit. When this occurs, defendants are estopped from asserting
the statute of limitations as a bar to plaintiffs’ lawsuit.” Id. at 424. See also Cerbone v. Int’l Ladies’
Garment Workers’ Union, 768 F.2d 45, 49–50 (2d Cir. 1985) (“Unlike equitable tolling, which is
invoked in cases where the plaintiff is ignorant of his cause of action because of the defendant’s
fraudulent concealment, equitable estoppel is invoked in cases where the plaintiff knew of the
existence of his cause of action but the defendant’s conduct caused him to delay in bringing his
lawsuit.”).
The Court’s prior order (instructing the parties to conduct discovery and submit
supplemental briefs) noted that Brookewood appeared to be relying on an equitable estoppel
argument in its brief in opposition to the motion for judgment on the pleadings. See Doc. 25 at
PAGEID 356. That is, the complaint and Brookewood’s brief indicated that it was aware of its
causes of action well within the limitations period and was claiming the City made statements during
settlement negotiations which caused Brookewood to not file suit by May 29, 2022. Again, the
complaint alleges that from January to May 29, 2020, the City notified Brookewood of its denial of
Brookewood’s sanitary sewer plan for Phases 2 and 3 and of its demand that Brookewood build the
lift station built to public standards and redesign the sewer lines.
The supplemental materials submitted after discovery confirm that Brookewood had
knowledge of the facts underpinning its causes of action and understood its potential claims against
the City well in advance of the end of the two-year limitations period. According to Kevin Dunn,
Brookewood’s legal counsel, on March 5, 2021 he began communicating with John Albers, legal
counsel for the City, about the “development project and sewer dispute” which forms the basis of
the lawsuit. Dunn Aff., ¶ 4. On September 7, 2021, Mr. Dunn emailed Mr. Albers and stated that
Brookewood was prepared to pursue litigation against the City. Doc. 27 at PAGEID 405. In a
December 9, 2021 email, Mr. Dunn notified Mr. Albers that Brookewood was preparing to file a
complaint “asserting a 1983 action” in federal court” Id. at PAGEID 411. The court thus finds that
Brookewood was aware of its claims within the limitations period and that its argument for tolling
should be analyzed under the doctrine of equitable estoppel.
C. The Facts Relating to Equitable Estoppel
Brookewood argues that the City should be estopped from asserting a statute of limitations
defense because the City requested that Brookewood not file suit while the parties attempted to
negotiate a resolution to their dispute. The parties began discussions in March 2021 and ended
them in April 2022. See Dunn Aff., ¶¶ 4, 5. Three issues concerned Brookewood during the
discussions. One was “the actual capacity [of] the sewer lines already servicing Phase 1.” Id., ¶ 6.
Brookewood viewed with skepticism the City’s claim that there was a history of sewage backups in
the area and that Brookewood’s plan for Phases 2 and 3 lacked sufficient capacity. A second
concern was the applicability of “public standards for lift station construction.” Id., ¶ 7. When the
City did not relent on its stance about the lift station and sewer upgrades, a third issue became the
possibility that the City would share the cost for those improvements. Id., ¶ 18.
According to Mr. Dunn, the parties did not make much progress in the summer of 2021
because of the City’s delays in making its engineering staff available to meet with Brookewood. Id.,
¶¶ 7, 8. Brookewood grew “frustrated” with the delays. Id., ¶ 9. Mr. Dunn states that he expressed
to Mr. Albers that “time was of the essence in resolving the dispute between the parties.” Id., ¶ 11.
According to Mr. Dunn, Mr. Albers communicated that Brookewood should not file suit and that
“efforts would be made to find an alternative resolution.” Id., ¶ 12. Mr. Dunn believed that the
parties had an “agreement” to try to resolve the matter. Id., ¶¶ 14, 15. But after more delays, Mr.
Dunn emailed Mr. Albers on September 7, 2021 and claimed that the City’s agreement to negotiate
was nothing but a “delay tactic” and that Brookewood “must pursue litigation if Gahanna is not
interested in problem solving.” Doc. 27 at PAGEID 405.
Brookewood obtained the City’s 2014 Sanitary Sewer Evaluation Survey (“SSES”) and hired
an engineering firm to provide an updated hydraulic capacity analysis in light of the plans for Phases
2 and 3. See Compl., ¶ 66; Doc. 27 at PAGEID 411. The result was an October 2021 report which,
in Brookewood’s eyes, showed that the originally-planned sewer design had sufficient capacity and
that the development of Phases 2 and 3 would not “have any adverse sanitary sewer capacity effects
on the existing collection system.” Doc. 1-6 at PAGEID 245.
On December 9, 2021, Mr. Dunn emailed Mr. Albers and made reference to the October
2021 study in asserting that “there is plenty of capacity available” in the sewer lines “for all phases of
Pinnacle Pointe Development.” Doc. 27 at PAGEID 411. Mr. Dunn advised that he was preparing
to file a § 1983 suit in federal court in light of the City’s apparent rejection of the study. Mr. Dunn
emphasized that the “continued delay will result in serious financial repercussions for my clients. . . .
[W]e are days away from filing our Complaint.” Id. He added that Brookewood “would still prefer
to resolve the matter without the need for litigation” and would hold off filing suit if the City “is
ready to work together to resolve the dispute.” Id.
After the December 9 email, Mr. Albers told Mr. Dunn that “the City desired Brookewood
not to file [suit] and was willing to consider a cost sharing resolution.” Dunn Aff., ¶ 19. On January
6, 2022, Mr. Albers advised Mr. Dunn that the City was retaining an engineering firm to conduct a
pump station analysis and cost study. See Doc. 27 at PAGIED 414. The study was completed and
provided to Brookewood on March 9, 2022. Dunn Aff., ¶ 25.
Also on March 9, 2022, Mr. Albers emailed Mr. Dunn to say that the City was “willing to
consider participating in the cost” of the sewer improvements. Dunn Aff., ¶ 27. Mr. Albers stated
that a tax increment financing (TIF) option was “under review” by the City but that there was no
time table for a decision. Id.
It was during this same time period of February and March of 2022 that Brookewood failed
to meet the requirements of the Second Takedown and the land owner terminated the purchase
contract. Compl., ¶ 75.
The City received a copy of a letter which Brookewood sent to potential buyers who had
placed deposits on homes to be built in Phases 2 and 3. The letter informed them that the project
was not going forward and that Brookewood would be returning their deposits. See Doc. 27 at
PAGEID 433.
Mr. Albers emailed Mr. Dunn on April 12, 2022 to state that the City was aware of the letter
which Brookewood had sent to the potential buyers. Id. The City also learned that the property
owner had relisted the land for sale. Id. Based on this information, “we [the City] have discontinued
our efforts to review and determine whether the City will potentially subsidize or TIF that project to
achieve services to the remainder of the Pinnacle Point property.” Id.
In Mr. Dunn’s view, the conduct of Mr. Albers on the whole from March 2021 to April
2022 led him to believe that “the City intended to negotiate an alternative resolution to the sewer
dispute.” Dunn Aff., ¶ 33. Mr. Dunn characterized the discussions in late 2021 and early 2022 as
the City changing its position about Brookewood solely bearing the cost. Dunn Dep. at 23–24.
With the City being willing to consider cost sharing, Mr. Dunn believed the parties would get the
matter settled. Id. at 24. From Brookewood’s perspective at the time, there was no need to file suit
if the City would agree to share the cost of the sewer upgrades. Id. at 27.
The parties of course did not reach a settlement. Id. at 33–34. Negotiations did not progress
to the point where the City set forth a proposed cost sharing structure with percentages of how
much each side would finance, nor did the City ever approve any cost sharing arrangement. Id. at
31–32; see also Doc. 27 at PAGEID 433 (Mr. Albers’s April 12, 2022 email reflecting that the City
had been in the midst of reviewing the potential of cost sharing when it learned that Brookewood
had called off Phases 2 and 3).
During discovery the City took the deposition of Mr. Dunn. Mr. Dunn testified that the
parties had “ongoing settlement negotiations” from March 2021 to April 2022. Dunn Dep. at 7.
The parties never entered into a tolling agreement. Id. at 10–11, 15; see also id. at 14, 34 (testifying the
Brookewood did not request a tolling agreement). Mr. Albers requested in the summer of 2021 and
again in late 2021 that Brookewood not file suit while the parties were working toward a resolution.
Id. at 14–15. Mr. Albers did not promise that the City would refrain from raising the statute of
limitations as a defense. Id. at 11. Nor did Mr. Albers state that the City would stop negotiating if
Brookewood filed suit. Id. at 13, 19–20, 35, 40. Mr. Dunn admitted that “there was nothing
prohibiting [Brookewood] from filing the complaint” at any time from March 2021 to April 2022.
Id. at 12; see also id. at 18–19, 34. Though Mr. Albers requested that Brookewood not file suit, “there
was no consequence attached” if Brookewood were to proceed with litigation. Id. at 36.
When negotiations broke off in March and April of 2022, Mr. Dunn waited to file suit while
Brookewood was “assessing what was going on” and was trying to “salvage the purchase contract”
with the land owner. Id. at 30–31.
D. Analysis
Equitable estoppel “is invoked in cases where the defendant takes active steps to prevent the
plaintiff from suing in time.” Bridgeport Music, Inc. v. Diamond Time, Ltd., 371 F.3d 883, 891 (6th Cir.
2004); see also Egerer, 556 F.3d at 425 (holding that equitable estoppel requires “affirmative steps or
action on the part of a defendant” which reasonable keeps plaintiff from timely filing suit). The
doctrine has been invoked “in cases where the defendant misrepresented the length of the
limitations period or in some way lulled the plaintiff into believing that it was not necessary for him
to commence litigation.” Cerbone, 768 F.2d at 50 (citing cases). “Application of equitable estoppel
should be premised on a defendant’s improper conduct as well as a plaintiff’s actual and reasonable
reliance thereon.” Bridgeport, 371 F.3d at 891 (internal quotation marks omitted). The party seeking
the benefit of equitable estoppel bears the burden of proof. See id., 371 F.3d at 891 n.6.
Promises and representations made during settlement negotiations can form the basis of
equitable estoppel. See Bridgeport, 371 F.3d at 891; Cerbone, 768 F.2d at 50 (“One factor that
frequently appears in the estoppel cases is a settlement negotiation.”). Courts examine a defendant’s
conduct to determine if it caused reasonable and detrimental reliance by the plaintiff – whether by
way of a misrepresentation, trick, promise, or assurance. See, e.g., Bridgeport, 371 F.3d at 891; Egerer,
556 F.3d at 425; Cerbone, 768 F.2d at 50; JRC Holdings, Inc. v. Samsel Servs. Co., 166 Ohio App. 3d 328,
336, 850 N.E.2d 773, 779 (Ohio Ct. App. 2006).
A defendant’s mere willingness to engage in negotiations is not enough to justify equitable
estoppel. Helm v. Eells, 642 Fed. App’x 558, 564 (6th Cir. 2016); see also Mercado v. Aviation Assocs.,
Inc., 974 F.2d 1329 (1st Cir. 1992) (“[N]egotiations do not toll the running of a limitations period.”);
Calautti v. Massachusetts Port Auth., No. 22-CV-10930-ADB, 2022 WL 10480172, at *3 (D. Mass. Oct.
18, 2022) (“Mere negotiations are insufficient to gain the benefit of the equitable estoppel
doctrine.”) (internal quotation marks omitted). Plaintiff must show inequitable conduct by
defendant that prevented plaintiff from filing suit. Such conduct can include deceit about the length
of the limitations period, a promise not to assert the statute of limitations as a defense, a
representation that the defendant will in fact settle or otherwise make the plaintiff whole, or an
assurance of a better settlement if plaintiff refrains from filing suit. See, e.g., Bridgeport, 371 F.3d at
891; Cerbone, 768 F.2d at 50; Calautti, 2022 WL 10480172, at *3; Gieringer v. Silverman, 539 F. Supp.
498, 503 (E.D. Wis. 1982), aff’d, 731 F.2d 1272 (7th Cir. 1984); JRC Holdings, 166 Ohio App. 3d at
336, 850 N.E.2d at 779.
Discovery has eliminated much of the potential grounds for equitable estoppel. There is no
evidence to suggest that the City deceived Brookewood about the statute of limitations. The City
did not consent to a tolling agreement, nor did it promise not to raise the statute of limitations as a
defense. It did not threaten to cease negotiations if Brookewood filed suit. The City did not assure
Brookewood that it would settle the matter or that it would offer a better deal if Brookewood
refrained from filing suit. Though Brookewood argues that Mr. Albers and Mr. Dunn had an
“agreement,” discovery has demonstrated that their agreement was not one to settle the case but
rather one to engage in negotiations. Dunn Aff., ¶ 15. Again, a mere willingness to negotiate does
not trigger equitable estoppel. Helm, 642 Fed. App’x at 564.
Brookewood’s argument for estoppel largely boils down to the assertion that Mr. Albers, on
behalf of the City, requested that Brookewood not file suit while the parties negotiated. Such a
request could potentially warrant equitable estoppel if accompanied by unfair conduct by defendant
and reasonable reliance to plaintiff’s detriment. See Williams v. Sims, 390 F.3d 958, 960 (7th Cir.
2004); Cerbone, 768 F.2d at 50. Brookewood has not satisfied either requirement.
Brookewood has not shown that the City made promises that it did not intend to keep. The
City asked Brookewood not to file suit while the parties negotiated. The record makes clear that the
City did in fact negotiate with Brookewood and they made progress on a cost-sharing resolution,
even if the pace of negotiations was not as swift as Brookewood would have preferred. See Luar
Music Corp. v. Universal Music Grp., Inc., 847 F. Supp. 2d 299, 314 (D.P.R. 2012) (“[A] listless attitude
toward settlement negotiations does not rise to the level of affirmative misconduct required to
establish equitable estoppel.”). The City’s request that Brookewood not file suit did not carry with it
any promises, demands, or threats. Mr. Dunn testified that “there was no consequence attached” to
Mr. Albers’s request if Brookewood were to proceed with filing suit. Dunn Dep. at 36. He added
that there was “nothing prohibiting” Brookewood from filing suit while the parties negotiated. Id. at
12.
Brookewood argues that the City delayed negotiations by acting deceptively and in
obstructionist fashion when it failed to produce the 2014 SSES study after Brookewood asked for
documents relevant to the City’s position that Brookewood’s sewer design lacked sufficient capacity.
It is unclear exactly when Brookewood asked for documents, but it was likely no later than the
summer of 2021. See Doc. 27 at PAGEID 405 (September 7, 2021 email referencing that
Brookewood had previously made a request for records). According to Brookewood, the City
withheld the SSES because it was unfavorable to the City’s position.
On the record before it, the Court cannot make a determination that the City’s alleged failure
to produce the SSES was improper. Brookewood has not shown that the City had a duty to
produce the records or that it made a knowing misrepresentation about the study. Mr. Dunn’s
affidavit repeats the Complaint’s legal assertions that the City made misrepresentations, but
Brookewood has failed to provide the Court with information which would establish the particulars
of the alleged misrepresentations, such as what the City said, who said it, when it was said, to whom
was it said, and how it was false.
As importantly, even if the City was not forthcoming about the SSES, Brookewood cannot
establish detrimental reliance that caused it to miss the deadline to file suit. Despite not initially
having the SSES, Brookewood never accepted the City’s position about the insufficiency of
Brookewood’s original design, and its communication with the City was correspondingly adversarial.
See Doc. 27 at PAGEID (email from Mr. Dunn to Mr. Albers accusing the City of being
obstructionist, engaging in delay tactics, and being unwilling to accept certain facts). Brookewood
was not lulled into ignoring or not considering litigation as an option. Instead, it expressly
threatened to “pursue litigation” as it stated its displeasure with the City’s refusal to budge on its
stance about the need for sewer system upgrades. Id.
Moreover, Brookewood soon obtained the SSES in any event1 – in time to retain an
engineering firm which prepared an October 2021 hydraulic capacity analysis “based upon the
SSES.” Compl., ¶ 66; see also Doc. 1-6, Doc. 27 at PAGEID 411. Rather than being tricked or lulled
by the City, Brookewood pushed back and asserted that that its analysis showed there was “plenty of
capacity available” with Brookewood’s design for Phases 2 and 3. Doc. 27 at PAGEID 411. When
the City refused to accept Brookewood’s analysis, Brookewood warned in December 2021 that it
was “days away from filing” a lawsuit. Id. All of this transpired five to seven months prior to the
running of the statute of limitations in May 2022. Brookewood has not shown how the City’s failure
to produce the SSES prevented it from timely filing suit. See Dunn Dep. at 45 (“Q. But regardless of
whether there were delays on the City’s part, that did not prevent you from filing the lawsuit, right?
A. It did not.”).
Brookewood also argues that in late 2021 the City “changed its position” on cost sharing.
Doc. 27 at PAGEID 365. The City had previously insisted that Brookewood fully pay for the sewer
upgrades but in December 2021 signaled that it was willing to consider cost sharing options.
According to Brookewood, the City led it to believe that there was no need to consider litigation
because the City would be offering a cost-sharing arrangement. With Mr. Albers requesting that
Brookewood not file suit and with the City now interested in cost sharing, Mr. Dunn claims he saw
no reason to file suit in late 2021 and early 2022.
Here too Brookewood has failed to show improper conduct by the City and reasonable
reliance on Brookewood’s part. Mr. Albers did not promise that the City would in fact settle or

1 The record does not make clear how Brookewood obtained the SSES.
enter into a cost-sharing agreement. In late December 2021, he told Mr. Dunn that the City was
engaging an engineering firm to conduct an analysis of the sewer upgrades. See Doc. 27 at
PAGEDID 423. On January 6, 2022, Mr. Albers emailed Mr. Dunn to say that the City had
authorized the firm to proceed with the analysis. Id. at PAGEID 414. Mr. Albers relayed to Mr.
Dunn that the firm had said the analysis would take 4 weeks to complete. Id. at PAGEID 423.
Though it apparently took longer, Mr. Albers spoke truthfully in stating that the firm had said it
would take 4 weeks. Id. at PAGEID 417 (proposal letter from the firm setting a time schedule of 4
weeks once the analysis got started). After the January 6 email, Mr. Albers truthfully updated Mr.
Dunn to inform him of delays with the firm completing its analysis. Dunn Dep. at 32. The analysis
was completed on March 9, 2022, and Mr. Albers told Mr. Dunn that the City was “willing to
consider participating in the cost” of the sewer improvements and had “begun the process of
reviewing” a TIF option, but “I don’t yet have a time table for a decision.” Dunn Aff., ¶ 27.
Though the progress might have made Brookewood hopeful, the City did not mislead
Brookewood about its intentions. See Luar, 847 F. Supp. 2d at 314 (finding that defendant’s emails
demonstrating a “hope and desire to settle the controversy” did not suffice to invoke equitable
estoppel). Mr. Albers’s communications did not contain assurances about the timing or exact nature
of a cost-sharing arrangement. As such, it would not have been reasonable for Mr. Dunn to
detrimentally rely on them. Mr. Dunn acknowledged “the process” which remained until a final
resolution could have been reached, including agreement on the “cost sharing structure” and
“percentage breakdown” of the parties’ financial responsibilities, the taking of “proposals and bids,”
and a formal vote and approval from the City. Dunn Dep. at 31, 32, 34.
Without question, Mr. Dunn was in a predicament. Negotiations with the City had
progressed, but uncertainty loomed over the timing, how much of the cost the City would be willing
to absorb, and whether the parties ultimately could reach a resolution. In this same time frame, the
requirements for the Second Takedown came due. Brookewood did not satisfy the requirements
and the land owner put the property up for sale. Though unfortunate for Brookewood, there is no
evidence to show that the City engaged in inequitable conduct or took “active steps to prevent the
plaintiff from suing in time.” Bridgeport, 371 F.3d at 891.
Even if Brookewood were somehow justifiably lulled for a time by the hope of a settlement
with the City, its hope ended with ample time left for it to timely file suit. Not only did the land
owner relist the property for sale in March 2022 and Brookewood refund deposits to potential
buyers, but on April 12, 2022, the City told Brookewood that it had “discontinued” it efforts to
review cost-sharing options. Doc. 27 at PAGEID 433. In order to obtain the benefit of equitable
estoppel, a party “must establish due diligence.” Egerer, 556 F.3d at 425. Mr. Dunn knew no later
than April 12, 2022 that efforts to negotiate a resolution with the City had ceased. In December
2021, he had already prepared a complaint to file in federal court. See Doc. 27 at PAGEID 411 (Mr.
Dunn stating that he had been preparing a § 1983 complaint and was “days away” from filing it).
Brookewood has not shown good cause for why it failed to timely file suit by May 29, 2022. See
Dunn Dep. at 30 (stating that he did not file suit when negotiations ended in April 2022 because
Brookewood was “assessing what was going on”).
IV. Conclusion
Accordingly, the Court finds that the City is not equitably estopped from raising the statute
of limitations as a defense. Because Brookewood did not timely file its § 1983 claims, the City’s
converted motion for summary judgment (doc. 7) is GRANTED with respect the federal claims.
The Court declines to exercise supplemental jurisdictions over the state law claims, which are
dismissed without prejudice. See Packard v. Farmers Ins. Co. of Columbus Inc., 423 Fed. App’x 580, 584–
85 (6th Cir. 2011).

s/ James L. Graham
JAMES L. GRAHAM
United States District Judge

DATE: July 15, 2025

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11100525. Public record. Not legal advice.