St. Clair County Chief Judge Andrew Gleeson granted Circuit Clerk Kahalah Clay’s motion to dismiss a man’s suit alleging she failed to notify him that his suit against the City of Belleville had been dismissed.
In a June 12 order, Gleeson granted Clay’s motion to dismiss but gave plaintiff Larry Price time to refile his complaint.
Gleeson also set a status conference for Oct. 15 at 9 a.m.
Clay filed a motion to dismiss Price’s first amended complaint on April 2 through attorney Katherine Melzer of Becker, Hoerner, Thompson & Ysursa P.C.
Clay alleged the provision Price points to in support of his contention that the clerk has a duty to provide notice of orders instead uses permissive language, such as “may.”
“Plaintiff does not provide any evidence to suggest that Circuit Clerk Clay – first – has in place a system of providing electronic notice of the entry of specific court orders to a specific party – second – that such a system was in use in August of 2017 – or third – that the Plaintiff or his attorney elected to use such a system in August of 2017,” the motion stated.
Clay also argued that just because Price’s attorney, Eric Rhein of Belleville, failed to monitor his case closely enough to know about the order, does not render the Circuit Clerk’s Office liable.
Price filed his complaint against Clay on Nov. 27, arguing that she failed to notify him or his counsel that a prior complaint had been dismissed by former circuit judge Robert LeChien on Aug. 2. LeChein later died on Aug. 31.
As a result, Price claims Clay’s negligence caused him to pay more than $1,800 in additional attorney fees that were needed to file inquiries and motions to the court “that would not have been necessary had the Circuit Clerk’s Office performed the duties they are mandated by law to perform.”
Price explains that he filed a complaint against the City of Belleville following a Dec. 21, 2016, FOIA request seeking “access to review the plans and specifications that was approved by the City of Belleville for the issuance of the City’s Building Permit to the Holfbraugaus Project” and “any changes that were made to the approved construction after the City issued the Building Permit.”
Specifically, Price alleges that “the City failed to timely respond to the FOIA request” and that “the City has asserted an invalid exemption to the FOIA”
LeChien granted the defendant’s motion to dismiss in the underlying case on Aug. 2, finding failure to comply with the request within five business days.
“Of course, considering that the subject project is a private building, such a denial is appropriate …” the order stated.
LeChien wrote that projects not constructed or developed in whole or in part with public funds are exempted from FOIA.
Price further argued that the City’s extension of sewer services to the general project site somehow affects the exemption.
“The fact remains that, because it is not a redevelopment project cost for which tax-increment financing incentives are provided, the subject building is not constructed with public funds,” LeChien wrote. “Taken to its logical extreme, Plaintiff’s contention that the extension of infrastructure such as sewer service re-defines a private project as public would subject construction plans of every home in various residential developments across St. Clair County to public disclosure, which is clearly an absurd result that this Court is required to avoid in statutory interpretation.”
However, Price and Rhein allegedly did not learn about the order dismissing the suit until Oct. 24 through an email from defense counsel.
Price claims the St. Clair County Circuit Clerk failed to send or mail the order to him or Rhein.
Price filed an amended complaint on Feb. 20, noting an order filed by Circuit Judge Stephen McGlynn, finding “appropriate remedy for plaintiff to petition for relief from judgment. Said petition should be granted due to lack of notice of plaintiff of adverse decision.”
In Clay’s motion to dismiss the amended complaint, she also asserted that Price’s argument “tortures the wording of Judge McGlyn’s order.”
“Judge McGlynn’s order simply finds there was a lack of notice; fault does not enter into his order, and this court should not draw this inference now,” Clay’s motion to dismiss stated.
Price is representing himself pro se.
St. Clair County Circuit Court case number 17-L-695