VineBrook Motion To Dismiss 2023 Lawsuit

FIN THE OHIO COURT OF COMMON PLEAS
HAMILTON COUNTY, OHIO
CITY OF CINCINNATI ) Case No. A 2300224

)
Plaintiff, ) (Judge Patrick T. Dinkelacker)
)
v.
) VINEBROOK DEFENDANTS’
) MOTION TO DISMISS PLAINTIFF
VINEBROOK HOMES, LLC, et. al.
CITY OF CINCINNATI’S COMPLAINT
)
Defendants. ) (ORAL ARGUMENT REQUESTED)
)
Pursuant to Civ.R. 12(B)(6), Defendants VineBrook Homes, LLC and its affiliated
Defendants1 (collectively, “VineBrook”) hereby move to dismiss all claims asserted against it by
Plaintiff City of Cincinnati (“Plaintiff” or the “City”) in their Complaint (the “Complaint”). The
grounds for this motion are set forth in the attached Memorandum in Support.
1
Those Defendants include: VineBrook Homes Property Management Company, Inc.; VineBrook
Homes Property Management Company, LLC; VineBrook Homes Realty Company, Inc.;
VineBrook Homes Services Company, Inc.; VBOH Annex LLC; VineBrook Annex B Ohio LLC;
VBAnnex C Ohio LLC; VBPart Borrower LLC; VBPart II Borrower 1 LLC; VBPart II Borrower
2 LLC; VBProp Borrower LLC; True FM2017-1 LLC; True Cin2017-2 LLC; TI KC Bravo LLC;
NREA VB I LLC; NREA VB II LLC; NREA VB III LLC; NREA VB IV LLC; NREA VB V
LLC; NREA VB VI LLC; NREA VB VII LLC; VB One LLC; VB Two LLC; VB Six LLC;
Conrex Residential Property Group 2013-2 Operating Company LLC; Conrex Residential
Property Group 2013-3 Operating Company LLC; Conrex Residential Property Group 2013-4
Operating Company LLC; Conrex Residential Property Group 2013-5 Operating Company LLC;
Operating Company LLC; Conrex Residential Property Group 2013-9 Operating Company LLC;
Operating Company LLC
E-FILED 04/28/2023 5:54 PM / CONFIRMATION 1314487 / A 2300224 / JUDGE DINKELACKER / COMMON PLEAS DIVISION / MO
Dated: April 28, 2023 Respectfully submitted,
/s/ Joseph E. Lehnert

Brian P. Muething (0076315)
Joseph E. Lehnert (0089492)
KEATING MUETHING & KLEKAMP, PLL
One East Fourth St., Suite 1400
Cincinnati, OH 45202
Tel: (513) 579-6400
Fax: (513) 579-6457
bmuething@kmklaw.com
jlehnert@kmklaw.com
Attorneys for VineBrook Defendants
ii
MEMORANDUM IN SUPPORT
I. INTRODUCTION
VineBrook2 is a real estate company that owns properties and operates in rental markets
nationwide, including in the City of Cincinnati. (Complaint at ¶¶ 12; 14.) VineBrook routinely
acquires, renovates, and leases single family homes to a number of individual renters. (Id. at ¶ 31.)
VineBrook invests millions of dollars into Cincinnati neighborhoods in an effort to provide
affordable housing, particularly for subsidized as well as low- and middle-income Cincinnatians.
(See id. at ¶ 32.) Indeed, neighborhoods not only in Cincinnati but across the country have recently
been plagued by foreclosures and blight due to the pandemic, inflation, and economic instability.
In spite of this, VineBrook has continued to invest in the rehabilitation of struggling neighborhoods
and provide much needed affordable housing.
Further, like any owner and operator of real estate, VineBrook is consistently working to
maintain the condition of its homes. Nevertheless, property conditions do not remain static, as they
would not even for individual owner-occupiers, and VineBrook invests heavily in upkeep and
remediation of issues when identified. The City of Cincinnati can point to only 13 code
violations—a mere handful—in its Complaint for a portfolio of 964 properties (and most of these
code violations, in fact, have already been fully resolved by VineBrook). (Id. at ¶ Exhibit K).
VineBrook continues each day to address and cure code violations and keep any of its properties
from falling into disrepair. In addition, given that VineBrook’s tenants are most often in control of
2
The City alleges that VineBrook operates through an unspecified number of limited liability
companies (referred to collectively in the Complaint as “the Vinebrook [sic] LLCs”), which each
hold an unspecified number of properties. (Id. at ¶¶ 7; 15-21.) While the City refers to all
individual Defendants as “VineBrook” throughout, each of the listed defendant entities are
separate legal entities and distinct from the others. Nevertheless, solely for drafting purposes,
Defendants mirror this approach in its motion.
VineBrook’s properties, it is inevitable that a code violation may occur from time to time that
VineBrook may be unaware of or cannot immediately cure.
But a mere handful of code violations, on their own, do not provide a cognizable basis for
the overwrought accusations and demands the City has made in its Complaint. Instead of pursuing
the considerable enforcement mechanisms already available to the City through the administrative
process—which the City’s Complaint itself evidences already provides relief, as it lists hundreds
of closed violations (id. at Exhibit I)—the City has breathlessly listed a parade of horribles that
ostensibly lie at VineBrook’s feet, including “the perpetuation of blight across the City’s
neighborhoods” (id. at ¶ 232); “predatory eviction practices” (id. at ¶ 186); and civil conspiracy to
evade compliance with the law (id. at ¶ 220-25.).
Ultimately, it seems that VineBrook has been targeted by the City of Cincinnati as a large,
out-of-state landlord (which is seemingly disfavored by the City) who has allegedly engaged in
unlawful leasing practices and is otherwise a burden to the City and its resources. (Id. at ¶¶ 12;
14.) But the City goes even further, including many facts that are irrelevant to its claims, but that
clearly are only intended to build a narrative in an attempt to paint VineBrook as a corporate villain.
The City pointedly alleges facts that are not even relevant to its claims, such as VineBrook’s
valuation and operations across several states (id. at ¶ 12); its alleged operations “at the height of
the foreclosure crisis” (id. at ¶ 13); its purported network of LLCs with different names and
registered agents, which it allegedly uses to move properties around to evade compliance with the
law (id. at ¶ 15-19); and its purposeful choice of words indicating that VineBrook is somehow
predatorily “targeting” homes that can be purchased below median sales price to rent to low- and
middle-income Cincinnatians (id. at ¶ 32.).
In this way, the City’s animus toward VineBrook seethes beneath the surface in the sixty-
five pages of the City’s Complaint, and ultimately muddies the waters of VineBrook’s alleged
misconduct as well as the City’s sought-after relief. There is nothing illegal about buying homes
at a price mutually agreed upon by buyer and seller, providing safe and affordable housing to low-
and middle-income families, operating across state lines, turning a profit, or owning rental
properties through LLCs. If this were the case, then the City would need to litigate against all
landlords in Cincinnati.
The City, in its Complaint, uses otherwise innocent facts to support its crusade against
VineBrook and to intimidate so called “out-of-town” landlords disfavored by the City from doing
business in Cincinnati. It seeks to use a few discrete alleged code violations occurring at a
miniscule percentage of VineBrook’s properties as a fishing expedition to circumvent already
available enforcement mechanisms and secure an absurdly broad overreach of the government into
the private affairs of VineBrook and its tenants. The City attempts to lay blame on VineBrook for
alleged, conjectural and speculative injuries; essentially using VineBrook as a scapegoat for an
array of other issues that impact housing in the community and diverting responsibility for
potential issues that may equally arise from the City’s own failures to generate economic growth,
improve schools, and support law enforcement to reduce crime.
II. THE CITY’S COMPLAINT ALLEGATIONS
At its core, the City’s complaints fall into one of three categories: (i) landlord/tenant private
transactions to which the City is not a party, (ii) remote and speculative injuries that the City claims
it may suffer if VineBrook takes (or fails to take) some action in the future, and (iii) de minimis
code violations (like parking or grass/weed violations) or unidentified code violations that the City
speculates may exist. The City has alleged that because of these violations, the City is entitled to
extraordinary relief. However, the City fails to allege how the consequences of VineBrook’s
alleged lease term and code violations set VineBrook-owned properties apart from other properties
or lead to the City’s extremely remote and speculative damages—ultimately providing no basis
whatsoever that these alleged violations uniquely warrant such a broad overreach of government
authority by the City.
For instance, the City alludes to “at least 964” VineBrook-owned buildings in Cincinnati,
and 1,687 inspections between January 1, 2011 and January 9, 2023, a period spanning 12 years.
(Id. at ¶ 14; 82.) But the City evades explaining what share of VineBrook properties experienced
inspections, how many of those inspections revealed actionable issues, and whether these ratios
exceed those of other real estate companies’ rental properties, or those of owner-occupied
properties.
Similarly, the City attached 238 building code enforcement cases opened for VineBrook
properties since 2012, a period spanning 11 years (id. at ¶ 125), but does not provide the ultimate
disposition of these cases (other than simply listing them as “closed,” without any rationale as to
why), whether VineBrook still owns these properties, nor any comparison between the number of
cases at VineBrook properties versus other similarly situated properties (to demonstrate that this
number is out of the ordinary). Further, the City has indicated certain allegedly “unlawful” eviction
lease terms have been threatened and attempted to be enforced, but did not give a single example
of a tenant that was actually wrongfully evicted pursuant to these terms. Additionally,
although the City throughout its Complaint repeated ad nauseum the expansive size of
VineBrook’s property portfolio (see e.g., id. at ¶ 31-36), it has only listed 13 properties as actually
having code violations (see id. at Exhibit K.).
Rather, the City pleads generalized, non-specific damages, claiming that VineBrook’s
tenants have been injured and that the City has suffered incidental, remote and speculative risk of
future injuries relating to decreased permit revenue, accelerated deterioration of housing stock,
diminished property values and property tax revenue, increased risk of future uninhabitability and
vacancy, and increased administrative burden and expenditures. (Id. at ¶ 44.)
None of these alleged injuries are sufficient to confer standing upon the City to bring its
claims against VineBrook, nor can they show why such claims are ripe at this time.3 Furthermore,
as a matter of substantive law, each of the City’s causes of action fails to state a claim on which
relief can be granted.
For the reasons set forth herein and below, the claims against VineBrook should be
dismissed.
III. LEGAL STANDARD
In reviewing a motion to dismiss for failure to state a claim upon which relief can be
granted, the court accepts as true all factual allegations in the complaint and makes all reasonable
inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192,
532 N.E.2d 753 (1988). Furthermore, in order to survive a motion to dismiss, “[u]nder [the] notice
pleading requirements of Civ.R. 8(A)(1), the plaintiff only needs to plead a sufficient set of facts
to support recovery under his claims.” Doe v. Robinson, 6th Dist. Lucas No. L-07-1051, 2007-
Ohio-5746, ¶ 17.
3
Notably, this is not the first time the City has tried to hale VineBrook into court to shake it down
for money. In July 2021, the City filed a ninety-seven page complaint against VineBrook claiming
(1) public nuisance and (2) various violations of the Cincinnati Municipal Code. (Id. at ¶ 22.); see
also City v. Vinebrook, LLC, et al., 1st Dist. Hamilton No. A 2102259 (July 1, 2021). Within just
two months, VineBrook and the City settled this litigation. (Exhibit B to Complaint at § 1.) Now,
the City is back for another bite at the apple.
Although this standard is generous to the plaintiff, a complaint must nevertheless be
examined for both coherence and sufficiency. See City of Cleveland v. JP Morgan Chase Bank,
N.A., 8th Dist. Cuyahoga No. 98656, 2013-Ohio-1035, ¶ 11 (citing Gallo v. Westfield Natl. Ins.
Co., 8th Dist. Cuyahoga No. 91893, 2009-Ohio-1094, ¶ 9) (“Ohio remains a notice pleading state,
but the complaint must still advance a rational basis for holding a defendant liable.”).
“[T]o constitute fair notice, the complaint must still allege sufficient underlying facts that
relate to and support the alleged claim, and may not simply state legal conclusions.” Gemperline
v. Franano, 5th Dist. Delaware No. 21 CAE 01 0002, 2021-Ohio-2394, ¶ 22 (quoting Grossniklaus
v. Waltman, 5th Dist. Holmes No. 09CA15, 2010-Ohio-2937, ¶ 26). “Where a complaint fails to
state the requisite underlying operative grounds, or merely recites the elements of a cause of action,
[a court] will not supply the deficiency to prevent dismissal under Civ.R. 12(B)(6).” STE Invests.,
LLC v. Macprep, Ltd., 6th Dist. Ottawa No. OT-21-036, 2022-Ohio-2614, ¶ 15 (citing Deutsche
Bank Natl. Trust Co. v. Moore, 6th Dist. Erie No. E-11-081, 2012-Ohio-5549, ¶ 6). Moreover,
“[t]he court need not. . . accept as true any unsupported and conclusory legal propositions advanced
in the complaint.” Morrow v. Reminger & Reminger Co., L.P.A., 183 Ohio App. 3d 40, 2009-
Ohio-2665, 915 N.E.2d 696, ¶ 7 (10th Dist.).
Here, the City’s claims that contain mere recitation of elements without the requisite
supporting facts (particularly, absolute public nuisance, breach of contract, and civil conspiracy,
as discussed in more detail below) do not meet these standards. The claims not only fail to provide
fair notice to Defendants on the underlying operative grounds for some of these claims, they also
do not specify which defendants or parties the facts are related to, lumping them all together as if
they are one. In addition, these claims do not provide a “rational basis for holding Defendant
liable.” JP Morgan Chase Bank at ¶ 11.
Therefore, Plaintiff’s claims should be dismissed pursuant to Civ. R. 12(B)(6) for the
reasons more fully explained below.
IV. ARGUMENT
As discussed in more detail below, the City’s Complaint fails to state claims upon which
relief can be granted and should be dismissed because (A) the City has not presented a justiciable
controversy due to (1) a lack of standing, and (2) a lack of ripeness; and (B) Plaintiff’s individual
counts I-VII fail as a matter of law.
A. The City has not presented a justiciable controversy in its Complaint.
“As aptly stated by the Supreme Court of the United States ‘[j]usticiability concerns not
only the standing of litigants to assert particular claims, but also the appropriate timing of judicial
intervention.’” Langin v. Sheffield-Sheffield Lake Bd. of Edn., 9th Dist. Lorain No. 20CA011710,
2022-Ohio-879, ¶ 9 (quoting Renne v. Geary, 501 U.S. 312, 320, 111 S. Ct. 2331, 115 L. Ed. 2d
288 (1991)). Thus, two threshold issues for a court to determine when considering a complaint are
(1) standing, or whether “the party bringing the action. . . [is] the injured party,” Deutsche Bank
Natl. Trust Co. v. Holden, 147 Ohio St. 3d 85, 2016-Ohio-4603, 60 N.E.3d 1243, ¶ 32 (citing Fed.
Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214,
¶ 21); and (2) ripeness, or whether adjudication would be “premature.”4 State ex rel. Elyria
Foundry Co. v. Indus. Comm., 82 Ohio St. 3d 88, 89, 694 N.E.2d 459 (1998) (citing Abbott
Laboratories v. Gardner, 387 U.S. 136, 148, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967)). Each of
these threshold questions is discussed in turn below.
4
To the extent that any of the allegedly relevant properties are not owned by VineBrook or any of
the alleged Code violations have been cured, VineBrook reserves the right to argue that some or
all of the claims relating to those properties or violations are moot.
1. The City lacks standing to pursue its claims.
“Before an Ohio court can consider the merits of a legal claim, the person or entity seeking
relief must establish standing to sue.” Ohio Pyro, Inc. v. Ohio Dept. of Commerce, Div. of State
Fire Marshal, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 27 (citing Ohio Contrs.
Assn. v. Bicking, 71 Ohio St.3d 318, 320, 1994-Ohio-183, 643 N.E.2d 1088 (1994)).
A lack of standing may be challenged in a Civ.R. 12(B)(6) motion to dismiss. Cronin v.
Governor of Ohio, 8th Dist. Cuyahoga No. 110802, 2022-Ohio-829, ¶ 11 (citing Revocable Living
Trust of Mandel v. Lake Erie Util. Co., 8th Dist. Cuyahoga No. 97859, 2012-Ohio-5718, ¶ 11); see
also Brown v. Columbus City Schools Bd. of Edn., 10th Dist. No. 08AP-1067, 2009-Ohio-3230, ¶
4 (a trial court may properly dismiss a matter for failure to state a claim upon which relief can be
granted for lack of standing under Civ.R. 12(B)(6)).
Further, “[m]erely stating a cause of action upon which relief can be granted does not
automatically confer standing upon a plaintiff to bring its suit.” Cool v. Frenchko, 2022-Ohio-
3747, 200 N.E.3d 562, ¶ 24 (10th Dist.) (quoting Williams v. Ohio State Atty. Gen., 10th Dist.
Franklin No. 97APE08-980, 1998 Ohio App. LEXIS 1873 (Apr. 30, 1998)).
“The constitutional minimum of standing contains three elements: (1) an injury in fact,
which is an invasion of a legally protected interest which is (a) concrete and particularized, and
(b) actual or imminent, not conjectural or hypothetical; (2) a causal connection between the injury
and the challenged action, and (3) that it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.’” Beadle v. O’Konski-Lewis, 2016-Ohio-4749, 68
N.E.3d 221, ¶ 11 (6th Dist.) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct.
2130, 119 L.Ed.2d 351 (1992)) (internal quotations omitted).
As shown below, the City fails to plead that an injury in fact against the City has occurred,
but rather identifies conjectural and hypothetical injuries. If the loss or harm has not yet occurred,
the “threatened injury must be certainly impending to constitute injury in fact, and allegations of
possible future injury are not sufficient.” Clapper v. Amnesty Internatl. USA, 568 U.S. 398, 409,
133 S. Ct. 1138, 185 L. Ed. 2d 264 (2013) (emphasis in original; internal quotation marks omitted).
It follows that costs or losses incurred in anticipation of a future injury also cannot establish
standing—plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based
on their fears of hypothetical future harm that is not certainly impending.” Id. at 416.
In addition, the City fails to establish a causal connection between the alleged injury and
alleged conduct of VineBrook. Remoteness is not an independent legal doctrine but is instead
related to the issues of proximate causation or standing. White v. Smith & Wesson Corp., 97 F.
Supp.2d 816, 823 (N.D.Ohio 2000), fn. 10; City of Boston v. Smith & Wesson Corp., Mass.Super
No. 1999-02590, 2000 Mass. Super. LEXIS 352, at *15, fn. 20 (July 13, 2000). Proof of a causal
relationship between a defendant’s action and a plaintiff’s injury is essential in every tort. JP
Morgan Chase Bank, 2013-Ohio-1035, at ¶ 11 (citing Cook Cty. v. Philip Morris, Inc., 353
Ill.App.3d 55, 60, 817 N.E.2d 1039, 288 Ill. Dec. 389 (Ill.App. 2004)). “Where the injury is too
remote or tenuous from the alleged breach, no cognizable claim exists. . . . ‘Thus, a complaint will
fail on remoteness grounds if the harm alleged is the remote consequence of the defendant’s
misconduct (causation) or is wholly derivative of the harm suffered by a third party (standing).’”
Id. (quoting City of Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768
N.E.2d 1136, ¶ 35-36 (abrogated on other grounds)).
Here, the City alleges two general categories of damages: (1) tenants’ injuries relating to
the Maintenance Shifting Lease Terms, Maintenance Request Deterrents, and Predatory Eviction
Lease Terms;5 and (2) remote future injuries relating to housing stock, property values, code
violation fines, and risk of future vacancy and blight.
As explained in more detail below, the Complaint should fail on remoteness grounds as the
City’s alleged injuries, if accepted as true pursuant to the legal standard of a motion to dismiss,
are, at best, a remote, conjectural and hypothetical consequence of VineBrook’s alleged
misconduct or are wholly derivative of the harm allegedly suffered by the Tenants. Accordingly,
the City’s allegations are merely speculative, as such remote injuries will not be redressed by a
favorable decision for the City.
i. The City does not have standing to bring claims for tenants’
alleged injuries relating to the purported Maintenance Shifting
Lease Terms, Maintenance Request Deterrents, and Predatory
Eviction Lease Terms.
The City’s Complaint recites alleged injuries that do not relate to the City at all, but rather
are all harms that were allegedly suffered (or may be suffered in the future) by third parties—i.e.,
individual tenants. For example, the City has alleged that:
 tenants have avoided submitting maintenance requests or endured unfavorable housing

conditions because they feared the imposition of fees or VineBrook refused to address
pending maintenance requests (Complaint at ¶ 56);
 tenants are at higher risk of housing insecurity and forced displacement through
uninhabitable conditions and evictions (id. at ¶ 91);
 evictions impair tenants’ credit and makes it more difficult for tenants to find replacement
housing—blacklisting, poorer physical and mental health, increased risk of homelessness,
increase risk of employment loss, loss of personal property, damage to credit standing, and
relocation into sub-standard housing (id. at ¶ 92-94);
 tenants fear illegal fees, landlord retaliation and wrongful eviction (id. at ¶ 122); and
 Defendant VineBrook’s pattern and practice of renovating its properties without obtaining
necessary permits also presents an immediate threat to the health and safety of VineBrook
tenants (id. at ¶ 217) (all emphases added).
5
As defined by the Complaint, see ¶¶ 48; 65; 97.
10
These alleged third-parties’ injuries (many of which are future, hypothetical, and
speculative perceived risks of injury anyway, not actual, concrete and particularized injuries) are
not sufficient to confer standing on the City. State v. Yirga, 3rd Dist. Wyandot No. 16-01-24, 2002-
Ohio-2832, ¶ 38 (citing Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 45 L. Ed. 2d 343
(1975)) (“[I]t is axiomatic, as a prudential standing limitation, that a party is limited to asserting
his or her own legal rights and interests, and not those of a third party.”); City of Cleveland v.
Ameriquest Mtge. Secs., Inc., 615 F.3d 496, 506 (6th Cir. 2010) (finding the City of Cleveland’s
claims failed because more “immediate victims” could sue Defendant for the alleged illegal
conduct—such as a suit brought by a mortgagor whose home has been foreclosed on, which would
be “‘relatively straight forward’ and damages would be ‘considerably easier’ to calculate,” or by
home owners who were injured because their neighborhood declined due to foreclosed homes,
because it “would be easier to calculate the damages suffered by property owners in a specific
neighborhood, where the court could more readily ascertain how many foreclosures occurred and
what caused them, than to calculate the damages to the whole city of Cleveland.”) (citing Anza v.
Ideal Steel Supply Corp., 547 U.S. 451, 460, 126 S.Ct. 1991, 164 L.Ed.2d 720 (2006) (explaining
when the adjudication of another party's claim would be “relatively straightforward” and
“considerably easier,” “[t]here is no need to broaden the universe of actionable harms to permit . .
. suits by parties who have been injured only indirectly.”)).
Here, the City does not have standing when it attempts to pursue claims of third party
tenants, which claims would otherwise be contractual disputes over lease terms. The alleged injury
is only conjectural or hypothetical as it relates to the City (as opposed to tenants, whose claims
would be “relatively straightforward” and “considerably easier” to adjudicate), without causal
connection with conduct of VineBrook (as the City has not entered into any lease with VineBrook)
11
and it is only speculative that the injury will be redressed by a favorable decision in favor of the
City (as opposed to tenants).
ii. The City’s alleged injuries are conjectural, hypothetical and

speculative, and are so remote as to fail to establish proximate
cause.
The remainder of the City’s allegations throughout its Complaint amount to statements that
it has been injured due to VineBrook’s alleged policies. The City alleges that VineBrook has a
policy of minimizing repair costs, failing to obtain building permits, and failing to follow code
provisions—which according to the City ultimately leads to a depressed neighborhood housing
values (see Complaint at ¶ 144); an “increased likelihood that Vinebrook properties will one day
become uninhabitable, necessitating government intervention and resources to abate hazardous
conditions” (id. at ¶ 176); an “increased risk of future vacancy and blight” which will cause an
“administrative burden and future expenditures” (id. at ¶ 150-152); and loss of fines relating to
violations and unpermitted work (id. at ¶ 175).
However, even when taken as true, all these alleged injuries fail to confer standing on the
City as they are not injuries in fact and are not concrete, particularized, actual or imminent. Rather,
they are conjectural and hypothetical. See Beadle, 2016-Ohio-4749, 68 N.E.3d 221, at ¶ 11 (citing
Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351) (internal quotations omitted). There
is also no causal connection between the injury and the challenged action. Id. Further, the City
fails to show that it is “likely, as opposed to merely speculative, that the injury will be redressed
by a favorable decision.’” Id.
In City of Cleveland v. Ameriquest Mortgage Securities, Inc., the court held that the cause
of the alleged harms was a set of actions (neglect of property, starting fires, looting, and dealing
drugs) that was completely distinct from the asserted misconduct (financing subprime loans). The
12
court found that such lack of directness exposed the difficulty that can arise when a court attempts
to ascertain the damages caused by some remote action. 615 F.3d at 504.
Similar to Ameriquest, the alleged injuries here could have been caused by many other
factors unconnected to VineBrook’s conduct—for example, property values and vacancy risk
significantly depend on broader macroeconomic conditions, recessionary pressures,
unemployment rates, high mortgage interest rates and high inflation; blight significantly depends
upon the City’s own law enforcement practices and independent decisions of individuals who
engage in criminal conduct; and code violations significantly depend upon activities of tenants
where the City’s own municipal code recognizes the responsibility of tenants in maintaining
properties as “persons in control”. See id. at 505-06 (“Cleveland has not stated a viable claim when
these actions could have occurred for ’any number of reasons unconnected to the asserted pattern
of [misconduct]’ . . . A ‘complex assessment’ would be needed to determine which municipal
expenditures increased and tax revenues decreased because of the ills caused by fore closed homes
rather than, inter alia, job losses due to the decline in manufacturing, fickle consumer tastes,
deteriorating schools, a national recession, or increases in crime not related to foreclosures.
Cleveland points to many of these factors in its brief to demonstrate why the Defendants should
have known to avoid financing sub prime loans in Cleveland, but these same reasons make it
impossible for Cleveland to plead proximate cause under Ohio law.”) (emphasis added) (internal
citations omitted).
The court was faced with an analogous question presented by City of Cincinnati v.
Deutsche Bank Natl. Trust Co., 863 F.3d 474 (6th Cir. 2017). There, the court of appeals found
that the City of Cincinnati’s public nuisance claim against appellee bank was properly dismissed
because (among other reasons) the City’s reliance on the bank’s (Wells Fargo’s) “policy” of not
13
maintaining foreclosed properties and code violations was insufficient to state a claim, as the
alleged “policy” was not necessarily tortious in all its applications. Id. at 480. In affirming the
dismissal, the court noted that the City’s alleged damages (including police and fire expenses, a
decrease in the City’s tax base, and an increase in the City’s administrative costs—just as the City
alleges here) were too attenuated to establish proximate cause. Id.
In addition, the court dealt directly with the issue of claiming damages relating to future
vacancy and blight, uninhabitable conditions, and administrative expenses relating thereto (again,
just as the City alleges here). Id. The court found that the City’s claims (particularly relating to
nuisance) failed as the original complaint had only referenced an exhibit identifying nine properties
with code violations. Id. at 479. The City therefore sought damages only for unidentified
“additional nuisance properties that will become known to the City” through discovery. Id.
However the court held that was “not how civil litigation or for that matter nuisance law works. A
plaintiff may use nuisance law only to remedy an existing nuisance, not to sue someone who may
one day own (or create) a nuisance property. . . .” Id. Because plaintiff failed to indicate why
particular properties owned by the defendant endangered the public, the court recognized that there
was no way of “testing the plausibility of the nuisance allegations or assessing the proximity of
the City’s asserted damages. Proper pleading, even notice pleading, requires more.” Id.
The court ultimately found the City may not challenge Wells Fargo’s “policy” on its face
because it is not tortious in all of its applications. Id. Attempting to fill this gap, the City attached
3,200 pages of code enforcement records to its initial complaint. Id. The court found this
insufficient as “these records catalog every code violation issued with respect to a Wells Fargo-
owned property, even properties long since sold to someone else. They do not specify which
violations make Wells Fargo’s current properties a danger to the public.” Id.
14
Similarly here, the City of Cincinnati argues it has suffered nearly identical damages due
to VineBrook’s alleged policies of minimizing maintenance costs and code/building permit
violations. “But it cannot use nuisance law to single out a particular person or entity and selectively
target its holdings for additional scrutiny with the mere allegation of a cost-benefit ‘policy.’” Id.,
863 F.3d at 481. In fact, although the City has repeated ad nauseum the expansive size of
VineBrook’s property portfolio (see e.g., Complaint at ¶ 31-36), it has only listed 13 properties as
actually having code violations (See id. at Exhibit K).
Attempting to fill in this gap, the City referenced and attached all permit code violations
since 2012 (citing 238 code enforcement cases for violations at Defendant VineBrook’s properties,
documenting 719 independent code violations). But, like the records in Deutsche, these records
catalog every code violation issued, even properties that may have been long since sold to someone
else. They do not specify which violations will lead to issues such as an “increased likelihood that
VineBrook properties will one day become unhabitable, necessitating government intervention
and resources to abate hazardous conditions” (id. at ¶ 176); or an “increased risk of future vacancy
and blight” which will cause an “administrative burden and future expenditures” (id. at ¶ 150-152).
Like the Court found in Deutsche, without indicating which of VineBrook’s particular
properties created the alleged injuries, there was no way of “testing the plausibility of the nuisance
allegations or assessing the proximity of the City's asserted damages. Proper pleading, even notice
pleading, requires more.” 863 F.3d at 479.
Further, the City is trying to assert damages for future injuries relating to vacancy and
blight. But in order for this to confer standing, the “threatened injury must be certainly impending
to constitute injury in fact, and allegations of possible future injury are not sufficient.” Clapper,
568 U.S. at 409, 133 S. Ct. 1138, 185 L. Ed. 2d 264 ((emphasis in original; internal quotation
15
marks omitted). Stating there is “increased likelihood” or “increased risk” in the future are clearly
speculative, and does not amount to actual or imminent harm. Here, if the City’s allegations are
taken as true, they are at most possible future damages (with countless intervening factors) and are
not sufficient to confer standing. It is speculative that any resolution by the court would remedy
the litany of risks of indirect harm conjured by the City such as blight and vacancy. Any calculation
of damages for such hypothetical harm allegedly suffered by the whole of the City of Cincinnati
would be even more speculative.
2. The City’s claims also fail on ripeness grounds.
Aside from (but related to) the standing issue, the City’s claims are not ripe for review, as
discussed in more detail in the applicable claims below. “Ripeness is distinct from standing, but
both doctrines require that an injury in fact be certainly impending.” State v. Maddox, 168 Ohio
St.3d 292, 2022-Ohio-764, 198 N.E.3d 797, ¶ 8 (citation and internal quotation marks omitted). In
determining whether an issue is ripe for review, “a court must weigh the following: (1) the
likelihood that the alleged future harm will occur, (2) the likelihood that delayed review will cause
hardship to the parties, and (3) whether the factual record is sufficiently developed to provide fair
resolution.” T & M Machs., LLC v. Yost, 10th Dist. Franklin No. 19AP-124, 2020-Ohio-551, ¶ 18
(citing State ex rel. Keller v. Columbus, 164 Ohio App.3d 648, 2005-Ohio-6500, 843 N.E.2d 838,
¶ 20 (10th Dist.); Ohio Forestry Assn. v. Sierra Club, 523 U.S. 726, 118 S. Ct. 1665, 140 L. Ed.
2d 921 (1998)).
A case is not yet ripe if “it rests on contingent future events that may not occur as
anticipated or may never occur at all.” Colosseo USA, Inc. v. Univ. of Cincinnati, 1st Dist.
Hamilton No. C-180223, 2019-Ohio-2026, ¶ 18 (citing Ohio Renal Assn. v. Kidney Dialysis
Patient Protection Amendment Comm., 154 Ohio St.3d 86, 2018-Ohio-3220, 111 N.E.3d 1139, ¶
12; State v. Loving, 180 Ohio App.3d 424, 2009-Ohio-15, 905 N.E.2d 1234 (10th Dist.)). “The
16
ripeness doctrine is motivated in part by the desire to prevent the courts, through avoidance of
premature adjudication, from entangling themselves in abstract disagreements . . . The prerequisite
of ripeness is a limitation on jurisdiction that is nevertheless basically optimistic as regards the
prospects of a day in court: the time for judicial relief is simply not yet arrived, even though the
alleged action of the defendant foretells legal injury to the plaintiff.” Beadle, 2016-Ohio-4749, 68
N.E.3d 221, at ¶ 12 (internal quotations omitted).
As of now, the City is asking the Court to address a series of hypothetical questions—i.e.,
if VineBrook enforces its lease provisions, is it a violation of the Ohio Landlord Tenant Act? If
there are additional properties with code violations, is the City entitled to damages? If some or all
of the properties fall into disrepair, is it a public nuisance? All of these questions rest on contingent
future events that may never occur at all, and any decision by this Court on the subject would be
merely an advisory opinion, which, as a general principle, Ohio courts do not render. Village of
Brice v. Crair, 10th Dist. Franklin No. 20AP-221, 2021-Ohio-2595, ¶ 12 (citing Cafaro Leasing
Co. v. K-M I Assocs., 11th Dist. Trumbull No. 2006-T-0115, 2007-Ohio-6723, ¶ 27; R.A.S.
Entertainment, Inc. v. City of Cleveland, 130 Ohio App.3d 125, 719 N.E.2d 641 (1998)).
B. The City’s individual claims should be dismissed because they all fail as a
matter of law.
1. Count I: Absolute Public Nuisance Fails as a Matter of Law
The City’s absolute public nuisance claim against VineBrook fails as a matter of law and
must be dismissed, because (i) the high bar for a nuisance to be considered absolute is not cleared;
and (ii) the actions and omissions the City alleges do not infringe on a right common to the general
public.
As a preliminary matter, any argument that the ordinary business practices of a real estate
company could constitute a nuisance are extremely novel. Classic examples of public nuisances
17
include “obstruction of highways,” “pollution of fisheries,” “obstruction of public streams,”
“exposure to diseased animals,” “negligent marketing/sale of dangerous weapons,” “houses of ill-
repute,” “excessive noise,” and “excessive odors or fumes.” Deutsche Bank Natl. Trust, 863 F.3d
at 477 (citing Restatement of the Law 2d, Torts, Section 821B; cmt. a). Treatises on this subject
do not discuss allegedly objectionable contracts, or appurtenant structures on private property left
unrepaired. Fundamentally, the City raises only quotidian violations of its own code and Ohio state
law, without sufficiently pleading how any such violations rise to the level of a nuisance, let alone
a public nuisance, and let alone an absolute public nuisance.
i. The public nuisance claim fails as a matter of law because

the threshold for a nuisance to be considered “absolute”
is not met in this case.
For a nuisance to be considered absolute rather than qualified, it must consist of one of the
following: (1) “a culpable and intentional act resulting in harm;” (2) “an act involving culpable
and unlawful conduct causing unintentional harm;” or (3) “a nonculpable act resulting in accidental
harm for which, because of the hazards involved, absolute liability attaches notwithstanding the
absence of fault.” Interstate Sash & Door Co. v. City of Cleveland, 148 Ohio St. 325, 74 N.E.2d
239 (1947), paragraph one of the syllabus (citing Metzger v. Pennsylvania, Ohio & Detroit Rd.
Co., 146 Ohio St. 406, 66 N.E.2d 203 (1946), paragraph one of the syllabus). The Ohio Supreme
Court has also held that “[a]n absolute nuisance is based on either intentional conduct or an
abnormally dangerous condition that cannot be maintained without injury to property, no matter
what care is taken.” State ex rel. R.T.G., Inc. v. State, 98 Ohio St. 3d 1, 2002-Ohio-6716, 780
N.E.2d 998, ¶ 59.
The City does not, and cannot, seriously claim that VineBrook has created an “abnormally
dangerous condition that cannot be maintained without injury to property, no matter what care is
taken.” Id. (emphasis added). Otherwise, every single violation of the Cincinnati Municipal Code
18
or Ohio Landlord Tenant Act would also have to be considered an “abnormally dangerous
condition” (which would not only be completely redundant for enforcement purposes, but would
also unleash a deluge of litigation into the courts).
Nor can the City support its claim that VineBrook has engaged in “culpable” conduct.
Interstate Sash & Door at paragraph one of the syllabus. “Culpable” is considered synonymous
with “intentional” by Ohio courts in this context, see State ex rel. R.T.G. at ¶ 59, and “intentional,”
in turn, “in this context, means. . . that the creator of [it] intended to bring about the conditions
which are in fact found to be a nuisance.” Amore v. Ohio Turnpike Commn., 194 Ohio App. 3d
182, 2011-Ohio-1903, 955 N.E.2d 410, ¶ 12 (9th Dist.) (quoting Angerman v. Burick, 9th Dist.
Wayne No. 02CA0028, 2003-Ohio-1469, ¶ 10). Even accepting all of the City’s allegations as
true, the City has not shown how VineBrook intentionally violated the law to such a degree that
those violations created a nuisance. The provisions in VineBrook’s leases that the City seems to
find so objectionable would, in fact, seem to show a desire to avoid letting properties fall into
disrepair. And as has been discussed supra, some amount of code violations is inevitable for a
property portfolio as large as VineBrook’s. The mere existence of such violations does not impute
intent, beyond the conclusory allegations given in the Complaint.
Because VineBrook’s acts and omissions have not been intentional and have not led to
abnormally dangerous conditions, they have not created an absolute nuisance.
ii. The public nuisance claim fails as a matter of law because VineBrook
has not unreasonably interfered with a right common to the general
public.
Even more fundamentally, a public nuisance is “an unreasonable interference with a right
common to the general public.” Becker v. Cardinal Health, Inc., 2021-Ohio-3804, 179 N.E.3d
769, ¶ 16 (10th Dist.) (citing Hamilton v. Hibbs LLC, 10th Dist. Franklin No. 11AP-1107, 2012-
Ohio-4074, ¶ 15). No right common to the general public has been unreasonably interfered with
19
in this case, and accordingly, regardless of whether the nuisance is categorized as absolute or
qualified, no public nuisance exists here.
The Restatement (Second) of Torts distills the distinction between interference with a right
common to the general public and a right enjoyed by some number of people (the infringement of
which is not a public nuisance) thusly:
Conduct does not become a public nuisance merely because it

interferes with the use and enjoyment of land by a large number of
persons. There must be some interference with a public right. A
public right is one common to all members of the general public. It
is collective in nature and not like the individual right that everyone
has not to be assaulted or defamed or defrauded or negligently
injured. Thus the pollution of a stream that merely deprives fifty or
a hundred lower riparian owners of the use of the water for purposes
connected with their land does not for that reason alone become a
public nuisance. If, however, the pollution prevents the use of a
public bathing beach or kills the fish in a navigable stream and so
deprives all members of the community of the right to fish, it
becomes a public nuisance.
Restatement of the Law 2d., Torts, Section 821B, cmt. g.
The alleged injuries claimed by the City, if taken as true, impact an extremely limited
number of individuals—VineBrook’s tenants—and not the general public. Even if every single
one of the hundreds of tenants occupying VineBrook properties experienced the effects of alleged
violations of state and local law, the effects would be limited to the tenants alone and their
properties alone, and would not extend to the general public of Cincinnati. Although the City
broadly alleges harm to “Cincinnatians,” scratching the surface of its absolute public nuisance
claim reveals that only tenants are truly contemplated—the City cites housing conditions, fees and
eviction practices specific to VineBrook tenants. (Complaint at ¶¶ 185-86; 188.) The City attempts
to compensate for this by insisting that all Cincinnatians are entitled to the protection of these
statutes and codes (id. at ¶¶ 187; 189), and VineBrook does not dispute that they are, but that claim
20
is analogous to a claim that all people who might live within the vicinity of a body of water would
have riparian rights (as in the Restatement’s example described above). They would only have
riparian rights if they occupied the land at issue (similar to the tenants who occupy VineBrook
properties), but if they do not, then infringement of the riparian rights of other third parties does
not pose a nuisance to them.
Furthermore, under Ohio law, the analysis of a public nuisance claim differs when the
conduct involved is subject to a regulatory scheme, as opposed to when the conduct is lawful, but
unregulated. Ameriquest Mtge. Secs., 621 F. Supp. 2d at 526. From the City’s own Complaint, it
is abundantly clear that the actions, relations, and responsibilities between landlords and tenants
regarding rental property are heavily regulated at the state and municipal levels.
In such circumstances, “courts assess whether the defendant complied with the regulatory
scheme to determine whether a duty was breached, i.e., whether the defendant unreasonably
interfered with a public right.” Id. at 527. And in this assessment, courts must be cognizant that
“not every failure to comply with the code amounts to a public nuisance,” because “not every code
violation results in such a condition” that rises to the level of interference with health or safety.
Deutsche Bank Natl. Trust, 863 F.3d at 479.
In other words, code violations, in and of themselves, do not amount to absolute public
nuisance unless a plaintiff can affirmatively show that they do. In Deutsche, where the City alleged
that certain code violations affecting real property constituted an absolute public nuisance, the
Sixth Circuit found that the City’s claims failed as the original complaint had only referenced an
exhibit identifying nine properties with code violations. Id. at 479.
Moreover, given the absence of allegations by plaintiff as to why particular properties
owned by defendant endangered the public, the court determined there was no way of “testing the
21
plausibility of the nuisance allegations or assessing the proximity of the City's asserted damages.
Proper pleading, even notice pleading, requires more.” Id. Further explaining, the court reasoned:
Some of the code provisions concern minor (if once a week) facets
of property upkeep—such as failing to mow the grass—and simply
do not rise to the level of interfering with public health or safety. . .
Put another way, the City may not challenge Wells Fargo’s “policy”
on its face because it is not tortious in all of its applications. The
decision to account for costs before making repairs sometimes will
create a nuisance. But sometimes it will not. It all depends on the
properties, the violations, and whether the combination produces
unsafe or unsanitary conditions . . . [but] a “policy” of engaging in
a cost-benefit analysis does not alone constitute a public nuisance.
Many homeowners with outstanding code violations, many indeed
with no violations at all, presumably have a similar policy too.
Id. at 479-80.
The court also found that the attached 3,200 pages of code enforcement records was
insufficient as “these records catalog every code violation issued with respect to a Wells Fargo-
owned property, even properties long since sold to someone else. They do not specify which
violations make Wells Fargo’s current properties a danger to the public.” Id., 863 F.3d at 480.
Furthermore, the court determined that “[w]hen tied only to a general ‘policy’ of non-conformance,
these damages are difficult to connect to Wells Fargo’s actions and nearly impossible to
disaggregate from other potential causes of these costs.” Id.
Similarly here, the City of Cincinnati has alleged it has suffered nearly identical damages
due to VineBrook’s alleged policies of minimizing maintenance costs and code/building permits
but only listed 13 properties as actually having code violations (see Complaint at Exhibit K) and
attaching all code violations since 2012. The alleged existence of code violations at 13 properties,
even if taken as true, is a far cry from being “an unreasonable interference with a right common to
the general public.” Of the mere 13 properties cited, numerous alleged violations relate to code
provisions of minor concern, such as parking infractions, that do not rise to the level of interfering
22
with public health or safety (otherwise, anyone who has ever received a parking ticket would be
endangering the health and safety of the general public). Citing past and closed violations similarly
fails to show an ongoing interference with a right common to the general public. Like the records
in Deutsche, these records catalog every code violation issued, even properties that may have been
long since sold to someone else. They do not specify which violations created a public nuisance,
particularly given that the violations are closed.
In sum, the City’s invocation of a small handful of alleged open code violations, without
specificity as to the unreasonable interference to a common right of the general public posed by
each of these code violations, cannot sustain its claim of absolute public nuisance.
Fundamentally, “[a] nuisance action is not a substitute for regulation and may not supplant
existing regulations for undesirable activity.” JP Morgan Chase Bank, 2013-Ohio-1035, at ¶ 22.
In its Complaint, the City is attempting to use the common law as a chisel to extract what would
be denied to it under state statutes and municipal codes on standing grounds. Ohio law bars it from
doing so, and for this reason, the City’s absolute public nuisance claim ought to be dismissed.
2. Count II: Declaratory Judgment of Violations of the Ohio

Landlord Tenant Act Fails as a Matter of Law
The City has failed to state a claim upon which relief can be granted for its claim seeking
a declaratory judgment that various Lease Terms violate the Ohio Landlord Tenant Act. As
discussed at length above, the City has no standing to assert these claims and does not satisfy the
requirements of third-party standing relating to the Tenants’ alleged harms. (See discussion supra).
Further, the three prerequisites to declaratory relief are “(1) a real controversy between the
two parties, (2) justiciability, and (3) the necessity of speedy relief to preserve the parties’ rights.”
Cool, 2022-Ohio-3747, 200 N.E.3d 562, at ¶ 17. A trial court may dismiss a complaint for
declaratory judgment without addressing the merits of the case if there is (1) neither a justiciable
23
issue nor an actual controversy between the parties requiring speedy relief, or (2) the declaratory
judgment will not terminate the uncertainty or controversy. Id. at ¶ 18.
Here, there is no justiciable issue between the parties nor actual controversy—let alone any
requirement of “speedy relief.” The City is not a party to any lease with VineBrook. Further, the
City has not suffered any harm, nor is there any impending harm to the City, relating to the alleged
violations. The City is simply seeking an advisory opinion that various provisions of the Lease
agreements (many of which they have not even alleged are being enforced but merely threatened
or attempted) are illegal. (See e.g., Complaint at ¶ 207 (“So long as the Maintenance Shifting Lease
Terms and Predatory Eviction Lease Terms are included in Defendant Vinebrook’s leases, the City
and its residents face a continuing threat of harm inflicted by Defendant Vinebrook’s threatened
and attempted enforcement of those Terms.”).)
Further, even assuming the unsubstantiated legal conclusion that there was a violation of
the Ohio Landlord Tenant Act, this does not automatically confer standing on the City. “Standing
does not depend on the merits of the plaintiff’s claim that the conduct is illegal or unconstitutional.
Rather, standing depends on whether the plaintiffs have alleged such a personal stake in the
outcome of the controversy that they are entitled to have a court hear their case.”
ProgressOhio.Org, Inc. v. JobsOhio, 139 Ohio St.3d 520, 2014-Ohio-2382, 13 N.E.3d 1101, ¶ 7
(citing Moore v. City of Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 23;
Clifton v. Village of Blanchester, 131 Ohio St.3d 287, 2012-Ohio-780, 964 N.E.2d 414, ¶ 15; State
ex rel. Dallman v. Franklin Cty. Court of Common Pleas, 35 Ohio St.2d 176, 178-79, 298 N.E.2d
515 (1973)). As discussed previously, the City does not have a personal stake in the outcome of a
controversy over the terms of lease agreements to which the City is not a party; its interest is
24
entirely derivative of the interests of tenants. Therefore, the City does not have standing to
challenge contractual lease terms simply because it favors tenants and disfavors landlords.
All of this being said, it is unnecessary to get into the merits of the City’s allegations
relating to the violations of the Ohio Landlord Tenant Act in order to dispense with this claim, as
the Lease Agreement also contains a severability clause. (See Complaint, Exhibit D, at ¶ 14.)
“Courts will enforce a contract to the extent it conforms to the law, even if part is unenforceable,
if the contract is severable.” Wal-Mart Realty Co. v. Tri-Cty. Commons Assocs., LLC, 1st Dist.
Hamilton No. C-160747, 2017-Ohio-9280, ¶ 13; see also Roberts v. KND Dev. 51, LLC, 8th Dist.
Cuyahoga No. 108473, 2020-Ohio-4986, ¶ 26 (citing Alford v. Arbors at Gallipolis, 2018-Ohio-
4653, 123 N.E.3d 305, ¶ 42 (4th Dist.)) (“A court will not lightly conclude that the invalidity of a
particular contract term requires invalidation of the entire agreement.”); Toledo Police
Patrolman’s Assn., Local 10 v. City of Toledo, 94 Ohio App.3d 734, 741, 641 N.E.2d 799 (6th
Dist.1994) (“Because there are legal and enforceable terms of the contract and the contract is
severable, the remainder of the contract is enforceable.”).
To be clear, VineBrook disputes that it has violated the Ohio Landlord Tenant Act. But
regardless of the merits of this issue, the City has no standing to pursue its claim for declaratory
judgment relating to Ohio Landlord Tenant Act, any provisions of the Lease found in violation
thereof could nonetheless be severed, and this claim should fail as a matter of law.
3. Count III: Injunctive Relief for Building, Health, and Permit

Violations Fails as a Matter of Law
The City has failed to state a claim upon which relief can be granted for its claim of
injunctive relief for building, health, and permit violations. The legal standard for injunctive relief
is (1) that the injunction is necessary to prevent irreparable harm, and (2) there is no adequate
remedy at law. The Procter & Gamble Co. v. Stoneham, 140 Ohio App.3d 260, 267, 747 N.E.2d
25
268 (1st Dist.2000). These elements must be proven through clear and convincing evidence. Id. at
267-68.
As discussed elsewhere in this Motion, Ohio courts require that complaints give fair notice
to defendants, meaning “the complaint must allege sufficient underlying facts that relate to and
support the alleged claim; the complaint may not simply state legal conclusions.” Allstate Ins. Co.
v. Electrolux Home Prods., 8th Dist. Cuyahoga No. 97065, 2012-Ohio-90, ¶ 9 (citing Clemens v.
Katz, 6th Dist. Lucas No. L-08-1274, 2009-Ohio-1461, ¶ 7).
Under a notice pleading standard, the facts provided by the City are insufficient to support
its claim for injunctive relief. It describes issues with just a tiny percentage of VineBrook’s
property portfolio, but alleges that these few issues (that could easily be remedied and made moot
if not already done so) justify “injunctive relief in the form of a court order permitting City
inspection of all Vinebrook properties to identify concealed building, health, and zoning code
violations.” (Complaint at ¶ 219).
Initially, the City lacks standing to assert these claims as discussed above, as its alleged
damages are the Tenants’ injuries. (See e.g., id. at ¶ 216-217; discussion supra Section IV.A.1.)
It bears repeating that not only the Landlord, but also the Tenant could be held liable or responsible
for these violations. (Id. at ¶ 188); see also City of Beachwood v. Simon, 8th Dist. Cuyahoga No.
64483, 1993 Ohio App. LEXIS 5987, *6 (Dec. 16, 1993).
Additionally, the City has failed to state a claim that meets the legal standard for the
extraordinary remedy of injunctive relief. For one thing, the City fails to provide clear and
convincing evidence of irreparable harm; in fact, it provides no evidence whatsoever.
There is no conceivable way that issues with a few of VineBrook’s many properties—
issues which the City has not adequately shown were the fault of VineBrook—would warrant the
26
intrusion of the City government onto hundreds of contractual relationships and physical intrusion
by City officials into the homes of thousands of City residents who are VineBrook tenants. Ohio
courts have repeatedly found that lawsuits and discovery should not be used as a “fishing
expedition.” See e.g., Beard v. New York Life Ins. & Annuity Corp., 10th Dist. Franklin No. 12AP-
977, 2013-Ohio-3700, ¶ 28 (citing Winkle v. Southdown, Inc., 2d Dist. Greene No. 92-CA-107,
1993 Ohio App. LEXIS 4295, *14 (Sept. 3, 1993)) (finding a complaint was properly dismissed
under Civ. R. 12(B)(6) and noting “the purpose of discovery is not to permit one party to conduct
a ‘fishing expedition’ for evidence to support his or her claim”); Keenan v. Adecco Emp. Servs.,
3d Dist. Allen No. 1-06-10, 2006-Ohio-3633, ¶ 15 (citing Winkle, 1993 Ohio App. LEXIS 4295 at
*14) (rejecting Plaintiff’s argument against dismissal under Civ. R. 12(B)(6) that “if he were
permitted to conduct discovery he would find the contracts upon which he relies for his assertion
. . . However. . . the purpose of discovery is not to permit one party to conduct a ‘fishing expedition’
for evidence to support their claim”).
Furthermore, the Complaint fails to allege that the City has no other adequate remedy at
law—it cannot, because the City has the weight of an entire regulatory scheme at its back. In fact,
the exhibits included in the City’s Complaint showing just 13 properties as having alleged code
violations, with hundreds of enforcement cases closed in the prior 11 years, evidences that
VineBrook has worked within the parameters of the City’s already existing enforcement
mechanisms to address issues of which VineBrook is aware. Accordingly, there is no reason to
usurp already existing and adequate remedies available to the City via the extraordinary measure
of injunctive relief. See Deutsche Bank Natl. Trust, 863 F.3d at 481 (internal citations omitted)
(“All of this does not leave Cincinnati in the cold. It has many existing tools to enforce local and
27
state property regulations. . . . And if it thinks these means lack the heft needed to correct the
problems, it has authority to improve or expand the available enforcement mechanisms. . . .”).
Finally, the City omits any other consideration of weighing of harm to VineBrook and its
tenants. (See Complaint at 212-219); see also Rite Aid v. Marc’s Variety Store, 93 Ohio App. 3d
407, 412, 638 N.E.2d 1056 (8th Dist. 1994); City of Cincinnati v. Deutsche Bank Nat’l Trust Co.,
863 F.3d 474, 481 (8th Cir. 2017). Such a broad overreach of governmental power in the form of
injunctive relief would unreasonably intrude on the lives of VineBrook tenants, and creates a
slippery slope that could also lead to governmental intrusion of neighboring owner-occupiers. For
such broad injunctive relief as the City requests, these omissions fail to put either VineBrook or
the Court on notice as to its necessity when other remedies are already available.
For these reasons, the claim for injunctive relief must fail as a matter of law and should be
dismissed.
4. Count IV: Civil Conspiracy Fails as a Matter of Law
To state a claim for civil conspiracy, the City must show: “(1) a malicious combination;
(2) of two or more persons; (3) resulting in injury to person or property; and (4) the existence of
an unlawful act independent of the actual conspiracy.” Mitchell v. Mid-Ohio Emergency Servs.,
LLC, 10th Dist. Franklin No. 03AP-981, 2004-Ohio-5264, ¶ 33 (citing Davidson v. BP Am., Inc.,
125 Ohio App.3d 643, 709 N.E.2d 510 (8th Dist.1997)). It has not done so, and for this reason, its
civil conspiracy claim fails as a matter of law.
The Complaint itself alleges that the VineBrook entities are commonly controlled and
managed (see Complaint at ¶¶ 9, 15), which means that no conspiracy can exist between them.
When all alleged coconspirators are members of the same corporate entity, there are not two
separate “people” to form a conspiracy. Under Ohio law, “two or more persons having a joint or
common interest” is a single “person.” R.C. 1701.01(G). Because of their joint or common
28
interests, corporations cannot conspire with their wholly owned subsidiaries, which means that
VineBrook cannot conspire with itself or the LLCs listed in the Complaint.
5. Count V: Breach of Contract Fails as a Matter of Law
“The elements of a breach of contract claim are ‘the existence of a contract, performance
by the plaintiff, breach by the defendant, and damage or loss to the plaintiff.’” Becker v. Direct
Energy, LP, 2018-Ohio-4134, 112 N.E.3d 978, ¶ 38 (2d Dist.) (quoting Doner v. Snapp, 98 Ohio
App.3d 597, 600, 649 N.E.2d 42 (2d Dist.1994)). The contract at issue in Count V is a settlement
agreement that resolved prior litigation between the City and VineBrook. The agreement, attached
to the City’s Complaint as Exhibit B, called for a payment by VineBrook to the City (related to
matters not relevant to this suit and for which VineBrook denied liability) as well as certain other
going-forward matters.
Notably, the City does not contend in the Complaint that VineBrook failed to make the
significant monetary payments called for in the Settlement Agreement (see Complaint at Exhibit
B, § 1). Nor could the City contend this—VineBrook promptly made the required payments, thus
making the City financially whole (arguably, one of the most material parts of the Settlement
Agreement). Beyond that, the City does nothing more than essentially provide a recitation of
certain terms of the Settlement Agreement couched with mere legal conclusory statements of
VineBrook’s purported breach thereof. In sum, the City’s Complaint lacks sufficient supporting
factual allegations to properly support its breach of contract claim. This means that the breach
element has not been adequately shown, and that the breach of contract claim fails as a matter of
law.
The City also fails to plausibly allege that any damages it may have suffered were
proximately caused by VineBrook’s breach of the Settlement Agreement, meaning the breach of
contract claim fails on the damages element, as well. Clearly, many factors are involved in the
29
condition of VineBrook’s properties in Cincinnati, not all of which are within VineBrook’s unique
control. “[W]hen the plaintiff’s total injury may have been the result of many factors, in addition
to the defendant’s breach of the contract, the plaintiff, in order to establish injury, must show that
the defendant’s breach was a substantial factor in causing the injury.” Cammerer Farms v. Terra
Internatl., Inc., 12th Dist. Warren No. CA91-02-020, 1991 Ohio App. LEXIS 6269, *8-*9 (Dec.
23, 1991) (citing 5 Corbin, Corbin on Contracts, Section 999, 24-25 (1964)). “A breach of contract
is a substantial factor in causing a plaintiff’s damages if it is the predominating, primary, real,
main, or chief causal factor.” Claris, Ltd. v. Hotel Dev. Servs., LLC, 10th Dist. Franklin No. 16AP-
685, No. 16AP-727, 2018-Ohio-2602, ¶ 40 (citing Columbia First Bank, FSB v. U.S., 60 Fed.Cl.
97, 104 (2004)).
The City has not plausibly alleged that VineBrook’s purported breach of the settlement
agreement was a “substantial factor” in causing the City’s damages. Any of the damages suffered
by the City due to VineBrook’s alleged breach may have been incurred by the City even in the
absence of any breach. In addition, the City does not have standing to bring claims on behalf of
the Tenants’ injuries. (See Complaint at ¶ 229 (c-e); discussion supra Section IV.A.1).) Further,
the City fails to differentiate the conditions of properties owned by VineBrook and those not owned
by VineBrook, and also the differences in condition among and between VineBrook’s various
properties. Because damages and causation are not adequately shown in the Complaint,
VineBrook’s breach of contract claim must fail as a matter of law.
6. Count VI: Private Lot Abatement Costs Fails as a Matter of

Law
The City’s claim relating to private lot abatement costs fail as a matter of law because this
claim is not ripe for judicial review. The City has alleged that VineBrook owes it reimbursement
30
costs the City incurred in connection with causing litter to be removed and weeds to be cut in
accordance with CMC § 714-47 and CMC § 731-3.
However, one of the requirements prior to causing litter to be removed and weeds to be cut
is that the City provides notice to the owner and a chance to cure. See CMC § 714-41; 731-5. While
the City generically refers to “City orders,” the City does not specifically allege that it ever
provided VineBrook this required notice and that VineBrook has refused to cure in response to
said notice. Therefore, in addition to failing to state a claim upon which relief can be granted, the
City’s claims are not ripe as they “rest[] on contingent future events that may not occur as
anticipated or may never occur at all.” Colosseo USA, 2019-Ohio-2026, at ¶ 18 (citing Ohio Renal
Assn., 154 Ohio St.3d 86, 2018-Ohio-3220, 111 N.E.3d 1139, at ¶ 12).
Additionally, the City alleges throughout its entire Complaint that it has been or will be
injured by VineBrook evicting its Tenants. However, on the other side, it is seeking relief under
CMC § 714-37, which provides “The owner or person in control of any private property shall at
all times maintain the premises free of litter” and CMC § 731-3, which provides “Every owner or
person in control of any lot or lands within the city of Cincinnati shall cause the lot or lands to be
kept free from weeds and turf grasses over ten inches in height by cutting and then removing said
cut weeds and turf grasses from such lot or lands immediately.” A lessee is included in the
Cincinnati Municipal Code’s definition of “person in control.” CMC §§ 714-1-P4; 731-1-P.
Therefore, in the event that VineBrook is found liable for violations of these sections, the
Tenants could be held equally responsible. Clearly, the City does not want VineBrook to evict
each and every Tenant that fails to comply with this section (as that would only allegedly contribute
further to the City’s supposed injuries), and the City has failed to name them as Defendants under
Civ. R. 19(A)—seemingly for the purpose of claiming their interests are in line with the Tenants.
31
For these reasons, this claim should fail as a matter of law.
7. Count VII: Appointment of a Receiver Fails as a Matter of Law
Finally, the appointment of a receiver as to VineBrook’s properties would not be
appropriate in this case.
A receiver may be appointed by the Court in the following circumstances:
“In an action by a vendor to vacate a fraudulent purchase of

property, or by a creditor to subject property or a fund to the
creditor’s claim, or between partners or others jointly owning or
interested in any property or fund . . . when it is shown that the
property or fund is in danger of being lost, removed, or materially
injured . . . [and] [i]n all other cases in which receivers have been
appointed by the usages of equity.”
R.C. 2735.01(A)(1); (7). These circumstances are not met here for the following reasons.
The City is not a vendor, creditor, or person jointly owning or interested in any property or
fund at issue in this case, thereby lacking standing to demand a receiver unless under the catchall
“usages of equity” function (which is not appropriate here, as discussed in more detail below).
Furthermore, the City has not shown that any of VineBrook’s properties are in danger of being
lost, removed, or materially injured—particularly given VineBrook’s expansive property portfolio.
While the City’s Complaint delineates the alleged conditions of certain of VineBrook’s properties,
many of these conditions are speculative (hence why the City is asking to intrude on the properties
to inspect) and even taken as true, the conditions are curable and unlikely to materially injure any
of the properties at issue.
Likewise, it would not be proper for the Court to use its broad powers of equity to appoint
a receiver in this case. “[T]he appointment of a receiver is the exercise of an extraordinary, drastic,
and sometimes harsh power which equity possesses, and is only to be exercised where the failure
to do so would place the petitioning party in danger of suffering an irreparable loss or injury.”
Hoiles v. Watkins, 117 Ohio St. 165, 174, 157 N.E. 557 (1927). “Due to the extreme nature of the
32
remedy, the movant must demonstrate the need for a receiver by clear and convincing evidence.”
U.S. Bank, N.A. v. 2900 Presidential Drive LLC, 2d Dist. Greene No. 2013 CA 60, 2014-Ohio-
1121, ¶ 11 (citing Crawford v. Hawes, 2d Dist. Montgomery No. 23209, 2010-Ohio-952, ¶ 33;
Malloy v. Malloy Color Lab, Inc., 63 Ohio App.3d 434, 437, 579 N.E.2d 248 (10th Dist. 1989)).
The City has not, and cannot, show clear and convincing evidence that the City would
suffer an irreparable injury were a receiver to not be appointed. The courts must consider “the
presence of conditions and grounds justifying the relief, the ends of justice, the rights of all the
parties interested in the controversy and subject matter, and the adequacy and effectiveness of
other remedies.” State ex rel. Celebrezze v. Gibbs, 60 Ohio St. 3d 69, 73, 573 N.E.2d 62, n. 3
(1991) (quoting 65 American Jurisprudence 2d, Receivers, Sections 19-20, at 873-74 (1972)). As
previously stated, the conditions alleged by the City are not incurable. The City’s own complaint
has identified that prior conditions have, in fact, been cured. Furthermore, countless other parties
are interested in the controversy and subject matter—particularly, third party lenders and actual
creditors with interests in the properties and VineBrook’s Tenants occupying these many
properties. The takeover of property management and alteration of lease agreements without the
consent of the other parties to the contract would not promote justice. Other remedies suffice
here—in particular, ones narrowly tailored to the actual properties at issue, rather than
VineBrook’s entire property portfolio.
The City also argues that it is entitled to appointment of a receiver under R.C.
2735.01(A)(7) because of the existence of a public nuisance. As has been discussed supra Section
IV.B.1, the City’s public nuisance claim must fail as a matter of law.
Without any legal or equitable justification, any receivership over VineBrook’s property
would be a taking of private property without just compensation in violation of the Constitution,
33
and VineBrook would be entitled to repayment for the lost use and enjoyment of its property. The
risk of the City having to undertake such repayment with taxpayer money should, in and of itself,
give this Court pause regarding the appointment of a receiver.
V. CONCLUSION
For these reasons, the VineBrook Defendants respectfully requests that the Court enter an
order dismissing Plaintiff’s Complaint in its entirety.
Dated: April 28, 2023 Respectfully submitted,

Brian P. Muething (0076315)
Joseph E. Lehnert (0089492)
KEATING MUETHING & KLEKAMP, PLL
One East Fourth St., Suite 1400
Cincinnati, OH 45202
Tel: (513) 579-6400
Fax: (513) 579-6457
bmuething@kmklaw.com
jlehnert@kmklaw.com
Attorneys for VineBrook Defendants
34
CERTIFICATE OF SERVICE
I certify that on April 28, 2023, I served the foregoing document via email upon the
following:
Shannon Price John E. Schrider, Jr.

David Laing The Legal Aid Society of Southwest Ohio
Assistant City Solicitors jschrider@lascinti.org
shannon.price@cincinnati-oh.gov
david.laing@cincinnati-oh.gov Jordan Cotleur
The Legal Aid Society of Greater Cincinnati
Shawn J. Organ jordancotleur@lascinti.org
Erik J. Clark
Connor A. Organ Brian Howe
Organ Law llp Volunteer Lawyers Program
sjorgan@organlegal.com brian.howe@uc.edu
ejclark@organlegal.com
corgan@organlegal.com

Joseph E. Lehnert
12561959.1
35

VineBrook Motion To Dismiss 2023 Lawsuit

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VineBrook Motion To Dismiss 2023 Lawsuit

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FIN THE OHIO COURT OF COMMON PLEAS

HAMILTON COUNTY, OHIO

CITY OF CINCINNATI ) Case No. A 2300224

/s/ Joseph E. Lehnert

Attorneys for VineBrook Defendants

VineBrook invests millions of dollars into Cincinnati neighborhoods in an effort to provide

and provide much needed affordable housing.

VineBrook may be unaware of or cannot immediately cure.

evade compliance with the law (id. at ¶ 220-25.).

middle-income Cincinnatians (id. at ¶ 32.).

miniscule percentage of VineBrook’s properties as a fishing expedition to circumvent already

improve schools, and support law enforcement to reduce crime.

II. THE CITY’S COMPLAINT ALLEGATIONS

authority by the City.

having code violations (see id. at Exhibit K.).

vacancy, and increased administrative burden and expenditures. (Id. at ¶ 44.)

relief can be granted.

III. LEGAL STANDARD

Ohio-2665, 915 N.E.2d 696, ¶ 7 (10th Dist.).

liable.” JP Morgan Chase Bank at ¶ 11.

reasons more fully explained below.

counts I-VII fail as a matter of law.

A. The City has not presented a justiciable controversy in its Complaint.

these threshold questions is discussed in turn below.

A lack of standing may be challenged in a Civ.R. 12(B)(6) motion to dismiss. Cronin v.

granted for lack of standing under Civ.R. 12(B)(6)).

injury will be redressed by a favorable decision.’” Beadle v. O’Konski-Lewis, 2016-Ohio-4749, 68

2130, 119 L.Ed.2d 351 (1992)) (internal quotations omitted).

standing—plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based

N.E.2d 1136, ¶ 35-36 (abrogated on other grounds)).

violation fines, and risk of future vacancy and blight.

are, at best, a remote, conjectural and hypothetical consequence of VineBrook’s alleged

favorable decision for the City.

individual tenants. For example, the City has alleged that:

 tenants have avoided submitting maintenance requests or endured unfavorable housing

be “‘relatively straight forward’ and damages would be ‘considerably easier’ to calculate,” or by

. suits by parties who have been injured only indirectly.”)).

would be “relatively straightforward” and “considerably easier” to adjudicate), without causal

City (as opposed to tenants).

ii. The City’s alleged injuries are conjectural, hypothetical and

provisions—which according to the City ultimately leads to a depressed neighborhood housing

become uninhabitable, necessitating government intervention and resources to abate hazardous

violations and unpermitted work (id. at ¶ 175).

by a favorable decision.’” Id.

significantly depend on broader macroeconomic conditions, recessionary pressures,

of [misconduct]’ . . . A ‘complex assessment’ would be needed to determine which municipal

deteriorating schools, a national recession, or increases in crime not related to foreclosures.

alleges here) were too attenuated to establish proximate cause. Id.

to VineBrook’s alleged policies of minimizing maintenance costs and code/building permit

actually having code violations (See id. at Exhibit K).

pleading, requires more.” 863 F.3d at 479.

would be even more speculative.

2. The City’s claims also fail on ripeness grounds.

premature adjudication, from entangling themselves in abstract disagreements . . . The prerequisite

of ripeness is a limitation on jurisdiction that is nevertheless basically optimistic as regards the

N.E.3d 221, at ¶ 12 (internal quotations omitted).

1. Count I: Absolute Public Nuisance Fails as a Matter of Law

“exposure to diseased animals,” “negligent marketing/sale of dangerous weapons,” “houses of ill-

a public nuisance, and let alone an absolute public nuisance.

i. The public nuisance claim fails as a matter of law because

N.E.2d 998, ¶ 59.

also unleash a deluge of litigation into the courts).