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$12M suit against Calaveras dismissed

A would-be Wallace-area developer’s $12 million lawsuit against Calaveras County and its former employees, for alleged civil rights violations, has been dismissed by a U.S. District Court judge.

Michael and Michelle Nemee claimed their due-process rights were violated by the county in 2009 when it denied a golf course and a proposed housing development on 280 acres they owned near Wallace. The county also ordered the Nemees to stop golf activity at the course.

The Nemees constructed the 18-hole course without permits.

They sued the county as well as former interim Community Development Director Brent Harrington and planner Shaelyn Strattan and dozens of “John and Jane Does” in October 2011.

The couple sought $12 million as compensation, having lost the property to foreclosure in May 2012. Fresno U.S. District Court Judge Lawrence O’Neill dismissed the case April 2 after the Nemees’ attorney, Ken Foley, of San Andreas, missed an April 1 deadline to file a status report in the case. The dismissal is “without prejudice,” allowing the Nemees to refile the lawsuit if desired.

The Nemees initially filed the civil rights suit on the eve of a hearing in another suit against the county, seeking to have the course permitted by the county’s definition of “agritourism” in its zoning code. U.S. Bankruptcy Court Judge Ronald Sargis in Modesto ruled in the county’s favor in December 2011 and allowed the Community Bank of San Joaquin to proceed with foreclosure on the Nemees’ property.

The couple appealed the agritourism decision to the District Court, which ruled the issue moot after the foreclosure sale. An appeal was subsequently made to the Ninth Circuit Court of Appeals in San Francisco, where it is still pending.

It is unclear how the Ninth Circuit will view the mootness issue in light of the dismissal of the civil rights suit two weeks earlier.

“Appellants believe that the appeal was not moot because of the existence of the pending case for damages involving the same issue between the same parties in the same Court,” Foley wrote in an April 16 briefing filed with the appeals court, despite the dismissal of the civil rights case.

The Nemees are also involved in a pair of cases in the Calaveras County Superior Court against the new owners of their former property.

Lance and Renee Dami, of Fresno, paid about $1.2 million for the Nemees’ former home and 160 acres in May 2012. The remaining 120 acres remained in the possession of Community Bank of San Joaquin and are tied up by various lienholders.

The Damis sued the Nemees in August 2012, claiming the Nemees removed a $310,000 irrigation pump system and $100,000 in other “personal property collateral” when they left. A tractor, generators, water tank, filtration system, well pump connector and computerized control panel are identified among the miscellaneous “collateral” in court documents.

On Feb. 5, the Nemees filed a response citing the pump system as a trade fixture related to the golf course and separate from the property included in the foreclosure.

They countersued Feb. 5 seeking damages to be determined by the court for alleged trespassing by the Damis between the time they received title to the property May 31 and July 20 when they acquired right of possession, nuisance and infliction of emotional distress.

A response filed March 7 by San Ramon attorney Kent Tierney on behalf of the Damis denies the allegations. A trial is scheduled to commence Sept. 9 on the claims and counterclaims.


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