Hamilton County judge denies TRO in Emery Theatre dispute, but case against UC and others continues

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Emery Theater
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Posted: 08/14/2013

CINCINNATI - A judge denied a request for a temporary restraining order Wednesday that had been sought by a nonprofit group trying to renovate the historic Emery Theatre.

Hamilton County Common Pleas Judge Carl Stich said The Requiem Project’s motion didn’t meet the legal standards for a TRO.

Those standards include showing that Requiem had a substantial chance of success at trial, and proving that it would suffer irreparable harm if the TRO wasn’t issued.

Stich cautioned observers from interpreting his decision too broadly.

“We’re here today on a very narrow issue,” the judge said. “This doesn’t necessarily portend how this case will turn out.”

Requiem wanted the order to prevent its eviction from the Emery. The nonprofit group is suing to force the theater’s owners to negotiate a long-term lease for the space.

All sides in the case will meet in 30 days for a status conference with the judge.

Requiem is dealing with three different organizations that have some level of ownership or control over the Emery. The nonprofit group alleges each of the organizations is deflecting responsibility onto the others for a breakdown in lease negotiations.

The University of Cincinnati owns the 1,600-seat concert hall and adjacent space in Over-the-Rhine, which were built in 1911.

Philanthropist Mary Emery donated money in the early 20th Century to build the space to house the Ohio Mechanics Institute trade school and a concert hall. As a condition, she required the concert hall always be available to the public as a performance space.

In 1969, UC gained ownership of the entire site.

The nonprofit Emery Center Corporation (ECC) was created in 1988 to promote the theater’s restoration, although little progress was made for decades. It still holds the lease for the concert hall portion.

Beginning in 1999, the for-profit Emery Center Apartments Limited Partnership (ECALP) leased part of the building -- excluding the theater -- to redevelop it into apartments and retail space.

In 2009, the nonprofit granted a management agreement to Requiem, so it could help raise money to renovate the theater site.

But the management agreement expired Aug. 1, and now ECC wants to evict Requiem.

Attorneys for both groups said Requiem has made little progress in the past three years, and it’s time to try something new.

Requiem countered that it has lined up private donors willing to help pay some of the renovation’s cost, but only if the group is granted a long-term lease. That has been stymied by both groups, Requiem alleges.

Former judge Mark Painter, who is Requiem’s attorney, said there are conflicts of interest between ECC (which controls the theater) and ECALP (which controls the apartments). Some members of ECC’s board also are involved with ECALP.

Some critics have alleged that ECALP also wants to convert the theater space into apartments or condominiums.

Cincinnati real estate developer Kathy Schwab heads ECALP.

During Wednesday’s court hearing, Painter called Emery’s unusual management arrangement an “alphabet soup conspiracy.”

Since Requiem became involved, more than 10,000 people have attended performances at the Emery, Painter said. Also, more than 63,000 hours have been spent by volunteers cleaning up the site – all of which is more than UC or ECC has accomplished in decades.

“UC has abandoned the (management) structure it created, showing unbelievably bad stewardship,” Painter said.

“Requiem is the last, best hope for the people of Cincinnati to reclaim this national treasure that lies moldering in our midst,” he added.

Requiem Project co-founder Tara Lindsey Gordon said UC is forgetting the pact made with Mary Emery to take care of the theater.

“The entire construct was developed for the theater,” Gordon said. “It was always, always, always theater first.”

ECC told the judge that its disappointed in Requiem’s fundraising efforts.

It will take about $3 million to make the Emery compatible with modern building and fire codes, said Don Mooney, ECC’s attorney.

The work includes restoring running water to the site, installing an HVAC system, and having asbestos and lead paint abatement.

And it could cost up to $30 million to restore the Emery to a state-of-the-art performance center.

“We’re not talking money you can raise with a concert here and there,” Mooney said. “We’re talking large amounts of money.”

For its part, UC has said it has no direct involvement with the Emery and has offered to give the space to the city of Cincinnati.

“It’s been sued for no good reason,” said UC attorney Jack Fuchs, referring to the university.

Among the noteworthy artists who performed at the Emery during its heyday were George Gershwin, John Philip Sousa and Vaslav Nijinsky.

Copyright 2013 Scripps Media, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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