IN THE COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO. UNION BAPTIST CHURCH, INC. 405 West 7th Street Cincinnati, Ohio 45203, CASE # Plaintiff, JUDGE -vs- ) ) ) ) ) ) } FIFTH THIRD BANCORP ) 38 Fountain Square Plaza ) Cincinnati, Ohio 45263, ) JURY DEMAND ENDORSED ) ) ) ) ) ) ) ) ) ) HEREON. FIFTH THIRD BANK, N.A. 38 Fountain Square Plaza Cincinnati, Ohio 45263, and FIFTH THIRD BANK 5001 Kingsley Drive Cincinnati, Ohio 45227, Defendants. COMPLAINT for MONEY DAMAGES and INJUNCTIVE RELIEF For CONTINUING TRESPASS and CONTINUING NUISANCE, and for CEMETERY DESECRATION and for ABUSE OF CORPSE Now comes Plaintiff Union Baptist Church, Inc. and for its Complaint based on unreasonable alteration of surface water flow, excessive discharge of stormwater, and for desecration of a cemetery and abuse of corpse, hereby states as follows against Defendants, Fifth Third Bancorp, Fifth Third Bank, N.A., and Fifth Third Bank. BACKGROUND FACTS The Parties. 4. Union Baptist Church, Inc. is an Ohio not-for-profit corporation located at 405, West 7th Street, Cincinnati, Ohio 45203, Hamilton County, Ohio. 2. Defendant Fifth Third Bancorp is a diversified financial services company headquartered at 38 Fountain Square Plaza, Cincinnati, Hamilton County, Ohio 45263,3. Defendant Fifth Third Bank, N.A. is a financial institution, headquartered and co- located at 38 Fountain Square Plaza, Cincinnati, Hamilton County, Ohio 45263, and having substantial operations at 5050 Kingsley Drive, Cincinnati, Ohio 45227. 4. Defendant Fifth Third Bank is a financial institution, doing business at 5001 Kingsley Drive, Cincinnati, Ohio 45227. 5. Defendant Fifth Third Bancorp is the parent or otherwise closely affiliated with the other Defendants such that they are in effect the same entity, alter ego and/ or mere instrumentality in the context of this case. Some or all of the Defendants sometimes do business or otherwise operate under the name of Fifth Third Bank, National Association, and Fifth Third Bank — an Ohio Banking Corporation, and Fifth Third Bank Central Ohio. (collectively, the Defendants are referred to as “Fifth Third’). 6. Union Baptist Church (the “Church’) is Cincinnati's oldest African-American Baptist church, having been founded in 1831 7. The Church holds record title to the United American Cemetery, located at the intersection of Duck Creek Road and Strathmore Drive in East Madisonville, at the commonly known addresses of 4732 and 4734 Duck Creek Rd., Hamilton County, Ohio with the respective parcel numbers of 051-0010-0164-90 and 051- 0010-0089-90. 8. The United American Cemetery in Madisonville (the “Cemetery” is an historic African-American burial ground, originally founded in 1883 9. The Cemetery includes many graves moved from an earlier cemetery in Avondale, with the earliest legible tombstone being placed in 1832, which makes it the oldest African-American cemetery not only in Cincinnati but in all of Ohio. 10.The Church's historical records are now housed as part of the archives of the National Underground Railroad Freedom Center. 11. The Cemetery grounds were designed by prominent landscape architect Adolph Strauch, who also designed Spring Grove Cemetery. 12.In 1968, at the request of Cincinnati Councilman Charles P. Taft, ownership and care of the Cemetery was transferred to the Church.13. The Cemetery is the resting place of many prominent African Americans who were important to the historical development of the City of Cincinnati, including leaders of the Underground Railroad, writers, politicians, businesspeople, artists, civil rights leaders, and military veterans, including at least fifty-five veterans of the Civil War. 14, Prominent persons buried in this historic Cemetery include the following: William H. Beckley (1817-1880), Underground Railroad Conductor. John Isom Gaines (1821-1859), abolitionist. Priscilla Jane Thompson (1871-1942), poet, author of Ethiope Lays. Frank A. B, Hall (1870-1934), first African American elected to Cincinnati City Council. Horace Suddeth (1898-1957), businessman, owner of Cincinnati's Manse Hotel. Jennie Jackson DeHart (1855-1910), star of Nashville's Fisk Jubilee Singers. Isaac Nelson Ross, Bishop in the African Methodist Episcopal (AME) denomination. Irvine Penn (1866-1930), journalist, officer in the Methodist Freedman’s Aid Society. Phoebe Boots Allen, deaconess in the AME Church and pioneering social worker. Henry Elis (1846-1914), soldier in the 54th Massachusetts ("Glory") Regiment. Charles H. Thompson (1835-1902), early voting rights advocate and Episcopal priest. Fifth TI nd its Madisom oO 15. Fifth Third's common stock is publicly traded on the Nasdaq® Global Select Market 16. According to its own publication, as of Sept. 30, 2020, Fifth Third had $202 billion in assets, $422 billion in assets under care through its Trust and Registered Investment Advisory, operated 1,122 full-service banking centers and 2,414 of its ‘own ATMs with Fifth Third branding in Ohio, Kentucky, Indiana, Michigan, Illinois, Florida, Tennessee, West Virginia, Georgia, North Carolina and South Carolina, 17.As reported by the Cincinnati Business Courier on October 7, 2003, Fifth Third ‘opened its Madisonville Operations Center (the Center”) in 2002. 18.At that time, it was also reported that Fifth Third was expanding into two additional, contiguous warehouses. 19. Upon information and belief, title to the Kingsley Drive property, Operations Center, is held by Fifth Third under the name “Fifth Third Bank Central Ohio” to 3which, upon further information and belief, one or more of the Fifth Third Defendants is a successor in interest. 20.Upon information and belief, all of the Defendants jointly operate the Kingsley Drive facilities/Operations Center. 21. Diagrams/ plats showing Fifth Third's facilities contiguous to the Church's Cemetery are attached hereto at Exhibit A. 22. Fifth Third has continued to improve and expand its Madisonville Operations Center up to the present. 23.As more fully alleged below, Fifth Third unreasonably altered the surface water flow in connection with the opening, and continued operation and expansion of its Madisonville Operations Center, located on contiguous real estate above the Cemetery, Unreasonable Al \n of the Nat Flow of urface Water. 24. Fifth Third's Madisonville Operations Center (the “Center’) is a massive complex which dominates the western side of Interstate 71 to the south of the Red Bank Road exit. 25.Fifth Third’s Center commonly known address includes 5005 Kingsley Drive, Columbia Township, Hamilton County, Ohio 45227, which shares the “uphil” property line with the Cemetery. 26.Upon information and belief, the Center is used by both Defendant entities for operations which support their operations. 27.Fifth Third's Center consists of over one-half million square feet of impervious (hard and solid) surface, which repels water and does not allow water soak into the ground. 28. This impervious surface includes: the Building Rooftops (265,173 sq. ft.); Duck Creek Main Parking (210,310 sq. ft); and West Side Parking (58,082 sq. ft.) 29.Fifth Third installed at least three drainage outlet pipes to drain its stormwater from the Center's rooftops, parking areas and roadways which empty directly into and onto the Cemetery. 30. There is a Detention Basin Area (12,086 sq. ft.) designed to detain water; but like the rest of Fifth Third’s stormwater management systems, the basin also empties directly into and onto the Cemetery.31.Pictures showing the drainage outlet pipes and the detention basin are attached at Exhibit B. 32. The alterations of the natural water flow and drainage patterns under Fifth Third's stormwater management systems achieved the purpose of repelling stormwater from the Center, but at the expense and destruction of the Cemetery. 33. Fifth Third could have and should have used alternate, more reasonable measures, which would not have overburdened the Cemetery. 34, Fifth Third’s stormwater drainage floods the entrance roadway, washes away vegetation, trees, and shrubbery, erodes the hillside, displaces gravestones, washes away graves and effectively turns the Cemetery into a swampy marsh each time it rains. 35.Over time, the continuing drainage and flooding eroded the soil supporting the gravestones and holding the coffins and bodies, thereby causing unforgivable dishonor and insult to the departed who have been exhumed thereby. 36.Given the storied history and important role of the Cemetery to Cincinnati, the public, and more specifically, to the African-American community, its social utility, locally, regionally and nationally, could not be any higher. 37. Itis notable that the Cemetery had faithfully preserved the sacred resting place of many of Cincinnati's best citizens, sons and daughters, being the loved ones of more than 5,000 families, almost 150 years before the opening of Fifth Third’s Center. 38.As a non-profit corporation, the Church does not have the resources to redesign, fund and implement a new stormwater management plan. 39. Fifth Third is one of the largest banks in the entire Midwestern United States and has the resources at its disposal to redesign and fund a more appropriate plan for stormwater management. 40. Through this Complaint the Church seeks an award of money damages to fund a reasonable stormwater management plan which protects both the Center and the Cemetery. 41. The cost and expense to do so would pale in comparison to Fifth Third’s well- publicized initiative to commit $ 2.8 Billion to “Accelerate Racial Equity, Equality and Inclusion.”Fifth TI Continued Refusal to Properly Address th jetery Desecration. 42.1n January of 2019, through counsel, the Church sent a letter to Fifth Third explaining the salient points of the foregoing facts (a copy is attached hereto at Exhibit C). 43. Since that time, counsel for the Church and a local landscape architect and expert regarding historic cemetery design, Gary Meisner of Meisner + Associates, have presented mitigation plans to Fifth Third’s counsel and Fifth Third management. 44. The Church has also been assisted by Sloane & Associates, who develop, restore and operate cemeteries, including historic cemeteries, at the national level. 45. The Church, with the assistance of Sloane & Associates and Meisner + Associates has developed repair, remediation and restoration plans for the Cemetery that have been presented to Fifth Third. 46. Implementation of these plans would require locating graves and bodies, which have shifted and become displaced through mapping of the Cemetery via survey and Ground Penetrating Radar (“GPR”). 47.In the more than two years since the matter was brought to the attention of Fifth Third senior management and counsel, Fifth Third has failed to take steps to mitigate the water runoff through the Cemetery and has failed to assist with the restoration, remediation and repair of the Cemetery 48. In April of 2021, the Pastor of Union Baptist Church, Rev. Dr. Orlando B. Yates and the Pastor Emeritus of the New Jerusalem Baptist Church, Reverend Damon Lynch, Jr., jointly sent a letter to Greg D. Carmichael, Chairman, President and CEO of Fifth Third Bancorp, which was received on April 7, 2021 (a copy is attached hereto at Exhibit D). 49. The purpose of that letter was to inform Mr. Carmichael, as Fifth Third's most senior management officer and corporate representative, that this matter was not just about one church and one cemetery, but rather about the whole African- American community, not just locally but nationally. 50. The Ministers’ letter informed Mr. Carmichael that Senator Sherrod Brown sponsored legislation pending in Congress to address the plight of African- American cemeteries and he prominently featured the Church's Cemetery in his address to the Senate. 51. The Pastors’ letter to Chairman Carmichael requesting a meeting to discuss this dire situation has been ignored.CAUSES OF ACTION COUNT ONE - CONTINUING TRESPASS 52. The Church realleges all of its prior allegations, particularly those set forth in the subsection entitled “Unreasonable Alteration of the Natural Flow of the Surface Water.” 53. Fifth Third’s unreasonable conduct constitutes a continuing trespass. 54, The Church has been damaged by Fifth Third's continuing trespass. 56. Fifth Third has further damaged the Church in that it failed to fulfil its assumed duty to manage the stormwater management measures in a reasonably safe manner such that it did not pose an unreasonable risk of harm and continued harm to the Church, the Cemetery and the public, including family members of the departed. 56. Even if a local government authority approved some or all of the stormwater management measures, Fifth Third’s continuing trespass was, became and continues to be unreasonable and created a foreseeable risk of the precise manner and type of damages that occurred 57.Repairing the damage includes, by way of example and not limitation, locating graves and bodies, mapping out the Cemetery via survey and GPR, and repairing, remediating and restoring the graves, grave markers, roadways, entrances and Cemetery grounds. 58. The Church is also entitled to compensation for loss of use and/or diminution in value, lost income and lost profits due to the negative publicity and inability to maintain and operate the Cemetery. 59. The Church is also entitled to costs and expenses, including, but not limited to its attorney's fees and experts’ fees, including but not limited to geotechnical, engineering, design, advisory, and urban planning fees. COUNT TWO - CONTINUING NUISANCE 60. The Church realleges all of its prior allegations, particularly those set forth in Count I Continuing Trespass and the subsection entitled “Unreasonable Alteration of the Natural Flow of the Surface Water.” 61. Fifth Third’s unreasonable conduct has interfered with the Church's use and enjoyment of the Cemetery.62.Fifth Third’s unreasonable conduct constitutes a continuing trespass and nuisance. 63. Fifth Third is in possession of and retains control of the stormwater management measures which are the source of the nuisance. 64, Fifth Third has violated the City of Cincinnati stormwater ordinances. 65. The Church has been damaged by Fifth Third’s actions. COUNT THREE - CEMETERY DESECRATION and ABUSE OF CORPSE 66. The Church realleges all of its prior allegations, particularly those set forth in the subsection entitled “Fifth Third’s Continued Refusal to Properly Address the Cemetery Desecration. 67. The actions of Fifth Third and the continued damage to the Cemetery and graves occasioned thereby amount to the desecration of the Cemetery, desecration of graves, and abuse of the corpses impacted, both at common law and by statute in violation of Revised Code Sections 2927.11 and 2927.01. 68. Ohio Revised Code Section 2927.01 — Abuse of a Corpse - provides as follows: (A) No person, except as authorized by law, shall treat a human corpse in a way that the person knows would outrage reasonable family sensibilities, (B) No person, except as authorized by law, shall treat a human corpse in a way that would outrage reasonable community sensibilities (C) Whoever violates division (A) of this section is guilty of abuse of a corpse, a misdemeanor of the second degree. Whoever violates division (B) of this section is guilty of gross abuse of a corpse, a felony of the fifth degree. 69. Ohio Revised Code Sections 2307.60 and 2307.70 provide the private right of the Plaintiff for recovery against Fifth Third of compensatory damages, punitive and exemplary damages, costs and expenses incurred in this action, and attorneys’ fees. COUNT FOUR - PUNITIVE DAMAGES - MALICIOUS CONDUCT 70. The Church realleges all of its prior allegations.71. Fifth Third’s continued violation of the Church's rights as set forth above was, became, and continues to be committed through gross negligence, reckless indifference to the Church's rights, intentionally and with legal malice. 72. Fifth Third’s conduct complained of herein has apparently been undertaken with the knowledge, participation and ratification of Fifth Third's most senior management. 73. The Church is entitled to an award of exemplary and punitive damages, together with its attorneys’ fees in an amount to be proven at trial WHEREFORE, the Plaintiff, the Union Baptist Church, Inc., respectfully requests that this Court enter monetary judgment in its favor against Defendants, jointly and severally, in an amount to be determined at trial, far in excess of the jurisdictional threshold of $25,000, and including all costs and expenses incurred in this action, punitive and exemplary damages, attorney's fees, court costs; injunctive relief as warranted, and all such other relief as to which the Church may be entitled at law and in equity. Respectfully submitted, Is/ John E. Stillpass John E. Stillpass (0006993) Stillpass Attorneys at Law 4901 Hunt Road, Suite 103 Cincinnati, Ohio 45242 Telephone: (513) 936-0800 Fax: (513) 794-8800 E-mail: jstilpass@stillpass. com Trial Attorneys for Plaintiffs OF COUNSEL: Js/ Richard Ganulin Richard Ganulin (0025642) 3662 Kendall Avenue Cincinnati, Ohio 45208 Telephone: (513) 405-6696 E-mail: rganulin@gmail.comJURY DEMAND Plaintiff hereby demands a trial by jury for all the issues so triable. Js/_ John E. Stillpass John E. Stillpass (0006993) Trial Attorney for Plaintiffs 10EXHIBIT A FIFTH THIRD BANK = EXHIBIT A-1 Madisonville Operations Center 5005 Kingsley Drive Cincinnati, OH 45227 Duck Creek Main Parking 210,310 Square Feet * West Side Parking 58,082 Square Feet * Building (Rooftop) 265,173 Square Feet * Total Impervious Surfaces 533,565 Square Feet * Detention Basin Area 12,066 Square Feet* *Denotes approximate area of as measured via ArcGISwi0%8 FIFTH THIRD OC Land Areaog ¢-V LIGIHXS "FIFTH THIRD OC Land Ares Topo.og m xs = 2 4 e wo psa googie com/maivOtabewmifinbax/160ea9eeSebtOaedPprajector=1i018 FIFTH THIRD OC Land Ara jg V LIGIHXA 200g. com/mailsabswainbox!160e29eeSeb40ne4 7projector=t v910Z@SIOVO 9102 ‘ZO UnP:peIng dew eulluo SIDVOEXHIBIT C STILLPASS ATTORNEYS AT LAW chart a3 asvitipassdericinaaa.com cerrta@avnerane.com January 4, 2019 Greg D. Carmichael Chairman, President and CEO Fifth Third Bancorp Fifth Third Center 38 Fountain Square Plaza Cincinnati, OH 45263 RE: United American Cemetery a Dear Mr. Carmichael: 1 represent the Union Baptist Churclt which is the omer and operator of the United American the Fifth Third Bank Madisonville Office Building and Operations Center in ColumbiaFownship. ‘You are probably not aware that your néighbor is the oldest Black cemetery in Ohio, was founded in 1844 by the United Colored:Americatt Association; and is the burial site of many prominent Cincinnati Black businessmen aiid-dighitaries, some of whom predate the Civil War. Eventually, the cemetery property had been placed in the care of Charles P. Taft, who eventually transferred its care and upkeep to the Union Baptist Church in 1968. ‘You are also most likely not aware that the expansion of your bank's facilities from 1996 to the present, and Fifth Third’ failure to maintain the detention basin and to install proper drainage systems for runoff have caused severe damage to the cemetery. In fact, in recent years, the Fifth Third Bank's facilities now comprising over one-half million square feet of impervious surface between rooftop and paved parking areas have all but decimated your neighboring historic property. At this point, during any moderate rain event. water runoff from the Fifth Third parking areas adjoining the cemetery, and water draining directly from the malfunctioning detention basin are actually washing away trees and shrubs, shifting gravesites. undermining grave markers, and creating what can only described as a swamp-like mess. “The situation has not only damaged the existing gravesites. but has also left the cemetery in such a state so as to make it unattractive for new burials.Greg D. Carmichael Page 2 Chairman, President and CEO Fifth Third Bancorp January 4, 2019 ‘There is no question that your organization bears full legal responsibility to abate the water runoff situation and compensate my client for damages to the property, for restoration of the property and for the significant loss of income suffered. Further, there is no question that Fifth Third Bank bears the moral and social responsibility to remedy this horrific damage it has inflicted to this historic site. Mr. Carmichael, I am writing this letter to your direct attention as I perceive that you would appreciate the gravity of the situation and in my trust that you would be personally inclined to help correct this situation, short of our need to resort to the legal process. On behalf of my client, I am appealing to you to back up your professed commitment on behalf of your organization “to be a socially responsible business, and ... to do corporate social responsibility a Fifth Third better.” | look forward to working with you to find the best wa¥:to-regolve this matter in a way that will preserve the future of your extraordinary neighboring:historic property. to honor past generations of extraordinary persons, and to maintain its messagé for future generations. ‘Thank you for your attention. | will look forward toihearing from you about this. Yours sincerely, John E. Stillpass cc: Union Baptist Church K. Dale MeAllister, Executive Church Administrator cc: Union Baptist Church Rev. Dr. Orlando B Yates, Senior PastorEXHIBIT D Greg D. Carmichae! Chairman, President and CEO Fifth Third Bancorp Fifth Third Center 38 Fountain Square Plaza Cincinnati, OH 45263 RE: United American Cemetery / Fifth Third Madisonville Operations Center ‘Dear Mr. Carmichael: We are writing to you as representatives of the Greater-Cincinnati African American community ministries to request a meeting with you so that we can personally acquaint you with the importance of the historic United American Cemetery to the Aftican American community and the general ‘community, both locally and nationally, and how the expansion and operations of your bank's facilities adjoining this property have nearly destroyed the cemetery. As you may be aware, during the two years since the attomey representing the Union Baptist Church, owner of United American Cemetery, wrote to you, National attention has been directed to the plight of America’s Black Cemeteries. Sen. Sherrod Brown has legislation pending in ‘Congress, and the cemeteries owned by Union Baptist Church have been prominently featured by Sen. Brown in his efforts to gamer support for his proposed legislation. Furthermore, local attention has been directed specifically at the United American Cemetery with publicity in the Cincinnati Enquirer and the Cincinnati Herald. Despite all of this community attention and Fifth Third Bank’s promotion of the bank’s “$32 Billion Community Commitment”, as touted in your company’s 2020 Annual Report, our cemetery continues to deteriorate as the water runoff from Fifth Third’s neighboring facility continues to pour through the cemetery, shifting graves, washing away historical grave markers, flooding the entrance roadway, and creating a swampy mess. As our attomey previously informed you, your neighbor is the oldest Black cemetery in Ohio. It was founded in 1844 by the United Colored American Association; and is the burial site of many prominent Cincinnati Black businessmen and dignitaries, some of whom predate the Civil War. The cemetery site was originally located in Avondale and later moved to its current location. Eventually, the cemetery property was placed in the care of Charles P. Taft, who eventually transferred its care and upkeep to the Union Baptist Church. Our cemetery survived as a peaceful resting place for our loved ones for 150 years before your bank became its neighbor 25 years ago and began funneling its ‘waste water directly onto the cemetery property from 3 different drain pipes. Union Baptist Church is the oldest African American Baptist Church in Cincinnati, having been organized in 1831. The Church’s historical records are now housed as part of the archives of the National Underground Railroad Freedom Center.The undersigned Dr. Orlando B. Yates has been Pastor of the Union Baptist Church since 1988, serving the spiritual needs of his Congregants. He oversees the operations of both historic cemeteries along with the Church Trustee Board and Board of Deacons. Pastor Yates has been invested in this entire process, pushing to rectify the damage that the water runoff from the Fifth ‘Third property has caused to United American Cemetery. ‘The undersigned Damon Lynch, Jr., is Pastor Emeritus of the New Jerusalem Baptist Church. He is also the former president of the Baptist Ministers Conference, the first President of the Pastors Conference of Greater Cincinnati, and among numerous community and Board positions, is a Founding Member of the National Underground Railroad Freedom Center Board of Directors, and the immediate past Chair of its Board of Directors. As a long-standing concemed community leader, Pastor Lynch also supports our efforts to preserve United American Cemetery. He believes that Fifth Third Bank has an obligation to negotiate in good faith with Union Baptist Church regarding the damage to United American Cemetery. We look forward to the opportunity to meet with you in person so that we can explore whether Fifth Third Bank is ready to take the steps necessary to live up to both its legal responsibilities to correct the damage caused to the neighboring United American Cemetery and potentially reaffirm its ‘commitment to its “ESG” initiatives through the support of this treasure of the African American ‘Community that is located in the shadow of a major Fifth Third Bank facility in the hometown of ‘your corporate headquarters. We believe this face-to-face meeting is necessary as it appears that we inave reached an impasse with your legal team, and we do not believe that this isan issue that should be the subject of a public Court proceeding. ‘Yours very truly, Dr, Orlando B. Yates. Rev. 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