[Cite as Epcon Community Franchising, L.L.C. v. Wilcox Dev. Group, L.L.C., 2022-Ohio-3442.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Epcon Community Franchising, LLC, :

Plaintiff-Appellant, :

 No. 21AP-674

v. : (C.P.C. No. 21CV-502)

Wilcox Development Group, LLC et al., : (ACCELERATED CALENDAR)

Defendants-Appellees. :

D E C I S I O N

Rendered on September 29, 2022

On brief: Arnold & Clifford, LLP, Tiffany L. Carwile, and 

James E. Arnold, for appellant. Argued: Tiffany L. Carwile.

On brief: Zeiger, Tigges & Little LLP, Marion H. Little, Jr.,

and Matthew S. Zeiger, for appellees. Argued: Matthew S. 

Zeiger.

APPEAL from the Franklin County Court of Common Pleas

BEATTY BLUNT, J.

{¶ 1} Plaintiff-appellant, Epcon Community Franchising, LLC ("Epcon"), appeals

from the December 9, 2021 decision and entry of the Franklin County Court of Common 

Pleas granting the motion to dismiss, filed pursuant to Civ.R. 12(B)(6), of defendantsappellees, Wilcox Development Group, LLC, Charleston Lake II, LLC, and Streetsboro 

Investments Partners, LLC (collectively, "Wilcox"). For the following reasons, we affirm.

I. Facts and Procedural History

{¶ 2} This dispute arises out of litigation initiated in October 2012 by the Office of 

Fair Housing and Opportunity against Epcon, a franchisor of residential homes for 
No. 21AP-674 2

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community development projects, for alleged violations of the Fair Housing Act, 42 U.S.C. 

Section 3601-19 (the "FHA"), at 32 multi-family housing communities developed in Ohio. 

(Am. Compl. ¶ 13, ¶ 27.) The instant matter concerns violations alleged by the United States 

at three condominium communities developed by Wilcox under contractual agreements 

with Epcon. More specifically, the United States alleged that certain elements of the design 

and construction of the condominium communities did not satisfy the accessibility 

requirements of the FHA. Id. at ¶ 27.

{¶ 3} After years of negotiations between Epcon and the Department of Justice 

("DOJ"), the parties reached a tentative agreement requiring court approval. Id. at ¶ 35-41. 

In October 2019, the DOJ filed a complaint against Epcon in the Southern District of Ohio. 

Id. at ¶ 41. On March 25, 2020, the court signed a consent order submitted by the parties. 

Id. at ¶ 45. The consent order required Epcon to pay over $2.5 million in specified damages, 

with $2.2 million to be used to establish an accessibility retrofit fund to correct certain 

deficiencies at the communities, the majority of which were within the exterior portions of 

the communities. Id. at ¶ 42-44; 48-49. The consent order released all claims under the 

FHA against Epcon and Epcon's parent entities, subsidiaries, franchisees, and affiliates. 

Id. at ¶ 47.

{¶ 4} On January 25, 2021, Epcon filed a complaint in the Franklin County Court 

of Common Pleas, alleging a single claim for contribution under Ohio Revised Code section 

2307.25(A). Id. at ¶ 53-59. Wilcox responded by filing a motion to dismiss pursuant to 

Civ.R. 12(B)(6), whereupon Epcon filed an amended complaint with the same allegations 

and the same claim for contribution under R.C. 2307.25(A). (See Mar. 2, 2021 Mot. to 

Dismiss; Am. Compl.) On April 7, 2021, Wilcox filed a motion to dismiss the amended 

complaint. (See Apr. 7, 2021 Mot. to Dismiss.)
No. 21AP-674 3

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{¶ 5} On December 9, 2021, the trial court issued its decision and entry granting 

the April 7, 2021 motion to dismiss. In its decision and entry, the trial court stated that 

"Epcon's claim [for contribution] fails as a matter of law to the extent they assert de facto 

claims for contribution arising from FHA violations." (Decision & Entry at 6.)

{¶ 6} On December 14, 2021, Epcon filed this timely appeal.

II. Assignment of Error

{¶ 7} Epcon has assigned one error for our review:

The trial court erred in dismissing Epcon's contribution claim 

as preempted by the Fair Housing Act.

III. Law and Analysis

A. Standard of Review

{¶ 8} Federal preemption is a question of law. Merck Sharp & Dohme Corp. v. 

Albrecht, ___ U.S. ___, 139 S.Ct. 1668, 1680 (2019). Questions of law are reviewed de 

novo. State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, ¶ 9.

B. Federal Preemption of State Law

{¶ 9} The issue before this court is straightforward: does the FHA preempt state 

law claims for contribution, including Ohio's statutorily provided cause of action for 

contribution set forth in R.C. 2307.25? Despite the straightforward nature of the issue, 

however, we have discerned no controlling case law on it—neither the Supreme Court of 

Ohio nor this court has previously spoken on the issue. Nor does it appear that any other 

Ohio appellate courts have addressed it. 

{¶ 10} This court has previously discussed in detail the law governing federal 

preemption generally in State ex rel. Yost v. Volkswagen Aktiengesellschaft, 10th Dist. No. 

19AP-7, 2019-Ohio-5084. In Volkswagen, we stated:
No. 21AP-674 4

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Whether federal law preempts state law is a question of law, 

and therefore we must apply a de novo standard of review 

without deference to the trial court's decision. Bailey v. Manor 

Care of Mayfield Hts., 8th Dist. No. 99798, 2013-Ohio-4927, 

¶ 12. The doctrine of federal preemption arises from the 

Supremacy Clause of the United States Constitution, which 

provides that "the Laws of the United States * * * shall be the 

supreme Law of the Land; and the Judges in every State shall 

be bound thereby, any Thing in the Constitution or Laws of any 

State to the Contrary notwithstanding." U.S. Constitution, 

Article VI, cl. 2. Pursuant to the Supremacy Clause, the United 

States Congress has the power to preempt state laws. In re 

Miamisburg Train Derailment Litigation, 68 Ohio St.3d 255, 

259 (1994).

There are three ways federal law can preempt state law: 

(1) where federal law expressly preempts state law (express 

preemption); (2) where federal law has occupied the entire 

field (field preemption); or (3) where there is a conflict between 

federal law and state law (conflict preemption1). Norfolk S. Ry. 

Co. v. Bogle, 115 Ohio St.3d 455, 2007-Ohio-5248, ¶ 7. Express 

preemption occurs when Congress explicitly defines the extent 

to which its enactments preempt state law. English v. Gen. 

Elec. Co., 496 U.S. 72, 78 (1990). In the case of field 

preemption, "state law is pre-empted where it regulates 

conduct in a field that Congress intended the Federal 

Government to occupy exclusively. Such an intent may be 

inferred from a 'scheme of federal regulation * * * so pervasive 

as to make reasonable the inference that Congress left no room 

for the States to supplement it,' or where an Act of Congress 

'touches a field in which the federal interest is so dominant that 

the federal system will be assumed to preclude enforcement of 

state laws on the same subject.' " Id. at 79, quoting Rice v. 

Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Conflict 

preemption occurs "where it is impossible for a private party to 

comply with both state and federal requirements," or "where 

state law 'stands as an obstacle to the accomplishment and 

execution of the full purposes and objectives of Congress.' " 

English at 79, quoting Hines v. Davidowitz, 312 U.S. 52, 67 

(1941). "What is a sufficient obstacle is a matter of judgment, 

to be informed by examining the federal statute as a whole and 

identifying its purpose and intended effects." Crosby v. Natl. 

Foreign Trade Council, 530 U.S. 363, 373 (2000).

1 "Conflict preemption" is also known as "obstacle preemption." See English v. Gen. Elec. Co., 496 U.S. 72, 79 

(1990), citing Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
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In determining whether federal law preempts state law, " '[t]he 

purpose of Congress is the ultimate touchstone.' " Malone v. 

White Motor Corp., 435 U.S. 497, 504 (1978), quoting Retail 

Clerks Internatl. Assn. v. Schermerhorn, 375 U.S. 96, 103 

(1963); see Riverside v. State, 190 Ohio App.3d 765, 2010-

Ohio-5868, ¶ 22 (10th Dist.) ("The Supreme Court has framed 

preemption analysis as asking whether Congress intended to 

exercise its constitutionally delegated authority to set aside 

state laws."). "Congress' intent, of course, primarily is 

discerned from the language of the pre-emption statute and the 

'statutory framework' surrounding it. * * * Also relevant, 

however, is the 'structure and purpose of the statute as a whole,'

* * * as revealed not only in the text, but through the reviewing 

court's reasoned understanding of the way in which Congress 

intended the statute and its surrounding regulatory scheme to 

affect business, consumers, and the law." (Internal citations 

omitted.) Medtronic, Inc. v. Lohr, 518 U.S. 470, 486 (1996).

Additionally, a court reviewing possible preemption must 

consider federalism as part of that analysis. Federalism, which 

is "central to the constitutional design, adopts the principle that 

both the National and State Governments have elements of 

sovereignty the other is bound to respect." Arizona v. United 

States, 567 U.S. 387, 398 (2012). "[B]ecause the States are 

independent sovereigns in our federal system," the United 

States Supreme Court has "long presumed that Congress does 

not cavalierly pre-empt state-law causes of action." Medtronic

at 485.

Volkswagen at ¶ 12-15.

{¶ 11} Notwithstanding the lack of Ohio case law on the specific issue before us, 

several federal court decisions have found that state law claims for contribution are 

preempted or otherwise barred by the FHA, including one from the Southern District of 

Ohio. In Miami Valley Fair Hous Ctr., Inc. v. Campus Village Wright State, LLC, S.D. 

Ohio No. 3:10cv230, 2012 U.S. Dist. LEXIS 137922 (Sept. 26, 2012), the district court 

specifically determined that "Campus Village Cross-Claimants' contention that the FHA 

does not prohibit them from pursuing indemnification and contribution claims under Ohio 
No. 21AP-674 6

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law also lacks merit. The Court finds such state law claims preempted under the doctrine 

of obstacle preemption." (Emphasis added.) Campus Village Wright State at *16.

{¶ 12} Other federal cases that have held or otherwise have found that the FHA 

preempts or otherwise bars state law claims for contribution include Miami Valley Fair

Hous Ctr., Inc. v. Steiner + Assocs., Inc., et al., S.D. Ohio No. 3:08cv00150, 2010 U.S. Dist.

LEXIS 63915, (May 13, 2010)

2; United States v. Dawn Properties., 64 F.Supp.3d 955, 960 

(S.D.Miss.2014) ("the Court agrees with those federal courts to have addressed this issue 

that the FHA and the ADA preempt state law claims for both indemnity and contribution") 

(emphasis added); United States v. Murphy Dev., LLC, M.D. Tenn. No. 3:08-0960, 2009 

U.S. Dist LEXIS 100149, at *2 (Oct. 27, 2009) (emphasis added) ("Third-Party Plaintiffs' 

state-law claims for express or implied indemnity and/or contribution will also be 

dismissed with prejudice because they are de facto claims for indemnity and contribution 

that are preempted by federal law. Such derivative indemnity and contribution claims are 

barred because allowing recovery under state law for indemnity and/or contribution 

would frustrate the achievement of Congress' purposes in adopting the FHA and the 

ADA," citing Equal Rights Ctr. v. Archstone Smith Trust, 603 F.Supp.2d 814, 824 

(D.Md.2009)).

{¶ 13} The United States District Court for the Southern District of New York aptly 

discussed the reasoning for barring state law claims for contribution-like claims via federal 

preemption thus: 

The FHA penalizes actions that, in any way, "make unavailable" 

any dwelling to any person "because of race, sex, familial status, 

2 "On appeal, the United States Court of Appeals for the Sixth Circuit reversed and remanded Steiner based

on issues relating to personal jurisdiction. Miami Valley Fair Hous. Ctr., Inc. et al. v. Steiner & Assocs., Inc.

et al., 483 Fed. Appx. 67, 2012 U.S. App. LEXIS 10316, 2012 WL 1815964 at *1 (6th Cir.2012). The Sixth

Circuit declined to address whether the FHA permits or preempts state-law claims in contribution or

indemnification." Campus Village Wright State at *13-14.
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or national origin." 42 U.S.C. § 3604(a). The results-oriented 

phrase "otherwise make unavailable" "signal[s] a shift in 

emphasis from an actor's intent to the consequences of his 

actions." Tex. Dept. of Hous. [& Cmty. Affairs v. Inclusive 

Communities, Inc.], 135 S. Ct. [2507], 2519 [192 L. Ed.2d 514 

(2015)]. In other words, the FHA was not designed simply to 

punish those who discriminate, but also to remove even

unintentional barriers to the availability of housing. Thus, one 

can violate the statute through discriminatory intent or merely 

disparate impact. See id. at 2523. Enforcing a state statute 

that compensates an FHA violator would undermine 

Congress's purpose in achieving the result of the availability 

of fair housing. * * *.

The stated goal of the FHA is "regulatory rather than 

compensatory," Equal Rights Ctr. v. Niles Bolton Assocs., 602 

F.3d 597, 601-02 (4th Cir.2010), and the statutory scheme is 

"preventive as well as remedial," id. at 601. In other words, the 

language and structure of the statute evidence Congress's 

intent to achieve the result of fair housing not only by 

remedying obstacles but also via deterrence.

Congress's stated intent also limits what avenues are available 

to a party that violates the FHA. Because of the statute's broad 

language and Congress's intent to end discriminatory 

housing practices, state law procedures cannot be used to 

circumvent Congress's regulatory scheme. See Picard v. 

JPMorgan Chase & Co. (In re Bernard L. Madoff Inv. Sec. 

LLC), 721 F.3d 54, 65 (2d Cir.2013) (state law contribution 

claims are inapplicable for fines for violation of federal laws); 

Niles Bolton, 602 F.3d at 601-02 (allowing FHA violator to shift 

liability to third party via state law indemnification claim would 

run counter to aims of FHA); Equal Rights Ctr. v. Archstone 

Smith Tr., 603 F. Supp.2d 814, 822 (D. Md.2009) (claim for 

indemnity or contribution not allowed under FHA because "the 

unmistakable thrust of Supreme Court precedent is that 

Congress' selection (and non-selection) of remedies in 

comprehensive remedial federal statutes, especially antidiscrimination statutes, is not a proper subject with which 

federal or state courts ought to tinker"), aff'd sub nom. Equal 

Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597 (4th Cir. 

2010); KBL Corp. v. Arnouts, 646 F. Supp.2d 335, 341 

(S.D.N.Y.2009) (a "plaintiff cannot use New York State 

common law as an end-around to make a claim for 

contribution that it could not make under the federal statutory 

scheme"); cf. Feltenstein v. City Sch. Dist. of New Rochelle, No. 

14-CV-7484, 2015 U.S. Dist. LEXIS 170123, 2015 WL 
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10097519, at *3 (S.D.N.Y. Dec. 18, 2015) ("[T]he [ADA] * * *

remedial scheme * * * which does not include provisions for 

indemnification and contribution * * * would be frustrated by 

the availability of such remedies under state law, because it 

would contravene Congress' intent to hold accountable all who 

actually violate the terms of the statute.").

(Emphases added.) S & R Dev. Estates, LLC v. Town of Greenburgh, 336 F.Supp.3d 300, 

310-11 (S.D.N.Y.2018). Although the court in S & R Dev. Estates was concerned with a New 

York statute providing for compensation for a restrictive covenant that had been deemed 

unenforceable under the FHA (see New York Real Prop. Acts Law Section 1951(2) 

(McKinney 2018)), the reasoning is wholly relevant to the within matter. It still concerned 

compensating a violator of the FHA via a state-law contribution-like claim against a third 

party. 

{¶ 14} All of the foregoing cases are persuasive authority that we rely upon in 

reaching the conclusion that the FHA preempts state law claims for contribution brought 

pursuant to R.C. 2307.25 via conflict/obstacle preemption. As set forth above, "where state 

law 'stands as an obstacle to the accomplishment and execution of the full purposes and 

objectives of Congress,' " that state law is preempted by federal law. English v. Gen. Elec. 

Co., 496 U.S. 72, 79 (1990), quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941). "What is 

a sufficient obstacle is a matter of judgment, to be informed by examining the federal 

statute as a whole and identifying its purpose and intended effects." Crosby v. Natl. 

Foreign Trade Council, 530 U.S. 363, 373 (June 19, 2000). 

{¶ 15} Here, we find that a state law claim for contribution is an obstacle to the full 

purposes and objectives of Congress in the passage of the FHA because it circumvents the 

judgment of the federal government in choosing who to prosecute for violations of the FHA, 

and it permits a violator to shift at least some of the responsibility for the violation to 
No. 21AP-674 9

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another party. If the DOJ, HUD, and/or the Office of Fair Housing and Opportunity had 

wanted to hold Wilcox responsible for any alleged violations of the FHA, Wilcox would have 

been named as a defendant in the original complaint. It could not have been unknown to 

the federal plaintiffs that Wilcox was a franchisee of Epcon, and thus was directly involved 

in developing the three communities at issue in this case. But for reasons known only to 

the federal plaintiffs, the decision was made not to name Wilcox in the complaint. For 

Epcon to now be able to engage in an end-run around the FHA–which all parties 

acknowledge and concede does not provide for a right of contribution–by turning to state 

law would very much frustrate the purposes and objectives of the FHA.

{¶ 16} In short, if Congress had wanted to provide for a right of contribution for 

violations of the FHA, it would have included such a right as a provision in the FHA itself–

yet it did not. Therefore, based on the foregoing reasoning, we find that the FHA preempts 

state law claims for contribution, including Ohio's statutorily provided cause of action for 

contribution set forth in R.C. 2307.25, and we find that Epcon's claim for contribution is 

barred as a matter of law.

{¶ 17} Accordingly, the trial court did not err in dismissing Epcon's contribution 

claim as preempted by the Fair Housing Act, and Epcon's sole assignment of error is 

overruled.

IV. Disposition

{¶ 18} For the foregoing reasons, we overrule Epcon's sole assignment of error and 

affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

SADLER and JAMISON, JJ., concur.