The majority of cases in the courtroom were child support cases, with a couple of items on the motions calendar. Addressing the courtroom as a whole, Judge Flake encouraged the use of the dispute resolution mediators, stressing that it was always best for parties to work it out among themselves, if possible, rather than "have a judge make those decisions."
After all the child support cases got sent out to dispute resolution, the Waterford Park case came up first. (Yay!)
One issue was recent filings which the judge said were filed "out of time". Apparently these recent filings were not acceptable to the judge, and she wanted to know if the parties were agreeable to her considering the motion for summary judgment without considering these filings. Neither party seemed to be very happy about this, but the judge rejected a request for continuance by the plaintiff and proceeded with hearing both sides of the case, from which mention of the recent filings was excluded.
Here is the list from the docket of items, all of which were filed less than one week before the hearing date (which we do not have yet), and I have bolded the item below that I think was primarily at issue:
DEPOSITION 23-AUG-2011 DEPOSITION OF STEPHEN ROWLAND. (WS)
OBJECTION 23-AUG-2011 OBJECTION TO PLAINTIFFS' SECOND SUPPLEMENT TO THEIR MOTION FOR SUMMARY JUDGMENT. (WS)
CERTIFICATE OF SERVICE 23-AUG-2011 FOREGOING OBJECTION TO PLAINTIFFS' SECOND SUPPLEMENT TO THEIR MOTION FOR SUMMARY JUDGMENT. (WS)
RESPONSE 23-AUG-2011 DEFENDANT'S RESPONSE TO PLAINTIFFS' FIRST INTERROGATORIES AND FIRST REQUEST FOR DOCUMENTS AND THINGS. (WS)
VERIFICATION 23-AUG-2011 OF DEBORAH Q. DANOS. (WS)
CERTIFICATE OF SERVICE 23-AUG-2011 FOREGOING DEFENDANT'S RESPONSE TO PLAINTIFFS' FIRST INTERROGATORIES AND FIRST REQUEST FOR DOCUMENTS AND THINGS. (WS)
NOTICE 23-AUG-2011 NOTICE OF FILING ORIGINAL DISCOVERY. (WS)
CERTIFICATE OF SERVICE 23-AUG-2011 FOREGOING NOTICE OF FILING ORIGINAL DISCOVERY. (WS)
RESPONSE 23-AUG-2011 DEFENDANT'S RESPONSE TO PLAINTIFFS' FIRST REQUEST FOR ADMISSION OF FACTS AND GENUINENESS OF DOCUMENTS. (WS)
CERTIFICATE OF SERVICE 23-AUG-2011 FOREGOING DEFENDANT'S RESPONSE TO PLAINTIFFS' FIRST REQUEST FOR ADMISSION OF FACTS AND GENUINENESS OF DOCUMENTS. (WS)
NOTICE 23-AUG-2011 NOTICE OF FILING ORIGINAL DEPOSITION. (WS)
CERTIFICATE OF SERVICE 23-AUG-2011 FOREGOING NOTICE OF FILING ORIGINAL DEPOSITION. (WS)
LETTER 22-AUG-2011 DEAR JUDGE FLAKE FROM ANDREA CANTRELL JONES. (WS)
MOTION 18-AUG-2011 PLAINTIFFS' SECOND SUPPLEMENT TO THEIR MOTION FOR SUMMARY JUDGMENT. (WS)
CERTIFICATE OF SERVICE 18-AUG-2011 FOREGOING PLEADINGS. (WS)
AFFIDAVIT 18-AUG-2011 AFFIDAVIT OF LIVIA WHISENHUNT. (WS)
AFFIDAVIT 18-AUG-2011 THIRD AFFIDAVIT OF CAROLEE PARKER. (WS)
The judge also made it clear that what she is to hear are matters where the facts are not in dispute, and that where facts would be in dispute, that would need to be heard by a jury.
Most of the discussion revolved around information which is contained in the various filings from earlier in this thread, so I'll not take the time to summarize everything, and only cover things which are noteworthy.
Plaintiff's attorney, Jeff Golomb:
There are 4 issues with the motion for summary judgment - estoppel, constructive eviction, breach of lease, and standing.
Estoppel involves a document signed by tenants when the building was purchased that stated there were no issues with the building that needed to be attended to.
Constructive eviction deals with whether or not the building was so uninhabitable that the "church" could not do business in it.
Breach of lease involves whether or not the "church" properly ended the lease agreement, that is, gave proper notice and did not owe rent when giving notice.
Standing involves the position the "church" takes that neither Waterford Park or PS Energy had standing to collect rent payments.
Mr. Golomb stated that after his client began managing the lease, there were records and emails indicating issues with having the Church of Scientology pay the rent, having cash flow issues, that they were having trouble paying the rent on a timely basis and said that they needed more time. There were no rent payments made through April 1, 2010 to the remainder of the lease.
The May 10 issue with water in the building was caused by a drainage pipe being dislodged, with some question of how it got that way, that someone may have stepped on it.
He pointed out that defendant argues that the water intrusion resulted in constructive eviction, yet the "church" continued to occupy the property through May, June, and July (and I believe through August also, but he did not include it).
Defendants submitted the deposition of Stephen Rowland, in which he states that there were prior water intrusion issues, but Golomb states that the plaintiffs were unaware of this, other than an intrusion in September 2009 when there were historic rains in Atlanta and many people were flooded.
(I notice also that there is a discrepancy between what Steve Rowland says about discussing the pond's spillway being maintained with a cgurch staff member - page 19 of http://alley.ethercat.com/storage/10CV13242-4/10CV13242-4-2011-08-09-DefendantsFirstSupplementAndAmendmentToItsResponseToPlaintiffsStatementOfUndisputedFactsl.pdf
and page 2, item 6 of http://alley.ethercat.com/storage/10CV13242-4/10CV13242-4-2011-07-08-DefendantsResponseToPlaintiffsStatementOfUndisputedMaterialFacts-ExhibitC-AffidavitOfMerrikLevetan.pdf
. There are also discrepancies on pages 4-5 of the affidavit and pages 20-21 of the deposition regarding water running the length of the building and fans being brought in.)
Judge Flake asked whether Golomb was contending that the dislodged pipe issue would not be an issue for jury consideration as far as constructive eviction, and Golomb answered yes (he was contending that).
Golomb covered the requirements for constructive eviction:
a. landlord allowed property to deteriorate to such an extent that it became an unfit place to carry on business
b. premises could not be restored to fit conditions by ordinary repairs
c. some grave act of a permanent character done out of vandalism with the intention of depriving the tenant of enjoyment of the premises
and stated that the tenant does not meet these requirements.
Regarding a, the defendant continued doing business in May, June, and July.
Regarding b and c, the problem was repaired, and there were no additional water issues reported throughout May, June, or July.
He again cited 2 or 3 long emails sent by Deb Danos which state that the only reason they are leaving is that they cannot afford the rent. One email states, "We simply don't have the money." The emails make no mention of constructive eviction, because they can't do business there, or that there's water coming in, etc.
Addressing the issue of standing to collect rent: The property was deeded to Waterford Park. Because of a Small Business Administration loan requirement, the SBA wanted the property to be managed by PS Energy group to accept rents. He summarized that the Church of Scientology argues that because PS energy group does not have the fee simple title, they are not allowed to collect the rent, and because Waterford Park is not assigned to manage the property, they are not allowed to collect the rent either. He said, "It took me some time to come to understand that argument." He said that the brief seems to suggest that the arrangement is not valid because it somehow protects Waterford Park from the requirements to make repairs because the tenant would not know who the owner really is. (This the part contained in pages 15-18 of http://alley.ethercat.com/storage/10CV13242-4/10CV13242-4-2011-07-08-DefendantsMemorandumOfLawInOppositionToPlaintiffsMotionForSummaryJudgement.pdf
.) He said that OCJ-44-73 addresses this issue, and that, in this case, the owners are known.
Plaintiff is seeking $135,369.52.
(Part of this addressed an elevator that was out of operation, but I couldn't hear exactly what was said about it and don't have it in my notes. If anyone else who was there remembers this, please add it.)
Defendant's attorney, Andrea Cantrell Jones (also their attorney for the RLUIPA case):
The estoppel certificate that Mr. Golomb referred to in his argument is in the filings that were objected to (the judge's objection based on timeliness of filing), so it is not considered to be in the record.
Defendant is not in agreement with all the facts, therefore the court should deny the motion for summary judgement. The court mustn't weigh the facts; if there is any question, the court much deny the motion.
Defendant has submitted affidavits from 6 church members who state that the flooding damaged $50,000 worth of "religious publications," created an odor and mold, and the "church" needed to relocate. The "church" could not just leave, they had to find another place. "Obviously they suffered during this time with their membership... and yeah, they had financial problems during this time." They were trying to work it out with the management while they looked for another place.
Ms. Jones pointed to statements by Stephen Rowland where he indicated there would continue to be water issues, and stated that in February 2011 after the May 2010 flooding, Waterford Park had to replace the pump, and have water extraction services during the lease period, so there would have been at least 2 other instances, had they stayed.
Disabled members were unable to get to the "church" when the elevator was out. (Deb Danos states in her affidavit that the elevator went out about 4 weeks before they vacated the permises: http://alley.ethercat.com/storage/10CV13242-4/10CV13242-4-2011-07-08-DefendantsResponseToPlaintiffsStatementOfUndisputedMaterialFacts-ExhibitA-AffidavitOfDeborahQDanos.pdf
. This would have been right around the time they had given their notice anyway.)
The church could not operate its business and just on that alone, the court should deny the motion for summary judgement. The constructive eviction is a disputed fact, and therefore the motion for summary judgement should be denied.
She suggests that the judge should look at the photographs and think very carefully and think about how water can affect a public space.
Jones began explaining the "standing" argument, and the judge asked her, "Who would have standing <to collect the rent>? Jones answered that she believes they would have to correct it on the documentation. Judge Flake said "that's not your strongest argument," to which Jones answered, "No, it's not my strongest argument, but I feel the need to make it. And I have made it in my brief with citations and I think that kind of argument is better read than said. Hahaha." (she laughed.)
She stated that the "church" was not behind in its rent when it gave notice, and said that the business with charging for light bulb replacement is questionable because the "church" didn't authorize that, and it didn't constitute rent. She says they did give 60 days notice. (they didn't, it was 30, when the requirement was 90 - interestingly, 60 days was the time period for notice stated in the RLUIPA deposition of Deb Danos.)
She then asked the judge to deny the motion for summary judgment.
There was some discussion that took place between Mr. Golomb and the judge, which was hard for me to hear (did anyone else hear it?).
The judge asked if the parties had tried to work things out, and Ms. Jones said they had had some back and forth discussion, but were very far away from each other. The judge told them to give dispute resolution a try. I question whether I heard this correctly, but I think she told them she would wait until they had tried to come to an agreement before she would make a ruling on the motion for summary judgment.
Anyone else with anything to add? Please do.