Author Topic: CoS Georgia and Deborah Danos sued for Breach of Contract : Tenant Vacates, lol  (Read 43376 times)

Offline Mary_McConnell

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Thanks, EC. You've done enough and explained enough to satisfy my curiosity, lol

Thanks for the chuckles, stutroup  :)
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Offline thetanbuster

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Allright, I have tried to pay attention throughout this delicious story...is there a final judgement or settlement doc?  Color me tired, I maty have missed it.
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Offline mefree

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Quote
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.

This is where things stood as of August.

The case is still showing active on the docket with no further updates since that time.
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Offline mefree

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Here is the latest from the docket:

 LETTER     22-NOV-2011     DEAR JUDGE FLAKE FROM ANDREA CANTRELL JONES.
 REPORT     21-NOV-2011     ADR STATUS REPORT. NON-SETTLEMENT THROUGH THE DRC (Dispute Resolution Center)
 LETTER     15-NOV-2011     DEAR JUDGE FLAKE FROM JEFF GOLOMB.
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Offline Mary_McConnell

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Guess this case is going to be heading to trial, unless the judge sends it back again to ADR.

I don't blame the plaintiffs for not giving in at ADR. Better to let the judge decide and have the decision on record.

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Offline ethercat

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Guess this case is going to be heading to trial, unless the judge sends it back again to ADR.

I don't blame the plaintiffs for not giving in at ADR. Better to let the judge decide and have the decision on record.

Yes, and then good luck to the plaintiffs on collecting their money.  In the past, garnishments have been required, and in one case from 1999, the garnishment is still in effect. 

From earlier in this thread: http://forum.reachingforthetippingpoint.net/index.php/topic,6309.msg15586.html#msg15586

Of course, this time they own property that a lien can be put on - 5395 Roswell Rd., the "Ideal" Org. 
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Offline mefree

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Case ID      10CV13242
Description      ORDER FILED
Docket Filing Date      22-NOV-2011
Text      
     ORDER ON PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, SIGNED BY JUDGE GAIL C. FLAKE.
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Offline Mary_McConnell

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I wonder what the Judge's order states.  I hope it is one that instructs the plaintiff to file summary judgement order with details of what the judgement is and terms of payment are, lol

Scientology's attorney wrote the judge directly afterwards"

Docket Text Details
Case ID   10CV13242
Description   LETTER
Docket Filing Date   22-NOV-2011
Associated Party   None
Text     
  DEAR JUDGE FLAKE FROM ANDREA CANTRELL JONES. (WS)

Begging for mercy? haha!
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Offline ethercat

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It must be hard for Ms. Cantrell Jones being the cult's attorney.  She's also an attorney in the RLUIPA case.   :D
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Offline thetanbuster

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Of course, this time they own property that a lien can be put on - 5395 Roswell Rd., the "Ideal" Org.

Or DO they own it, doesn't property purchased go to the landlord's office?  Anyway, a judgement would be nice, and a full page ad in the AJC purchased by some of us would be extra sweet!
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Offline ethercat

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Or DO they own it, doesn't property purchased go to the landlord's office?  Anyway, a judgement would be nice, and a full page ad in the AJC purchased by some of us would be extra sweet!

According to the State of Georgia property records, they own it, but who knows what kind of behind-the-scenes agreements they have with the corp. offices?   And is that sort of thing legal?

A full page ad in the AJC?   Thetanbuster, you've got a wicked side.  >:D

Only if it's in the Religion section - after all, that's the only part of the paper where Hubbard wanted the "church" to be mentioned.  ;)
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Offline SocialTransparency

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 a full page ad in the AJC purchased by some of us would be extra sweet!
Your thoughts,I like them!

Offline Mary_McConnell

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I think the judge signed the original Plaintiff Motion for summary judgement with later suppliments, after ADR failed to progress.

Hope to see a copy of the judge's order of Nov 22 ORDER FILED  22-NOV-2011  ORDER ON PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, SIGNED BY JUDGE GAIL C. FLAKE before it becomes protected and unavailable.
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Offline ethercat

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Here are some more.

The date is unknown on this one because it is missing pages at the end, where the date is usually stamped by the court when it is filed.  In fact, it may be part of something else whose date could be obtained from the docket, but it is unclear to me what it might be a part of.
http://alley.ethercat.com/storage/10CV13242-4/10CV13242-4-2011-08-25-PlaintiffsResponsesToDefendants2ndInterrogatoriesAndRequestForProduction-incomplete.pdf

http://alley.ethercat.com/storage/10CV13242-4/10CV13242-4-2011-08-30-OrderToADRProgram.pdf

This letter from Jeff Golomb is also incomplete.
http://alley.ethercat.com/storage/10CV13242-4/10CV13242-4-2011-11-15-PlaintiffsDearJudgeFlake-incomplete.pdf

http://alley.ethercat.com/storage/10CV13242-4/10CV13242-4-2011-11-21-ADRStatusReport.pdf

http://alley.ethercat.com/storage/10CV13242-4/10CV13242-4-2011-11-21-DefendantsDearJudgeFlake.pdf

http://alley.ethercat.com/storage/10CV13242-4/10CV13242-4-2011-11-22-OrderOnPlaintiffsMotionForSummaryJudgement.pdf

We can check up on the missing pages next time someone goes to the courthouse.  Not sure if they got missed by the court employee while he was making the copies, if they're missing from the record altogether, or if they may be misplaced elsewhere in the file.

Another interesting little factoid is that the file seems to spend a lot of time in the judge's office.   ooo:/
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Offline Mary_McConnell

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Ok, from my limited brain functioning this evening, and my limited legal knowledge, I take it to mean that the Plaintiff lawyer probably filied another motion to for summary judgement since Nov 22 qnd that is why the judge has the file so long.

Most of the summary judgement was denied except for several key important ponts in favor of the plainfiff. Like the CoS argument about the lease. Well, they were supposed to give 90- days notice and didn't. Facts were proven.  Points ten, twelve, thirteen were affirmed, plus one counterclaim.

One had to go and look at both the defendent's answers by number ( defenses) to the original May 2011 Motion For Summary Judgement, and the Plaintiff's actual Brief in support of Motion for Summary Judgement
http://alley.ethercat.com/storage/10CV13242-4/10CV13242-4-2011-05-13-PlaintiffsBriefInSupportOfPlaintiffsMotionForSummaryJudgement.pdf
Not sure which pdf is of the defendents response to first motion or what the counter claim # IV is. Too tired to look anyway, the court said:

[..] Under our law and Rules, however, nothing prevents either party from again seeking summary judgment on these or other issues before the matter comes to trial. But see USCR 6.6 (West 2010) ("Motions for summary judgment shall be filed sufficiently early so as not to delay the trial. No trial shall be continued by the delayed filing of a motion for summary judgment.").


"Accordingly, based upon the foregoing, Plaintiffs motion for summary judgment (filed
May 13, 2011) shall be GRANTED as to Defendant's Tenth, Twelfth, and Thirteenth Defenses
and Count IV of its counterclaim, and DENIED as to all other issues and claims"
http://alley.ethercat.com/storage/10CV13242-4/10CV13242-4-2011-11-22-OrderOnPlaintiffsMotionForSummaryJudgement.pdf

So I think this is why the folder was on the judge's desk. She's probably reading a resubmitted Motion for Summary Judgement and CoS Defenses to it , since they failed to resolve matters at ADR. It's a complicated case where there were multiple errors in original and subsequent filings by both parties and the judge gave them the opportunity , both, to file again for summary judgement on other points ( and get it right this time) and reply in advance of any court trial date ( of which there shows none on the state site).

Either that or they may well have decided to have the judge act as jury and she is studying the case in advance.
Case: 10CV13242 (Open) WATERFORD PARK VS. CHURCH OF SCIENTOLOGY (TB)
Filing Date: 11/23/2010 Type: Superior General Civil
Judge: GAIL C. FLAKE Superior Court
Secondary: Breach Of Contract
http://www.ojs.dekalbga.org/servlet/page?_pageid=65,289&_dad=portal30&_schema=PORTAL30&dcms.exact_last=ON&dcms.spriden_id=%402485129&dcms.case_type=&dcms.to_date=12%2F31%2F2090&dcms.from_date=01%2F01%2F1900&dcms.last_name=WATERFORD%20PARK%20LLC&dcms.first_name=&dcms.case_status=ALL&dcms.cort_code=&dcms.soundex=&dcms.case_id=10CV13242&dcms.ent_code=COURTS&dcms.pstart=0
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Offline skydog

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I don't have the time to look at this new stuff, but the Co$'s 10th, 12th and 13th special defenses are out. Also, count 4 of the counterclaim. That means that legally, there is no basis for these defenses and claims and the jury (or judge) will not hear evidence on these matters. When I get a chance, I will go through the pleadings.

Offline mefree

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Thanks, Mary and Skydog.
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Offline ethercat

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Thanks for comments, Mary and skydog.  I'll be interested to hear your (skydog's) comments when you have time.

Here's what I get from the Order on Plaintiff's Motion for Summary Judgment.  (You can let me know if I'm off-base; I'm an amateur at this).

The judge goes to great length to lay out what she cannot consider for ruling on the Motion.

The Plaintiff's Motion for Summary Judgment was filed on May 13, 2011, and delivered by mail to Defendant.

The party opposing the Motion is required to respond within 30 days (June 15, since the motion was mailed?).  Defendant did not respond until July 8, 2011 (3 weeks late), nor did it ask for an extension.  It also did not make any excuses or give any explanations for this.

Meanwhile, before the 30 day period was over, on May 27, 2011, Plaintiff filed a supplement with additional evidence which contained new arguments.  Plaintiff did not ask for permission to add new evidence, which it could have done if the judge or defendant allowed.

On June 2, 2011, the Court scheduled the hearing for August 25, 2011.

On July 7, 2011, Defendent deposed Stephen Rowland.

On August 9, 2011, Defendent filed the Rowland deposition (non-certified) and 10 photographs.  They did not ask for permission to add this evidence.

On August 18, 2011, Plaintiff filed new arguments and evidence, which it did not ask for permission to do. 

The hearing was held on August 25, 2011.  The law requires that anything considered at the hearing to have been in the record for at least 30 days prior to the hearing (by July 25, 2011).  At the hearing, Defendant objected to the Court considering anything filed by the Plaintiff after the May 13 Motion was made. 

Before the ruling (the Order on Motion for Summary Judgment) was made on November 22, 2011,  on November 8, 2011 Plaintiff submitted new arguments and evidence, and a request for reconsideration in the form of a letter.   This was before there was even an order made to reconsider.  (This is apparently on the missing page 2 of the Plaintiff's Dear Judge Flake letter, see footnote 5 on pages 5-6.)

The judge concludes that she cannot consider:

Plaintiffs' August 18, 2011 filing because it was submitted less than 30 days before the hearing and without permission.

Defendant's July 9, 2011 Response in Opposition because it was filed more than 30 days after the Motion, and no extension was requested, no excuses made, nor was a "retroactive" extension sought.  The judge could exercise discretion in allowing this if any of these existed, but they do not.

Defendant's August 9, 2011 First Supplement.  Non-movants are allowed to file affidavits in opposition up until the date of the hearing, but in this case, they had already waived their right to submit additional opposition by being tardy with their initial July 8 opposition.  She cites: "[T]he effect of an untimely response to a motion for summary judgment is the loss of the responding party's right to present evidence in opposition to the motion."

Plaintiffs "First Supplement," filed on May 27, 2011 both corrects an error or oversight in the original Motion, and introduces "new facts".  The Court allows the correction, but disregards the "new facts".

Judge Flake summarizes:
Quote
In conclusion, then, the Court in ruling upon Plaintiffs May 13, 2011 motion for summary judgment must disregard as untimely the Second Affidavit of Carolee Parker (filed May 27, 2011), Defendant's response in opposition (filed July 8, 2011), Plaintiffs "Second Supplement" to its motion for summary judgment (filed August 18, 2011), and Plaintiffs' November 8, 2011 unsolicited "letter brief."

This took 11 of the 18 pages.

"Upon motion for summary judgment, it is the movant's burden to show that no jury question remains and that the movant is entitled to judgment as a matter of law."

Even though Defendant waived its right to oppose the motion by filing the opposition late, the Plaintiff still has the burden to prove there are no facts for a jury to decide.  Since most of the evidence was filed late and cannot be considered, the judge says that there are few issues to be considered in the ruling on the motion.

Here is how she rules:
The Plaintiffs do have standing to collect rent (thus disposing of the ridiculous claim that "no one had the right to collect rent, so we don't have to pay any rent."  This also disposes of the claim that no landlord-tenant relationship exists, and therefore Defendants are not liable for damages, i.e., rent owed.)

Defendants did breach the contract when they did not provide 90 days notice that they were leaving.  Whether or not they were current on rent is not at issue for a breach of contract ruling.

Constructive eviction and failure to repair is left for a jury to decide.  (This may well be included in a 2nd motion.  The record contains a number emails back and forth between Waterford Park and the elevator repair company.  We did not get these because this stuff costs $1.00 per page.  Apparently, there was a part that had to be ordered and that delayed the repair, which was actually made after the Scientologists had vacated.)

No ruling on Attorney's Fees for either party.



Mary, I would think that if another motion had been filed, it would appear in the docket.  There is nothing past November 22, so I don't think there has been another motion filed for the judge to consider, though Golomb may well be preparing one.  Let's just hope if that's the case, he gets it done in time, whenever that may be. 

Sheesh, what a screwed up case, on both sides.  Pretty stupid for the Defendants to blow the opportunity to have their opposition considered by filing it 3 weeks late, but then they didn't have much that was valid in the way of opposition anyway. 

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Offline ethercat

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Parts of Golomb's letter (missing page 2) from footnotes in the Order:

5 In advance of any ruling by the Court, Plaintiffs' counsel's letter attempts to interpose a "request for reconsideration," to wit: "[a]t the August 25...hearing it appeared the court was disinclined to consider [materials] filed by the Plaintiffs on August 18, 2011 (although no rulings were issued by the court in this regard). Plaintiffs contend their August 18, 2011 [materials] are dispositive and are necessary to properly rule in this matter. Therefore, Plaintiffs request that the court reconsider." (Letter from Jeff Golumb to the Court, dated November 8, 2011, p. 1 of 2.) Plaintiffs' counsel goes on in such letter to argue other points of law raised in the motion, as well as citing to the Court additional legal authority in support of Plaintiffs' position. Needless to say, the Court cannot consider a request for "reconsideration" made in advance of any ruling.

6 In his November 8 letter to the Court, Plaintiffs' counsel contends that the August 18 filing was "a response to the allegations made in Defendant's August 8, 2011 First Supplement" and contain evidence which is "dispositive and necessary to properly rule in this matter," to wit, "an April 7, 2010 Estoppel Agreement...." (Plaintiffs' counsel's letter, pp. 1-2) (emphasis in original).  While not abundantly clear, it appears that Plaintiffs here contend that the date of the estoppel agreement, and not the date it was made a part of the record, determines whether it may properly be considered by the Court as evidence on a motion for summary judgment filed three months earlier. This contention is not only unsupported by any legal authority, it misapprehends the significance of the document's date. If such agreement has in fact been extant for more than one year in advance of the
filing of Plaintiffs' motion for summary judgment, what prevented Plaintiffs from including it with their originally-filed motion as the law and Rules require? See O.C.G.A. ยง 9-11-7 (b) (2006); USCR 6.1 (West 2011).

18 ... Plaintiffs' November 8 letter request that the Court somehow extend the time for Defendant to respond to such materials after oral argument as it "is more expedient that [sic] having Plaintiffs refile their motion for summary judgment" is unsupported by law. The materials which Plaintiffs sought to submit in their "second supplement" were in their possession before the inception of this action; nothing prevented Plaintiffs from fully evidencing their motion when it was filed, and their failure to do so imposes no duty upon Defendant or the Court to accommodate them, especially where as here such request is contrary to law.
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Offline skydog

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My reading of the Order tells me that the judge was pretty upset at the conduct of the attorneys. A motion for summary judgment is designed to reduce the time of trial by resolving as many legal issues as possible. Where certain facts are not disputed, it is the court's job to determine their legal consequence.

The moving party (plaintiff landlord) has the duty to demonstrate that there are no disputed facts. They can do so with sworn testimony (depositions) or statements made under oath (interrogatories) or other evidence  that would be admissible at trial (written lease). Once filed the non-moving party (defendant church) may submit similar evidence to show that the facts are disputed. If any of the facts are disputed, then the issue must be resolved by trial.

There is no such thing as a default summary judgment. If the non-moving party (church) does not submit any evidence to raise a question concerning the facts, the court then assumes that the facts are undisputed and can rely on those facts to resolve any issues that those facts speak to. There are rules that must be filed with respect to the time this evidence must be submitted.

In this case, the church did not file a timely response and the court refused to consider the evidence that was submitted late. Likewise, the landlord attempted to file an additional deposition after the time it should have been filed. The court seemed perturbed that neither party sought the consent of the other or the court before making their late filings. Accordingly, the only evidence is considered was that provided by the landlord with it's motion. It noted that, in light of the later filings, the motion really was pre-mature but it did allow the court to resolve some of the issues.

It did resolve the question of whether the landlord had the right to collect rents. In contract law, there is a concept called "privity of contract" which means that only the parties to the contract have the right to enforce it. In this case the church claimed that because the new owner was not a party to the lease, it had no right to collect rent. The law does allow a party to assign their rights to a contract. In this case there was a written assignment executed by the former and current owners at the time of this sale. The court held that the plaintiffs had the right to collect rent and that issue will not be before the jury.

The court also ruled that there was no dispute that the defendants breached the terms of its lease. The written lease provided that a party could terminate the lease by giving ninety days notice of its intent to do so. The church gave only a thirty day notice which the court held was a breach of contract. The church also claimed that although the notice was defective, it still operated to terminate the lease effective ninety days after it was sent and that, while it could be held liable for the rents accruing within that ninety day period, it was not responsible for any rents accruing thereafter. The court ruled against them on that issue as well.

The court seemed to suggest that the late filings might have resolved the issue of constructive eviction but refused to do so because of the late filings. I sense annoyance on the part of the court because the parties did not resolve this case.

\