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With additional reporting by Anna Simonton.
(APN) ATLANTA — The Court of Appeals of Georgia ruled in favor of the Metro Atlanta Task Force for the Homeless, and against Premium Funding Solutions (PFS), in a ruling dated August 10, 2015, Atlanta Progressive News has learned.
The ruling “was a major victory for us and a major loss for the other side,” Anita Beaty, Executive Director of the Task Force, told APN.
The Court of Appeals ruled that a dispossessory complaint filed by PFS was correctly dismissed by Fulton County Superior Court Judge Schwall, because there is already separate litigation–currently on appeal with the Supreme Court of Georgia–that includes the question of which entity, the Task Force or PFS, is the rightful owner of the building which currently houses hundreds of homeless men in downtown Atlanta.
“The present action arose when Premium Funding Solutions, LLC filed a dispossessory complaint against the Metro Atlanta Task Force for the Homeless, Inc. (MATF),” the court wrote.
“MATF filed a motion to dismiss and plea in abatement, pursuant to OCGA 9-2-44, contending that this case involves the same parties, the same real property and substantially the same questions as to possession and title of land that are presented in the Related Actions which were then pending in the trial court and are now pending on appeal in the Supreme Court of Georgia,” the court wrote.
“Following a hearing, the trial court granted MATF’s plea in abatement and stayed this case pending finding resolution of the Related Actions. The trial court found that the Related Actions and this case concern the same parties and ownership of the same land, i.e., the Property,” the court wrote.
PFS argued that the two actions were not related, but the Court of Appeals did not agree.
The decision by the Court of Appeals of Georgia, bears directly on some of the issues involved in the Supreme Court of Georgia case, S15A1021, which was argued before the Supreme Court on June 02, 2015.
“Was the trial court’s August 08, 2014, order allowing PFS to file a dispossessory, an error? We believe it was,” Steve Hall, attorney for the Task Force, argued on that day.
“Counsel, if you have a defense of abatement, and it’s a good defense, then you have an adequate remedy at law: you go into the second case and you assert your defense of abatement,” Justice Keith Blackwell replied at the time.
“You don’t get an injunction in another case to enjoin the second proceedings, if in the second proceeding you have an adequate remedy at law… I think you have to convince us the remedy at law is not adequate,” Blackwell said.
The Court of Appeals ruling seems to support the notion advanced by Justice Blackwell because the Task Force did, in fact, file the defense of abatement; it was granted by Judge Schwall; and now that granting of abatement has been upheld by the Court of Appeals.
Hall argued that the Supreme Court of Georgia should bring clarity to the issue of what happens when there are two cases: one quiet title, and one dispossessory, regarding the same property.
“We might bring clarity to it at some point, but the Constitution says that the rulings of the Court of Appeals are binding as precedent on all courts, except this Court,” Justice David Nahmias said. “Do you actually believe abatement would apply?”
“I do believe abatement would apply,” Hall said.
“Well, then, as a matter of law, under the Court of Appeals cases, you go to whatever court they file a dispossessory, and you file an abatement, and that court’s required to dismiss the dispossessory, and that’s your remedy at law,” Nahmias said.
Hall argued that he was concerned yet another dispossessory would be filed as part of the first action, the one that is on appeal with the Supreme Court of Georgia, but Nahmias expressed doubt that that could be the case.
It is not outside the realm of possibility that PFS might try to file yet another dispossessory–actually, it would be consistent with their apparent kitchen sink strategy to date–however, the Supreme Court of Georgia seems to have put the parties on notice that the Justices do not believe that would be comporting with the law.
If it were to be filed in the future, that might be an error; but until that happens, there is no error for the Supreme Court of Georgia to address, Nahmias said, in summary.
“So we should issue an order out of expediency because of the possibility of future error, as opposed to actually identifying an error that exists… The authority of our judicial power to prevent things that could happen?” Nahmias said.
The Supreme Court of Georgia is also considering other issues, including cross-appeals on Judge Schwall’s granting of summary judgment in favor of the Task Force of several claims, and in favor of PFS on a RICO claim.
A ruling is due by the end of the calendar year.
REED’S THREAT OF EMINENT DOMAIN
As Atlanta Progressive News and other news media have reported, Atlanta Mayor Kasim Reed has proposed to take over the building that houses Metro Atlanta Task Force for the Homeless through eminent domain.
Reed says he is going to do this somehow in connection with his claims that the shelter is the cause of the spread of tuberculosis (TB), and in order to build a police and fire station on the spot.
Mr. Hall, the Task Force’s attorney, said it’s too soon to comment on that issue.
However, APN believes there are several issues that may prevent, or complicate, Reed’s plans:
1. With all the evidence that the City has been part of a tortious conspiracy with downtown business interests to sabotage the Task Force and drive it away from downtown Atlanta, will the City’s purported justifications be seen as pretexts to pursue a racist, classist, political agenda?
2. Where is the evidence that a police and/or fire station is needed at that location, especially when there is a police station already across the street?
3. What does concern about TB have to do with the eminent domain process, which allows governments to seek to take title to a property through an adversarial proceeding, in order to pursue new development that is in connection a public good?
4. Even if governments could pursue eminent domain because of a TB outbreak, where is the need, when the Task Force has complied 100 percent with mitigation measures; when the homeless people with TB would otherwise be on the streets or in other shelters? In other words, how does shutting down a shelter that is in compliance, help the situation? [Beaty says there are no current clients with TB; any past cases to date have transferred to a hospital.]
5. Are taxpayers going to pay the just compensation, based on current market rate and reasonable plans for future development, that would be required by the Fifth Amendment of the Constitution of the U.S.? (“nor shall private property be taken for public use, without just compensation”)
6. Is it even possible to sue for eminent domain when there is litigation over the question of who has title to the property, that is, the Task Force or PFS? To the extent that eminent domain is an adversarial proceeding, don’t we need to know who they real owners of the building are so that they can articulate their interests?
CHAIRMAN EAVES VISITS TASK FORCE
Meanwhile, Fulton County Chairman John Eaves (District 1-at-large) recently visited the Task Force, to see for himself what is going on there on Friday, August 14, 2015.
“I toured the Metro Atlanta Task Force for the Homeless (Peachtree/Pine) Shelter last week,” Eaves said in a Facebook post on August 18, 2015.
“Fulton implemented MOUs with shelters to collaborate with shelter operators, and to memorialize compliance expectations regarding specific administrative controls recommended by the CDC,” Eaves wrote.
“The shelters are also providing access to Fulton County Health Department’s dedicated 6-member ‘Shelter Team’ who perform screenings and administer treatment onsite at the shelters. The health, safety and care of Atlanta’s homeless population is of utmost priority to my office and the County,” Eaves wrote.
Eaves did not respond to questions submitted by APN to spokeswoman Jessica Corbett, although according to Corbett it is because the questions were not timely forwarded to him.
According to the Saporta Report, Eaves said the shelter was not as bad as he thought, but still called it a “monster building” that reminded him of a warehouse.
Beaty, who has worked with the homeless community for decades, says the Task Force already provides many services in addition to shelter. Clients get meals, clothes, medical care, computer access, and referrals to other needed services, even despite the business community’s efforts to starve the Task Force of funds.
“The Chairman asked to come to watch the procedure, as you know we posted the TB clearance letter on our website. He saw what his TB team did, and they come, they test because we have new people [homeless clients] coming in all the time. He sat down and heard our procedures and asked questions,” Beaty told APN.
“We had a very positive exchange… I think he was reasonably satisfied… We thought he was… positively impressed,” Beaty said.
Beaty has worked to make the shelter facility inclusive of homeless and non-homeless people alike, opening an art studio, gallery, and rooftop garden, with plans for a retail space and the re-launching of their now-defunct coffee shop.
(END/2015)
UPDATE 1: A previous version of this article stated that Chairman Eaves did not respond to questions posed by APN; however, according to spokeswoman Jessica Corbitt, it is because the questions were not timely forwarded to the Chairman.