Atlanta Progressive News

(APN) ATLANTA — The Metro Atlanta Task Force for the Homeless appealed an eviction ordered on Thursday, February 09, 2012, by Fulton County Superior Court Judge Craig Schwall.  The appeal was filed with the Court of Appeals of Georgia, according to a copy obtained by Atlanta Progressive News.

The case does not appear in the Court’s docket because it is an emergency motion, but Clerk Holly Sparrow confirmed by phone that the Court did receive the motion, and that a decision had been faxed to the parties around 4:30pm yesterday.

Steve Hall, attorney for the Task Force, tells APN that he spoke with Clerk Sparrow and learned that the stay that they had sought was in fact granted.  Hall said that the Order, which he is scanning for APN as this article goes to print, states that the Court is granting the stay until it decides on the issues involving whether the Task Force can make a direct appeal to the Court. DEVELOPING…

“This is terrific news. We couldn’t have asked for better news,” Hall said.

If the Court had not not intervened, the Task Force had been ordered to vacate by tomorrow, Wednesday, February 15; the United Way of Metropolitan Atlanta would then be responsible for transitioning the men currently residing at the shelter into housing.  Anita Beaty told APN they are planning for the worst case scenario.

The appeal asked the Court to accept supersedeas and impose a stay on the dispossessory.

“The February 9, 2012 Order, issued again without an opportunity to present evidence, summarily ejects the Task Force from the Shelter and delivers the property to a private developer that gained its claim to title through tortious conduct and intends to remove all homeless residents,” the appeal states.

“It was issued in a manner that contradicts the most fundamental principles of Georgia law, denies the Task Force’s request for a stay pending appeal, and seeks to block a timely appeal. If left standing, it will place a tremendous strain on the community’s resources, create panic and disruption in the homeless and take unique real property from the Task Force,” the appeal states.

The appeal enumerates ten errors it argues that Schwall made in his ruling.

First, that the Order was issued “without proper notice of a final hearing.” If the order was a final order, which the Task Force argues it is, the appeal argues that the Court failed to provide notice of a final hearing as required under the due process provisions of the 14th Amendment of Constitution of the US, in addition to the Constitution of Georgia and the Uniform Superior Court Rules.

Second, that the Order, if an interlocutory, or non-final, judgment, was issued inappropriately.  According to the Task Force, Judge Schwall is viewing his ruling as interlocutory, although it it not clear why, seeing as how there do not appear to be any issues left before Schwall to resolve.  The appeal argues that “the Court erred by issuing or dissolving an injunction so as to change the status quo,” citing Hampton Island Founders, LLC v. Liberty Capital, LLC (2008) to argue that “sole purpose of injunction is to maintain the status quo.”

Third, that the Order was issued “without an opportunity to present evidence.”  Specifically, as previously reported by APN, Steve Hall, attorney for the Task Force, repeatedly asked during the hearing before Schwall to present evidence that the Defendants engaged in an illegal conspiracy to deprive the Task Force of funds.

However, Schwall denied the request, arguing that even if it were true, the Task Force had an “adequate remedy at law,” which would be, to take the twenty-four million dollars in damages it expects to receive from its conspiracy claims and to purchase a new building for the Task Force.

This, however, would be impossible for the Task Force due to zoning restrictions enacted to prevent new large shelters from opening in Atlanta; further, according to Hall, case law states that there is no adequate remedy at law for the loss of real property.

Fourth, that the Order was “basing its ruling [sic] its perception that the Task Force was affiliated with Occupy Atlanta and the Task Force’s initiation of suit against Emory, as opposed to the relevant facts or merits of the dispute.”

The Task Force argues that the Order was “based on the Court’s extra-judicial perception of the Task Force’s participation [sic] legal actions that had nothing to do with the merits or the issues.” Here, Hall explains that Judge Schwall made numerous statements complaining about the Task Force’s separate lawsuit against Emory University, which, Hall argues, weighed inappropriately into Schwall’s decision to evict the Task Force.

Fifth, that the “Court erred by granting a dispossessory without satisfaction of the formal requirements for such relief.”

Sixth, that the “Court erred by granting a dispossessory without allowing Plaintiff to obtain complete discovery in advance of ruling.”

Seventh, that the “Court erred by making findings of fact that were not supported by evidence in the record, including negative findings about volunteer officers of the Task Force.”

For example, Judge Schwall said in Court that Anita Beaty clearly did not care about homeless people and was only interested in power and revenge.

Eighth, that “the Court erred by granting legal relief without considering equity, when the jurisdiction of equity was properly invoked.”

Ninth, that the “Court erred in finding that Plaintiff had an adequate remedy at law for loss of real property.”  Here Hall cites Hampton Island, LLC v. HAOP, LLC (2010).

Tenth, that the “Court erred by prohibiting the Task Force from remaining in the building pending appeal.”

Additionally, the Task Force argues that the Order was “against all evidence in the record.” Indeed, the record shows quite clearly that the conspiracy occurred and that is not in dispute.

The Task Force also argues that the Order was “drafted to inhibit appellate rights.”

Further, the Task Force also argues that the Order was issued “without a trial by jury on those issues guaranteed by the Constitution.”

This is the second time the Task Force has an appeal before the Court of Appeals of Georgia.

The first time was after Schwall issued a sua sponte order on October 17, 2011, dispossing the Task Force instanter, only days after the Task Force filed a separate suit against Emory.

On October 21, 2011, the Task Force filed an appeal with the Supreme Court of Georgia, who transferred the case to the Court of Appeals.

Among other issues, Schwall was not legally permitted to issue the October 17 order because there was an unresolved Motion to Recuse that Schwall had not addressed that had been filed by Defendant Manny Fialkow.

Schwall attempted to reverse his order, but had lost jurisdiction at that time because the case was then before the Court of Appeals.

On October 25, 2011, the Court of Appeals remanded the case back to Schwall, requiring him to resolve the Motion to Recuse before proceeding.

According to the current appeal, the Court of Appeals specifically said that if it was unsatisfied with Schwall’s resolution to their case, that it could appeal back to the Court of Appeals within seven days; and that is what they did.

(END/2012)