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More briefs filed in KG legal action against Project Faith

Lawyers for both sides filed legal briefs during January in the action initiated by King George last October against Project Faith to get it to return, or alternatively, allow a 5.53-acre parcel of land, to revert to the county’s ownership.

The filings last month from both sides could lead to a second preliminary hearing, prior to getting to the main event.

Alternatively, the next hearing to be scheduled could decide the whole case over the issue of the county getting the land back.  

Project Faith’s brief was filed on Jan. 8, with the county’s answering motions filed on Jan. 29.

BRIEF HISTORY
The land parcel had been donated by the county to the non-profit residential development company in mid-2012, with numerous conditions attached, to construct and operate in perpetuity a facility, referred to as a help center, to lease space to various government agencies and non-profits to house social programs.

King George had filed a breach of contract complaint last fall due to Project Faith’s failure to meet its first major deadline under the contractual conditions, which was commencement of construction by Aug. 1, 2013.
That August date had been requested from the Board of Supervisors as an extended five-month deadline from the original Feb. 28, 2013 deadline by Project Faith’s executive director Froncé Wardlaw at a meeting on Feb. 5, 2013 and agreed to by the county with formal amendments subsequently drawn up, voted on, and executed.

The county had also waited more than 60 days prior to issuing a notice of default, to give a potential cure period for Project Faith to meet the commencement of construction deadline, though arguing no cure period was contractually required under the alleged breach.

At a preliminary hearing on Dec. 18, Circuit Court Judge, Hon. Joseph J. Ellis, denied Project Faith’s plea in bar and demurrer, filed last fall, both of which asked for dismissal of the county’s complaint.

PROJECT FAITH BLAMES COUNTY, VDOT & BRABO
Following Project Faith’s unsuccessful attempt to get the county’s breach of contract charges dismissed by its attorney Clark Leming’s court argument in December, it last month filed an answer to the county’s original charges, along with its grounds for defense and a counterclaim.

The counterclaim also seeks $300,000 in damages for money spent on its site plan development, engineering work, design services, design and construction schematics and development of construction documentation.

At the same time, the brief admits to the bulk of the county’s allegations, including that Project Faith altered the date on the first page of a 2010 letter from Rappahannock Community College (RCC).

Project Faith’s defense primarily repeats the reasons it used when previously asking for dismissal, enlarging upon those themes and coming up with some new ones.

The developer’s contention is that its inability to commence construction was due to circumstances beyond its control, saying the county caused delays in reviewing the building permit application. It also blames the Virginia Department of Transportation for causing delays in its review of the development plan.

It further contends that Project Faith’s inability to commence construction by the deadline was due to “acts and omissions” by the county which prevented the developer from securing financing of the facility “thus rendering construction of the facility commercially impracticable.”

Project Faith’s brief provides alleged examples of acts and omissions by the county and then goes on to allege ill-intent to county officials’ motives.  

It further contends that the county “intentionally engaged in acts of sabotage in an effort to frustrate the purpose of the Deed of Gift and Performance Agreement.”

It alleges that “the county engaged in a systematic pattern of conduct calculated to prevent” Project Faith from performing its obligations in the two guiding legal documents constituting the contracts for the land giveaway by the county as well as Project Faith’s obligations for construction and operation of the proposed facility.

The cited examples allege the county frustrated an attempt by the Department of Social Services to commit to leasing space in the proposed facility, appointed someone to the Social Services board who later expressed personal opposition to the facility’s construction, and used the press as a conduit to “leak documents” to smear Project Faith and Wardlaw to turn public sentiment against the project.

The documents cited in Project Faith’s brief implicate board member Ruby Brabo, saying emails sent by Wardlaw to her, and to RCC president Elizabeth Crowther, and an altered 2010 letter from RCC to Wardlaw must have all come from Brabo to the newspaper, since Project Faith itself did not provide them to the press.
There is no smoking gun here. It was reported last summer by The Journal that the altered letter had indeed come directly to it from Brabo.

Brabo had offered it to this reporter while she was professing to be a strong supporter of the proposal and an ally of Wardlaw’s vision for the project, as an apparent indication of RCC’s continued support.

The paper also noted last summer that other documents were obtained by it under legitimate requests under the Virginia Freedom of Information Act, obtainable by any Virginia resident, since they are defined as public documents.

Project Faith’s 20-page brief also alleges a myriad of other minutiae, taking pains to allege its various legal conclusions from the material facts tossed out.

KING GEORGE CITES LEGAL OMISSION,  NO BASIS FOR COUNTERCLAIMS
The county’s reply brief from attorney Edward “Sunny” Cameron, working with county attorney Eric Gregory, contains a motion craving oyer and a demurrer to Project Faith’s counterclaim.

The first motion has to do with Project Faith’s brief relying on language contained in the two guiding documents for the land transaction, construction and operation of the proposed facility, but alleges a crucial legal error in not providing the documents to the court in its filing.   

Project Faith instead filed with its brief over 40 pages of newspaper clippings, correspondence and board minutes to bolster its allegations.

The county’s demurrer to Project Faith’s counterclaims admits the truth of all the material facts, but does not admit the legitimacy of the legal conclusions alleged.

The county states in its brief that Project Faith’s counterclaim “is premised on obligations that plainly do not exist as a matter of contract and seeks damages that cannot flow from any alleged breach. As such PFI (Project Faith) has failed to state a cause of action for which relief can be granted, and the complaint should be dismissed.”

The county’s reply brief also points out that Project Faith’s argument seeks to convert a commitment that it made into an obligation by the county to cause public agencies to lease space. That contention is disputed by language in the performance agreement.

In addition to other arguments, the county’s brief states that Project Faith’s attempt to seek $300,000 in damages are not intended as a means to recover from expected benefit.

Instead, Project Faith is seeking to recover its cost of performance, with the county noting that type of recovery is typically reserved for claims seeking the unusual remedy of rescission, if at all, which the counterclaim does not ask for.

The county’s brief contends that there is no causal connection between the breaches alleged by Project Faith and alleged injury, for the reason that Project Faith was always “responsible for the creation, design, construction, maintenance, operation and entire cost of the Facility” according to the performance agreement.

The county’s demurrer asks for dismissal of the counterclaims, with prejudice, along with an award of costs to the county.

Stay tuned.

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