- Last Updated on Wednesday, 16 April 2014 11:51
- Published on Wednesday, 16 April 2014 11:51
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Clark Leming, attorney for Project Faith, Inc., lost a second round in court last week on April 9 in King George’s case to get a parcel of donated land back from the non-profit developer due to breach of contract for failure to commence construction by a deadline last year.
Project Faith failed in its attempt to establish a successful counterclaim against King George for breach of contract alleging the County had prevented its contract performance and asking for damages of $300,000 as a result.
The court granted the County’s demurrer, which asked for dismissal of that counterclaim.
But the Circuit Court Judge, Hon. Joseph J. Ellis, also offered Project Faith another bite of the apple, giving it 21 days to file an amended counterclaim.
Attorney Edward “Sunny” Cameron shredded the linchpin of Project Faith’s allegation that the County was obligated to supply lease commitment letters to occupy space in the proposed facility.
Cameron, acting for King George along with County attorney Eric Gregory, noted the performance agreement is clear that there exists no such commitment.
Further, there is no obligation for the County to actually occupy any space in the facility and no date required for the County to say whether it will lease space, or not lease space.
“You have Project Faith that signed the contract they signed,” Cameron told the court. “The County agreed to what they agreed to.” He added, “There is no commitment by the County to use any portion of the facility.”
Cameron summed up, saying, “If Project Faith had wanted, they could have contracted up front for the County to take a certain amount of space. It didn’t do that.”
Cameron also briefly addressed another couple of Project Faith’s allegations, that two Supervisors made comments critical of the project, and that an individual was appointed to the Social Services Board critical of the proposed construction project.
Cameron said those items were not ‘actionable.’ He added that nothing ties the hands of individual board members making comments and that the allegations didn’t tie up to anything in the performance agreement.
When it was Leming’s turn, he tried to score points, but didn’t appear to have much left to argue. He repeated the allegation that Project Faith was required to make space for the Department of Social Services and added that without tenant commitments, it could not obtain financing.
Judge Ellis asked if there was a demand made to the County for lease commitments. Leming responded that some emails were sent.
Leming said he wasn’t sure what was left to do, adding he understood there was a request for proposals out for the Department of Social Services seeking space. He added, “The County has moved on.” Leming also conceded in court, “Rescission may be the way to go.”
In contract law, rescission is ‘the unmaking’ of a contract between parties to bring them, as far as possible, back to the position in which they were before they entered into a contract.
Rescission is exactly what the County asked for in its original filing last October for breach of contract against Project Faith.
PROJECT FAITH CAN AMEND COUNTERCLAIM
If Leming and Project Faith take the opportunity to amend its counterclaim, it remains to be seen what the basis will be.
Last week, its allegation that the County prevented its performance was shot down. And that was the excuse provided for Project Faith’s inability to obtain financing.
It follows that the inability to obtain financing relates directly to Project Faith’s failure to commence construction by the contractual deadline of Aug. 1, 2013.
It might be problematic for Leming to go back and try to get traction with a previous allegation that the County dragged its feet on providing a building permit, thereby causing Project Faith to miss the commencement of construction deadline.
Last week’s argument by Project Faith makes it plain that the real reason construction was not begun was all about money.
BREACH OF CONTRACT
King George’s lawsuit, filed in October, charges breach of contract due to Project Faith’s failure to meet its first major deadline under the contractual conditions in the two guiding legal documents, which was commencement of construction earlier this year, by Aug. 1, 2013.
The County’s complaint is asking the Circuit Court to either rescind the Deed of Gift and Performance Agreement, or to declare those documents null and void due to default.
Either court action would result in the land going back to the County, effective July 30, 2012, in the first instance, or July 30, 2013, in the second.