Kirk's View of the Case

Kirk's Attorney Tim Trump:

We had a 2 hour hearing before Judge Sellers Monday morning. It was interesting and very confusing. I will try to distill what happened as best I can and then explain how it may affect the vote on Wednesday.

1. Judge Sellers ultimately decided that his ruling on September 9 was not a final appealable judgment because it does not resolve all issues as to all parties. He is not going to attempt to certify his ruling as a final order nor is he going to certify any questions that we could ask the Supreme Court to decide at this time.

   What does this mean? This means that without a final appealable judgment the EOP cannot evict us. This also means that we cannot take an immediate appeal. This means that if we do not settle the litigation will go on for several more months or maybe years before we get a final appealable judgment. The ruling in the EOP’s favor on the quiet title portion of the judgment (who owns the real estate) will not change regardless of how long the rest of the issues take to get resolved. This also means that the EOP does not really have a final judgment that it can tout to the rest of the world as a total victory. Finally this means that if there was an objection at the Synod level to a settlement that ended up undoing the settlement we would still be able to come back to Court and challenge it. In other words our appeal rights would not be lost.

2. Judge Sellers also decided that the effective date to determine ownership of the personal property would be August 15, 2006.

   What does this mean? This means that he will give them the equivalent of whatever we had in the bank accounts on that day plus all other assets we owned as of that date. Anything that was acquired after that date is ours to keep. This is important because it means that if we leave we may not leave completely empty handed. This also bodes well for our position that they cannot touch anything in Joppa’s name.

3. Judge Sellers effectively invited the EOP to request a temporary restraining.

   What does this mean? Judge Sellers recognizes that because he does not have a final order he cannot evict us in the normal course. He is concerned that something would happen to the property while we continue with the case. He wants to protect and preserve that value so that when the EOP gets the property at the end of the case it will still have value. This may take the form of some kind of bond or promise to insure or maintain the property. It also might take the form of an eviction order before the case is finished. That would be unusual but not impossible. At this point the EOP has not requested anything in this regard so there is nothing for him to decide. If the EOP files such a request my guess is that we would have a hearing in 30 to 60 days. At that hearing he would take evidence and determine an appropriate amount of a bond or level of protection. If we meet those terms we could continue to stay. If we don’t the Judge could order us to get out. He gave no indication of what he would consider an appropriate bond.

4. Judge Sellers also made several other miscellaneous comments including: He hoped that his ruling on September 9 would have caused us to settle. He really wants us to settle. Each side has another ten days to submit revised proposed versions of his order from September 9.

   He will file a written order within 20 days. If we do not settle he will set a scheduling order to get the remaining issues resolved. This may take years. EOP’s attorney indicated that they might dismiss the breach of Contract and fiduciary duty claims. The court indicated that if they do not dismiss those claims, we would be entitled to a jury trial on those issues. He is not sure if he can enforce the Administrative Commission Report since it does not really recommend a specific course. In terms of the jurisdiction issue he makes a distinction between Church discipline and property ownership (In essence he is saying that once we leave the EOP cannot discipline us but they can take our property).

BOTTOM LINE- The ruling does not substantively change option #1 (pay the money and settle). It does, however, change option # 2 (appeal and vacate) since now we can neither appeal nor would we be required to immediately vacate. Option #2 really becomes-- Do we want to continue with the litigation until there is future order that requires us to vacate? Eventually we would get a final order which we could appeal but it may be a year or so down the road. The litigation course will cost more money and take more time. We know the decision from Judge Sellers regarding ownership of the building will not be in our favor and we will still have to appeal.

In the meantime, however, it is possible that we could move forward on a new church and be a long way down the road toward completing it before we ultimately got evicted. This might be two months or it might be two year