Georgia State University College of Law: Reading Room

Ellerbee, Kelly Lee

Georgia State University College of Law 
Reading Room 
Georgia Business Court Opinions 
12-18-2020 
GREENLIFE ENERGY SOLUTIONS ORDER DENYING DEFENDANTS’ 
MOTION TO STRIKE PATTERSON’S THIRD AFFIDAVIT 
Kelly Lee Ellerbee 
Follow this and additional works at: https://readingroom.law.gsu.edu/businesscourt 
 Part of the Business Law, Public Responsibility, and Ethics Commons, Business Organizations Law 
Commons, and the Contracts Commons 
Fulton County Superior Court
*“*“EFILED***QW
Date: 12/18/2020 3:00 PM
Cathelene Robinson, Clerk
IN THE SUPERIOR COURT OF FULTON COUNTY
BUSINESS DIVISION
STATE OF GEORGIA
GREENLIFE ENERGY SOLUTIONS,
ELC,
Plaintiff,
v. CAFN:2018CV307344
INC., VINCE BENNETT, KEVIN
MCCORMACK, TONY SALAZAR,
RICHARD BARON,HILLARY
ZIMMERMAN,and MICHAEL DUFFY,
)
)
)
)
)
)
)
MCCORMACK BARON SALAZAR, )
)
) Business Case Div. 3
)
)
)
)Defendants.
 
ORDER DENYING DEFENDANTS’ MOTION TO STRIKE
PATTERSON’S THIRD AFFIDAVIT
This matter comes before the Court on Defendants’ Motion to Strike
Patterson’s Third Affidavit, filed December 10, 2020. Having reviewed the record
and Defendants’ submission, the Court enters the following order.
1. Standard of Review
Defendants’ Motionto Strike relies entirely on the seminal case of Prophecy
Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28-30 (2000). As recently explained
by the Georgia Court of Appeals, Prophecy concerned how to apply the evidentiary
rule that when a party stands as a witness on his own behalf, his testimony should
be construed against him “when it is contradictory, vague or equivocal” in the
context of a summary judgment. DirecTV, LLC v. White, 355 Ga. App. 404, 406
 
(2020).
Testimony by the nonmoving party which contradicts other testimony given
by the nonmoving party will be construed against that party, unless a
reasonable explanation for the contradiction is offered . . . On summary
judgment, whethera litigant has offered a reasonable explanation for the
discrepancy in her sworn testimony is a question of law for thetrial court. .
. [T]the Prophecyrule only applies to self-contradictions in a party’s sworn
testimony.(citations and punctuation omitted.)
2. Background
Keven Patterson is the sole and managing memberofPlaintiff GreenLife
Energy Solutions, LLC (“GreenLife”). (1* Patterson Aff., ]2.) GreenLife has sued
Defendant McCormackBaronSalazar, Inc. (“MBS”) and several MBS officials over
a failed real estate developmentdeal. Patterson has offered three depositionsin this
matter. On October 10, 2019, he was deposedasa fact witness. On April 23, 2020,
he was deposed as GreenLife’s 30(b)(6) representative. On June 10, 2020, Patterson
was deposed as GreenLife’s expert witness on damages. On September 28, 2020,
after the close of discovery, Defendants filed motions for summary Judgment. On
November 9, 2020, GreenLife filed the Third Affidavit of Keven Patterson in
support ofits responses to the motions for summary judgment. (PI. SOAF, 931, Ex.
K). The motions wereset for a hearing on December 16, 2020. On December10,
2020, Defendantsfiled this motion seeking to strike Patterson’s third affidavit. At
present, GreenLife hasfiled no formal response, but the Courtfinds the Motion lacks
merits nullifying the need for a response.
3. Analysis
Defendants offers no legal analysis in support of the Motion andcites solely
to Prophecy. (Motion, p. 5.) As Prophecyonly applies to contradictory testimony,
the Court rejects Defendants’ request to strike the entire 48-paragraph affidavit.
Further, even ifthe Court were to consider the four paragraphsspecifically identified
in Defendants’ motion to strike, it would not impact the Court’s analysis of the
motions for summary judgment.
Initially, as stated above, Prophecy only deals with conflicts between an
affidavit and prior sworn testimony. DirecTV,p. 407. Thus,to the extent Defendants
suggest conflicts between Patterson’s Third Affidavit and otherparts of the record,
the Prophecy case doesnot apply.
Paragraph 32 ofthe affidavit concerns Patterson’s state of mindin deciding to
trust MBS. Paragraph 40 concerns when Pattersonfirst discovered a previously
unknownfact. While Defendants can point to portions of Patterson’s prior sworn
testimony suggesting these statements might not be credible, Defendants have not
demonstrated that Paragraphs 32 and 40 plainly contradict Patterson’s earlier
deposition testimonyso asto trigger an exclusion under Prophecy.
Paragraph 3 laddresses a conflict in Patterson’s avermentthat portions of the
2015 Atlanta CNI application were available to be publicly viewed online while the
application was being prepared and after it was submitted to HUD but before HUD
awarded the grant in September of 2015. In an earlier deposition, Pattersontestified
that he reviewed portions of the application online during this time period.
(Patterson Dep. pp. 115-116.) In his third affidavit, Patterson avers the application
was not available online for public viewing until sometime after the grant was
awarded. (3™ Patterson Aff., § 24.) Without determining if Patterson has a
reasonable explanation forthe discrepancy, the record contains evidence consistent
with Patterson’s affidavit. The AHA 30(b)(6) representative testified that the
Atlanta CNI application was not publicly available during the HUD review process.
(O’Connell Dep., pp. 47-48.) Prophecy only applies where the party’s self-
contradictory testimony is the only evidence supporting the equivocating party’s
defense against summary judgment. DirecTV at 407.
A similar issue exists with regard to Paragraph 24 ofPatterson’s third affidavit
where he avers arranging a key meeting with MBS and the Mayorof Atlanta that
occurred on January 26, 2015. Hefurther avers he did so by calling Katrina Parks
Taylor, who wasaffiliated with the Mayor’s office, to schedule the meeting. (Id.)
However, in his individual deposition, Patterson testified that he never had a
conversation with Ms. Parks Taylor until later and that she may have called a
representative of MBSto schedule the January 26, 2020 meeting. (Patterson Dep,
pp. 161-162, 168-169.) Regardless of whether GreenLife could offer a reasonable
explanation for this contradiction, this particular fact is immaterial to the pending
motions for summary judgment. In considering the motions for summary judgment,
the Court must construe the evidence in the light most favorable to GreenLife.
Fulton County v. Ward-Poag, 2020 WL 5883344, at *3 (Ga. October 5, 2020).
Construing the evidencein this way, Patterson has outlined a numberofhis actions
that led to the opportunity for MBS to meet with the Mayor.' Even if the Court were
to disregard Patterson’s testimony about the mechanics of how he specifically
arranged the meeting by calling Ms. Parks Taylor, the evidence reflects Patterson’s
other efforts provided MBS with the opportunity to meet the Mayor concerning
Atlanta’s CNI application. Accordingly, the Court finds Prophecy is inapplicable.
DirecTV at 407.
4. Conclusion
In light of the foregoing, Defendants’ Motion to Strike Patterson’s Third
Affidavit is DENIED.
* Patterson claims he arranged an audience with the Mayorand other community stakeholders in Decemberof 2014
where he touted MBSandits ability to help Atlanta withits efforts to obtain a HUD CNI grant. (3Patterson Aff.,
11-13.) Patterson also claims he made “subsequent follow-up communications with the Mayor’s office” where
he continued his appeals. (3" Patterson Aff., § 17.)
f-
IT IS SO ORDEREDthis Ig day of December,2020.
  
LLY WEE ELLERBE,Judge
 
Superior Court of Fulton County
Business Case Division
Atlanta Judicial Circuit
Electronically served upon registered service contacts through eFileGA
 
Attorneys for Plaintiff Attorneys for Defendants
Antony L. Sanacory
AmyE.Salley
HUDSON PARROTT WALKER, LLC
3575 Piedmont Road
Fifteen Piedmont Center, Suite 850
Atlanta, Georgia 30305
T: (404) 554-8181
F: (404) 554-8171
asanacory@hpwlegal.com
asalley@hpwlegal.com  
Halsey G. Knapp,Jr.
Barclay S. Hendrix
KREVOLIN & HORST, LLC
1201 W.Peachtree Street, N.W.
Suite 3250, One Atlantic Center
Atlanta, GA 30309
T: (404) 888-9700
F: (404) 888-9577
hknapp@khlawfirm.com
hendrix@khlawfirm.com
Greenlife Energy Solutions, LLC vy. McCormack Baron Salazar, Inc.
Superior Court ofFulton County
Metro Atlanta Business Case Division
Cwil Action File No. 2018CV307344
Order Denying Defendants’ Motionto Strike Patterson's Third Affidavit
 


English

GREENLIFE ENERGY SOLUTIONS ORDER DENYING DEFENDANTS’ MOTION TO STRIKE PATTERSON’S THIRD AFFIDAVIT

J.P. CAREY ENTERPRISES AMENDED ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

Nicholas, James

Journal of Comparative Urban Law and Policy 
Volume 4 
Issue 1 Festschrift II in Honor of Julian Conrad 
Juergensmeyer on the Occasion of His 
Retirement: International Perspectives on Urban 
Law & Policy 
Article 7 
2020 
Tribute to Julian Conrad Juergensmeyer by James Nicholas 
James Nicholas 
University of Florida, jcnicholas@msn.com 
Follow this and additional works at: https://readingroom.law.gsu.edu/jculp 
 Part of the Comparative and Foreign Law Commons, Environmental Law Commons, Land Use Law 
Commons, and the Urban Studies Commons 
Recommended Citation 
Nicholas, James (2020) "Tribute to Julian Conrad Juergensmeyer by James Nicholas," Journal of 
Comparative Urban Law and Policy: Vol. 4 : Iss. 1 , Article 7, 16-17. 
Available at: https://readingroom.law.gsu.edu/jculp/vol4/iss1/7 
This Article is brought to you for free and open access by Reading Room. It has been accepted for inclusion in 
Journal of Comparative Urban Law and Policy by an authorized editor of Reading Room. For more information, 
please contact gfowke@gsu.edu. 
TRIBUTE  TO JULIAN CONRAD JUERGENSMEYER 
James Nicholas 
This soft spoken gentleman swept out of Appalachia and took land use law 
like a storm.  When Julian began his career, the field of law, in which he is now the 
acknowledged leader, did not exist.  This is a clear indication that he made good 
use of his time.  When Julian arrived on the scene, the first Earth Day was still to 
occur and the National Environmental Protection Act was not yet written.  This 
young property lawyer with an interest in agricultural law gave the legal profession 
what we now call Land Use Law.  Through his teaching and writing, Julian has 
brought together disparate and often hostile, ill-defined interests into a body of law 
that is now a recognized specialization. 
After graduating summa cum laude from Duke University, Julian entered 
Duke Law School where he was Coif and on the editorial board of the Duke Law 
Journal.  Following law school, he practiced at Squire, Sanders and Dempsey in 
Ohio.  He came to Georgia State University as the Ben F. Johnson Jr. Chair in Law, 
after retiring from a 30-year career at University of Florida and  stints at the 
University of Indiana, Tulane, Duke, Hastings and Haile Selassie I University in 
Addis Ababa, Ethiopia. 
Julian is a son of Appalachia and displays the charm of that region in his 
speech and mannerisms.  The hills and valleys of West Virginia and Kentucky are 
a part of him.  His roots are in the land, and it is to the prudent use of the land that 
he has devoted his career.  Julian has been as a scholar, teacher, mentor and friend 
to students and colleagues alike. His ideas are to be found in numerous publications, 
but also in the work of his students, colleagues and in the decisions of many 
Supreme Courts.  It has been rumored that some of their ideas have found their way 
into his work, too.  While Julian is perhaps best known for his work in the area of 
land use, his interests, teaching and research have literally covered the world.  A 
leading authority on international environmental law, he pioneered many of the 
international conventions that are now being recognized as means to protect land 
resources and the environment around the world.  He has written extensively on the 
interface between international trade and environmental protection and has put 
forward methods of securing natural habitat and means to fund both human-made 
and natural infrastructure.  Julian has taught law at universities in the United States, 
Ethiopia, Mexico, France, Belgium, Poland, Canada and Denmark.  He has lectured 
in just about all of the places where he did not teach. In these classes and seminars, 
he instructed the present and next generation of lawyers in what the law is and also 
in what the law should be. 
16
Nicholas: Tribute to Julian Conrad Juergensmeyer by James Nicholas
Published by Reading Room, 2020
One of Julian’s major contributions has been impact mitigation, specifically 
mitigating the impact of land development on the human and natural environments.  
Much to Julian’s chagrin, this area of law is frequently referred to as “exactions.”  
Within the context of impact mitigation, “exactions” would be dedications of land 
or improvements that lessened any deleterious effect new development might have.  
Within another context, “exactions” are extortion.  It is terribly unfortunate that 
many actions undertaken to prevent public harm have been labeled as extortion.   
Perhaps the next generation of legal scholars can correct this unfortunate 
nomenclature.  
After 55 years, Julian is retiring.  Saying that he will be missed implies that 
he will be gone, which is highly unlikely.  Julian has been and will remain a great 
presence in the legal profession.  He is also a valued colleague and friend to those 
that he leaves behind as he begins a new phase of his career.  We bid farewell to 
Julian Juergensmeyer with appreciation for all that he has done and with the 
knowledge that he will remain our colleague and friend. 
 
 
  
17
Journal of Comparative Urban Law and Policy, Vol. 4 [2020], Iss. 1, Art. 7
https://readingroom.law.gsu.edu/jculp/vol4/iss1/7


Tribute to Julian Conrad Juergensmeyer by James Nicholas

Marshall, John Travis

Julian Conrad Juergensmeyer:  Teacher, Lawyer, and Scholar - Vignettes for Our Times and All Times

Mialot, Camille

Affordable and Workforce Housing in France

Weitz, Jerry

Retrenchment and Demise of State Growth Management Programs

Bross, Jim

Journal of Comparative Urban Law and Policy 
Volume 4 
Issue 1 Festschrift II in Honor of Julian Conrad 
Juergensmeyer on the Occasion of His 
Retirement: International Perspectives on Urban 
Law & Policy 
Article 3 
2020 
Tribute to Julian Conrad Juergensmeyer by Jim Bross 
James Bross 
jbross@gsu.edu 
Follow this and additional works at: https://readingroom.law.gsu.edu/jculp 
 Part of the Comparative and Foreign Law Commons, Environmental Law Commons, Land Use Law 
Commons, and the Urban Studies Commons 
Recommended Citation 
Bross, James (2020) "Tribute to Julian Conrad Juergensmeyer by Jim Bross," Journal of Comparative 
Urban Law and Policy: Vol. 4 : Iss. 1 , Article 3, 4-4. 
Available at: https://readingroom.law.gsu.edu/jculp/vol4/iss1/3 
This Article is brought to you for free and open access by Reading Room. It has been accepted for inclusion in 
Journal of Comparative Urban Law and Policy by an authorized editor of Reading Room. For more information, 
please contact gfowke@gsu.edu. 
 
 
TRIBUTE TO JULIAN CONRAD JUERGENSMEYER 
 
Jim Bross1 
 
 In 1972, I started teaching Land Use at Lewis & Clark Law School because 
I had once represented the Dunlap Community in Philadelphia in community 
development problems and because somebody had to do it. For something learned 
in my studies, I drew on Geoff Lanning’s Federal Taxation course, where I studied 
the relationship of legislative policy and administrative practice for the first and 
only time in law school. I viewed Land Use Law as a peculiar subspecies of 
administrative law with vaguely aspirational legislative mandates and strikingly 
unqualified decision makers. 
 When I searched for useful library resources, I found the collected works of 
law professors who had studied at Wisconsin with Jacob Beuscher. I read and used 
casebooks and hornbooks by Dan Mandelker and Don Hagman, who were 
generous, kind and good-humored mentors. Because Don was on the left end of the 
country at UCLA, I convinced him to teach a summer class at Lewis & Clark so 
that I could pick his brain and absorb his anecdotes as fodder for my courses. 
 Like everyone in legal education, I was stunned when Don Hagman died in 
a fall at Yosemite during a camping trip with his family. Selfishly, I worried about 
the loss of Don as personal mentor and author of the books my students and I 
needed. I was again startled when an upstart Duke alum teaching at Florida 
presumed to take over Don’s hornbook. Skeptically, I examined Julian 
Juergensmeyer’s new edition of the hornbook. Some of Don’s idiosyncratic 
whimsy was gone, but the book was potentially more helpful to law students 
without the old quirks. Moreover, new voice in the book had its own light humor. 
 Twenty years later, Eric Segall was leading Georgia State’s search for 
candidates to fill the law school’s first chair. He asked me what I thought of 
someone named Juergensmeyer.  I instantly said, “Grab him!” It was one of the 
best gut reactions I have ever had—so much for planning. The chair has been 
occupied by someone who gave me 20 years of collegiality and the law school 
instant credibility in innovative programs. Thanks, Dr. J. 
 
 
1 Professor of Law Emeritus, Georgia State University College of Law, and former Co-Director of 
the Center for the Comparative Study of Metropolitan Growth 
4
Bross: Tribute to Julian Conrad Juergensmeyer by Jim Bross
Published by Reading Room, 2020


Tribute to Julian Conrad Juergensmeyer by Jim Bross

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GREENLIFE ENERGY SOLUTIONS ORDER DENYING DEFENDANTS’ MOTION TO STRIKE PATTERSON’S THIRD AFFIDAVIT

J.P. CAREY ENTERPRISES AMENDED ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

Tribute to Julian Conrad Juergensmeyer by James Nicholas

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