IN THE SUPREME COURT STATE OF GEORGIA Case No. S14A0449 HIGHWOODS PROPERTIES, INC., Appellant, v.

CITY OF CHAMBLEE, GEORGIA, Appellee.

EMERGENCY MOTION FOR EXPEDITED REVIEW, SUPERSEDEAS, AND INJUNCTION PENDING APPEAL On behalf of Appellant Highwoods Properties, Inc.: ROY E. BARNES State Bar of Georgia No. 039000 The Barnes Law Group, LLC 31 Atlanta Street Marietta, GA 30060 (770) 419-8505 ROBERT S. HIGHSMITH JR. State Bar of Georgia No. 352777 Holland & Knight LLP Suite 2000 One Atlantic Center 1201 West Peachtree Street, N.W. Atlanta, Georgia 30309-3453 (404) 817-8500

ANDREA CANTRELL JONES State Bar of Georgia No. 398440 The Galloway Law Group 3500 Lenox Road, N.E. Suite 760 Atlanta, Georgia 30326 (404) 965-3680

IN THE SUPREME COURT STATE OF GEORGIA HIGHWOODS PROPERTIES, INC., ) ) ) Appellant, ) ) v. ) ) CITY OF CHAMBLEE, GEORGIA, ) ) Appellee. ) _______________________________

Case No. S14A0449

EMERGENCY MOTION FOR EXPEDITED REVIEW, SUPERSEDEAS, AND INJUNCTION PENDING APPEAL COMES NOW Appellant Highwoods Properties, Inc. (“Highwoods”) and submits its Emergency Motion for Expedited Review, Supersedeas, and Injunction Pending Appeal. The Superior Court of DeKalb County has erred, once again, this time relying on local legislation that had not yet even been enacted, much less taken effect, to enjoin the City of Brookhaven from properly annexing territory under general law.1 In the first appearance of this matter before this Court, the superior court had enjoined Brookhaven’s City Council from even voting on legislation, a
1

City of Chamblee v. City of Brookhaven, No. 2013CV7808-10 (DeKalb Co. Super. Ct. Oct. 28, 2013), attached hereto as Exhibit A (hereinafter “Order”). Appellants’ Notice of Appeal, setting forth the basis of jurisdiction in this Court, is attached as Exhibit B. Ga. S. Ct. R. 9.

rank violation of the separation of powers that this Court swiftly rectified. (Case No. S14M0055.) Now, the superior court has enjoined the City of Brookhaven from annexation altogether based solely on House Bill 619 (2013), which, at the time of the superior court’s order, had not even been enacted, and by its terms will not take effect until December 30, 2013. The sole affected property owner,

Appellant Highwoods Properties, Inc. (“Highwoods”), therefore, moves this Court for expedited review, supersedeas, and injunction pending appeal. The order being appealed enjoins the City of Brookhaven, Georgia from annexation of Century Center (a Highwoods property that presently lies in unincorporated DeKalb County) and holds that Highwoods’s application for annexation into the City of Brookhaven is preempted by House Bill 619, which has not yet taken effect. House Bill 619 provided for a November 5, 2013 referendum to annex Century Center into Appellee City of Chamblee, Georgia, with an effective date of December 30, 2013. H.B. 619 (2013). Both affected cities will needlessly waste resources preparing to provide services to Century Center if this Court does not expedite review of this appeal in advance of December 30, 2013 and the annexation of Century Center into City of Chamblee is overturned after its effective date. Additionally, supersedeas and injunction are required to minimize the prejudice to Appellants and preserve the status quo, keeping Century Center in unincorporated DeKalb County until this Court rules. Accordingly, Highwoods -3-

requests this Court to (1) expedite the briefing schedule and expedite consideration of this appeal in advance of December 30, 2013, (2) issue supersedeas as to the Order being appealed, and (3) issue a status quo injunction keeping Century Center in unincorporated DeKalb County until this Court decides this case. FACTUAL AND PROCEDURAL BACKGROUND Appellant Highwoods owns Century Center, which is a commercial development that abuts the City of Brookhaven. On July 1, 2013, Highwoods applied to the City of Brookhaven for annexation of Century Center under O.C.G.A. § 36-36-21, which authorizes delegation to municipal corporations of the General Assembly’s power of annexation. The City of Brookhaven City Council then scheduled a vote on the annexation legislation. On July 22, 2013, Appellee City of Chamblee filed a Petition for Declaratory Judgment and Injunctive Relief in the Superior Court of Dekalb County and requested a Temporary Restraining Order to enjoin the City of Brookhaven City Council from voting on the annexation legislation. Appellee City of Chamblee claimed that the pendency of House Bill 619 (2013) “encumbered” Century Center. The Superior Court of DeKalb County granted the temporary restraining order that same day and, on August 16, 2013, entered an interlocutory injunction order that enjoined City of Brookhaven from taking a vote on Century Center’s annexation application and from taking any other action to annex Century -4-

Center.

On September 17, 2013, Appellants filed an Emergency Motion for

Immediate Supersedeas, Stay, and Suspension of Injunction with this Court (see Case No. S14M0055). On October 3, 2013, this Court granted Appellants’

Emergency Motion for Immediate Supersedeas, Stay, and Suspension of Injunction. On October 8, 2013, City of Brookhaven City Counsel voted to annex Century Center into City of Brookhaven, effective November 1, 2013. See

O.C.G.A. §§ 36-36-21, -2(a). Appellants filed motions for summary judgment on the grounds that City of Brookhaven appropriately and lawfully annexed Century Center2 and that House Bill 619 was not yet effective and was unconstitutional3 (arguments that Highwoods will set forth fully in its Brief of Appellant). The superior court instead denied Appellants’ Motions for Summary Judgment and

The City Council of Brookhaven exercised the General Assembly’s delegated legislative power of annexation under O.C.G.A. § 36-36-21, and such act is of equal dignity with any annexation the General Assembly might pass. House Bill 619 only established a referendum that proposed annexation of Century City if the vote passed on November 5, 2013 and only then will become effective December 30, 2013. Therefore the City of Brookhaven's annexation prevails. 3 At the time the trial court granted summary judgment, House Bill 619 proposed to annex Century Center on December 30, 2013 if the referendum passed even though City of Brookhaven’s annexation was effective November 1, 2013. Accordingly, the effect of House Bill 619 was to de-annex Century Center out of the City of Brookhaven and annex it into City of Chamblee, which violates the single subject matter rule of the Georgia Constitution. See City of Chamblee v. Village of North Atlanta, 217 Ga. 517, 521-22, 123 S.E.2d 663, 666-67 (1962); Schneider v. City of Folkston, 207 Ga. 434, 434-435, 62 S.E.2d 177, 178-179 (1980). -52

granted summary judgment in favor of Appellee City of Chamblee (the “Order”). The superior court erroneously ordered that City of Brookhaven’s October 8, 2013 vote to annex Century Center, effective November 1, 2013, could not be effective because of House Bill 619, which allowed for a referendum on November 5, 2013 that—only if successful—would annex Century Center effective December 30, 2013. On November 5, 2013, the referendum passed, and the annexation of

Century Center into City of Chamblee is expected to become effective December 30, 2013. On the same date as the Order, Appellants filed a Notice of Appeal with this Court. The Appeal was docketed on December 5, 2013. Appellants now

immediately move for expedited review of this matter so that finality of the issue of the annexation of Century Center is determined in advance of December 30, 2013. ARGUMENT AND CITATION OF AUTHORITY 1. This Court should expedite the briefing schedule and consideration of the appeal in advance of December 30, 2013. Rule 9 of the Rules of the Supreme Court of Georgia states that “[t]he Court may issue . . . other orders whenever deemed necessary.” This Court has granted expedited review of appeals in numerous circumstances in which an impending date certain or event could bring harsh results if the appeal is not decided -6-

beforehand. See, e.g., Perdue v. Palmer, 278 Ga. 216, 217, 600 S.E.2d 370, 371 (2004) (granting expedited review of appeal of order directing election superintendent to proceed with primary election, which was scheduled to occur less than a month away); Cox v. Barber, 275 Ga. 415, 416, 568 S.E.2d 478, 480 (2002) (granting expedited review of constitutionality of statute that disqualified candidate because primary election was due to be held the next week); Eaves v. Harris, 258 Ga. 1, 1, 364 S.E.2d 854, 856 (1988) (granting expedited review of trial court’s refusal to issue injunction to prevent expected implementation of statute that would suspend commissioner from office). As in the above examples, this matter also faces an impending date— December 30, 2013—that could bring harsh results if this appeal is not determined beforehand. The briefing schedule alone will place the resolution of this matter after December 30, 2013 and, therefore, after annexation of Century Center into City of Chamblee takes place if this matter continues in the normal course. Enormous amounts of resources and planning will go into the execution of the annexation of Century Center into City of Chamblee. Appellant City of

Brookhaven will also be disadvantaged, if ultimately successful, in having to endure City of Chamblee’s unwinding of its attempted annexation while simultaneously implementing its own annexation many months after its November 1, 2013 effective date. It is, therefore, in all parties’ interest for this Court to -7-

expedite the briefing schedule and expedite consideration of this appeal in advance of December 30, 2013. 2. This Court should issue supersedeas and a status quo injunction to minimize prejudice to Appellants and preserve the status quo. An appellant must seek emergency supersedeas from this Court when failure to do so could render the underlying appeal moot. E.g., Jackson v. Bibb County Sch. Dist., 271 Ga. 18, 18-19, 515 S.E.2d 151, 152-53 (1999). And this Court is empowered to issue supersedeas “whenever deemed necessary,” Ga. S. Ct. R. 9, and to “grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo . . . .” O.C.G.A. § 9-11-62(e). Like its error before, the superior court’s error here is contrary to established law. The superior court held that House Bill 619, while still “pending” (Order at 6), can operate to prevent the City of Brookhaven from annexing territory under existing, validly enacted general law. However, O.C.G.A. § 1-3-5 provides just the opposite: “Laws prescribe only for the future; they cannot impair the obligation of contracts nor, ordinarily, have a retrospective operation.” O.C.G.A. § 1-3-5 (emphasis added). And O.C.G.A. § 1-3-4(b) provides that laws become effective on the date specified in the enactment. Not only had House Bill 619 not yet been enacted when the superior court ruled, but by its terms it does not become effective until December 30, 2013. Finally, O.C.G.A. § 1-3-6 provides that only “[a]fter -8-

they take effect, the laws of this state are obligatory upon all the inhabitants thereof” (emphasis added). In this case, supersedeas and injunction are warranted to preserve the status quo and minimize the prejudice to Appellants. At this time, Appellee City of Chamblee is planning and expending significant resources to prepare for the annexation of Century Center. The City of Brookhaven, however, is enjoined from annexation and, therefore, cannot take the same measures as the City of Chamblee to prepare for annexation in anticipation of a successful appeal. City of

Brookhaven’s effective date of annexation already passed on November 1, 2013, O.C.G.A. § 36-36-2(a), while City of Chamblee’s annexation will not become effective until December 30, 2013. Thus, if the appeal is successful, Century Center will be annexed into City of Brookhaven immediately because the effective date of City of Brookhaven’s annexation was November 1, 2013. City of

Brookhaven should be allowed to move forward in preparing for annexation and be in the same position as City of Chamblee during this critical time period with the understanding that, just like City of Chamblee, City of Brookhaven’s preparations for annexation are at its own risk if it is unsuccessful in its appeal. Even if expedited review occurs, the prejudice suffered by Appellants is exacerbated if supersedeas and an injunction are not issued to preserve the status quo. Supersedeas and an injunction should, therefore, be ordered to preserve the status -9-

quo, keep Century Center in unincorporated DeKalb County during the pendency of this appeal, and allow the City of Brookhaven to take steps to prepare for annexation should the appeal be successful. Serious questions exist as to the propriety of the trial court’s order. Rather than allow the parties to be placed on such unequal footing in preparation for annexation, this Court should order supersedeas and an injunction to allow the parties an equal opportunity to prepare for annexation while this Court determines which annexation of Century Center is lawful.

-10-

CONCLUSION For these reasons, Highwoods respectfully requests that this Court grant its Emergency Motion for Expedited Review, Supersedeas, and Injunction Pending Appeal. Respectfully submitted this 11th day of December, 2013, THE BARNES LAW GROUP, LLC /s/ Roy E. Barnes Roy E. Barnes State Bar of Georgia No. 039000 31 Atlanta Street Marietta, GA 30060 (770) 419-8505 (770) 590-8958 (facsimile) HOLLAND & KNIGHT LLP /s/ Robert S. Highsmith Jr. Robert S. Highsmith Jr. State Bar of Georgia No. 352777 1201 West Peachtree Street Suite 2000 Atlanta, Georgia 30309-3449 404-817-8500 404-881-0470 facsimile GALLOWAY LAW GROUP, LLC s/ Andrea Cantrell Jones _ Andrea Cantrell Jones State Bar of Georgia No. 398440 3500 Lenox Road, NE Suite 760 Atlanta, GA 30326 (404) 965-3680

Attorneys for Appellant Highwoods Properties, Inc.

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IN THE SUPREME COURT STATE OF GEORGIA HIGHWOODS PROPERTIES, INC. ) ) Appellant, ) ) v. ) ) CITY OF CHAMBLEE, GEORGIA, ) ) Appellee. ) _______________________________

CASE No. S14A0449

CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing Emergency Motion for Expedited Review, Supersedeas, and Injunction Pending Appeal, along with a copy of this Certificate of Service, upon counsel for Appellee by statutory electronic service before filing to: Robert E. Wilson, Esq. Stephen G. Quinn, Esq. WILSON, MORTON & DOWNS Two Decatur Town Center 125 Clairemont Avenue, Suite 420 Decatur, GA 30030-2551

This 11th day of December, 2013. HOLLAND & KNIGHT LLP

/s/ Robert S. Highsmith Jr. Robert S. Highsmith Jr. State Bar of Georgia No. 352777

-12#26501074_v5

EXHIBIT A

EXHIBIT B

2

IN THE SUPERIOR COURT OF DEKALB(II^J^Y:! STATE OF GEORGIA X'' CITY OF CHAMBLEE, GEORGIA,

r

^ my

2013 OCT 2 8 P W UM Civil Action F i l e m r * " " 2013-CV-7808-10

Plaintiff,
v.

CITY OF BROOKHAVEN, GEORGIA, and HIGHWOOD PROPERTIES, LLC. Defendants. NOTICE OF APPEAL Notice is hereby given pursuant to O.C.G.A. §5-6-34(a)(4) that Defendant City of Brookhaven, Georgia, and Intervenor/Defendant Highwoods Properties, LLC hereby appeal to the Supreme Court of Georgia from the Superior Court's Order Granting the City of Chamblee's Motion for Summary Judgment and Denying Defendants' Motions for Summary Judgment entered on October 28, 2013 in the above-styled matter, ordering that Defendant Highwood Property, Inc.'s application for annexation of Century Center with the City of Brookhaven is preempted by Local Act 205, that Brookhaven is without authority to annex Century Center during the pendency of Local Act 205 and enjoining City of Brookhaven from annexing Century Center until and unless the Referendum scheduled for November 5, 2013 fails. Appellant City of Brookhaven is represented by Roy E. Barnes, of the Barnes Law Group, 31 Atlanta Street, Marietta, Georgia 30060 and William F. Riley, Jr., Cecil G. McLendon, Jr., and Leonid Felgin of Riley McLendon, LLC, 315 Washington Avenue, Marietta, Ga 30060. Highwoods Properties is represented by Robert S. Highsmith Jr. of Holland & Knight LLP, Suite 2000 One Atlantic Center, 1201 West Peachtree Street NW, Atlanta, Georgia 30309-3453 and Andrea Cantrell

Jones and Laurel A. David of The Galloway Law Group, 3500 Lenox Road, N.E., Suite 760, Atlanta, Georgia 30326. The clerk shall omit nothing from the record on appeal. The Supreme Court of Georgia, rather than the Georgia Court of Appeals, has jurisdiction of this case on appeal because the primary question is in equity, involves extraordinary remedies, and "the substantive issue on appeal involves the legality or propriety of equitable relief sought in the superior court . . . ." Beauchamp v. Knight. 261 Ga. 608 (1991); Ga. Const.1983, Art. VI, Sec. VI, Par. Ill (2) and (5). ThisTffiday of October, 2013. THE BARNES LAW GROUP

i^fawj
31 Atlanta Street Marietta, Georgia 30060 770-227-6375

§5^

Roy EMiarnes, Esq. Georgia Bar No. 039000

RILEY McLENDON, LLC

William F. Riley, Jr Georgia Bar No. 605725 Cecil G. McLendon, Jr. Georgia Bar No. 497010 Leonid Felgin Georgia Bar No. 743786 315 Washington Avenue Marietta, Georgia 30060 770-590-5900 678-388-2983 - facsimile

Attorneys for Defendant/Appellant City of Brookhaven

HOLLAND & KNIGHT, LLP ^^^H^V

Robert S. Highsmitf Georgia Bar No. 352777 1201 West Peachtree Street Suite 2000 Atlanta, Georgia 30309-3449 404-817-8500 404-881-0470 (facsimile) THE GALLOWAY LAW GROUP

Andrea Cantrell Jones Georgia Bar No. 398440 Laurel A. David Georgia Bar No.206505 3500 Lenox Road Suite 760 Atlanta, Georgia 30326 404-965-3680 404-965-3670 (facsimile) Attorneys for Intervenor/Defendant Highwoods Properties, Inc.

-3-

IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA CITY OF CHAMBLEE, GEORGIA, Civil Action File No. 2013-CV-7808-10

Plaintiff, v. CITY OF BROOKHAVEN, GEORGIA, and HIGHWOOD PROPERTIES, LLC. Defendants.

CERTIFICATE OF SERVICE This is to certify that I have this day served opposing party at the address indicated below in the forgoing matter with a copy of the following: NOTICE OF APPEAL by depositing the same in the United States mail, with adequate postage affixed, or hand-delivery to: Robert E. Wilson, Esq. Stephen G. Quinn, Esq. WILSON, MORTON & DOWNS Two Decatur Town Center 125 Clairemont Avenue Suite 420 Decatur, GA 30030-2551 This the

2»&. ay of October, 2013.
HOLLAND & KNIGHT, LLP

QQOIAA-&:
Robert S. Highsmith, Jr Georgia Bar No. 35277

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