Alley blues: How a Decatur parking fight embroiled restaurants in a costly lawsuit
[adsanity id=”53551″ align=”aligncenter” /]
This story has been updated.
By Cathi Harris, contributor
When Decatur attorney Dan DeWoskin opened his office here four years ago, he had an unusual plan for making sure clients could find him.
The brick building at 535 N. McDonough Street sits just across a public parking lot from the DeKalb County Courthouse, a stone’s throw from the MARTA station, and two doors down from a Waffle House.
Because people from outside Decatur often have trouble navigating the town Square, he painted the structure a light pink with the sign in large lavender letters. But it wasn’t the unconventional color scheme that drew his neighbors’ ire. It was what he did next.
In September of 2015, just after buying the building, DeWoskin filed a petition in DeKalb Superior Court claiming ownership of part of the alley behind it — an alley shared for decades by the businesses along the southern edge of Decatur’s Square.
DeWoskin claimed that the previous owner indicated he had exclusive rights to four parking spaces directly behind his back door. That is what he paid for and what his title company cleared when he closed on the purchase.
The owners of the other buildings on the Square said that space was part of a private alley that has been jointly owned and shared by all of them since the 1940s, and granting his petition would put all of their tenants out of business.
[adsanity id=”58767″ align=”alignleft” /] [adsanity id=”56211″ align=”alignright” /]
What ensued was a four-year legal dispute that cost close to half a million dollars to resolve, pitted Decatur businesses against each other, and resulted in allegations of conflict of interest against a prominent local attorney and city officials.
For DeWoskin, the issue was about resolving his property rights, but was never personal or motivated by anger at the other property owners.
“I didn’t want to be the guy who showed up and sued everybody,” he explained to Decaturish. “When it comes to the law, not doing something is the same as doing something — taking an action. If I just left it alone and didn’t do anything, it is the same as if I actually relinquished my right to the alley. If I own that part of the alley, then people can’t park there, or put the dumpsters there. If I don’t own it, then I need a judgment to take back to my title company.”
Tenants in a tight spot
DeWoskin’s action had the potential to devastate businesses on the south side of the Square, say Elissa Pichulik and her sister, Suzanne Pichulik Eisenberg, co-owners of Rosebriar Partnership, the company started by their late father Louis Pichulik. Rosebriar owns several parcels along the Square in Decatur, including two buildings that border the alley — 111 Sycamore Drive, which houses Mac MacGee Irish pub, and 121 Sycamore, the home of The Iberian Pig.
They, along with several other property owners named in DeWoskin’s petition, fought his claim in court.
“This is an alley that has a very long history of joint usage,” Elissa Pichulik said. “Honestly, our tenants rely on this usage to operate. You can hire out parking — that is a substitutable good. But this alley is a necessity that our businesses need to survive.”
The stores and restaurants along the south side of the MARTA plaza don’t have any street frontage. Their only means of trash collection or getting service deliveries is the alley. If they lose that, there is no way for them to stay open, she said.
Over the course of the past four years, she estimates their company has spent about $200,000 in legal fees, which does not include the costs incurred by the other owners.
Rosebriar Partnership was just one of the seven named respondents in the petition, which also included Gang Myeon Yi, who owns the Best Time convenience store’s building; Leonard Thibadeau and Linda Lurwig, who own 115 Sycamore, home of The Square Pub; Jeff Rothenberg, who owns 123 Sycamore, currently occupied by Siam restaurant; Michael Kerman and Gwinnett Industries, which own the buildings with Sushi Avenue and Maculele Capoeira; and Belle Meade Investments, which owns the pay parking lot between the Waffle House and DeWoskin’s office.
The other owners either indicated through their legal representatives that they did not want to comment for this story or did not respond to requests for comment.
“These are people who own significant amounts of property in Decatur and really contribute and try to do good things for the city, and then we are being sued over what are essentially two parking spaces,” Eisenberg added. “Before, when [previous owner] Joe [Nardone] owned it, he would sometimes start parking cars and stuff and we would send a cease and desist letter and it would stop. But for the most part, everybody lived and let live. We had a system back there. You’d [park and] leave a note on your car, ‘If you need to leave, call me and I will move my car.’”
Conflict with the city?
Possibly the most disturbing aspect of the case, said Eisenberg, was that DeWoskin was represented by Kyle Williams, who also serves as general counsel for the Decatur Downtown Development Authority and is a past president of the Decatur Business Association.
Williams says his work on the case was not a conflict of interest and the case is not connected to his work for the city.
The Pichuliks see a problem with his involvement.
Like their father before them, the Pichuliks say they care deeply about the downtown Decatur community and have tried to recruit businesses that are beneficial to and uniquely suited to that location.
“I don’t think people understand that we often sacrifice financially so that we can get the right tenants for each space,” Eisenberg said. “We sometimes charge lower rent so that we can have the art store or a smaller restaurant that is good for the space, and we want them to survive! So, to then be burned by the city this way was very painful for us.”
“I got an email invitation from the Decatur Business Association and when I click on it, there is [Williams’] face as president,” Eisenberg added.
And when she was trying to recruit tenants to a recently vacant space in one of their other Decatur buildings, she emailed a question to then-Assistant City Manager Lyn Menne — and Williams was the one who responded with the answer. “This guy is, you know, he’s the lawyer for the person suing me. It just made me really, really uncomfortable.”
Citing the mission statement of the Decatur Development Authority, Eisenberg said Williams representation of one downtown property owner against several others was a “functional conflict of interest,” even if it was not a legal one.
“‘Egos and ‘turf’ must be put aside as all stakeholder groups come together to work on an agreed upon set of goals for the downtown district,” she said, reading from part of the DDA’s published mission and vision statement published on its webpage.
Having the same attorney working for the board that guides the development of the downtown business district while arguing a legal case that puts the needs of one business owner above that of his or her neighbors is in opposition to those stated goals, she feels.
It gave the impression that the city supported DeWoskin’s claim to the alley.
She contacted Menne about her concerns and asked her to raise the issue with the DDA board.
“She said something about how attorneys could oppose each other in court and then go have a beer together,” Eisenberg recalled. “But I am not an attorney. I am a business owner. This is our livelihood.”
No legal conflict of interest
There was never any connection between the suit and the city or the DDA, Williams said when asked about the case and the Pichuliks’ allegations.
His law practice specializes in resolving complex property disputes. His work as general counsel for the development authority is completely separate from this case. The DDA is a client, as was DeWoskin.
“This is private property, a private easement,” Williams said. “There was never a legal conflict, there was never a business conflict, there was never an ethical conflict. The DDA did not own any of the property here, nor did the city.”
[adsanity id=”58769″ align=”alignleft” /] [adsanity id=”57749″ align=”alignright” /]
His firm specializes in complex real estate situations, and he took the case with the intention of working out a solution that worked for all parties.
“The different property owners need to use the alley,” Williams said. “If you are a restaurant, you need that for your service and if you are Dan, you need it for parking because you are landlocked. That is why we got involved. When somebody in the city — whether it is a business owner or property owner or neighbor — has a real estate problem, they call us. That is what we do. I have built my practice on being a problem solver. I tell people, ‘We are not closing attorneys. We are your problem solvers when there is something messy with your real estate’ — and this was messy.”
There are established procedures that allow respondents to a lawsuit to bring their concerns about a perceived conflict of interest before the judge, and this was never done by any of the parties involved in the suit, Williams adds.
He was only made aware of concerns about his representation of DeWoskin in 2018, when Menne and Assistant City Manager Linda Harris spoke with him after a DDA meeting about it. Following that conversation, he withdrew as DeWoskin’s attorney and another attorney at the firm took over.
“I did not withdraw because of a perceived conflict of interest, and I did not withdraw because anyone asked me to,” he clarifies. “I withdrew because the case had already been through mediation, was close to a settlement and I did not want to be an impediment.”
Claims dating to 1913
This case is an example of the complicated nature of real estate in older cities, said Williams. Alleys are common points of dispute because they are owned by all adjacent property owners and all owners have some rights to the entire alley.
Though the shared use of alleys might seem clear cut, it often is not, he added. Over time, as properties are bought, sold, and subdivided; buildings added or torn down; and city and county governments and laws change, ownership becomes murky.
In areas like downtown Decatur where you have deeds dating back 100 years or more, there are often conflicting deeds or records that are incomplete or missing.
Such was the case with the alley in question. Records of the existence of the alley dated back to 1913, but there have been many different owners and changes to the surrounding properties, buildings and streets since then.
The businesses facing the Square are in a particularly vulnerable spot. When the buildings were constructed, Sycamore Street extended through the town square, connecting with North McDonough Street in front of the old courthouse. This is why all the buildings have Sycamore addresses. But construction of the pedestrian plaza around the MARTA station ended the street at Church Street. This leaves the alley behind the buildings the only way for vehicles of any kind to access them.
Williams was hired by DeWoskin in April of 2015 shortly before DeWoskin closed on the property, Williams said. There were multiple conflicting legal records and the seller of the property, Joseph Nardone, had acknowledged this and offered DeWoskin some money toward the legal costs of establishing ownership of that portion of the alley.
“The legal descriptions were all over the place, none of the property lines matched up,” Williams explains. “On one survey, it didn’t close. There were only three sides. Dan had a seller who said the easement [for the adjoining property owners] didn’t exist, had been invalidated, and he put his money where his mouth was. He was that confident. The closing attorney looked at, the title company looked at it, and they all agreed with him.”
DeWoskin’s claim on the disputed section of land centered on a corrective deed filed by a previous owner of his property and two affidavits indicating that previous owners of two adjoining properties had agreed to cede their rights to the alley.
But the Pichuliks and the other Square property owners argued that several signed agreements between all adjoining property owners, with the most recent one signed in 1940, that indicate the alley was joint property to be shared by all of them.
Not a ‘bread and butter’ lawsuit
The mechanism under Georgia property law to resolve these kinds of conflicts is for an owner of a disputed property to file a “petition for quiet title” and ask the court to make a final decision, which is what DeWoskin did, said Williams.
“Essentially you file a lawsuit against the property itself and then anyone else who might have an interest in it,” he said. “It is not your standard bread and butter case, where you are suing someone for damages. It is getting a lot of different people together to talk about some pretty obtuse stuff.”
When DeWoskin bought the building, there were different property owners using different parts of the alley in different ways, Williams said. “No one was acting in the way any of the documents said they should act back there.”
And DeWoskin contends use of the alley had been a point of contention long before he bought the building, disputing the Pichuliks’ claim that there was no conflict there.
“We have copies of letters where Joe Nardone would call a tow truck to get someone out of his parking space,” DeWoskin adds. “He got letters back [from adjacent property owners] to stop towing cars and harassing the tenants. All that is just not how I work. If I need to be in court in Fulton County, I need to get in my car and go. I don’t have time to track down someone to move their car.”
When he took possession of the building, garbage dumpsters from the neighboring restaurants were frequently placed blocking part of the alley, preventing him from getting to his back door, he said. The bins were often overflowing with trash that leaked, creating a hazardous situation for both him and his employees. Restaurant employees parked behind each other and in the spaces by his back door.
“It became clear that it was a situation that needed to be addressed,” he told Decaturish. “And I didn’t want to get into it with the tenants of the building.”
Alley stays an alley, not a parking lot
The case took so long to resolve because of the number of different property owners involved, the complexity of the competing property claims, and the fact that real estate disputes are not often a high priority on busy court calendars, Williams explains.
At different times, different property owners needed a continuance to give them time to respond or to consider other options. Some of the respondents had changes in legal representation, which also contributed to delays.
Over the course of four years, the parties went through several rounds of unsuccessful attempts at mediation to reach a settlement.
Due to the complexity of the case, the judge appointed a special master to evaluate the evidence. A special master is an outside attorney, appointed by the presiding judge, to examine evidence and testimony. They are commonly used in real estate cases because of the specialized nature of the information. The special master then issues a report with a determination that must then be approved by the judge who issues a final order.
In this case, the special master negotiated a settlement — agreed to by all parties — in which DeWoskin gave up his claim to exclusive ownership in return for guarantees that he would have sufficient access to his building via the alley and that he be compensated by the title company, Williams said.
The agreement gives DeWoskin the use of two parking spaces (not four) behind his building during business hours and requires that the garbage dumpsters used by the other businesses be pulled back closer to the buildings so they do not block the alley. All of the owners must share in costs for maintenance of the alley.
The final order and special master’s report was approved and signed by DeKalb Superior Court Judge Mark Scott on October 10, 2019. It indicates that the conflicting deeds and affidavits regarding ownership be removed from the DeKalb County property records and states that the agreement reached by all of the parties will have the force of a deed and be reflected in the property records going forward.
Though he admits he is disappointed that the ruling did not support his claim to the alley, DeWoskin still said the case was necessary to clarify the rights of each of the individual property owners.
“It has worked out. I have a separate agreement with my title insurance now, so those things are changed,” he said. “I hope to work together with my neighbors going forward, and that has always been my goal.”
He declined to give an estimate of what he has spent on the case or what he received in settlement from his title insurance, but said that he thought that the total amount from all parties could likely be at least $500,000.
“I will say that I have probably the most expensive parking spaces in the city of Decatur,” DeWoskin said.
One suit settles, another begins?
Even though the property dispute has been resolved, moving forward with joint ownership may still be difficult.
Shortly after the judge signed the final order in the case, the Pichuliks learned that DeWoskin intended to file a personal injury claim against the ownership of The Iberian Pig for an injury he allegedly sustained after falling in the alley in 2017.
Federico Castellucci, the restaurant’s owner, confirmed to Decaturish that he has received multiple letters from DeWoskin indicating an intent to pursue a personal injury claim because he slipped and suffered an injury due to grease spilled around his back steps.
“They have not filed, they have just been sending letters claiming they are going to sue us,” Castellucci said recently.
According to Castellucci, the claim is baseless because there is no way for anyone to ascertain that anything spilled in the alley came from his restaurant — the dumpsters are shared by several businesses.
“He is suing a restaurant for a slip and fall in a non-public area by a dumpster pad that like five other restaurants are using for the purposes of throwing out their trash,” he said. “And, it [the alley] is his own property.”
He has forwarded the letters to his insurance company and intends to let them investigate.
The Pichuliks say these actions cast doubt on whether they will all be able to work cooperatively in the future.
When asked about the new case, DeWoskin said he had no comment as it was a “separate matter” from the property suit.
Do you appreciate quality local journalism? If you enjoy our coverage, please sign up to be a paying supporter of Decaturish. For as little as $3 a month, you can help us continue to cover your community. To learn more about becoming a paid subscriber, click here.
[adsanity id=”56022″ align=”aligncenter” /]
[adsanity id=”33719″ align=”alignleft” /] [adsanity id=”52166″ align=”alignright” /]