Attorney’s Fees in Georgia: Part One

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Part 1: Contractual Attorney’s Fees

Virtually without fail, one of the first things our clients ask is whether they’ll be able to recover attorney’s fees from the other side. This is a fair question because it seems wrong to have pay an attorney when the other side has acted improperly or has caused the dispute. While not necessarily intuitive, the default rule, with exceptions, is that each side is responsible for their own attorney’s fees. We’re going to discuss some of the statutes and cases contrary to the default rule–these laws allow the winner of a lawsuit to recover reasonable attorney’s fees.

The most clear cut situation in which the winning party can recover attorney’s fees is when parties have signed a contract that provides for the recovery of  attorney’s fees. For example, a typical provision in a contract might say that “the prevailing party is entitled to attorney’s fees incurred to enforce or collect monies due under the contract.” In these situations, a trial court doesn’t have the authority to alter such an arrangement unless it is prohibited by statute, and the winning party is entitled to reasonable attorney’s fees as a matter of law.

Contractual attorney’s fees were discussed by the Georgia Court of Appeals in Summit At Scarborough Homeowners Association, Inc. v. Williams, A17A1289 (decided November, 16, 2017). In that case, the trial court’s decision to deny a homeowner’s association attorney’s fees related to unpaid association dues was reversed because the association documents, which are considered a contract, provided for the collection of attorney’s fees. Thus, in cases where a contract provides for attorney’s fees, the trial court must award attorney’s fees based upon evidence of the reasonable value of the professional services provided by the attorney.

In the next installment, we’ll discuss what happens when there’s no contractual provision for attorney’s fees, but the opposing party has acted in bad faith.

Gomez & Golomb LLC Resolves Traumatic Brain Injury Case Against Textron d/b/a E-Z-GO

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Confidential Settlement with Textron, Inc. d/b/a E-Z-GO

We represent a young man ejected from a golf cart (more accurately a personal transportation vehicle) resulting from a sharp left-hand turn. The photo above is the cart immediately after the incident. This happened in 2012. The ejectment threw the young man head first onto a paved road. The young man spent many months in the hospital with his family. He is a fighter and made a miraculous recovery (he had to relearn how to walk, talk, and eat). Despite his recovery, because of the severity of the impact to his head, he left the hospital with permanent traumatic brain injury (T.B.I.). This is an injury that rarely improves, and, unfortunately, is permanent. Needless to say, brain function is critical to every aspect of life, and this was a devastating injury to our client and his family. 

After hiring experts to investigate the cart and the circumstances of the incident, we determined that the manufacturer of the personal transportation vehicle, Textron, Inc. d/b/a E-Z-GO, had been warned by and well-known engineer in 2007 about passengers being ejected from these types of vehicles because of inadequate passenger-side hip restraints. This engineer was particularly concerned with the rise in injuries to children between the ages of 12-16. Textron, Inc. d/b/a E-Z-GO were also aware of a 2006 peer-reviewed journal article raising these same concerns.

From 2007 until 2012, Textron, Inc. d/b/a E-Z-GO had more than 10 meeting with the engineer who issued the warning, yet failed to make any safety changes to the passenger hip restraint, failed to issue any warnings to existing customers, and failed to recall any of the unsafe vehicles already on the road.

After getting no response from Textron, Inc. d/b/a E-Z-GO, we filed a lawsuit in Fulton County State Court. Textron, Inc. d/b/a E-Z-GO hired a large silk-stocking Atlanta law firm to vigorously defend the case. Textron, Inc. d/b/a E-Z-GO’s main claims were that these vehicles weren’t supposed to be driven on public roads. As the risk of sounding glib, Textron, Inc. d/b/a E-Z-GO’s argument that these vehicles shouldn’t be used on public roads was laughable. Textron, Inc. d/b/a E-Z-GO took the position that because there was a warning on the cart against driving on a public road, then E-Z-GO was responsible for injures on public roads, even if there vehicles were unsafe.

Below is an example of some of the marketing material from E-Z-GO’s website and twitter pages that we were ready to show the jury at trial. This evidence shows that EZGO continuously and aggressively marketed these vehicles to families with children to use in and around their neighborhoods. In fact, anyone that’s lived in a suburban neighborhood has seen families and teenagers using these vehicles to get around on neighborhood roads.

During the next several years, we argued summary judgment motions, Daubert motions, discovery dispute motions, and took depositions of experts in Connecticut, Minnesota, Georgia, and Florida. After almost five years of non-stop work, this past Monday, we finally started a jury trial that was expected to last about 10 days.

In total, close to 30 witnesses were expected to testify.Our side had testimony from two engineers and five doctors, while Textron d/b/a E-Z-GO had testimony from two engineers and a human factors expert.On Monday, we spent all day picking a jury. While we were pleased with the jurors selected, and hopeful both sides would get a fair and impartial judgment based on the evidence presented. Opening arguments took place Tuesday morning until lunch, with each side making compelling arguments for their clients. However, during lunch, the opposing sides approached each other, now having heard each other’s full arguments, to explore settlement. After some deliberation, the case settled for a confidential amount. Although we prepared and hoped to take the case to conclusion, our client was very happy with the result and the settlement was truly in his best interest. 

To be clear, we have not and will never advocate against the use of these types of vehicles. They serve an important function in many communities and are flat out fun. However, our profound hope is that Textron d/b/a E-Z-GO will carefully examine the passenger restraint systems on all its vehicles, current and past, and that it will commit itself to designing and manufacturing safe golf carts and passenger vehicles for typical use, which is often by teenagers on public, neighborhood roads. We also implore Textron d/b/a E-Z-GO to consider recalling any unsafe vehicles currently on the roads with unsafe passenger restraint systems.

Click here to see to an article from Courtroom View Network summarizing the case.

Recover punitive damages in Georgia (even without injuries)

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Punitive Damages: Generally

If you’re involved in an car wreck and the conduct of the party who caused the collision was reckless and intentional, you may be entitled to punitive damages. The two most common examples of misconduct that warrant punitive damages are hit and run and drunk driving. Also, whether the offending party has a history of reckless driving is an important factor. The purpose of of punitive damages isn’t to make the injured party whole, but rather to send a forceful message to the offending party and the public that reckless driving won’t be tolerated. Probably everyone can agree that limiting reckless driving is a worthwhile undertaking.

O.C.G.A. § 51-12-5.1(b) provides that “[p]unitive damages may be awarded in such actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”  O.C.G.A. § 51-12-5.1(c) further states that punitive damages “shall be awarded not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant.”

Leaving the scene and driving under the influence are examples of of wilful misconduct, wantonness, and that want of care that shows conscious indifference to the consequences. According to O.C.G.A. § 51-12-5.1(f), in these situations, a jury is entitled to award the injured party unlimited punitive damages:

In a tort case in which the cause of action does not arise from product liability, if it is found that the defendant acted, or failed to act, with the specific intent to cause harm . . . there shall be no limitation regarding the amount which may be awarded as punitive damages . . .”

Punitive Damages: Property Damage Claims

In Georgia, punitive damages are recoverable in a property damage claim even if there are no injuries. Bowen v. Waters, 170 Ga. App. 65 (1984), aff’d, 175 Ga. App. 884 (1985) (“While an award of punitive damages is authorized only where a tortfeasor’s conduct is of an aggravated nature, such an award may properly be based upon an aggravated tort involving only property rights.”).

At Gomez & Golomb, unlike some others, we’re not a cookie cutter personal injury law firm. We devote our full attention to each case so that we maximize your recovery. If you’re in a collision, please call us to discuss whether your case is the type that might justify punitive damages, and what other damages you might be entitled to.

Redeem a (Non-Judicial) Tax Deed

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In Georgia, when property taxes are unpaid, a county is entitled to auction the property to the highest bidder to recover the unpaid property taxes. There are two types of auctions: non-judicial and judicial. This post only covers redeeming a property following a non-judicial tax sale, which includes most tax sales in Georgia.

Following a non-judicial tax sale, the taxpayer or any person who holds right, title, interest in, or a lien on the property may redeem the property within 12 months from the date of sale by paying the redemption amount. OCGA § 48-4-40. Redeeming means paying the tax deed purchaser to get the property back. The property may be redeemed at any time after the initial 12 months until the tax sale buyer forecloses (or terminates) the right to do so by giving proper notice.

To redeem a property following a tax sale, the redeeming party must pay the amount paid for the property at the tax sale, plus any taxes paid on the property by the purchaser after the sale for taxes, plus any special assessments on the property, plus a premium of 20 percent of the amount for the first year, plus 10 percent for each year after that. OCGA § 48-4-2.

After 12 months from the date of the tax sale, the purchaser can forever bar redemption of the property by giving notice to the delinquent taxpayer, the occupant, if any, and upon all persons having recorded any right, title, interest in, or lien on the property. OCGA § 48-4-5.

Suppose the property is not redeemed within the initial 12 month period or within the time allowed under the notice of the right of foreclosure. In that case, redemption is no longer allowed. OCGA § 48-4-47.

Whether you’re buying a tax deed or seeking to redeem a tax deed, please call us at 404-382-9994 to discuss your options.

Serving a Lawsuit in Georgia: Understanding the Sheriff’s Entry of Service Form

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In Georgia, with some exceptions, the opposing party a/k/a the defendant must be “personally” served before a lawsuit can go forward. This means the lawsuit must be physically handed to the defendant. If the defendant is a corporation, service is made on the corporation’s registered agent. (Every corporation in Georgia is required to appoint a registered agent—this information can be found on the Georgia Secretary of State’s website.)

Service usually begins by providing the sheriff a copy of the complaint, summons, and sheriff’s entry of service form. Service by the sheriff typically takes two to three weeks, during which time a sheriff’s deputy will complete the form and mail it back to the filing party. What does this form mean? Below is the relevant part of the form and how we address the various types of service in our office:

If the “personal” box is completed (box # 1 above), almost always, the sheriff has handed the paperwork to the opposing party and service is complete. Now we can get to work on the case.

If the “notorious” box is checked (box # 2 above)  this means the sheriff has handed the paperwork to someone over 18 years old who lives the opposing party. Georgia law allows notorious service, but, in our experience, we should be cautious in these situations because notorious service is sometimes unreliable and can challenged. Fortunately, an answer is due from the opposing party 30 days after service. If service isn’t contested in the answer, we no longer need to worry about service. If service is contested in the answer and seems reasonable, we will discuss with you the merits of repeating service. Ultimately, getting proper service is important because if we don’t have proper service, any judgment we obtain might be overturned.

The “corporation” box  (box # 3 above) obviously applies to serving a corporation. If this is checked, generally, this ends up being successful service.

If the “better address” box is checked (box # 5 above)  this means the person living at the address provided has told the sheriff that opposing party has moved.

Finally, the dreaded “non-est” box  box # 5 above): this means the sheriff has gone to the address provided but was unable to serve the defendant. Most importantly, this means the lawsuit can’t continue. At this point, we need to determine if we have a good address for the opposing party. A defendant can be served at home, work, church, etc. If we are confident we have a good address despite the sheriff being unsuccessful, we recommend hiring a private process server. Unlike the sheriff, a private process server will work with us and has a much better chance of successfully serving the defendant. The cost for a private process server is about $100, but goes up depending on difficulty. If we aren’t confident that we have a good address, we recommend hiring an investigator to find a good address for the defendant. This is more expensive and will cost $250 and upwards.

If we still can’t find the defendant or believe the defendant is avoiding service, we’re entitled to ask the court to allow us to serve the opposing party by publication. We’ll address service by publication in a separate blog.

We hope this gives you a better idea regarding service of a lawsuit in Georgia. If you have any questions, please don’t hesitate to call us at 404-382-9994.