Category: General Litigation

Langley: Important New Personal Injury Case

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Langley v. MP Spring Lake, LLC, A18A0193 (May 1, 2018), just issued by the Georgia Court of Appeals, may have a big impact on many future Georgia personal injury cases. Langley involves a residential landlord-tenant relationship in which a tenant sued her landlord for injuries more than a year after the injuries occurred. Normally, in Georgia, an injured party has two years to file a personal injury lawsuit. However, in this case, the landlord moved to dismiss the case because the lease provided only one year to sue the landlord.  This is the exact language in the lease:

Limitation on Actions. To the extent allowed by law, Resident also agrees and understands that any legal action against Management or Owner must be instituted within one year of the date any claim or cause of action arises and that any action filed after one year from such date shall be time barred as a matter of law.

Focusing on the word any, the Court of Appeals ruled that any legal action included not only breach of contract claims but also personal injury claims. Thus, the lease trumped Georgia’s statute of limitations. The Court reasoned that parties should be free to enter into contracts without interference from the courts.

At Gomez & Golomb, we practice personal injury and real estate litigation. Thus, for us, Langley cuts both ways. It’s bad for our personal injury clients, but good for our real estate and corporate clients. From now on, in personal injury cases, we will be looking even more closely at applicable contracts for language that may limit injury claims. For our real estate and corporate clients, we will be advising them that Langley opens the door to include terms in their contracts that limit liability.

Bankruptcy: repeat filings

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A question we get frequently, especially after a debtor files a second or third bankruptcy as a delay strategy, is just how many times can a debtor get away with filing for bankruptcy? We refer to these folks, not so affectionately, as “serial filers.” While not perfect, there are some restrictions for debtors filing multiple bankruptcies:

180 days: A debtor can’t file a second bankruptcy case for 180 days if the debtor’s case was dismissed (i.e., the bankruptcy wasn’t completed) for the following reasons: (1) by the court for willful failure of the debtor to abide by orders of the court, or to appear before the court in proper prosecution of the case; or (2) the debtor requested and obtained the voluntary dismissal of the case following the filing of a request for relief from the automatic stay.

Two bankruptcies in one year: When a debtor files a second bankruptcy within one year of the dismissal of the first case, the automatic stay expires 30 days after filing (11 U.S.C. § 362(c)(3)). There’s one exception, which is if the debtor can prove to the court that the second case was filed in good faith (meaning the debtor didn’t file repeatedly to delay collection by a creditor), the court has discretion to extend the automatic stay.

Three bankruptcies in one year: When a debtor files a third bankruptcy within one year of the dismissal of the first case, the automatic stay doesn’t take effect at all upon the third filing (11 U.S.C. § 362(c)(4)).

After successful completion of a bankruptcy (i.e., a discharge): For a Chapter 7 bankruptcy, a debtor is not eligible for a discharge if the debtor received a discharge in another Chapter 7 filed within the prior eight years, or in a Chapter 13 case filed in the prior six years (unless the prior Chapter 13 payment plan either paid 100% of the unsecured claims or paid 70% of the unsecured claims). For a Chapter 13 bankruptcy, a debtor is not eligible for a discharge if the debtor received a discharge in another Chapter 13 case filed in the prior two years, or in a Chapter 7 case filed in the prior four years.

Miscellaneous note: The one-year period for either termination or non-application of the stay begins to run from the date of dismissal of the first case. In a joint case, if only one of the debtors had a prior case dismissed in the year before filing, the automatic stay is affected only as to the debtor with the prior case. Section 362(c) (3) and (4) apply to the acts of a specific debtor rather than joint debtors in the aggregate.

Please call us if you need clarification or have any questions.

Negligence law in Georgia

Posted by Jeff on

What is negligence law? At the risk of sounding overdramatic, at Gomez & Golomb LLC, we believe negligence law is similar to the golden rule, which is “do unto others as you would have them do unto you.” Here is why.

Long ago, the first laws developed to discourage citizens from intentionally harming each other. Under this system, when someone intentionally harms another, the state prosecutes the responsible person. If found guilty, the state puts the person in jail.

But what about when someone unintentionally harms another? Clearly, it would be unfair to put someone in jail for conduct that lacked intent, but, at the same time, it would also be unfair to the injured person if there were no consequences? As a middle ground, we created a set of rules known as negligence law in which a negligent party isn’t prosecuted or jailed for wrongdoing, but is liable for the monetary damages caused to the harmed party. In other words, as we go about our daily business in our communities, we are obligated to act in a manner consistent with that of an ordinarily prudent and reasonable person. Georgia law confirms this principle. See O.C.G.A. § 51-1-2.

The personal injury cases we handle at Gomez & Golomb LLC all involve negligence. This means the responsible parties harmed our clients but did so without any intent. Examples of cases we’ve worked on are drivers who didn’t pay close enough attention to the road, manufacturers who design products without attention to safety, or doctors who provide medical treatment that isn’t as good as it should be.  None of these parties woke up with up plans to harm to anyone, but, for various reasons, each acted in a way that a careful, responsible, and reasonable person would not.

In our view, our society is better off when someone who intentionally harms another is put in jail and someone who unintentionally harms another is responsible for paying for the damages. While not everyone agrees with this system, and there is no doubt abuse, the alternative is a society without incentive to treat each other as each of us would like to be treated (the golden rule).

At Gomez & Golomb LLC, we see our job as making sure our clients are fairly compensated for legitimate injuries sustained because another person or entity failed to act responsibly.

Venue in a Trucking Case

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In a recent dispute over where a wrongful death lawsuit should be tried, the plaintiff made the winning argument against a commercial trucking company. Natasha Blakemore as Mother of Natroya Hulbert v. Dirt Movers, Inc. et al., A17A1540 (January 11, 2018). The plaintiff argued that the case should be tried in the county where the injury took place, while the trucking company argued it had the right to remove the case to the county where its office was located.

The two statutes at issue were O.C.G.A. §§ 40-1-117(b) and 14-2-510(b)(4). O.C.G.A. § 40-1-117(b) is part of the Georgia Motor Carrier Act, which are the statutes that govern commercial motor carriers. That statute says an injured party who sues a motor carrier can bring the case in the county where the injury occurred regardless of where the motor carrier is located. In contrast, O.C.G.A. § 14-2-510(b)(5), which governs corporations, says that, regardless of where the injuries occurred, a corporation is entitled to have the case adjudicated in the county where it maintains its principal place of business.

Here, Dirt Movers, Inc. argued that O.C.G.A. § 14-2-510(b)(5) should apply even if venue was proper under O.C.G.A. § 40-1-117(b). The Court of Appeals disagreed. Holding that if venue was proper under both O.C.G.A. §§ 40-1-117(b) and 14-2-510(b)(4), which was true here, the plaintiff was entitled to bring her lawsuit in the county where the injuries occurred.

Nice try by the trucking company, but the case will go forward in the county where the injuries occurred.

Interesting Homeowners’ Association Dispute

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For Georgia real estate litigation nerds, a recent case issued by the Georgia Court of Appeals provides interesting reading. The case, Great Water Lanier, LLC v. Summer Crest at Four Seasons on Lanier Homeowners Association, Inc., A17A1810 (January 2, 2018), involves a convoluted dispute between an investor and a homeowners’ association (HOA). At issue were whether a property was subject to an HOA. The owner of the property asked a court in Hall County to find that the parcel was not subject to the HOA, while the HOA requested the opposite and asked that the property owner pay HOA dues.

The Court of Appeals recited well-settled Georgia law that a person that purchases property is bound by terms in the deed that conveys the property (whether the buyer likes it or not).

The warranty deed in question referred to the HOA, but did so in an arguably ambiguous way. In addition, there were documents signed by the parties that showed the property was not intended to be a part of the HOA. After applying the rules of contract construction to the warranty deed, the Court of Appeals determined the language was not ambiguous, and therefore the language referencing the HOA in the warranty deed controlled over any other documents.

The takeaway is to carefully examine the warranty deed and all other documents when purchasing property.