Georgia Injury Lawyer Blog

The Official Code of Georgia § 13-4-101 explains the elements and requirements of what is known as "accord and satisfaction." Accord and satisfaction happens when two parties to a contract, by a subsequent contract, have satisfied the first previous contract, and the subsequent contract has been executed.

What does this mean in simple, plain English?

Well, there are two parts to this law. In a nutshell, the execution of this new, second agreement may amount to a satisfaction of the first, older former contract for two reasons:

1. First, where it is so expressly agreed by the parties (both people state so); or

2. Second, if there was no such agreement to satisfy the first contract, if the new promise is founded on a new consideration (a promise to do something like pay money), the taking of it is a satisfaction of the former agreement.

Here is a good and easy example to understand what it means:

What if I had a contractual agreement with my Uncle Bob that I would hire him to build me a backyard shed for $30,000? Uncle Bob and I agree that I will pay him $10,000 to start the project and $5000 at the end of each week until he is finished.

Unfortunately, during the course of the shed building, Uncle Bob starts drinking again and can barely pick up a hammer to nail a board in straight. The shed turns out completely lopsided and crooked. I tell Uncle Bob that there is no way I am paying him $30,000 for this shed that looks like the leaning tower of Pisa. So, Uncle Bob and I make a new agreement, subsequent from our first contract where I pay him $20,000 rather than the $30,000 I originally promised him.

What is the consideration in this new subsequent agreement? The consideration is that for a $10,000 savings, I gave up what I was entitled to: a well-constructed shed. Uncle Bob gives up his right to full price to avoid being sued for a shoddy performance. Once accord and settlement has occurred, Uncle Bob and I have given up the right to sue for more money under this settlement agreement.

Months later when Uncle Bob is back on the wagon, can he sue me for the $10,000 I was supposed to pay him from the first contract? Can I sue him because I am still mad about the ugly crooked eyesore in my backyard? No! Accord and satisfaction has occurred.

As the Georgia courts have ruled: "Accord and satisfaction is an agreement between two parties to give and accept something in satisfaction of the right of legal action which one has against the other, which when performed is a bar (a blockade) to all actions on this account. Woodstock Rd. Inv. Properties v. Lacy, 149 Ga. App. 593, 254 S.E.2d 910 (1979); M.W. Buttrill, Inc. v. Air Conditioning Contractors, 158 Ga. App. 122, 279 S.E.2d 296 (1981).

Have more questions? Read more here and consider contacting us today to schedule an appointment.

Continue reading "Georgia Business Lawyer Explains Accord & Satisfaction: When Does A New Contract Cancel The Old Contract?" »

This is a video clip that would be hilariously funny if it was not so true. This is a conversation between an injured person and an insurance company adjuster. The insurance company adjuster represents the drunk driver who caused the injured person's broken legs and brain injury.

Many people make the horrible mistake of trusting the insurance adjuster who represents the person that hurt them. No matter what type of injury case you are involved in, this is the worst thing you can do. The insurance adjuster is not on your side! Their only goal is to try and get you to settle for as low of an amount of money as possible.

No matter how nice they may seem, they are not your friend and they do not have your best interest at heart. Do not give them a statement. Do not sign any release forms. Do not talk to them or anyone else before talking to an attorney.

Sometimes we meet injured plaintiffs who thought they could "out smart" the insurance company and settle their case themselves. Unfortunately, they do not understand who and what they are going up against--and the result is very damaging.

As you can see from this video, the insurance company's standard defense will be to try and deny that their insured had anything to do with causing your injuries as well as to deny that you are really even injured. And if you are injured, they will scour your past medical records and argue that your injuries had something to do with a pre-existing condition.

Don't go it alone! If you are suffering any type of problem make sure you seek counsel to understand all your rights and to protect your legal interests.

The second fatal collision occurred last week in Moultrie, Georgia this time involving a motorcycle and truck. The Georgia State Patrol investigators reported that a 1996 Toyota Tacoma, driven by an 81 year old man named James Henry Smith, failed to yield when crossing a road, hitting a motorcycle that was driven by 30 year old Randy Larry Harris.

Very sadly, Mr. Harris was ejected from his motorcycle and died at the scene. Mr. Harris, a young man at age 30, tragically left behind a loving wife, children, and large extended family from West Berrien. He was a diesel mechanic and shop supervisor at the Berrien County Bus Shop, and a member of Ebenezer Baptist Church. The elderly driver who hit him was given a citation for failing to yield.

Very sadly, motor vehicle crashes such as this one are the leading cause of injury and death in the United States. The most recent 2010 report put out by the CDC (Center for Disease Control) reports that motor vehicle crashes are the leading in fact the cause of death among those age 5-34 in the U.S. The financial impact is also significant: the lifetime costs of automobile crash deaths and injuries among Americans was listed at $70 billion a year just a few years ago.

Good Georgia Lawyer urges our lawmakers, city and state leaders to continue to develop programs and policies that will change behaviors to keep drivers, motorcyclists, bicyclists, and pedestrians safe on the road and fight against such terrible tragedies that result in the loss of loved ones. Although recent legislation has been passed, there is more to be done in order to protect Georgia citizens from dangerous vehicle collisions.

In the event a Georgia citizen is injured or killed as the result of someone else's negligent driving, then the defendant driver is usually held liable for a failure to exercise reasonable care and caution while driving or violating Georgia Rules of the Road which include failure to yield, running red lights, reckless speeding, hit and runs and more.

In a successful personal injury case, the injured Georgian or their family may receive damages, which is money given as compensation to help the injured person and their family. In Georgia, there are two major categories of damages that courts may award the injured - compensatory and punitive damages. Punitive damages punish the offender and deter them from hurting someone else again. Compensatory damages can help medical bills, funeral costs, pain and suffering.

The law firm of Williams Oinonen LLC urges all Georgians to drive safe: always exercise care and caution while travelling on the roadways.

Sometimes unavoidable emergencies happen. Lightning strikes. Tornadoes blow through Georgia. Floods, fires, and other natural disasters occur. These are called in legal terms "acts of God." What does Georgia law say about God's actions having an effect on a contract?

The Official Code of Georgia Annotated § 13-4-21 actually has a section entitled "Effect of Act of God." No, this is not a religious passage. Rather, this is referring to natural disasters and the like which are all beyond the control of humans, and how these acts have an effect on the parties responsible for performing a contract.

Not everything is considered an act of God. Wars are not. Felder v. Oldham, 199 Ga. 820, 35 S.E.2d 497 (1945). Neither are "reasonably expected rains." Tasker v. Baugh & Johnson, 124 Ga. 846, 53 S.E. 266 (1906). Of course we all know in Georgia that heavy rains are very reasonably expected, especially in the summer time! Also, an injury (like those caused by an automobile collision) is not an "act of God" if it is caused by the negligence of man. Georgia S. & F. Ry. v. Barfield, 1 Ga. App. 203, 58 S.E. 236 (1907)

Act of God was defined by the Georgia courts over 100 years ago to mean any "accident produced by physical causes which are irresistible; such as lightning, storms, perils of sea, earthquakes, inundations, sudden death, or illness. [Also] an act of God excludes all idea of human agency." Cannon v. Hunt, 113 Ga. 501, 38 S.E. 983 (1901).

The statute clearly explains that if the performance of a contract becomes impossible as a result of "an act of God," such impossibility shall excuse the non performance of the contract, except where, by proper prudence, such impossibility might have been avoided by the person who had promised to do something.

It is always good to have an "Act of God" clause in a contract in the unfortunate rare event something does happen which makes the contract impossible to perform. For example, what if I decide to rent your big red barn for my wedding day reception country hoe-down shin-dig? It is the perfect space for the wedding reception luncheon and has a nice wood floor for a dance. It is also perfect to fit the 200 plus guests I plan to invite.

You and I have a contract which states that I agree to pay you $1000 to rent your big red barn on my wedding day. Unfortunately however, lightening strikes and your big red barn burns down to the ground one month before I am about to get married.

What does the law say about the legal obligations of our contract? Can I sue you now for not being able to perform your end of the bargain---letting me host my wedding reception in your barn? Well, the law is clear. O.C.G.A. § 13-4-21 says no. An "act of God" has intervened and it is now impossible to perform your end of the contract. Now it is likely that you will need to return the $1000 to me in order to avoid a claim of "unjust enrichment," nevertheless, I cannot sue you for failing to provide me your big red barn for my wedding day.

This is an example of how the legal theory of "impossibility" can be a strong defense to performing a contract. A good contract will have an actual "Acts of God" clause in it. Whether you are an atheist or devoutly religious, an "Acts of God" clause in a contract obviously refers to what happens if there is some emergency (not caused by a human) that renders the contract impossible to perform. It is always good to have the parties agree on "plan B" ahead of time, in writing, as part of the contract.

To understand your contractual legal rights and obligations better, it is always a good idea to consult with a good Georgia lawyer.

Continue reading "What If It Is Impossible To Complete A Contract, Can You Get Out Of It? Acts of God And Other Impossibilities Explained" »

This is part two of our article about cancelling contracts within a three day cooling off period in Georgia. The three day cooling off period is actually federal regulation which is very narrowly applied, so make sure you carefully read part one of our article before reading the following.

It is also important to understand that even if the three day cooling off period does not apply to the facts of your case, there may be other conditions and reasons (fraud, misrepresentation, mental/age incapacity, illegality unfair trade practices, and more) that may permit you to rescind (get out of) a contract. Thus, it is is well worth your while to schedule a legal consultation to immediately determine your rights.

Nevertheless, if in fact the three day cooling off period does apply, in connection with any door-to-door sale or sale that is anywhere other than the place of business of the seller, (i.e. NOT the seller's store but at a place like your home, a conference center, a dormitory, etc...), it constitutes an deceptive act or unfair practice for any seller to:

(a) Fail to give the buyer a fully completed copy of any contract in the same language, (e.g., Spanish), that was primarily used in the oral sales portion of the presentation showing the transaction date, name and address of the seller, and near the section in the contract for the buyer's signature or on the front page of a receipt, the following notice of cancellation, in bold face, in a minimum of size ten font stating:

"You, the buyer, can cancel this transaction at any time prior to midnight of the third business day after the date of this transaction. See the notice of cancellation attached for explanation of this right."

(b) Fail to furnish each buyer, a notice of cancellation that explains that they may cancel the transaction, without any obligation or penalty, within THREE BUSINESS DAYS from the above date.

If the buyer cancels, they must receive back their money within ten days and the buyer must make available to the seller at his or her home, any product that had been delivered to them under the contract. They need to return the product in good condition, or they must follow the instructions of the seller regarding the return shipment of the goods at the seller's expense and risk.

If the buyer makes the goods available to the seller and the seller does not pick them up within 20 days of the date of Notice of Cancellation, the buyer may keep or dispose of them. If the buyer fails to return the goods, then they remain liable for the contract.

(c) Fail, before providing copies of the "Notice of Cancellation" to the buyer, to complete the notices by entering the name of the seller, the seller's business address, the sales transaction date, and the date of cancellation.

(d) Fail to inform the buyer orally, at the time of the contract, of the buyer's right to cancel.

(f) Misrepresent the buyer's right to cancel.

(g) Fail to honor any valid notice of cancellation by refunding payments, etc.

(h) Sell the contract to a third party before the three day cancellation period is up.

(i) Fail, within 10 business days of receiving cancellation, to notify the buyer whether they intend to repossess any goods that were sold.

As stated earlier, this three day cooling off period falls under a federal regulation, specifically from the FTC (Federal Trade Commission) which outlines the rules concerning the cooling off period for sales made at homes or certain other locations. The three day cooling off period only applies to a specific, select type of sales. However, as mentioned previously, we cannot over-emphasize the importance of obtaining legal counsel, because even though the "three day cooling off period" may not apply in your situation, other legal theories may apply which might permit you to rescind (get out of) a contract.

However, time is of the essence in all of these situations. Thus, it is important to immediately meet with an attorney who can actually sit down and review your contract with you and listen to all the facts and circumstances of your situation in order to be able to properly advise you of your legal rights.

Continue reading "Cancelling a Contract After Three Day Cooling Off Period: Georgia Contract Law Explained--Part Two" »

Generally, there is no cooling off period in Georgia except for very rare exceptions, however that doesn't mean you necessarily are trapped in a contract. There are other conditions and reasons (for example fraudulent misrepresentation, illegality, incapacity, unfair business practices, and more) that may permit you to rescind (get out of) a contract. However, time is of the essence so it is essential to seek a good Georgia lawyer who can help interpret your contract and advise you of your legal rights concerning the facts of your case.

In general, the "three day cooling of period" applies under federal law for only very specific contracts.

Three Day Rule Generally Applies Only Under The Following Conditions:

1. A seller went "door to door" and sold, leased or rented you a consumer good or service with a purchase price of $25 or more and;

2. They (not you) solicited the sale (even if it was following an invitation by you the buyer), and;

3. The offer to purchase was made anywhere other than the place of business of the seller, i.e. NOT the seller's store but at a place like your house, a convention center, a dorm, a workplace, etc...

There Is No Three Day Cooling Period If The Sale Was:

(1) Made pursuant to prior negotiations you the buyer had while visiting a retail business location which had a permanent fixed location (like a store) where the goods were exhibited (like a furniture shop) or the services were offered for sale on a continuing basis (like a computer repair shop); or

(2) The consumer is afforded the right of rescission by the provisions of the Consumer Credit Protection Act; or

(3) The buyer initiated the contact and the goods or services were required for an immediate personal emergency of the buyer, and the buyer gave the seller a separate dated and signed personal statement in the buyer's handwriting explaining the situation, acknowledging and waiving the right to cancel the contract within three days; or

(4) The sale was conducted and sold entirely by phone or mail; and without any other contact prior to delivery of the goods or performance of the services; or

(5)The sale was where the buyer initiated the contact and requested the seller to visit the buyer's home for the purpose performing maintenance or repairing personal property. (However, if in the course of such a visit, the seller sells the buyer the right to obtain additional services or goods other than replacement parts necessarily used in performing the maintenance or in making repairs, the sale of those additional services and goods do not fall within this exclusion); or

(6) Pertaining to the sale or rental or real estate property, to the sale of insurance, or to the sale of securities or commodities by a broker-dealer seller who is registered with the SEC.

There are always exceptions to the rule, so if you suspect you've been "done wrong" immediately seek legal counsel to learn what your legal rights and obligations are.

Continue reading "Can I Cancel My Contract Within Three Days & Is There A Cooling Off Period In Georgia?--Part One" »

Julie Oinonen, partner at Williams Oinonen LLC just won a trial against a sitting Atlanta judge who was a defendant, receiving a substantial money judgment in favor of her client. Our client was a very nice lady from Georgia who had to sue her two former lawyers, one a sitting Judge in Atlanta, for breach of contract.

Our client had paid her two former lawyers money. Amazingly, the Judge denied ever receiving this money and astoundingly, even after our client had paid him thousands of dollars, added insult to injury by still insisting our client owed him money!

At trial however the Judge was impeached with prior inconsistent statements he had made in writing that we had blown up as large poster board exhibits during his cross examination. We are very grateful that the actual Judge who ruled on our case had the courage to render such a fair judgment even though it was against a fellow colleague/judge.

Our civil justice system is a constitutional right for all Americans based on the 7th amendment. You have a constitutional right to a civil jury when you have been injured or harmed due to a wrong or injustice. There are too many big corporations, insurance companies, and rich and powerful lobbyist groups who have funded big media campaigns to get the American public to believe in "tort reform" or "frivolous lawsuits."

The civil justice system however is the one way the little guy, the poor, and the powerless can seek an equal footing to obtain justice through a Constitutional right that is preserved in our 7th amendment, the right to a jury. This Constitutional right of the civil justice system is something we need to protect and hold dear, whether we are a Republican, Democrat or Tea Partier.

The Judge defendant may appeal our client's winning verdict, but we will be prepared.

This is the second part of our article concerning the rights of Georgia public school teachers relating to termination, non-renewal of contracts, demotions, reprimands and the like.

You As A Contracted Public School Employee, Teacher Or Principal Are Entitled To Proper Service:

All notices relating to suspension from duty must be served to the employee either personally, or by statutory overnight delivery, or by certified mail. Service is considered "perfected" when it is deposited in the United States mail, sent with sufficient postage stamps, and delivered to the last known address of the employee.

You Have A Right To An Attorney Present:

Any teacher, principal, or other public school district contract employee against whom such charges are brought shall be entitled to be represented by counsel and, if upon request, can also subpoena witnesses and production of documents.

The Requirements Of The Hearing:

(1) The hearing is conducted in front of the local school board, or they can designate a tribunal made up of between three to five impartial people who have expertise in academics. This tribunal will then submit findings and recommendations to the local school board who will make the final decision.

(2) The hearing will be transcribed and the board is responsible to pay for that expense. The transcript does not need to be typed unless the decision is appealed to the State Board of Education which in that event whomever is making the appeal must pay.

(3) An oath must be taken by all witnesses during the hearing to tell the truth.

(4) All questions relating to legal matters such as admissibility of evidence is decided by the chairperson or presiding officer and can be appealed. In all hearings, the burden of proof shall be on the school system, and it shall have the right to present the opening and closing.

Decision And Appeals:

The local board must make a decision at the hearing or within five days of the hearing. If a tribunal hears the matter they must offer their recommendations within five days and then the school board has ten days to make their final decision. Appeals can be taken to the state board of education.

If you are a teacher or principal who finds yourself in this situation, don't go it alone. Remember, you are entitled to have an attorney represent you at the hearing.

Continue reading "Legal Rights For Georgia Teachers Relating To Demotion, Termination, Non-Renewal of Contract or Reprimand" »

The Official Code of Georgia §§ 20-2-940, et seq., governs the demotion,
dismissal, and suspension of professional, certificated school district employees in Georgia. This law also governs the termination and suspension of school district employees who have a contract for a definite term. The law applies equally to all employees who have contracts with the school district, but does not apply to at-will employees without contracts.

Termination or suspension can only be based only on the eight grounds listed in
O.C.G.A. § 20-2-940(a), and the school district is required to hold a hearing before this happens. (Suspension is without pay and may last up to 60 days under O.C.G.A. § 20-2-943(a)(1)(b), and the suspended employee cannot be working at this time.) These eight specific grounds for suspension or termination are as follows:

(1) Incompetency--for example, deficient record keeping or a high failure rate of students.

(2) Insubordination--for example, failure to obey instructions.

(3) Willful neglect of duties--for example, failure to complete lesson plans and grades.

(4) Immorality--for example, sexual encounters at school.

(5) Inciting, encouraging, or counseling students to violate any valid state law, municipal ordinance, or policy or rule of the local board of education--for example, encouraging students to protest a board of education policy.

(6) To reduce staff due to loss of students or cancellation of programs--for example, due to budgetary considerations.

(7) Failure to secure and maintain necessary educational training--for example, a teacher who does not possess the necessary teacher certifications and failed to obtain it during a provisional probationary period.

(8) Any other good and sufficient cause--for example, making false statements about the school administration or assaulting a student.

Notice must be given to the employee of the hearing and charges at least ten days
prior to the date of hearing on the proposed termination.
At a minimum, the notice must include:

(1) The cause or reasons for suspension, discharge or demotion in detail enough that permits the employee to refute it if it is made in error.

(2) The names of witnesses and a concise summary of evidence that will be utilized to prove the case against the employees. The names of all new witnesses must be given as soon as practical.

(3) The place and time of the hearing.

(4) That the charged employee/teacher shall be given subpoenas (if requested) requiring the production of documents or compulsory attendance of witnesses as provided by law.

The burden of proof is on the school district and the employee has the right to appeal to the State Board of Education and later to the court system if necessary. In our next article, we will discuss service, the hearing itself, and the right to bring counsel.

Most importantly, if you are a teacher or a public school employee facing such a hearing, don't go it alone. Consider contacting our law firm for more information and legal assistance to aid you through the process.

New Georgia biking law General Assembly House Bill 101, which went into effect July 1, provides for safer bicycle riding for bicyclists and the motoring public.

It also spells out minimum safety guidelines for bicycle lanes in Georgia.

Georgia bikers say they hope the new law encourages motorists and bikers to be more careful. Reports of accidents between motorists and cyclists in 2009 and 2010 faulted cyclists at 48 percent of the time and motorists around 39 percent of the time. The remaining percentage was for no fault or when both parties (the cyclist and motorist) were both to blame.

Good Georgia Lawyer is encouraged that new biking laws were instituted which seek to protect bikers but urges city council and the legislature that there is more to be done in order to protect Georgia citizens. We encourage the city of Atlanta to institute a public service campaign that promotes biker safety and requires bikers to wear helmets as many other cities do. All too often bikers have suffered death or irreversible brain damage due to a head injury that might have been preventable with a helmet. All too often we see bikers riding the streets of Georgia on a death wish: weaving in and out of busy traffic lanes without a helmet, running red lights, and riding in the dark without visible clothing or lights.

Williams Oinonen LLC supports our biking clients and want to make sure cyclists' safety is protected at all times. We encourage all bikers to take the right precautions (wearing helmets, obeying road rules, staying to the right as much as practical) to avoid dangerous situations that put their life at risk.

For motorists--it is not worth putting a cyclist's life at risk and having to live the rest of your life knowing you were at fault for injuring or killing another human being. We encourage motorists to always give cyclists space, as though they were another car!

Sharing the road is a two-way street: motorists and cyclists need to look out for each other!

The Official Code of Georgia § 13-2-2 sets out "rules for interpretation of contracts generally." The law states that the following rules, among others, shall be used in order to arrive at the truthful interpretation of a contract. This means if you are having a business dispute with your partner, vendor, tenant, or another company and a question turns on what the contract between you two actually means or whose version (yours or theirs) interprets the contract correctly, consider the following rules:

(1) Parol evidence is inadmissible to interpret the written contract.--Parol evidence is anything that is outside of the four written corners of the piece of paper that the contract is actually written on. This could mean conversations that you had over the telephone or notes written on a dinner napkin at a restaurant you were eating at during contract negotiations. The only time this outside evidence ("parol evidence")should come in to interpret the meaning of the written contract is if it the written contract is somehow ambiguous (unclear) and it is obvious that the written contract wasn't intended to represent the entire agreement.

(2) Words generally should be interpreted by their usual and common meaning; but a technical word used in particular trades should be interpreted the way they are generally used in that line of business. The local use of a word can be brought in as evidence to determine the actual meaning intended by the parties who entered the contract. In other words, if you and I were chicken farmers and we entered into a contract where you would sell me 500 Rock Cornish broilers, if there was any dispute as to what a "broiler" was, the courts would look to the ordinary local use of how Georgia chicken farmers interpret "broilers."

So for example, the courts would not interpret "broilers" to mean a grill you'd set on the stove for broiling and assume that you and I were in the pots and pans business. Rather, they'd look at the language of the Georgia chicken farmer industry to interpret what a "Rock Cornish broiler" actually means.

(3) The custom of any trade or business is only binding only when it is such a universal practice that it justifies the interpretation of the contract. This speaks for itself. We would want to know that the custom and practice of chicken farmers in Georgia and as long as it is a "universal practice" we would be able to use it in order to interpret the contract.

(4) Additionally, when you interpret a contract you should interpret it in such a way that will uphold the entire meaning of the contract, not just a few parts here and there.

(5) If the meaning of the contract is at doubt, and you have to interpret it in such a way that favors one party over the other, you should interpret it against the party that actually drafted (wrote up) the contract. This is because you assume that the writers of the contract were at the biggest advantage and the party that did not write it is already at a disadvantage so you should interpret in their favor.

Consequently, if you are the party that is in charge of drafting the contract, you had absolutely be sure that you have good competent legal counsel drafting your legal document. If you don't and you just throw something together that you cut and pasted off the internet, you are bound to run into trouble later on. Because you were the one who actually drafted the contract, the courts may disfavor your side if having to interpret the meaning of the contract in a business dispute.

Thus, always make sure the contract is drafted in such a way that protects your legal rights. We regularly represent clients involved in litigation disputes who often wish they had hired us much earlier so they might have avoided or prevented the litigation dispute in the first place.

What The Cardinal Rule Is For Interpreting Contracts:

Finally, we need to mention what the cardinal rule is for interpreting contracts as explained in the Official Code of Georgia Annotated § 13-2-3. The cardinal rule of interpreting the contracts is to ascertain ("figure out") what was the intention of the parties entering into the contract. If that intention is clear, it doesn't contradict a rule of law, and sufficient words (enough written descriptions) show what this intention is, then the "parties intent" is what the courts will enforce irrespective of all other technical or arbitrary rules.

There have been times where we have had clients who have a default judgment against them for a case that they never even knew existed, i.e. proper service and notice were not provided. The good news, is that in order for a judgment to be valid proper service and notice is required.

What is Service of Process?

Technically, service of process is the means whereby "the court compels the appearance of a defendant before it for compliance with its demands. The term 'process,' in fact, includes any and every writ, rule, order, notice, or decree, including any process of execution, that may issue in or upon any action, suit, or legal proceedings. The object and purpose of process is to bring the defendant into court." See Davis & Schulman § 8:1. Definition and object of process and service thereof.

For over 150 years in Georgia, the purpose of this service of process was to provide the defendant notice of the lawsuit against him and bring him into court, service being the last step in the beginning of this legal action. Leonard v. Stocks, 12 Ga. 546, 1853 WL 1539 (1853); McDougald v. Carey, 12 Ga. 553, 1853 WL 1540 (1853).

Void service is the same as no service, and for over the past century, judgments rendered by a Georgia court not having jurisdiction of the person on account of void service are absolutely null and void. Parish v. Parish, 32 Ga. 653, 1861 WL 1431 (1861); Hobby v. Bunch, 83 Ga. 1, 10 S.E. 113 (1889). In a case where a Defendant has never been appropriately served with a complaint there is no way they could adequately respond to it with an answer within the thirty days it was due.

Due Process and Notice Explained

It is fundamental that notice to property owners is required prior to any action affecting vested property rights. Due process under both the 1983 Constitution of Georgia and the United States Constitution demands adequate notice that is reasonably likely to actually provide notice. See Art. I, Sec. I, Par. I of the 1983 Constitution of Georgia and the Fifth and Fourteenth Amendments of the United States Constitution.

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is that notice---a written warning to all interested parties of the immediacy of the action is given which provides them an opportunity to present their objections. The notice must reasonably communicate the required information, and must afford a reasonable time for those interested to appear. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-315, 70 S. Ct. 652, 94 L. Ed. 865 (1950); accord Hamilton v. Edwards, 245 Ga. 810, 811, 267 S.E.2d 246 (1980).

What is the result of not having proper service or notice?

When a party has not been provided service or notice of the action, to set aside the default judgment is not only authorized, but it would constitute an abuse of discretion to fail to do so. See O.C.G.A. §§ 9-11-60(d) and 15-10-43(g); Crenshaw v. Crenshaw, 267 Ga. 20, 21(2), 471 S.E.2d 845 (1996); Johnson v. Mayor & City Council of City of Carrollton, 249 Ga. 173, 175-176(3), 288 S.E.2d 565 (1982).

Additionally, failure of counsel or a party acting pro se to receive notice of trial is such a defect as will authorize the setting aside of judgment. Beach's Constr. Co. v. Moss, 168 Ga. App. 462, 309 S.E.2d 382 (1983). The failure of counsel or a party acting pro se to receive notice of a hearing constitutes such a defect as will authorize the setting aside of the judgment under subsection (d)(3) of Housing Auth. v. Parks, 189 Ga. App. 97, 374 S.E.2d 842 (1988); TMS Ins. Agency, Inc. v. Galloway, 205 Ga. App. 896 (1992).

Thus, if a defendant was not provided adequate notice while they acted pro-se, the Court should authorize the setting aside of the judgment in order to avoid an abuse of discretion.

If you ever find yourself in this situation, retaining a competent lawyer to assist you is vital. A good lawyer will file a motion to vacate or set aside judgment and argue that based upon both law and equity, your motion to vacate judgment should be granted.

Many commercial contract agreements have provisions for attorney's fees in the event one party breaches the contract. The question is: what does Georgia law say about collecting attorney's fees from a contract? The Official Code of Georgia Annotated law, O.C.G.A. § 13-1-11, talks about the validity and enforcement of obligations to pay such fees.

Specifically, Georgia law O.C.G.A. §13-1-11 states that obligations to pay attorney fees and an interest rate shall be valid, enforceable, and collectable as part of a debt if collected by an attorney, as long as it is subject to the following:

(1) If your contract provides for attorneys fees in some specific percent of the principle and interest it will be valid and enforceable, but you can never charge over 15 percent of the principal and interest.

(2) If the term in the contract just doesn't specify a percent, then the provision will be interpreted to mean 15 percent of the first $500.00 of principal and interest and 10 percent of the remainder.

(3) You need to first notify the person who owes you the money in writing that they have ten days after receiving the notice to pay the principal and interest they owe without having to pay for attorney's fees. If they pay the principal and interest in full before ten days then they won't be obligated to pay attorney's fees. If the person who owes you the money refuses to receive delivery of your notice, it will still be considered giving notice.

You do however need to make sure you request the attorney's fees in your demand letter because if you don't include any reference to the attorney fees provision in your contract, then you have no right to them. And, if you need to sue to collect the money you are owed, a court cannot award you them either if you never provided notice. E.g. Quintanilla v. Rathur, 227 Ga. App. 788, 490 S.E.2d 471 (1997). Trust Assoc. v. Snead, 253 Ga. App. 475, 559 S.E.2d 502 (2002).

Since you do need an attorney to collect "attorney's fees," you do need to make sure you have competent legal counsel representing you in your business dispute involving a breach of contract.

But this is a good thing. Using an attorney's fees provision is a good way to make sure you cover the cost of your legal fees in the event you get into a business dispute. Having an attorney to help you navigate complex Georgia law is much better than going it alone. In fact, going it alone is the best way to end up in a bad situation. Unfortunately, many times our business clients come in after their situation leaves them with no choice other than retaining legal counsel.

Hire an attorney who can set up preventative measures that place your business in the strongest financial and legal position possible. Smart business owners know this and know that retaining an attorney in order to set up their business to ensure that preventative measures are in place is the best way to save money and make money down the road. For example, it is key that competent legal counsel draft your contract in order to carefully preserve your legal rights. Not only to protect your business interests, but also so they can do the " smaller things" ensuring that your contract allows you to collect attorney's fees in the event you must go to court for a breach. These "smaller things" end up being huge, in the long run.

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Sometimes the different types of names for contracts can be confusing. Clients may be unclear as to what type of contract they have or what these words mean. Here is a brief explanation of the various kinds of contracts under Georgia law in simple plain English:

1. Executed Contract: This means that both parties to the contract have done what they are supposed to do. For example, if you pay me $2000 to deliver some cows, chickens, and horses to your farm and I do it, we have an "executed contract." This means you did what you were supposed to do (pay me the money) and I did what I was supposed to do (deliver the farm animals.) There is nothing left to be done. O.C.G.A. § 13-1-2.

2. Executory Contract: Now let's say that you paid me the $2000.00 and I delivered you the cows but I still had to deliver the chickens and horses. This is an executory contract which means that something still remains to be done by one of the parties to the contract. O.C.G.A. § 13-1-2.

3. Contract of Record: When a plaintiff (the person who claims injury over a contractual dispute) sues another (the defendant) in court over a contract and the Court renders judgment in favor of the plaintiff that court judgment becomes a contract of record. O.C.G.A. § 13-1-3. So for example, let's say you hired me to represent you in a breach of contract dispute against Bob who was failing to deliver the chicken, horses, and cows you had paid him for. We sue Bob for breach of contract. The judge rules in your favor and awards you $10,000. That means that judgment becomes a "contract of record."

4. Specialty Contract: This is just a fancy term for a "contract under seal" which is rarely done, but is considered a formal contract of "higher dignity" and is also subject to a longer statute of limitations. O.C.G.A. § 13-1-4.

5. Parol Contract: This is generally an oral contract and is just as legally enforceable as a written one. (Note there are limitations. Certain types of contracts always must be written.) O.C.G.A. § 13-1-6

6. Absolute or Conditional Contracts: A contract may be either absolute or conditional. Whenever you see words like "as long as" you know something is conditional. For example, a contract that says I will hold a pool party for you this Saturday in exchange for $1000.00 as long as it is sunny weather would be a conditional contract. The condition of course being the weather. If it rains on Saturday, there is no obligation to perform. O.C.G.A. § 13-1-7

7. Entire or Severable contracts: A contract can be "entire" which means the entire contract stands or falls together. This is not an ideal contract and is a good reason as to why it is so important to have an attorney draft your contract. For example, the lawyers at our firm draft contracts that are severable, meaning if it turns out that a certain portion of the contract ends up being ruled as void or illegal by a judge, the entire contract won't get thrown out on its head. Rather, that portion (the invalid portion) will be "severed" from the contract and the remaining portion of the contract will still apply. O.C.G.A. § 13-1-8

Anytime it is necessary to enter into a contract with another party or enter into a business relationship, it is worth doing it right! The law can be very technical and you want to make sure that in the event of a future misunderstanding or dispute that the contract will be interpreted by a judge in a way that favors you. The only way to insure this is to seek legal counsel prior to entering into a contract.

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Do I have a contract? Is my contract enforceable? These are all questions that our clients sometimes ask. Today's article will discuss the definition of what a contract is in Georgia.

What is a Contract?:
Under Georgia law, O.C.G.A. § 13-1-1, a contract requires: 1. Two parties, 2. An agreement, 3. Agreeing to do or not do a specific thing.

O.C.G.A. § 13-3-1 further explains that to constitute a valid contract "there must be parties able to contract." Additionally a contract requires "a consideration moving to the contract." Also the parties need to have "assent" to the contract's terms as well as "subject matter" that a contract is able to operate on.

What does all this mean? Let's take it step by step.

Do you have a contract? The Requirements of a Contract:

The first requirement: the parties must be "able to contract." This is important because if you do not meet the requirements for being able to contract, the contract could be deemed voidable. For example, a voidable contract would be if your kid is age 16 and he uses a fake id to purchase a Camaro at Crazy Al's Used Car Lot. As a minor, he would not be able to contract and thus the contract would be deemed voidable, meaning if you, the parent found out about the Camaro you could immediately rescind the contract. Or if he, at age 17, changed his mind and wanted to get out of the contract he could. But, if he turned 18 (the legal age to enter into contracts) and he re-affirmed the contract (i.e. continued making payments on it) then it would in fact be a legal binding contract since he would be within the age of capacity to make a contract.

The second requirement: the parties need to have "assent" to the contract's terms. What does this mean? This means the terms and conditions of the contracts (the requirements and obligations of each party set forth on the document) needs to have been agreed upon by both parties. If for example, one party held a gun to another party's head and forced them to sign a contract this would not be assent. The contract would not be valid because one of the parties was under duress when forced to sign the contract, therefore the requirement of assent would not be met. Another example is that in order to show "assent" the contract's terms need to be plainly expressed and explicit enough to clearly show what the parties agreed upon. Therefore if a contract's terms are incomprehensive or incomplete--a bunch of "gobbelygook" that doesn't make sense--this type of contract would not be enforced. Patel v. Gingrey Assocs., 196 Ga. App. 203, 395 S.E.2d 595 (1990). The terms need to be certain, clear, definite and precise enough so that neither party could reasonably misunderstand it. Liberty Nat'l Bank & Trust Co. v. Diamond, 229 Ga. 677, 194 S.E.2d 91 (1972).

The third requirement: "a consideration" is required in a contract. Consideration is anything of value. The most common type of consideration is money. For example, $200,000 in exchange for a house in a real estate contract or $18000 in exchange for a car in a sales contract are examples of consideration. One party gives something of value (a car or house) and the other party gives something of value (money.) But consideration doesn't need to be money. It can be something else of value. For example, a promise to do something or not do something is a type of consideration. I promise to paint your house in exchange for you letting me use your swimming pool all year. I promise to give up smoking if you promise to give up drinking. Here, the "something of value" is a promise to not do something rather than do something.

The fourth requirement: "subject matter" that a contract can operate on. Finally, a contract always needs to be about something that can be done. Thus, a contract can be "discharged" if it is simply impossible to do it. For example, if you enter into a contract to rent a wedding hall for your big day and it burns down, there is no way the owner can perform his end of the bargain. He may be forced to give you back your money, but he will be discharged due to impossibility if the place you rented is now burned down. There are many examples of how a contract could be discharged (the term of service is over, a party dies, it merges into a new contract) but the point is that all require "subject matter" that a contract can actually operate on.

Note that we did not mention a writing requirement. Although a contract many times is required to be in writing depending on what type of contract it is, there are many situations where an oral agreement still is an enforceable as long as the evidence shows an agreement or promise that was made. Mooney v. Mooney, 245 Ga. App. 780, 538 S.E.2d 864 (2000). We will discuss the requirements of whether a contract must be in writing in a future article. Nevertheless, for right now, know that the four general requirements of an explicit contract are: 1. Both parties are legally able to contract. 2. Assent: a mutual meeting of the minds of the parties with the terms of the contract clear. 3. Consideration--anything of value and 4. Subject matter that a contract can operate on.

These four major requirements of contract law in Georgia are important to understand because if you are seeking to enforce a contract in Georgia, you need to be able to show that all the essentials of the contract have been met. Associated Muts., Inc. v. Pope Lumber Co., 200 Ga. 487, 37 S.E.2d 393 (1946). For further information on this issue, contact Williams Oinonen LLC at 404-654-0288 to schedule an appointment to discuss your contract.

Georgia wrongful death lawyers at our firm have explained the laws concerning wrongful death before in other articles. Today's article will explain when a minor can still sue for the wrongful death of their mother or father who died, even if it happened years ago.

An action for wrongful death in Georgia is solely created by statute and does not exist in common law. What this means is that the Wrongful Death Act in Georgia, O.C.G.A. § 51-4-1 et seq., must be strictly interpreted and not extended beyond its plain meaning and explicit terms.

Wrongful Death Statute of Limitations Extended for Minors:

The language of the Act, given its plain and ordinary meaning, does not contain a separate, internal statute of limitation that applies specifically to a wrongful death claim. As a result, O.C.G.A. § 9-3-33, the general two-year statute of limitation for personal injury claims, applies to wrongful death claims that do not arise from medical malpractice.

Under § 9-3-33, actions for injuries to the person generally shall be brought within two years after the right of action accrues.

Consequently, the courts have made clear in Georgia that if you have a wrongful death in Georgia, you must sue within the two years of your loved one's passing in order to secure your claim. However, if your mother or father died while you were still under the age of 18, i.e. a "minor," you will still have an additional two years after you turn 18 to file a wrongful death lawsuit.

Wrongful Death: Terminating Life Support Without Family Approval:

Under State of Georgia law, the decision of whether to continue or terminate life support belongs exclusively to the patient's family or legal guardian, not to the hospital, the doctors, or the State. A claim based upon a physician's termination of life support of a child over the objections of the child's parents constitutes a claim for wrongful death. DeKalb Med. Ctr., Inc. v. Hawkins, 288 Ga. App. 840, 843 (Ga. Ct. App. 2007)

In 2007, an important case arose after a young mother named Tara Hawkins fell and sustained severe head trauma. When Hawkins arrived at the Dekalb Medical Center, she was unconscious and sadly, she never regained consciousness. Hawkins, who was pregnant, remained on life support for nearly four months.

During that time, some of her physicians believed that she was brain dead and that her baby would not survive. Based upon these opinions, DMC repeatedly recommended an and the termination of her life support. Hawkins' mother refused to agree to the abortion or termination of life support. On March 16, 2004, a DMC nurse discovered that Hawkins had spontaneously given birth to her son, Emmanuel Hawkins, without any medical assistance. Emmanuel weighed less than three pounds and suffered from numerous medical ailments.

Two days after giving birth, DMC terminated Hawkins life support, and she died that very day. There is no evidence in the record that, prior to terminating life support, Hawkins was terminally ill or that her death was imminent, nor was there any evidence that her brain function deteriorated or that her prognosis changed after Emmanuel's birth. No family member, including Hawkins' mother, had agreed to the termination of life support. Further, Hawkins did not have a "living will" or other advanced medical directive, and there was no court order giving DMC permission to terminate life support without the family's consent.

On May 15, 2006, more than two years after Hawkins' death, her mother, Nonnie Hawkins, as the next friend and natural guardian of Emmanuel Hawkins, filed a lawsuit against DMC, Marshall Nash, M.D., and DeKalb Neurology Associates, LLC. The lawsuit asserted a claim against DMC for "tortious termination of life support," claiming that the hospital discontinued life support without the permission of her mother, the consent of any family member, or a court order.

The Georgia Court of Appeals ruled that based upon the plain language of the statutes at issue, the lack of an internal statute of limitation in the Wrongful Death Act, the lack of language limiting the application of the tolling provisions in the Wrongful Death Act, and the absence of any Georgia appellate court rulings to the contrary, that the minority tolling provision of OCGA § 9-3-90 (a) applies to a wrongful death action brought by a minor for the death of a parent when the action is not based upon medical malpractice.

What this means in plain English is that if you are a person less than 20 years of age whose father or mother was wrongfully killed (outside of medical malpractice reasons) you may still have a wrongful death claim against the person or entity responsible, even if your parent died long ago.

However, because this law is so complex and because the clock is ticking on the expiration date of such a claim, it is important to seek competent, legal counsel as soon as possible.

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