Georgia Injury Lawyer Blog

"How can I get attorney fees in a lawsuit?" This is a question we often hear from clients. Different Georgia laws govern the recovery of attorney fees in a lawsuit. If the actions of the defendant prior to the litigation were done in bad faith and would be considered "stubbornly litigious," then fees may be assessed pursuant to OCGA 13-6-11.

If during the course of the litigation, the attorneys expanded the litigation beyond reasonable or pursued claims or defenses that had no justiciable issues of law or fact, then a party may recover fees associated with that conduct under OCGA 9-15-14.
And, if a party incurs damages as a result of a lawsuit that are beyond attorney fees, they may have an entirely different and separate cause of action pursuant to OCGA 51-7-80.

Finally, after the trial, sanctions can be awarded for frivolous appeals. As with any of these statutes, the party must prove the attorney fees that were actually incurred, the actions the opposing party did to incur such fees, and whether the fees were reasonable and necessary.

Merely prevailing at summary judgment does not automatically merit an award of attorney's fees. Chong v Reebaa Construction, Inc. 284 Ga. App. 830 (2007). Likewise prevailing in an entire case also does not garner an automatic award of attorney fees either. Glynn Brunsick Mem'l Hosp. Autho. V. Gibbons, 243 Ga. App. 341 (2000). If there is at least an arguable support for the position taken, then an award of fees should not be justified. So long as there is some evidence from which a jury could find for the plaintiff a defense verdict does not warrant imposition of fees. Rental Equip Group LLC v. MACI LLC 263 Ga. App. 155 (2003). An award of attorneys fees is not justified where there is arguable legal support for the position taken.

Nevertheless, under OCGA 9-15-14(a), attorney fees are mandatory where a party has asserted a position where there is a complete absence of any justiciable issue of law or fact that it could not have been reasonably believed that a court would have accepted the position. Cavin v. Brown 246 Ga. App. 40 (2000).

Additionally, under 9-15-14(b), a permissive award of attorney fees and litigation expenses is available if: i. the action brought lacked substantial justification (is substantially frivolous, groundless or vexatious), ii. the action was brought for delay or harassment, or iii. the party or attorney unnecessarily expanded the proceedings by discovery abuse or otherwise.

In order to prevent the chilling of actions that prevent stagnation of law, section c provides that no attorney or party shall be assessed attorney fees in a "good faith attempt to establish a new theory of law in Georgia if such new theory of law is based on some recognized precedential or persuasive authority" which might include dissents, federal cases, cases from other states, and positions taken in law reviews or other legal writings.

Want more information?

Continue reading "Good Georgia Lawyer Discusses How To Get Attorney Fees" »

Yesterday, Sam Olens drafted a memo to all departments, agencies, commission, authorities, councils and boards of the state of Georgia. It was drafted in anticipation of Governor Deal signing HB 397 which substantially revises Georgia's Open Records and Open Meetings Acts. HB 397 became effective immediately upon signature of the Governor yesterday.

Mr. Olens stated in his memo to the state agencies that: "Our goal in preparing and championing this legislation was not to substantially revise Georgia's open government law, but, first and foremost, to put it in terms that laymen and public officials alike can more readily understand. Nonetheless, the Act does make several significant changes to prior law, and I write today to highlight several key changes for your reference."

Those changes were mentioned by Mr. Olens as follows:

THE OPEN MEETINGS ACT

1. The Act simplifies the definition of "meeting" to mean any gathering of a quorum
of an agency's governing body at which "any official business, policy, or public
matter of the agency is formulated, presented, discussed, or voted upon."

2. The Act makes clear that all votes must be taken in public. O,C.G.A.
50-14-l(b). Exceptions exist only for votes to authorize settlement of matters in
litigation and for preliminary votes on real estate transactions. See O.C.G.A.
50-14-3(bXl).

3. The minutes requirements for meetings are clarified to include identifying those
who second motions and to identify those voting for or against proposals and
motions except when the vote is unanimous.

4. Minutes must also be kept of executive sessions, though these are not public.
Their purpose is to resolve disputes should a matter go to court regarding an
executive session.

5. In situations involving emergency conditions or health concerns involving a
member, meetings of agencies without state-wide jurisdiction may take place in
whole or part (depending on the circumstances) by teleconference.

6. Meetings of prosecutorial agencies in the state are now not covered by the Open
Meetings Act. O.C.G.A. 50-14-3(aX3).

7. Email communications between members of an agency's governing board are
now not considered a "meeting" although they remain open records.

8. The real estate exception to the Open Meetings Act has been expanded to cover
the sale, lease, and appraisal of real property,
.
9. The personnel exception to the Open Meetings Act has been expanded to allow
closed session interviews for the heads of agencies. The exception, however, now
clearly does not allow closed discussions regarding an agency's employment or
hiring practices.

10. The Act allows discussion in executive session of portions of records not subject
to public review under the Open Records Act when there do not exist other
reasonable means to protect the privacy of the information involved,

11. The Act provides a clearer rule for handling closed meetings when discussions
veer into an area that should be open.

12. The Act increases the penalty to $ 1,000 for first open meetings violations and to
$2,500 for subsequent violations within a 12 month period. It also allows
imposition of penalties in civil actions for negligent violation of the law.

THE OPEN RECORDS ACT

1. The Act now includes "dala" and"data fields" within the definition of "public
record," and it clarifies the electronic records and data that are subject to the Open
Records Act and the obligations of the agency to provide such material.

2. As in current law, agencies must produce the documents they can within a
reasonable period not to exceed three business days, and when they cannot
produce all of the requested documents in this period they must notify the
requester within this period when the documents will be produced.

3, While the Act still permits both oral and written requests, it allows agencies to
designate an open records officer on whom written requests must be made, and it
gives requesters the option of making requests to the head of the agency or the
senior official at a satellite office of the agency, to a clerk so designated as the
agency record custodian or to an angency designated open records officer.
The Act has provisions for providing adequate notice to the public when it
designates an open records officer.

4. Before seeking to enforce the Act in court a requester is required to make a
written request to the agency.

5. The Act clarifies the fees agencies may impose, The cost per page is now capped
at ten cents for letter sized pages.

6. Agencies now do not have to notify requesters of charges less than $25. In
situations where the estimated costs are between $25 to $500 an agency must
estimate the costs for the requester, but may not insist on prepayment before
allowing a requester to review records. If estimated costs exceed $500 an agency
may insist on prepayment before beginning search and production, If a requester
has not paid the charges for a prior request, an agency may insist on prepayment
for future requests until the payment is macle or the issue resolved.

7. Requests for records by civil litigants for use in ongoing litigation must be copied
to opposing counsel and copies of the records produced likewise must be
produced to the counsel ofrecord for the agency unless said counsel elects not to
receive them.

8. The Act clarifies the information a requester should provide when seeking email.

9. Provisions are made for production of records through websites, and the Act
clarifies how this relates to the production of electronic data.

10. As with the Open Meetings Act, the Act increases the penalty to $ 1,000 for first
open records violations, and to $2,500 for subsequent violations within a 12
month period. It also allows imposition of penalties in civil actions for negligent
non-compliance with the law.

Mr. Olens concluded his memo stating that he intends this only to highlight significant changes in the Open Records and Open Meetings Acts. It is not meant to be exhaustive.

If you believe a public agency is violating your rights under the Georgia Open Records Act, contact Williams Oinonen LLC for more information at 404-654-0288.

Purpose:

The Georgia Fair Business Practices Act is the primary law that protects consumers in our state from unfair business practices. The actual purpose of the law as cited in O.C.G.A. § 10-1-399(a) is: "to protect consumers and legitimate business enterprises from unfair or deceptive practices in the conduct of any trade or commerce...." This law forbids any "[u]nfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce...."

Notice Requirement and Statute of Limitations:

Any person injured as a result of acts or practices in violation of the Act may bring a private lawsuit for damages (money) upon giving 30 days' written notice. A claim pursuant to the FBPA must be brought within two years after the plaintiff knew or should have known of the alleged violation.

Who The Law Protects:

The FBPA is Georgia's primary law for consumer protection and since its enactment has been increasingly used as a tool to protect injured consumers. It does not apply to deceptive unfair practices occurring in private, it must be applied solely to consumers in order to protect the public from acts that have the potential to harm all Georgia consumers.

Damages Awarded:

Under the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-399(a), any person who suffers injury or damages as a result of consumer acts or practices may bring a lawsuit and recover both general and punitive damages. Punitive damages are awarded in cases of intentional acts.

Additionally under the Georgia Fair Business Practices Act ("the FBPA") treble or "triple" damages are authorized for intentional violations of the law as well as attorney's fees and the cost of litigation. Civil penalties may also be imposed.

Recently, Williams Oinonen LLC sued a Fortune 500 company for violating the Georgia Fair Business Practices Act against a military veteran. The FBPA was the most powerful tool in obtaining justice for our client in that case. Fortunately, because of the FBPA there is more incentive to keep Georgia consumers safe and accountability when unfair business practices occur. To speak to an attorney about a potential Fair Business Practices Act violation or other business dispute, contact Williams Oinonen LLC at 404-654-0288.

This past Friday Williams Oinonen LLC hosted a group of pre-law students from Covenant College for an all day excursion. Students left at 6 a.m. from Lookout Mountain, Georgia to arrive at the downtown law office in Atlanta that morning to meet Ms. Oinonen, an attorney at Williams Oinonen LLC who led the day trip.

The day started out with a visit to Emory University School of Law. The group arrived at Emory University around 9:15 a.m. to do a brief walking tour of the larger university campus as a whole and ended up at the law school building. They started the visit by attending an admissions presentation in the Emory Law School Courtroom and then participated in a student led tour of the law school itself. Afterwards, they attended a property class taught by Professor Frank Alexander which according to students was the best part of their visit at Emory. His lecture focused on the constitutional issues surrounding eminent domain. Prior to saying goodbye, they were introduced to the Dean of Admissions, Ethan Rosenzweig 02L

After the Emory Law School tour, the group travelled to the Commerce Club, of which Ms. Oinonen is a member to attend a special private luncheon. During this time, she listened to all of the students share stories of their time at Covenant College and answered questions about law school and the legal profession.

After the luncheon, the group took a tour of Fulton County Courthouse. After the tour, they were able to observe a felony child molestation trial and got to watch the criminal defense attorney give closing argument before the jury in the courtroom of Judge Kimberly Esmond Adams of the Fulton Superior Court.

An alumna of both Covenant College and Emory University School of Law, Ms. Oinonen is currently a Fellow at Emory University School of Law's Center for Advocacy and Dispute Resolution, adjunct faculty member at the Trial Techniques Program and an alumni advisor at the Tort and Insurance Society Practice Group for Emory Law students. Her practice primarily focuses on helping plaintiffs injured or harmed due to a wrong or injustice specifically in employment matters, education, and personal injury cases. She recently stated: "Some of the best part of my law practice is when I have the chance to work with young people at Covenant College and Emory University School of Law. There is no better way to give back then helping others and the students at Covenant and Emory are a joy and pleasure to work with."

Good Georgia Lawyer wishes Chag Sameach to all our Jewish friends this Passover.

We also wish a Good Friday and Happy Easter to all who celebrate the resurrection of our Lord and Savior Jesus Christ this Sunday.

For all people, it is a good time to reflect on the newness and re-birth of the season this spring.

The lawyers at Williams Oinonen LLC are privileged to represent Georgians of all religious and non-religious persuasions. We are committed to helping people from a diverse range of various cultural backgrounds obtain the justice they deserve by exercising their Constitutional rights to the civil justice system as preserved in our Seventh Amendment.

It's that time of year again, when sadly, many good teachers start to worry whether their principal or school administrator will issue them a non-renewal letter regarding their teaching contract. This can often happen if the teacher has been previously placed on a Professional Development Plan, or "PDP."

One of the biggest way principals or school districts lay the groundwork in order to try and fire a tenured teacher is by putting them on a PDP early on in the school year. Laying the "paper trail" even when the accusations against the teachers are not legitimate, is the most effective legal strategy that school districts use to try and ensure that future adverse employment action against the teacher is deemed legal and fair.

One administrator estimates that 50% of the teachers placed on a Professional Development Plan ("PDP") are successful in completing it. School administrators know this 'game' when they place the teacher on a PDP. Oftentimes the end purpose is not to improve the teacher's performance, but rather simply to have legal justification for firing the tenured teacher down the road. To do this successfully, some teachers end up being set up for failure by being placed in a no-win situation.

If you are a tenured teacher who has been placed on a PDP, it is vital that you immediately seek competent, legal counsel in order to begin to fight the one-sided paper trail that will be used to justify non-renewal of your teaching contract from day one.

It is also important to educate yourself on your legal rights as a Georgia teacher. For example, if a school board terminates, suspends, or demotes a teacher in the middle of a contract year, the teacher has a right to be represented by counsel during a hearing - even if the teacher is not tenured (O.C.G.A. 20-2-940). If a school board attempts to non-renew a tenured teacher's contract, the teacher again has a right to a non-renewal hearing. (O.C.G.A. 20-2-942).

Good Georgia Lawyer has written about the rights of teachers relating to employment termination and contract non renewal which we recommend you read here and here.

The important thing is to act sooner rather than later if you are a teacher facing a potential adverse employment action. All too often, human beings procrastinate rather than dealing with the scary things in life that we don't want to have to face such as the loss of a job in this difficult economy. As a result, clients are oftentimes calling us after the fact rather then early on when it is much easier to help them.

Don't end up in a case of too little, too late. The sooner an attorney is on your side, the better the chance your employment as a teacher in a challenging work environment will have a successful outcome.

Continue reading "Good Georgia Education & Employment Lawyer Needed During Non-Renewal of Teacher Contracts, PDP's, and Terminations:" »